Jewett v. Miller ( 1857 )

Hemphill, Ch. J.

The ground assumed against the joint judgment in this case, is, that there was no service on the defendant Payne, and he not having appeared, there was error in giving judgment against both defendants. Payne accepted service. But it is contended that his act is nugatory, not having been done in due form of law. By Art. 678, it is provided that the acceptance shall be made in writing, signed by the party, his agent or attorney, and filed among the papers of the suit as a record. The acceptance was in writing, was signed by the party, and was evidently written on or attached to the petition. He acknowledges service of the foregoing petition. Where acceptance is written on a separate piece of paper, there is some reason in having it marked filed. But surely this cannot be required where it is written on a petition which is already filed as a record. It is incorporated with the principal paper in the cause, and becomes as much a record as the petition on which it is indorsed, or to which it is attached. The service is deemed sufficient, and there being no error the judgment is affirmed.

Judgment affirmed.