Sutter v. Cox

The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Chief Justice Murray concurred. 1. The objection to the form of the declaration comes too late. It should have been made in the Court below. 2. There is nothing to show any error in the refusal of the District Court to set aside the default. The loose affidavits referred to in the argument are no part of the record. 3. One of the defendants was sued by the name of John Cox. Service is returned upon James Cox, and the judgment is against J. Cox. [416] This is error, unless there was something in the record to show that the person served was the person sued. The judgment is therefore reversed, and the cause remanded as to J. Cox, but affirmed against the other defendants.