Sapp Bros. v. Mathis

Russell, J.

1. A verdict in favor of the plaintiffs was not authorized, unless limited to those items in the account the sale of which was positively proved by one of the witnesses for the plaintiffs; and for this reason the court did not err in sustaining, the certiorari and remanding the case for a new trial.

2. The magistrate’s answer not disclosing that a copy of the summons and cause of action was served upon the defendant personally, and this fact not otherwise appearing in the record, there is nothing to indicate that the plaintiffs were entitled to a verdict, under the provisions of § 4730 of the Civil Code, without proof of the account. Judgment affirmed.