Robertson v. Thompson

Perkins, J. John C. Thompson brought an action of assumpsit in the Jackson Circuit Court, at the February term, 1844, against Robert W. Moore and Harvey Robertson. Process was served on Moore in Jackson county, and upon Robertson in Clark county. The defendants appeared by attorney, and pleaded the general issue. The cause was continued from term to term, and the declaration amended. At the August term, 1846, the defendant, Moore, demurred to a part, and pleaded non assumpsit to a part, of the amended declaration. Afterwards, at the same term, the attorney of Robertson withdrew the appearance for him, and thereupon he was called and defaulted; After this was done, the plaintiff obtained leave of the Court and amended his proceedings, by striking from the writ and declaration the name of the defendant, Moore. A jury was then called, who assessed the damages against Robertson. The assessment was set aside, on motion of the plaintiff; another jury was called; and a new assessment made, upon which the Court rendered judgment. The evidence is not upon the record, nor are the instructions. The case is not briefed. The following is the assignment of errors: “Harvey Robertson v. John C. Thompson. The plaintiff, by his attorney, comes and says, in the foregoing record, proceedings, and final judgment, there is manifest error, in this, that final judgment was rendered against the plaintiff in error, by the Court below, whereas final judgment ought to have been rendered, by said Court, in said plaintiff’s favor. And, in this, that said Court had no jurisdiction of the person of said plaintiff, no process having been served on him in Jackson county. And, in this, that said Court, after default against said plaintiff, [192] permitted defendant to amend his writ and declaration by striking out the name of Moore. And, in this, that said Court set aside the verdict of the jury and awarded a new venire.’’ J. G. Marshall, for the plaintiff. C. L. Dunham, for the defendant. The first, being the general assignment of error, requires no remark, as there are special assignments. The second, as to the jurisdiction, we think not well grounded. Section 27, p. 674, of the R. S., enacts that, “when one or more of the defendants reside in any other county of this state than the one in which suit is instituted, process may issue to the sheriff, or other proper officer of that county, to be executed, and shall be returned to the Court from which it was issued; but no judgment shall be given against such defendant, unless a writ in the same suit shall have been executed on some resident defendant of the county where the suit was commenced.” In the case before us, a writ was executed on a resident defendant to the suit, as instituted, and who might have been, so far as appears, legally included in the judgment. Both of the defendants having been, therefore, served with legal process, they were under the jurisdiction of the Court, and, for all purposes of legal procedure in the cause, were legally in Court. This being the case, it would seem that sections 98, 99, and 100, p. 685, of the R. S., must apply to the suit, and they authorized the amendment as made. No other construction would give the party the benefit of all these sections. This construction will. The third assignment of error is not valid. Henry v. The State Bank, at this term (1). Nor do we think the fourth is. We think the Court might, for good cause, which we must presume to have existed in this case, set aside an assessment of damages, made after a default on the part of the defendant, and award a new venire, on plaintiff’s motion. Per Curiam. The judgment is affirmed, with 2 per cent, damages, and costs. Footnotes [(1)] See post, p. 216.