Scott v. Niles

The opinion of the court was delivered by Barrett, J. L As to the “personal notice of the suit,” required by the statute neitiier the language, nor the purpose of the statute, requires the construction claimed by the plaintiff’s counsel, viz: that the service of the writ should have been made by delivering a copy of it to the defendant in person. After the defendant. in such writ shall have had “ personal notice of the suit” — not .persoual service of the writ — the provision of the statute as to his neglect to present, in that suit, matters of account that he may then have against the plaintiff, takes effect. In the present case it appears that the writ in the other suit was duly served 4 that on the return day the cause was duly continued to a day named; that on that day the then defendant appeared by his counsel and had a trial, &c. This shows that he had the personal notice required by the statute. IL As to the effect of the appeal. There had been a trial in ■which the present plaintiff might have presented, and had examined, and adjudicated, the account for which he brought the present suit. The prescut defendant’s account was examined and a judgment rendered for him. This plaintiff appealed. It is claimed that said appeal .vacated that judgment, aud left the parties precisely in the-same relation as if there had been no trial, nor judgment. We do not so understand it.- If an appeal should not be entered, nor a proceeding for affirmance had, such appeal would have the effect claimed. But it is not true that an appeal, in all cases, and to all intents, has such an effect on a judgment. For the purpose of an affirmance the judgment is not vacated by an appeal; nor is it for the purpose of enabling the judgment debtor to exercise the right to tender the amount with interest a certain number of days before the term of the county court to which such appeal was taken. In this case this plaintiff exercised that right, and paid the amount of that judgment and twelve per cent interest. There had, therefore, been the trial and adjudication contemplated by the statute, in which this [576] plaintiff might have presented his account against this defendant, and had it adjudicated. lie neglected to do so. He paid the amount of that judgment and brought this suit. We hold that thereby this case comes within the provision of the statute denying costs to the plaintiff in the cases named. The judgment is reversed and judgment rendered for the plaintiff for the sum found due by the auditor, without costs.