Williams v. Doe ex dem. Oppelt , 9 Miss. 559 ( 1844 )

Mr. Justice Clayton

delivered the opinion of the court.

• Several errors are assigned as reasons for. the reversal of this judgment, which we will proceed to notice.

First, it was error to permit the sheriff' to amend his return, after the return term, without notice to the adverse party. This ground is certainly well taken, and it throws us back upon the inquiry, whether or not the first return was sufficient. It is in these words, “ Received April 25th, 1843. L. B. Austell sheriff, by A. B. Wooldridge, deputy sheriff. Executed the within declaration and notice upon the within named Zachariah Williams and Joseph D Abney, April 25th, 1843. L. B. Austell, by A. B. Wooldridge Deputy Sheriff.” We are unable to perceive any defect in this return, or any reason why an amendment was desired, and in truth the return as amended is word for word the same as the first, except that the name of the deputy sheriff is omitted, and the service is thus made to appear to have been by the principal. If the first return were not true, this is not the mode to correct it.

It is next objected, that the service of the declaration and notice is insufficient, because there is simply an indorsement of “ exécuted” by the sheriff, unaccompanied by an affidavit of service.

At common law the notice might be served either by a private person, or by an officer; but whether served by the one or the other, an affidavit of service was necessary. The mere return of the officer was not sufficient. 1 Rob. Prac. 452. Adams on Eject. 243. But our statute alters this rule. It directs that the process shall be according to the course of the common law, but that the return shall be according to the laws of this State. This can mean nothing else, than that the return of service by the sheriff, shall be sufficient evidence of the execution of process in this, as in all other instances. H. & H. 617.

The last objection is that it was in error to enter a judgment, by default, against the tenants who neglected to appear, and made default, but that it should have been rendered against the casual ejector. This objection is well- taken. That was the rule at common law, and it is expressly re-enacted by the statute of this State. Adams Eject. 248. H. & H. 617.

For this error the judgment will be reversed, and this court proceeding to give such judgment as the circuit court should' have given, doth direct a judgment to be entered against the casual ejector.