Whiting v. Cochran

9 Mass. 532

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1813
• Status: Published

Opinion

By the Court.

The plaintiff in error has assigned for error that no issue was joined in the original action. But the record before us says otherwise, and we are bound by the record. If, however, it were true that the plaintiff below had neglected to join the issue tendered, and had gone to trial, and the defendant had appeared and defended the action before the jury, the verdict would have been good, and the judgment to be supported.

As to the want of service on Dexter, one of the supposed trus tees of the defendant, he is alone interested in that question, and the plaintiff in error loses nothing by the erroneous proceeding against him. If Dexter were to bring his writ of error, we should reverse only that part of the judgment which awards execution against Whiting’s effects in his hands.

Judgment affirmed.