
    John W. Parker v. B. F. Johnson.
    1. Practice in supreme court. — Where a defendant in error does not claim the benefit of the statute of limitations, against the writ of error, this court will proceed upon the merits, although that defense might have been sustained.
    Error to the circuit court of Yalobusha county. Cothran, J.
    
      
      Walthall $■ Gallo day, for plaintiff in error,
    Contended that the judgment by default was erroneous, because of the insufficiency of the service of process on the defendant in the court below. 41 Miss. 553, 554.
    No counsel for. defendant in error.
   Tarbell, J.:

Action of assumpsit; judgment by default on insufficient return of service of summons in 1858 ; writ of error in 1869 ; citation was served on the attorney of record of Johnson; afterward the death of Johnson was suggested, and scire facias was personally served on M. Ellis, his administrator, in 1871. There is no appearance in this court, by or for the defendant in error. The only error assigned is, that “ the court erred in rendering judgment by default, because there was no sufficient return on the writ to justify it.”

Although a plea of the statute of limitations, Code of 1857, p. 401, art. 17, to the writ of error would, apparently, he sustained, we have no power to interpose it on our own motion. As we have no option, a reversal is inevitable, for the want of the proper plea.

Judgment reversed and cause remanded.  