York v. Crawford

42 Miss. 508

• Court: Mississippi Supreme Court
• Decided: April 15, 1869
• Status: Published

Opinion

Peyton, J.,

delivered the opinion of the court.

This was a suit on a bond conditioned to make title to certain real estate. The breaches were assigned in the declaration. And the record shows the following service of process on the defendants in the court below: “ Executed on the defendants in person.”

Judgment by default was rendered in favor of the plaintiffs against the defendants for the sum of $617.93 debt and damages, and from this judgment they prosecute this.writ of error, and make the following assignments of error:

1. The court erred in rendering judgment final, by default, on a penal bond, without awarding a writ of inquiry and impanelling a jury to assess the damages.

2. The insufficiency of the sheriff’s return on the summons.

The statute requires that original process shall be served personally on the defendant, if to be found, and a true copy thereof delivered to him. Kev. Code, 489, art. 64. And as the sheriff’s return does not show that copies of the process were delivered to the defendants, the service is insufficient to warrant a judgment by default against them.

It was also error in the court below to render judgment final on a-bond with conditions annexed, when special breaches are alleged in the declaration. In such case, a writ of inquiry should be awarded, and a jury impanelled to assess the damages according to the evidence.

For these reasons the judgment will be reversed and the cause remanded.