J. T. Moore & Co. v. Hoskins

• Decision Date: 27 May 1889
• Citation: 66 Miss. 496,6 So. 500
• Parties: J. T. MOORE & Co. v. I. W. HOSKINS ET AL
• Court: Mississippi Supreme Court

6 So. 500

66 Miss. 496

J. T. MOORE & Co. v. I. W. HOSKINS ET AL

Supreme Court of Mississippi

May 27, 1889

FROM the circuit court of Lincoln county.

GEO. S DODDS, Esq., presided as special judge by consent.

Appellants brought suit in 1882 against appellees I. W. Hoskins & Bro before one Baggett, a justice of the peace. The defendants were summoned, but the return of the constable was merely that the summons was "executed." A judgment by default at the return term was entered against them, which is conceded to have been void because the return failed to show personal service.

The plaintiffs reposed upon the judgment as entered until 1886 when, learning that it was void, they gave the defendants notice that they would on April 7, 1886, make a motion before the justice of the peace who succeeded Baggett. to vacate the void judgment, and proceed to a trial of the cause.

This notice was signed by the attorney of plaintiffs and was served by the constable upon defendants on April 3, 1886. The defendants failed to appear and the motion having been continued until May 5, 1886, the justice on that day sustained it, and rendered a judgment against the defendants for the amount of plaintiff's original demand, interest and costs.

An execution upon this judgment was levied upon certain lands of the defendants, and at the return term of the execution, the defendants moved to quash the execution and vacate the levy. The main ground of the motion, and the only one considered by this court, was that, by the entry of the void judgment and the laches of the plaintiffs, the cause had been discontinued, and there was no pending cause on April 7, 1886 in which a motion could be made; and therefore that the judgment upon which the execution issued was void. It was also argued by the defendants that this judgment was not rendered after the necessary notice, which, it was contended should have been by summons in the usual form.

This motion was overruled by the justice of the peace, and defendants appealed to the circuit court, which sustained the motion and quashed the execution and levy, at plaintiffs' costs. Plaintiffs have prosecuted this appeal.

Judgment reversed and vacated.

A. Lewenthall, for appellants.

There had been no discontinuance. The defendants had been summoned to answer the plaintiffs' demand. While the judgment was void, the process was good.

The defendants were before the court, never having been discharged, when the notice was served on them. The notice given was amply sufficient. The notice conformed to the accepted practice. It was not original process.

The case of Ralph v. Prester & Saunders, 28 Miss. 744, is not in point. There the plaintiff failed to prosecute the suit for seven years, when both the debt and the judgment would have been barred. Here the delay has not been for half that time, and the delay is excusable. All the parties had treated the judgment as valid, and executions had been issued on it, and had been levied without objection on that point.

There is no such thing as a technical discontinuance in this state. Germania Ins. Co. v. Francis, 52 Miss. 457. Stress is laid in the opinion in that case on the fact that there had been no voluntary abandonment of the cause. Certainly there has been no such abandonment by the plaintiffs in the case at bar.

H. Cassedy, for appellees.

The judgment by default at the return term on process not shown to have been personal was void. Betts v. Baxter, 58 Miss. 329; Heirmann & Kahn v. Stricklin, 60 Miss. 234. Plaintiff's treated it as valid and caused executions to be issued on it. It was over three years afterward that plaintiffs, first conceiving the idea that the judgment was void, proceeded to ignore it and all the steps taken under it. It does not appear that the day named in the notice or the day judgment was entered were of the regular term days of the justice. There was no legal notice to defendants by summons, but a "a manifesto" from plaintiffs' attorney to them, notifying them that he would proceed to vacate the former judgment and proceed to trial. This was served less than five days before the appearance term. If this notice was valid in form, the service was good only to require appearance to the ensuing term after the appearance term. This, from the record, seems to have been May 5, and so we have another case of a judgment at the return term on service of "executed," and the judgment was as void as the first judgment.

The cases of Germana Ins. Co. v. Francis, cited by appellant, and Meyer Bros. v. Whitehead, 62 Miss. 387, are not applicable. The former merely holds that in it there was not a voluntary abandonment of the cause. In the second the appearance of the defendant to object to a judgment as premature was held a sufficient appearance to authorize the court, upon vacating the judgment, to proceed to render another. In that case the court uses this language, "If in fact the process was not served until within five days of the return term, it did not require the defendant to appear until the next term after that. On his appearance at that term there was no pending case, for judgment was rendered at the first term."

I am not aware that the rule laid down in Ralph v. Prester & Saunders, 28 Miss. 744, has been reversed. In that case the opinion quotes with approval the text of Bacon where it is said, "The case not having been continued either by order of court, or operation of law, was at an end, and no further step could be taken in the prosecution or consummation of it, unless it were authorized by law." That case also establishes the necessity for due and regular notice to the defendants.

OPINION

COOPER, J.

The judgment entered by the justice of the peace in November 1882, was void, because rendered at the...