Hattiesburg Hardware Co. v. Pittsburg Steel Co
| Decision Date | 22 October 1917 |
| Citation | 76 So. 570,115 Miss. 663 |
| Court | Mississippi Supreme Court |
| Parties | HATTIESBURG HARDWARE CO. v. PITTSBURG STEEL CO |
October 1917
APPEAL from the circuit court of Forest county, HON. P. B. JOHNSON Judge.
Suit by the Pittsburg Steel Company against M. J. Fairley and others doing business as partners under the firm name of the Hattiesburg Hardware Company. From a judgment rendered, all the defendants except Dan Fairley appeals.
The facts are fully stated in the opinion of the court.
Judgment affirmed.
Currie & Currie, for appellant.
The record shows upon its face that the Hattiesburg Hardware Company is a partnership composed, according to the allegations of the declaration and the recitals in the process issued thereon of M. J. Fairley, E. R. Fairley, Dan Fairley and Neil Fairley; and that service of process was had only upon M. J. Fairley and none of the others, and there was no appearance by either of the other three, E. R. Fairley, Dan Fairley and Neil Fairley; the record further shows upon its face that all of the defendants are residents of the state of Mississippi. Notwithstanding these facts, judgment by default was rendered against all of the defendants; therefore, it is clear the judgment against E. R. Fairley, Dan Fairley and Neil Fairley are void and this appearing upon the face of the record, it was error in the court to dismiss the appeal. 23 Cyc., page 1241, title, Judgments Subject Parties not Served with Process: A person is not bound as estopped by a judgment, although he was formerly made a party to the action in which it was rendered, if the court never acquired jurisdiction of him by the service of effective process or by his voluntary appearance." Inglehard v. Sutton, 7 How. (Miss.) 99.
If the court will examine the record it will find that M. J. Fairley was the only defendant named who was served with process and was the only defendant who was named and who appeared in any proceedings filed by the defendant.
The concern being a partnership and all of the defendants being residents of the state of Mississippi, the judgment rendered against M. J. Fairley, who was served with process and who did appear, is not, under the statute of the state of Mississippi, binding upon the partnership assets, and is not binding upon M. J. Fairley.
Section 3935 of the Code of 1906, is as follows: "In actions against partners, some of whom are nonresidents of this state or cannot be found, service of process on such partners as may be found in this state, shall be sufficient to maintain the suit against all the partners so as to bind the assets of the partnership and of the individuals summoned.
W. S. Welch, for appellee.
The case seems to have a rather checkered course; the companion case, of the same style between the same parties was dismissed in this court on the motion of the appellee and that judgment has been satisfied. A motion to dismiss the appeal of the Hattiesburg Hardware Company in this particular case was overruled. Later the appeal was dismissed by the court of its own motion and thereafter the appeal was reinstated on application of appellant. The complaint made by the appellants, as we understand it, is not that they do not owe the note, but that process was not served on all of the makers of the note, and that the judgment is void as to those parties of the Hattiesburg Hardware Company who were not served with process, and is void as to them, for want of process, is also void as to the partnership entity and the individual member of the firm who was served with personal process. We observe, with a great deal of surprise, the statement of counsel for the appellants that he does not pause to cite any authority in support of a proposition so elementary. In the first place, as we understand the rule the appearance of the several defendants to object to the plaintiff's proceeding without giving security for court cost was a waiver of any irregularity or...
To continue reading
Request your trial
-
Fidelity & Deposit Co. v. Merchants' & Marine Bank of Pascagoula
... ... 673; Dinwiddie v. Glass, 111 Miss ... 449; Hattiesburg Hwd. Co. v. Pittsburgh Steel Co., 115 Miss ... The ... matter ... ...
-
Fidelity & Deposit Co. v. Merchants' & Marine Bank Of Pascagoula
...is joint and several, and not a joint liability. Wise v. Cobb, 135 Miss. 673; Dinwiddie v. Glass, 111 Miss. 449; Hattiesburg Hwd. Co. v. Pittsburgh Steel Co., 115 Miss. 663. matter now up before this court is whether the surety is liable for the losses sustained by the bank through the wron......
-
Gillespie v. Olive Branch Building & Lumber Co.
...53 Miss. 377; Lynch v. Thompson, 61 Miss. 355; Barrett v. Curtis, 69 Miss. 593; I. C. R. R. Co. v. Clark, 85 Miss. 691; Hattiesburg Co. v. Pittsburg Co., 115 Miss. 663; St. L. & S. F. R. R. Co. v. Sanderson, 54 So. Decisions of this court on kindred questions sustain the contentions made. I......
-
Bank of Philadelphia v. Posey
...Hardware Co. v. Pittsburg Steel Co., 115 Miss. 663, 76 So. 570, by Division B, counsel in neither case referred to the decision in 115 Miss. 663, 76 So. 570, nor did the court see or that decision at the time of those decisions. In Courtney Bros. v. John Deere Plow Co., 122 Miss. 232, 84 So......