Cheshire v. Milburm Wagon Co.

[249] Judgment affirmed. Also, error in charging: “If it should appear from the evidence that there is a return of service by the sheriff' as to the affiant N. II. Cheshire, it would be your duty to find against the affidavit of illegality. The reason for that is, that it would not be a proper mode of attack upon that return. The proper way to have assailed it would have been by a traverse of it. On the other hand, if you find that there was no return of the sheriff as to service upon affiant, and you should further find from.the evidence that the affiant was not in fact served, then as to this second ground in the affidavit of illegality, your verdict should be favorable to the affiant. Now you gentlemen perceive at once, that in order to act intelligently at this point you must have some rule by which you can determine what is the true meaning of the sheriff’s return, that is, the return which has been introduced in evidence. I instruct you that if in this return this affiant is described by the initial of his first name, the return must be regarded by you as relating to him. The commission of an error as to the initial of his middle name, by the officer making the return, would be of no consequence, the middle name of a man not being material in law.” Candler & Thomson, for plaintiff in error. Blalock & Birney and C. W. Smith, contra.