Hattiesburg Hardware Co. v. Pittsburg Steel Co. , 115 Miss. 663 ( 1917 )

Smith, C. J.,

delivered the opinion of the court.

This is a suit in assumpsit instituted by appellee ■against M. J. Fairley, E. R. Fairley, Dan Fairley, and 'Neil Fairley, alleged to be doing business as partners under the firm name of Hattiesburg Hardware Company. Hpon the filing of plaintiff’s declaration a summons was duly issued for defendants; the return of the sheriff ihereon being that:

“I have this day executed the within writ personally by delivering to the within named M. J. Fairley a true copy of this writ this 23d day of October, 1915.”

The cause came on to be heard in due course in the ■court below, and a judgment bv default was rendered in favor of the plaintiff, which judgment recites that:

“Defendants were solemnly called three times, but answered not, and it appearing to the court that the defendants had each been duly served with personal process more than five days before the return day hereof, and that they have made no defense to the said suit, other than to appear and require security for cost, and the said «demand having been complied with by the plaintiff and the defendants failing to plead or make further defense whatever to the said suit, judgment by default is awarded plaintiff. ’ ’

Section 940 of the Code provides that a plaintiff may be required to give security for costs on the motion of any party interested, supported by an affidavit of certain facts; but this record contains no such motion or affidavit, neither does it contain an order of the court requiring security for costs to be given, though a bond therefor was in fact executed by the plaintiff. This appeal is by M. J. Fairley, E. R. Fairley, and Neil Fairley; Dan Fairley not having joined in the execution of the bond therefor.

The recitals in .a judgment, on appeal therefrom, must be supported and are controlled by the record (Pouns v. Gartman et al., 29 Miss. 133; Steele v. Palmer, 41 Miss. 88; Barker v. Shepard, 42 Miss. 277), from which it appears that appellants E. R. Fairley and Neil Fairley were not served with process and did not enter their appearance. •

This error, however, does not, under section 4944, Code 1906, require the reversal of the judgment as to appellee M. J. Fairley, for the reason that the liability of the alleged partners to appellee is not joint, but is joint and ■several. Code 1906, section 2683.

In so far as it affects appellants E. R. Fairley and Nei] Fairley, the judgment of the court below will be reversed, and the cause remanded; but in so far as it affects appellant M. J. Fairley, it will be affirmed.

Affirmed.