Berkson v. Coen
| Decision Date | 19 February 1894 |
| Citation | 71 Miss. 650,16 So. 204 |
| Court | Mississippi Supreme Court |
| Parties | BERKSON BROS. v. J. M. COEN |
October 1893
FROM the circuit court of Copiah county. HON. J. B. CHRISMAN Judge.
The opinion states the case.
Affirmed.
R. P Willing, Jr., for appellants.
When the attachment writ was issued and the declaration filed, § 1522, code 1880, was complied with, and there was pending suit, notwithstanding the defendant was not served with process. An attachment is a proceeding in rem and in personam combined. The plaintiffs in this case, as they had the right to do, elected to proceed only in personam, and have the defendant summoned to answer the pending suit. See Bates v. Crow, 57 Miss. 676; Code 1880, §§ 2430-2434.
Since the suit was pending, what has occurred to discontinue it, in view of the repeated declaration of this court that there is now no such thing as a technical discontinuance? Even the rendition of a void judgment does not work a discontinuance. See Insurance Co. v. Francis, 52 Miss. 457; Meyer v. Whitehead, 62 Ib., 387; Moore v. Hoskins, 66 Ib., 496. The case of Kelly v. Harrison, 69 Miss. 856, is on allfours with this, and is decisive.
Opposite counsel insists that, notwithstanding there was once a pending suit, the action is barred by the statute of limitations. Which statute? If the suit was pending and the running of the statute stopped, the rendition of a void judgment could not work a discontinuance, and, in the absence of an express statute of limitations, it is submitted that time will not bar the suit.
George S. Dodds, for appellee.
When the declaration was filed in April, 1881, the circuit court had never acquired jurisdiction of the defendant. There was no service of process on him, and no publication as required by law. Code 1880, § 2437; 40 Miss. 611. The first process ever served was the summons which was issued to another county twelve years afterward. If this court should sustain the view that this was a pending suit, and hold that the plaintiffs, after this long delay, are entitled to judgment on a cause of action barred many years ago, it would be to award a premium to negligent litigants, and give them an advantage not enjoyed by the vigilant. If a valid judgment had been rendered in the case in 1881, it would have been barred. It is submitted that this was never a pending suit, and that the statute of limitations attached.
On the twenty-sixth day of December, 1880, an attachment writ was taken out by appellants against appellee, and the same levied upon the latter's personal property, but no personal service was made upon Coen. In April, 1881, a declaration in attachment, based on an open account, was filed. The property seized was condemned to sale, and a personal judgment by default was entered against the defendant, the case then going off the docket. From April, 1881, until March, 1893, the appellants rested upon their void personal judgment, taking no steps to correct the palpable and fatal error in the record of it. At the last-named date the appellants awoke from their long sleep, and re-appeared in court. They had their case redocketed by the clerk of the court, after its twelve years' disappearance, and then had the appellee summoned, for the first time, to answer their original declaration. At the same time, they moved to set aside and vacate their ancient void judgment, and proceeded to treat the original suit as still pending. Thereupon, opposing counsel appeared in court, and moved to dismiss the action. This motion being overruled, the defendant filed his plea, in which he averred the facts hereinbefore referred to by us, and invoked the bar of the statute of limitations. To this plea appellants demurred, and, their demurrer being overruled, the suit was by the court dismissed on their declining to plead further. From this action of the court, the present appeal is taken.
It thus appears that appellants began their suit in attachment in the year 1880, and, after...
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