Harman v. Odell

Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that as the warrant for unlawful entry was duly executed on one of the two defendants therein named, the failure of the sheriff to execute the same on the other defendant was no ground for dismissing the warrant; as it was competent for the plaintiff to have proceeded to a trial against the defendant upon whom the warrant appeared to have been duly served. It is therefore considered that so much of the judgment of the Circuit court as reverses the judgment of the County court with costs, and remands the cause to the said County court for further proceedings to be had therein, be affirmed.

The Court is further of opinion, that so much of the order and judgment of the Circuit court as contains the instruction, that if the plaintiff will cause his warrant to be served on the defendant Billups eight days before the regular term of the said County court, in the mode prescribed by the act of 1814, the sheriff shall be allowed to amend his return, shewing such service, and then the County court shall proceed to try the cause upon its merits, was irregular, as there could be no regular service of the said warrant after the same had been returned; the law requiring that every such warrant shall be made returnable on a day certain, not less than ten, nor more than twenty days after its date. It is therefore considered, that so much of said order and judgment of the Circuit court as contains said instruc*210tion, be reversed and annulled. But as the error in this particular was not to the prejudice of the plaintiff in error, and the defendant in error is the party substantially prevailing, it is further considered that the defendant in error recover of the plaintiff in error his costs by him about his supersedeas in this behalf expended.