Fisher v. Battaile

31 Miss. 471

Opinion

Per curiam.

— The verdict of the jury on which the scire facias in this case was issued, was in effect a conditional judgment. The statute makes it a (debt of record on which a scire facias was authorized to be issued, in order to obtain execution. Hutch. Code, 875, § 63. It has therefore every essential requisite of a judgment nisi, and must be regarded as such a judgment.

It was, therefore, proper to serve the scire facias upon the persons who were shown to be the attorneys charged with the management of the case in behalf of the defendant in the writ, on the original trial. Hutch. Code, 841, § 43.

But apart from this, it appears that a motion was made by these attorneys, in behalf of the defendant, to quash the return upon the writ. This amounts to an appearance by the defendant, which cures an insufficient service of the writ; for it is not to be presumed that the attorneys appeared and represented him in the suit, without due authority.

Judgment affirmed.