
    John W. Jones, plaintiff in error, vs. Asbury A. Adams, defendant in error.
    When there has not been personal service on the defendant in a suit on an open account, the plaintiff must prove his claim to the satisfaction of the Court by competent testimony before he is entitled to a judgment, although no issuable defense has been filed on oath. (R.)
    Judgment Service. Account. Before Judge Clark. ' Sumter Superior Court. October Adjourned Term, 1870.
    For the facts of this case, see the decision of the Court.
    John R. Worrill, for plaintiff in error.
    C. T. Goode, for defendant.
   Warner, Chief Justice.

This was a motion to set aside a judgment in the Court below, which had been obtained on an open account, without any proof of the account before the Court, the defendant not having been personally served, and the sheriff’s return showing that the defendant had been served by leaving a copy at the defendant’s residence. The Constitution of 1868 declares, that the Court shall render judgment without the verdict of a jury in all civil'cases founded on contract, where an issuable defense is not filed on oath, but the Court must have before it satisfactory evidence of the contract. The 3405th section of the Code declares, that in all cases of suits on open accounts in the several Courts of this State, where the writ or process has been served personally, as the law now directs, on the defendant, and there is no defense made by the party sued, either in person or by attorney, at the time the case is submitted for trial, the plaintiff shall be permitted to take a verdict, as if each and every item were proved by testimony. When there has not been personal service of the writ or process on the defendant in a suit on an open account, the plaintiff must prove his account to the satisfaction of the Court, by competent testimony, before he is entitled to a judgment, although no issuable defense has been filed on oath. An open account is not such a contract as the Constitution contemplates. To authorize the Court to render judgment without proof on an open account, there must have been personal service of the writ or process on the defendant.

Let the judgment of the Court below be affirmed.  