Boone v. Miller

• Decision Date: 16 March 1931
• Docket Number: 29209
• Court: Mississippi Supreme Court
• Parties: BOONE v. MILLER, STATE TAX COLLECTOR

133 So. 121

160 Miss. 287

BOONE v. MILLER, STATE TAX COLLECTOR

No. 29209

Supreme Court of Mississippi

March 16, 1931

Division A

JUDGMENT. Default judgment entered against defendant on day plaintiff filed amended declaration should be reversed as denying defendant opportunity to plead.

The court had entered an order sustaining the demurrers of certain codefendants to the declaration and granting plaintiff ten days within which to amend the declaration. Plaintiff there upon amended the declaration as against the defendant in a matter of substance on the day following the entry of the order, and judgment was entered by default, and the court adjourned on the same day the amended declaration was filed.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district, HON. W H. POTTER, Judge.

Action by W. J. Miller, state tax collector, against W. A. Boone. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Creekmore & Creekmore, of Jackson, for appellant.

A judgment by default on a declaration which wholly fails to state a cause of action will be reversed on appeal.

Bradstreet v. Jackson, 81 Miss. 233; Alexander v. Porter, 88 Miss. 585; Oliver v. Beard, 90 Miss. 718.

Where the declaration or complaint is amended in matter of substance after defendant has defaulted, the amendment opens the case in default, unless the defaulting defendant is properly notified of or served with the amended pleading and given an opportunity to plead, and then fails to do so within the proper time.

34 C. J., section 367, page 157; 21 R. C. L., section 137, pages 588-9; Columbia County v. Branck, 31 Fla. 62, 12 So. 650; Tullis v. Scott, 38 Tex. 537; Reynolds v. N.Y. Fibre Co., 19 Pa. Co., C. T. Rep. 318; S. R. Morgan & Co. et al. v. Pace, 224 S.W. 483; Pitkin v. New York Ry. Co., 30 A. 772, 64 Conn. 482; Littlefield v. Schmalt, 24 Ill.App. 624; Lippman v. Aetna Insurance Co., 120 Ga. 247; Mullins v. Johnson, 52 S.W. 843; Wood v. Nicholson, 43 Kan. 461, 23 P. 587; Brooks v. Collier, 3 Ind. T. 468, 58 S.W. 559; T. & N. O. R. R. Co. v. White, 55 Texas 251; Smitheron v. Owens, Wright 574; Merrill v. Thompson et al., 81 N.Y.S. 122; 80 A. D. 503; Witter v. Backman, 49 P. 202; Haggin v. Lorenz, 39 P. 285; Cole v. Roebling Construction Co., 156 Cal. 443; Brown v. Brown, 21 La. Ann. 461; Randal v. Snyder, 214 Mo. 23, 112 S.W. 529; Pierrard v. Hock, 97 Ore. 71, 191 P. 328; Ball v. Danforth, 63 N.H. 420; Schultz v. Loomis, 40 Neb. 152, 58 N.W. 393; Cushwa v. Cushwa, 9 Gill. (Md.) 242; Cope v. Slayden, 24 Ky. Law 1734, 72 S.W. 284; Boynton v. Alwart, 137 Ill.App. 227; Palmer v. Sapndenberg, 50 Tex. Civ. App. 565, 110 S.W. 760.

No brief for appellee.

OPINION

Cook, J.

This is an appeal from a judgment by default rendered by the circuit court of the First District of Hinds county against W. A. Boone and in favor of W. J. Miller, state tax collector, for the sum of eighty-four thousand four hundred forty-four dollars and eighty-nine cents. The declaration was in three counts, and was against W. A. Boone of Pontotoc county, D. W. Robbins of Lee county, J. C. Roberts of Bolivar county, J. M. McBeath of Lauderdale county, W. T. Denman of Pike county, and R. H. Henry of Hinds county, members of the state highway commission, and in each count sought to recover from the several individual members of this commission the sum of eighty-four thousand four hundred forty-four dollars and eighty-nine cents, which, it was alleged, had been received by Commissioner D. W. Robbins in payment for certain railroad rails sold to the Mobile & Ohio Railroad Company, and which he had not paid into the treasury, or otherwise properly accounted for. For the purpose of disposing of this appeal, it will not be necessary to set forth the detailed averments of the several counts of the declaration.

After the filing of this suit and service of summons on the several defendants, the appellant, W. A. Boone, filed a motion for a change of venue to the circuit court of Pontotoc county alleging as the grounds thereof that he was a resident citizen, freeholder, and householder of Pontotoc county, Mississippi, and was such at the time the suit was filed, and had been since that time, and that he was, and ever since the filing of the suit had been, a public officer of the state of Mississippi, to-wit, a member of the state highway commission of the said state, and for these reasons was entitled to have the venue of the action changed to the county of his household and residence. The defendants D. W. Robbins, W. T. Denman, and J. C. Roberts, likewise filed similar separate motions to have the venue of the action, in so far as it concerned them, changed to the county in which they respectively resided. Thereafter, on October 15, 1930, the defendants D. W. Robbins, J. C. Roberts, W. T. Denman,...