
    Crapp v. Dodd.
    1. To authorize a verdict in favor of the plaintiff in a suit upon an open account without proving the account, the case must be in default, and it must affirmatively appear that the service was personal. Code, §3457. Appearing and answering at the first term, though no written plea was filed, would relieve the case from being in default; and an entry by the sheriff that he had served the three defendants to the action, naming them, “ each with a copy of this within writ and process,” does not, for the purposes of the section cited, sufficiently show that the service was personal. Consequently the court, under these circumstances, erred in directing a verdict for the plaintiff without proof of the correctness of the account.
    2. The declaration not alleging when the account sued on became due, even if the plaintiff had been entitled to a verdict without introducing evidence, the verdict could not properly include interest from any day prior to the filing of the declaration. To recover such interest on this declaration, there should have been evidence that the account became due on the day from which the interest was allowed, suit having been begun within two months from the date of the last item of the account.
    3. When a suit is pending against a partnership composed of three members, and one of them dies, upon his death being suggested of record, the case may proceed without further order against the other two partners as survivors. Code, §3444.
    April 10, 1893.
    Argued at the last term.
    Complaint. Before Judge Janes. Haralson superior court. January adjourned term, 1892.
    Suit on an open account was brought by Dodd against “ the Tallapoosa Contracting Company, a firm composed of T. S. Crapp, Frank J. Maiers and G. W. Cooper, . . which, account the said T. S. Crapp and Frank J. Maiers refuse to pay.” The sheriff’s entry of service states that he served Crapp, Maiers and Cooper “ each with a copy of this within writ and process.” At the appearance term they appeared and answered the case through their attorney whose name was marked as counsel for defendants by the presiding judge, and who also marked the case “ answered.” Upon the call of the case for trial the parties announced ready. Counsel for defendants then took an order suggesting the death of F. J. Maiers of record. Plaintiff’s counsel then called the court’s attention to the fact that no written plea had been filed by defendants; whereupon the court, after ascertaining the nature and character of the entry of service, directed the jury to return a verdict for the plaintiff “against T. S. Crapp and G. W. Cooper, surviving partners of the Tallapoosa Contracting Company,” for the amount sued for, with interest from May 5th, 1890. The dates of the items charged in the bill of particulars attached to the declaration began with April 8th, and ended with April 30th, 1890, and there was a credit of a sum paid on May 3d, 1890. The declaration was filed on June 25, 1890. T. S. Crapp, assigns error: (1) In directing the verdict over defendant’s objection, without proof of the account sued on, the case not being in default, and the service upon defendants not being personal service. (2) In directing interest to be found from May 5th, 1890, there being no such time mentioned in the account sued on, from which to compute interest. (3) In permitting a verdict to be taken against Crapp and Cooper as surviving partners, the case not having been dismissed as to Maiers, and the debt not having been declared on as a joint and several liability.
   Judgment reversed.

W. F. Brown, for plaintiff in error.  