The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-05-05

fpuaty, Hon. Upton VI. Young, Judge.
Tbe opinion states the case end is given
infulI
cporEE, J.
Tnis j. an action Of ejectment brought by
INA appellee. To recover possession If certain
84nd- which had descended to them from
fheir father Hal w. Green, who died IN
Ia year l6JS. The lands had descended 10
In NJ. Green from his mother encountered
81 a mortgage executed by her TO secure a
aebt to Thomas Eigby, the husband OF one OF
4he defendants
GA the 8I-t day Of MAY, 1889, Thomas
Rigbv filed his bill in Uhe chancery court
III Warren County against James 9. New
ma, administrator of Hal W. Green,
fanuy G.. Green, widow, and the appellees,
Khe heir at law of Hal w. Green, TOR the
unrpose of su5jectjag the lands 10 sale for
fhe payment of AIs mortgage debt y
nubyCeua WAS issued directing the Sheriff TO
summou the defendants, which was returned
sndprsei by the sheriff - follows:
A Executed and copies Of the within writ
delivered 20 James G. Newman, admir-, and
Fanny G.. Green
\ guardian ri Etea was appointed for the
appaltee. VINO We're minors and a decree was
rendeIed on the 2l-J day of January, ! $50,
direcliug the land to be sold for the pay
meut of the debt due by kigby, IN which de-
ere IL WAS regitcI that an agreement had
been made between the motrgagee, Rigby
and the administration and widow Of Green,
that the execution Of the decree should be
suspended for three years If the administra-
Tor should annually pay to the the moTtgag-
&c interest on the mortgage debt at 10 per
cent. Der auuum. and 10 was directed to be
DO suspended il The interest WAS 50 paid.
After the expiration of the three years,
and while appeilees were yet minors, a sale
OF the land was made under the decree at
whicb sale Mrs. RigJy became the purchas>
er
On the trial OF this suit the appellee',
plaintiff in ejectmeut, proved title in their
Father and their heIr-AIp, and rested.
81 The appellants than offered in evidence
the record OF the proceedings in the cham
gerry court, the sale of the land hereunder,
and the conveyance of the commissioner to
Mrs Eigby, all of which, on objection by
appelier-, was excluded by the court
s. From q Judgment IN favor OF plaintiffs IN
eiectmeut this appeal IS prosecuted, and
4 the action Of the court below IN excluding
the evidence h assigned for error.
Appeiiees contend that there IS no error
u in the action of the court below; that the
decree was not void IA to them, because the
return Of the sheriff fails TO show any SER
vice of process on them, and also because
the decree was rendered by consent Of the
Il
II the sheriff had returned the writ with
only the word executed" endorsed theron
ii would have been impossible 10 say that
il referred to one or more of the defendants
less than all. 1t, on the other hand, he had
returned that hc had executed the process
bV delivering copies of the same to the adj
minj~trator and widow, a failure to serve
upon the infant defendants would be ap-
parent. The return Is made does not show
srtsfz Ft.,g. md yyl the
cess was served, but We think by fair and
reasonable construction II includes service
on the infants as well As an the administra-
tor and widow.
The statute Code 1897 page 4S9) requir-
cd service TO be made personally on the de-
PENDANT and copy of the writ to be deliver
ed to him. The delivery of the copy is
something in addition 10 the personal ser
vice by reading or exhibiting the original
process 10 the defendant.
Ii is not necessarily descriptive of all that
the officer did, but may, and ne think ought,
% be construed ~ showing delivery of
copies of the writ To two of the defendants
in addition to the execution" of the pro
cess ON each of them named in it.
4 writ commanding the officer to sum
mon six persons can rot be said to be
executed by service only on two.
We are of opinion that the more reason
able and obvious construction of this return
l., To hold the words which follow the word
executed to mean something in addition
To, rather than descriptive of or limiting,
the effect Of said word. The words At
least fairly susceptible Of such construction,
and this Is sufficient. Bacon e. BrolcH, "A
Miss, 293.
BY such construction the return, while
not liz conformity with the statute, and,
therefore. irregular, was sufficient to show
an effort Cts the part of the officer to execute
on all, and th0 decree though voidable on
appeal, was not void. Campbell q. Hays, Al
Miss, Sol Harrington {. Noford, As Miss,
81.
The decree does not appear to have been
by consent. 1t Is regular in form except
that by agreement between the mortgage
and the administrator and widow of the
mortgagor its execution was to be suspended
for three years Nothing appears of any
consent to anything except the suspension OF
its execution.
The learned Judge erred in excluding the
evidence offered by appellants, and for this
reason the judgment is
Reversed and lsl0 trial granted.
Nugent & Melville, for appellant.
Martin Marshall contra.
To be reported