Bank of Richton v. Jones

• Decision Date: 15 April 1929
• Docket Number: 27865
• Citation: 121 So. 823,153 Miss. 796
• Court: Mississippi Supreme Court
• Parties: BANK OF RICHTON v. JONES. [*]

121 So. 823

153 Miss. 796

BANK OF RICHTON v. JONES. ^[*]

No. 27865

Supreme Court of Mississippi

April 15, 1929

Division B

Suggestion of Error overruled May 20, 1929.

APPEAL from circuit court of Jones county, First district, HON. R. S. HALL, Judge.

Action by the Bank of Richton against W. G. Jones and another commenced in a justice of the peace court. The action was dismissed for want of prosecution, and, on appeal to the county court, judgment was rendered by default for plaintiff and an execution was issued. Defendant named filed a motion to quash the execution and vacate the judgment. The motion was sustained, and judgment was affirmed by the circuit court, and plaintiff appeals. Affirmed.

Affirmed.

Welch & Cooper, C. C. Smith and Roy P. Noble, for appellant.

Collins & Collins, for appellee.

OPINION

ANDERSON, J.

Appellant brought this action against appellee and Minnie T. Brown in the court of the justice of the peace of Jones county, to recover the sum of one hundred forty-six dollars, with interest, on a check drawn by appellee on the Bank of Sandersville, payable to Minnie T. Brown, and cashed by appellant. There was a judgment in the court of the justice of the peace, dismissing the action at appellant's cost for the want of prosecution. From that judgment appellant appealed to the county court of Jones county, which court thereafter rendered judgment by default against both defendants for one hundred forty-eight dollars and fifty cents and costs. An execution was issued on the judgment rendered in the county court, and levied upon property of appellee, who thereupon filed a motion in the county court to quash the execution and vacate the judgment of the county court, upon the ground that the justice of the peace court did not acquire jurisdiction of appellee by service of summons, as required by law. The motion to quash was heard by the county court, and sustained, and from that judgment of the county court appellee appealed to the circuit court, where the judgment of the county court was affirmed. From the judgment of the circuit court appellant prosecutes this appeal.

On the trial in the county court, the original docket entries and orders of the justice of the peace were introduced in evidence. In some material respects the docket entries by the justice of the peace conflict with his certified transcript sent up to the county court. The certified transcript was regular in all substantial respects. It recites that appellant was absent and failed to prosecute the action; that the defendants were present and announced that they were ready for trial, and thereupon the court dismissed the suit at appellant's cost.

While the original entry in the docket recites the following: "This cause came on and the plaintiff appeared not and the defendant appeared and the case was dismissed at the plaintiff's cost," the certified transcript of the record shows that both appellee and his codefendant, Minnie T. Brown, were served with summons by L. R. Rich, constable, while the docket entries, which are controlling, show that they were served by L. R. Rich, deputy constable." Appellant concedes that there is no such officer in this state as a deputy constable and therefore the service of summons on the defendants was void. But appellant takes the position that the judgment of the justice of the peace against appellee was valid, notwithstanding appellee was not in court by legal process, because of the fact that appellee was present in person at the trial, and moved the court to dismiss the action for want of prosecution. Appellant put appellee on the witness stand as an adverse witness, and, over appellee's objection, showed by him that he was present when the justice of the peace rendered judgment, and that it was rendered on his motion.

Putting the case in a short way: Appellant sued appellee and another in the court of a justice of the peace. The justice of the peace failed to acquire jurisdiction of the defendants by virtue of the process issued and served on them, because the service of the process was void. Appellee appeared on the day set for the trial before the justice of the peace notwithstanding he was not required to do so, and orally moved the court to dismiss the action for the want of prosecution, which motion was sustained by the court, and...