Mitcheltree v. Stewart ( 1839 )

Smith, Justice,

delivered the opinion of the Court:

Three grounds have been assigned for error in this cause, to wit, — That the Circuit Court erred in refusing to quash the sheriff’s return to the writ of scire facias ; —to quash the writ itself ; and in rendering judgment in the action. We perceive no error in the decision of the Circuit Court on the points made. The sheriff’s return appears to be full and formally correct.

The writ is conceived to be sufficiently full and descriptive of the cause of action ; and as it recites the mortgage, we do not consider that there can be any valid objection to it. As to the rendition of the judgment, and the application to set it aside, full and entire justice has been done in the cause ; and the amount claimed by the defendant having been allowed, and judgment entered only for the amount admitted by him to be actually due, we are of opinion that the Court did not err in refusing to set aside the default; and therefore the judgment is affirmed with costs.

Judgment affirmed.

Note. See as to service of process, Ditch v. Edwards, 1 Scam. 127 ; Wilson v. Greathouse, Idem. 174 ; Clemson et al. v. Hamm, Idem. 176 ; Ogle v. Coffey, Idem. 239 ; Garrett v. Phelps, Idem. 331.

As to scire facias, see Menard v. Marks, 1 Scam. 25 ; Hall et al. v. Byrne et al., Idem. 140 ; Marshall v. Maury, Idem. 231 ; Gilbert v. Maggord, 1 Scam. ; Day v. Cushman et al., Idem.