Joiner v. Delta Bank

• Decision Date: 18 December 1893
• Citation: 71 Miss. 382,14 So. 464
• Court: Mississippi Supreme Court
• Parties: P. S. JOINER, ADMINISTRATOR, v. DELTA BANK

14 So. 464

71 Miss. 382

P. S. JOINER, ADMINISTRATOR, v. DELTA BANK

Supreme Court of Mississippi

December 18, 1893

October 1893

FROM the circuit court of Leflore county, HON. R. W. WILLIAMSON Judge.

The Delta Bank sued P. S. Joiner in the court below. The defendant died after the suit was instituted. The record is silent as to whether he was ever served with process. On the thirteenth day of July, 1892, during a term of court, the cause was revived in the name of the administrator of his estate, and a summons was issued for the administrator returnable instanter. This summons was executed personally on the administrator July 14, 1892, and the court remained in session eight days thereafter. No appearance was entered and, at the subsequent term, February, 1893, judgment by default was rendered, reciting that it appeared that "the defendant had due and legal service of summons, and has failed to appear and plead." On June 22, 1893, the administrator filed a petition, setting out the above facts--that no legal summons had been served upon him, that he had never appeared and made himself a party to the suit, and that judgment by default had been rendered. The petition further showed that a writ of garnishment, based upon said judgment, had been served upon one Johnson. The prayer of the petition was that the judgment should be set aside and held for naught, and that the writ of garnishment should be quashed. This petition came on to be heard at the July term, 1893, when the application was overruled; thereupon, the administrator presented a bill of exceptions embodying the facts, and prosecuted this appeal.

S. R. Coleman, for appellant.

The summons issued for appellant during the term of court returnable to the same term, was void, and its service gave the court no jurisdiction. The statute fixes the returnday of such process. If issued within five days of a term of court, the same must be made returnable to the next term. The failure to observe this requirement made the summons a nullity. 22 Am. & Eng. Enc. L., p. 188, note 1; Ib., p. 191.

The recital of the judgment that it appearing that the defendant had due and legal service of summons would preclude the garnishee from objecting, but not the defendant. Sadler v. Lodge, 59 Miss. 572.

A. H. Longino, for appellee.

1. As the judgment was not taken until the next term after service, it is immaterial that the summons was made returnable to the term then in session. A proper construction of § 1525, code 1880, sustains this view.

The return-term in an action at law is the first term after the summons has been legally issued. 35 Miss. 399.

If it be conceded that the clerk, in issuing the summons, made it returnable at a wrong time, this is not fatal to the judgment, which was entered more than six months after the date of service. Strict compliance with the statute is not necessary to give jurisdiction. 1 Freeman on Judgments, p. 215.

From the moment of service the court had jurisdiction, and its subsequent proceedings, however erroneous, are not void. Ib., § 126.

Only void judgments can be set aside at a subsequent term of court. The object of the summons was to give the defendant notice. This was accomplished, and the court acquired jurisdiction, although the proceedings may...