Prentiss v. Mellen

9 Miss. 521

• Court: Mississippi Supreme Court
• Decided: January 15, 1844
• Status: Published

Opinion

Mr. Justice Thacher

delivered the opinion of the court.

This suit was instituted in the circuit court of Madison county, at its April term, A. D. 1838, by William P. Mellen, administrator, &c., of James Patterson, deceased, against Joseph Dawson, Seargent S. Prentiss, and Alexander G. McNutt. A capias ad respondendum was issued against all the defendants, directed to the sheriff of Madison county, and returnable at the term aforesaid, with orders not to be executed upon the defendants, Prentiss and McNutt, which was returned by the sheriff, non est inventus, &c. A duplicate capias ad respondendum was issued against all the defendants, directed to the sheriff of Hinds county, and returnable at the term aforesaid, with orders not to be executed upon the defendants, Prentiss and Dawson, which was returned by the said sheriff, “ executed,” &.c.

The defendant, McNutt, by attorney, plead non assumpsit to the action.

The cause being called, the plaintiff discontinued his action as to the defendant, McNutt, and' the court below gave judgment by default, against the plaintiff in error, Prentiss.

It is assigned for error, that the defendant be'low, Prentiss, was not served with process, and that no special appearance was entered by or for him. The record nowhere shows him to have been before the court at the time judgment by default was taken against him. This is manifestly error.

Judgment below must be reversed and the cause remanded.