Dyson v. Baker

Chalmers, J.,

delivered the opinion of the court.

The motion made in the court below to vacate the return *28 on the writ of attachment levied on the land should have been sustained. The writ was executed by one of the plaintiffs in person, he having been specially deputized by the sheriff. An interested party cannot execute a writ in his own case. Our statutory provision, that, in cases where the sheriff is interested, all process shall be directed to and served by the coroner, is only a legislative recognition of a common-law principle, and is intended mainly as a designation of the proper officer to act in such cases. Without this provision the sheriff would not be competent to serve such writs. The prohibition extends to a deputy-sheriff, both in cases where his principal is interested and in cases where he is individually interested. Boykin v. Edwards, 21 Ala. 261 ; Evarts v. Georgia, 18 Vt. 15 ; Lyman v. Burlington, 22 Vt. 131 ; McLeod v. Harper, 43 Miss. 42 . It will, of course, on the same principle, apply to a private person specially deputized.

There was no personal service in the case at bar, the defendant having died before it could be obtained; and we should therefore reverse the judgment and dismiss the case, but for the fact that the attachment writ, besides being levied by a plaintiff in person on a tract of land, was on the same day properly served by the sheriff of the county on two persons as garnishees, both of whom answered, acknowledging indebtedness, and against whom judgment was rendered, together Avith a judgment of condemnation of the land attached. A judgment at law, being an entire thing, is not divisible, and therefore the erroneous condemnation of the land vitiates the judgment against the garnishees, and will necessitate a reversal of the case. Inasmuch, however, as the court below obtained jurisdiction by the lawful service upon the garnishees, and the case must therefore be retained and remanded for new trial, it becomes necessary to notice some of the points raised on the former trial.

We must first, however, dispose of the suggestion made by the appellant, that the suit must be abated, because the defendant, the appellant’s intestate, died before personal service of process upon him. The point arises under § 1486 of the Code of 1871, Avhich provides that, “ If the defendant shall die after service of the writ of attachment, the action shall not thereby *29 be abated or discontinued, but shall be carried on to judgment, sale and final determination, as if the defendant were still alive ; and all proceedings and deeds in such cases are hereby declared to be valid and effectual.” It is insisted, inasmuch as this statute only authorizes the attachment proceedings to be continued where the defendant dies after service, that therefore where he dies before service they must abate. This is undoubtedly a sound rule of construction; but in the case at bar the writ of attachment was served by summoning the garnishees before the death of the defendant, and it was only the personal writ of summons that failed of service in consequence of the defendant’s death. After his death his administrator came in and pleaded to the merits. Trial being had upon these pleas, which resulted in a verdict for the plaintiffs, a general judgment was rendered, as also a judgment of condemnation of the property attached. It was erroneous to condemn the land for the reasons above indicated. The judgment was, however, good as to the amounts due from the garnishees.

The court below did not err in excluding the set-off offered by the defendant. It consisted of a- copy only of an account, the original of which had been found among the defendant’s papers after his death. It was in the handwriting of J. J. Baker, the senior member of the plaintiff firm, and showed an indebtedness by the firm to the defendant of f1,775. Had this original account in the handwriting of Baker been produced, it would have been competent evidence; but it was improper to introduce a copy of it.

The plaintiffs having attempted to establish the correctness of the accounts sued on by the testimony of their clerks, who testified as to the general correctness of their mercantile books, and that the accounts were faithfully transcribed therefrom, the defendant moved to exclude their whole testimony, upon the ground that the books should have been produced, or their loss established. Had the motion been limited to such portions of the testimony only as related to the books, it should have been sustained; but it proposed to exclude the whole testimony of the clerks in relation to the accounts, and as to portions of these the witnesses testified of their personal knowledge independently of the books.

*30 We cannot agree, however, with the suggestion of the appel-lee’s counsel, that the motion was properly overruled because it came too late. It was made as soon as the testimony of the two clerks was closed, which was simultaneous with the closing of the plaintiffs’ case. It has been repeatedly held in this State, that objections to testimony must be made when it is offered, and that it is too late after verdict to raise them on a motion for new trial. We do not understand by this, however, that objection must be made the very instant the testimony is delivered. Frequently it will occur that testimony which appears inadmissible when offered is made competent by that which follows; and, as a party is allowed to introduce his proof in his own order, his adversary may well wait until he has fully developed his case, and then move to exclude such as seems incompetent after hearing the whole. Of course, when such motion is sustained, the party should ordinarily be allowed, by the introduction of further competent evidence, to replace that which has been excluded. This question has been frequently before the courts, and is discussed at some length in the recent case of Storm v. Green, 51 Miss. 103 . While no invariable rule can be laid down, it will perhaps meet the ordinary requirements of justice to say, that objections to testimony should be seasonably made as soon as practicable and convenient after its incompetency is fully developed ; and that within this rule much should be left to the discretion of the presiding judge. It may frequently happen that the most advantageous period will be when the party offering the illegal testimony has closed his case.

For the errors indicated, the judgment is reversed and cause remanded. Should a new trial result in verdict and judgment for the plaintiffs, there will be judgment of condemnation only of the amount due by the garnishees, the attachment as to the land being void.