Presley v. Anderson ( 1868 )

Shackeleoed, C. J.,

delivered the opinion of tbe court.

This is an action of assumpsit founded upon open accounts. Judgment was taken by default against tbe plaintiff in error for tbe sum of $542.59, on tbe 14tb day of March, 1867.

Tbe case is bere by writ of error. ■

There are three assignments of error, viz.:

“ 1. Tbe return does' not show that process was executed according to tbe statute. ■

“ 2. Tbe judgment is in tbe name of tbe partnership, without specifying tbe names of tbe individual partners.

“3. The amount for which judgment was rendered is greatly in excess of the accounts sued on, as is apparent from a moment’s inspection.”

We shall consider these assignments in their order.

The return of the sheriff is in these words: “Executed personally, with original and copy, defendant claiming such.”

This return, it is true, does not follow the language of the Code, art. 64, p. 489, although he executed the writ in conformity to the directions pointed out by the statute. He says he executed it personally, with the original. He could only have done this by reading to him the original writ. Giving him a copy is also certified. He does not say it was a true copy; it is to bo inferred that it was a true copy. It seems to us the return is sufficient, and fhere is no error in this assignment;

' The declaration in the case at bar sets out the names of the partners of the late firm of Anderson & Meek as plaintiffs, who sue for the use of one of the firm, W. E. Meek.

The judgment copied into the record has merely the caption styling the case “ Anderson & Meek, Use, etc. v. Lewis Presley; ” and the judgment is in the usual form, that “ the plaintiffs recover of the defendant,” etc. This is purely a technical objection, and without merit; the judgment for this frivolous defect will not be disturbed.

The third assignment is well taken. The excess- of $272.20 is admitted, and a remittitur filed for $272.20.

The judgment has to be reversed, and this court proceeding to render the judgment that the court below should have rendered, orders and adjudges that the defendants do have and recover of the said plaintiff in error the sum of two hundred and, seventy dollars and thirty-nine cents, and costs of suit in the court below, and that the defendants in error pay the costs accruing in this court.