H. Lupkin & Sons v. Russell

• Decision Date: 08 February 1915
• Docket Number: 16562
• Citation: 108 Miss. 742,67 So. 185
• Parties: H. LUPKIN & SONS v. RUSSELL
• Court: Mississippi Supreme Court

67 So. 185

108 Miss. 742

H. LUPKIN & SONS v. RUSSELL

No. 16562

Supreme Court of Mississippi

February 8, 1915

APPEAL from the circuit court of Coahoma county. HON. W. A. ALCORN Jr., Judge.

Suit by Percy B. Russell against H. Lupkin & Sons, judgment for plaintiff and defendant appeals. Thereafter, plaintiff's motion for leave to amend the sheriff's return of service of process having been overruled, plaintiff applied for a writ of certiorari, order reversed, and the cause with respect to the motion remanded.

The facts are fully stated in the opinion of the court.

Order reversed, and cause remanded.

Mayes &amp Mayes and Maynard & Fitzgerald, for appellants.

Cutrer & Johnston and Jas. R. McDowell, for appellee.

OPINION

SMITH, C. J.

This is an appeal from a judgment by default, and one of the assignments of error is that:

"It appears from the returns of the sheriff on the summons issued in said cause that the same was served on August 25, 1912 which was on Sunday and was an illegal day for the service of the summons, and the judgment rendered thereon was void."

After the filing of this assignment of error, appellee filed a motion alleging that the return of the sheriff on this summons was erroneous, for the reason that it was in fact served on a day other than Sunday, and praying that the cause be postponed to a later day, so that this error could be corrected in the court below.

It will not now be necessary for us to postpone the hearing of this cause, for the reason that we have passed the call of the docket of the district from which it comes, and therefore the cause stands continued until the call of the docket for that district is again reached at the next term of this court.

Since the filing of the motion to postpone above referred to, a motion for permission to the sheriff to amend the return on the summons to accord with the alleged facts of the service thereof has been disposed of in the court below adversely to appellee. After this motion to amend was overruled in the court below, appellee filed another motion in this court, requesting the issuance of a writ of certiorari directing the clerk of the court below to send up the record of the proceedings on the motion to amend. A certified copy of this record, however, has now been filed with the clerk of this court, so that the issuance of such a writ is now unnecessary.

It appears from this record that the motion to amend was overruled on the ground that the court below was without jurisdiction to grant the relief prayed for, the recital in the order overruling it being as follows:

"The court having heard the evidence adduced by the plaintiff in support of said motion, and being thereof sufficiently advised, but being in doubt as to the jurisdiction of this court to order an amendment of the said return, because there is an appeal pending from the judgment rendered herein in the supreme court, it is therefor ordered that the said motion be and the same is hereby overruled."

An examination of the authorities hereinafter cited will disclose that the rule governing the matter here in question is this: That where the process was in fact legally served and the court thereby acquired jurisdiction of the defendant, "but the return of the officer or other proof of service fails to show that fact, or is otherwise irregular or defective, it may be amended after judgment," provided the amendment will not have the effect of invalidating an otherwise valid judgment. 23 Cyc. 872, and authorities cited in note 48; 1 Freeman on Judgments (4th Ed.) Section 89b; note to Malone v. Samuel, 13 Am. Dec. 172. The cases of Dorsey v. Peirce, 5 Howard 173, and Hughes v. Lapice, 5 S. & M. 451, are in harmony with the rule as here...