Perry v. Nolan & Maris

• Decision Date: 08 December 1930
• Docket Number: 28951
• Citation: Perry v. Nolan & Maris, 159 Miss. 384, 131 So. 252 (Miss. 1930)
• Parties: PERRY v. NOLAN & MARIS
• Court: Mississippi Supreme Court

131 So. 252

159 Miss. 384

PERRY v. NOLAN & MARIS

No. 28951

Supreme Court of Mississippi

December 8, 1930

Division A

APPEAL from circuit court of Hinds county, First district, HON. W H. POTTER, Judge.

Suit by Nolan & Maris, a corporation, against Frank Payne, Inc., and another. From an order overruling a motion to quash a writ of execution and to vacate the judgment by default against both defendants, defendant J. R. Perry appeals. Reversed and remanded.

Reversed and remanded.

Vollor & Kelly, of Vicksburg, and Wells, Jones, Wells & Lipscomb, of Jackson, for appellant.

Since appellant was a resident citizen of Warren county Mississippi, and was served with process in Warren county, and since the circuit court of Hinds county never acquired any jurisdiction of his resident co-defendant, Frank Payne, Incorporated, it never acquired jurisdiction of appellant.

Section 500, Hemingway's Code, 1927; Ann Wolley v. F. J. Bowie, 41 Miss. 553; David Andrew et al. v. W. A. Powell, 41 Miss. 729; Bank of Vicksburg v. Jennings et al., 5 How. 425.

If no defendant is served with process in the county in which the suit is brought, the jurisdiction of the court does not attach.

C. N. D. Campbell v. N. D. Triplett, 74 Miss. 365, 20 So. 844.

Frank Payne, Inc., was a necessary party, and no valid judgment could be entered against appellant until the court had acquired jurisdiction of said Frank Payne, Inc., by proper service of process.

Section 615, Hemingway's Code of 1927.

OPINION

McGowen, J.

The declaration in this case was filed by a corporation, Nolan & Maris, against Frank Payne, Inc., a Mississippi corporation, with its principal place of business in the First district of Hinds county, Mississippi, and J. R. Perry, a resident citizen of the county of Warren, in this state, in an action for debt. The suit is based upon an open account. The declaration, to which the open account was attached as Exhibit A, did not allege or disclose where the cause of action accrued. The open account was by Frank Payne, Inc., transferred to Nolan & Maris, and is against the Perry Lumber Company as debtor. The assignment is in writing, and the assignee guarantees to the assignor the payment of the account assigned.

Process was issued and served on Frank Payne as an individual. No process was served upon Frank Payne, Inc. Process was served upon the defendant J. R. Perry in Warren county, and made returnable to the September term of the circuit court of Hinds county, where a judgment by default was rendered against Frank Payne, Inc., and J. R. Perry. Thereafter execution was issued against Perry to Warren county, and subsequently thereto, at a succeeding term of the court, Perry appeared in the circuit court of Hinds county and moved to quash the writ of execution and to vacate the judgment as void, because rendered without process upon any defendant in Hinds county.

On the hearing of this motion there was some evidence offered, and the plea of the general issue was tendered with the motion. Then and there Frank Payne, Inc., entered its appearance in court and waived all errors so far as it was concerned, entered its appearance, and consented that the judgment heretofore rendered and entered be made valid and binding upon it in all respects.

The court overruled the motion of the appellant, J. R. Perry, and he appeals here.

Section 500, Hemingway's 1927 Code. Laws of 1926, chapter 155, controls the...