Gulf & S. I. R. Co. v. F. L. Riley Mercantile Co.

• Decision Date: 20 April 1925
• Docket Number: 24864
• Citation: 139 Miss. 158,104 So. 81
• Parties: GULF & S. I. R. CO. v. F. L. RILEY MERCANTILE CO. [*]
• Court: Mississippi Supreme Court

104 So. 81

139 Miss. 158

GULF & S. I. R. CO. v. F. L. RILEY MERCANTILE CO. ^[*]

No. 24864

Supreme Court of Mississippi

April 20, 1925

Division B

Suggestion of Error Overruled May 25, 1925.

APPEAL from chancery court of Jefferson Davis county, HON. T. P DALE, Chancellor.

Suit by the F. L. Riley Mercantile Company against the Gulf & Ship Island Railroad Company. From a decree for plaintiff defendant appeals. Affirmed.

Judgment affirmed.

J. T. Wills, for appellant.

The chancellor's fiat authorizing the issuance of the injunction does not direct that the writ be returnable to any court, as is required by section 712, Hemingway's Code. It does not direct the issuance of any other process. The writ of injunction, is not returnable to any court at any time or place. It does not require the appearance of defendant at any time or at any place. This was all the process that was ever issued, and none other was ever served on the defendant. No summons whatever was ever issued or served, and the defendant did not appear in court, and the pro confesso and the final decree were taken ex parte. There was no summons issued or served as required by section 2920, Hemingway's Code.

We submit that this is not sufficient service on the defendant, and inasmuch as defendant did not appear, no decree could be taken against it. This case is settled and controlled by the case of Sheffield v. Friedberg et al., 84 Miss. 188, 36 So. 242. Because of the lack of sufficient service in the case, we submit that it was error to render the pro confesso decree and the final decree, and for that reason the decree should be set aside, and the case should be reversed and remanded.

Livingston & Milloy, for appellee.

Our contention is that inasmuch as appellant has failed to have the stenographer's notes transcribed and made a part of the record, and having failed to make motion or to take any action whatever to have the decrees pro confesso and final set aside in the chancery court, it is now impossible for this court to find that the court below erred in finding that the process was regular in all respects. It will be noted that the lower court found as a matter of fact that appellant had been duly served with process more than five days before the beginning of the regular 1924 December Term of the chancery court of Jefferson Davis county, and therefore, it occurs to us that this finding on the record of the cause as made be fore him is presumed to be supported by the completed record, and cannot now be impeached. This was expressly so held in the case of Berry, et al. v. Dampier, et al. 131 Miss. 893, 95 So. 744.

The case at bar is wholly unlike Sheffield v. Friedberg, et al., 84 Miss. 188, 36 So. 242, cited by opposing counsel. In the Sheffield case, supra, the court had before it the entire proceedings, and there was no other record of the cause so far as we are advised.

OPINION

ANDERSON, J.

This was a bill by the appellee, F. L. Riley Mercantile Company, against appellant, Gulf & Ship Island Railroad Company, brought in the chancery court of Jefferson Davis county, for a mandatory injunction against appellant to require delivery by the latter to the former of certain freight, about the delivery of which there was a controversy between the parties. There was a decree pro confesso and final decree against appellant, from which it prosecutes this appeal.

The bill sought to enforce the delivery of the freight in question to appellee, and for the recovery of damages against appellant for its alleged wrongful failure to make delivery theretofore. The chancellor gave his fiat for the issuance of a temporary injunction upon the giving of a bond by the appellee, conditioned according to law to be approved by the clerk. The bond was given by appellee, and the temporary injunction issued and served upon appellant. So far as appears of record, this was the only process issued and served in the case. There is no affirmative showing in the record that the regular chancery summons required by statute was issued and served upon appellant. The injunction writ contained no command to appellant to appear and defend the cause. At the next regular term of the chancery court of the county, the appellant failing to appear, a decree pro confesso was taken in the usual form, adjudging (quoting the language of the decree in part) "that said defendant had been duly served with process of summons more than five days before the beginning of the present term of court, and the defendant having failed to appear and answer or make defense to the suit within the time allowed by law but on the contrary wholly made default," and that therefore the allegations of appellee's bill be taken and considered as true. Thereafter at the same term of the court, the cause was set down for final hearing by appellee, "on original bill exhibits thereto, personal service of process, decree pro confesso and...