Jones v. Henderson

1 Shan. Cas. 35

Opinion

MOTION. Omission of name. Judgment valid.

This ease is reported in Thompson’s Cases, pages 53-55, as an oral opinion, and it is stated .that the court decided that where, in a motion ag-ainst a sheriff and his sureties, the name of one of the sheriff’s sureties is by inadvertence omitted, but judgment is properly rendered against all the sureties, the judgment is valid. [This decision must have been put upon the ground that service of notice in a State case, or service of notice when made by the attorney-general in a State case, is the commencement of the suit, instead of the motion being the commencement of the suit, as in ordinary suits. (See note 2 under section 5352 of the Code). The judgment on motion must be against all the living sureties, or it will be void. [See Code, sec. 5347, and note, and sec. 5348, and note 5.]