Moore v. Philips

8 Port. 467

Opinion

COLLIER, C. J.

— The only error relied on, is, that there is no evidence of the service of process on the plaintiff in error, to authorise the judgment rendered against him.

In Welch, adm’r, vs. Walker and wife, (4 Porter’s R. 120,) it was held, that an endorsement upon a writ of an acknowledgment of service, without proof that it was the act of the party purporting to have made it, would not sustain a judgment rendered against a defendant., who did not appear in the case. That case, however,'is not decisive of the one at bar; for here, the record expressly discloses, that the parties came by their attorneys, and that the judgment by default, was not claimed because "of the defendant’s non-appearance, hut Tor his omission to plead. The plaintiff in error, then, having appeared in court,by attorney,it is immaterial whether process was served or no, as it is waived by a gene ral appearance. (See Hobson & Sons vs. Emanuel & Gaines, at this term.) The judgment is affirmed.