Reichman-Crosby Co. v. Horton

CourtUnited States State Supreme Court of Mississippi
Citation143 Miss. 141,108 So. 443
Decision Date24 May 1926
Docket Number25774
PartiesREICHMAN-CROSBY CO. v. HORTON. [*]

Division B

PROCESS. In suit to enjoin execution on default judgment rendered on return of sheriff showing personal service, chancellor is authorized, on conflicting testimony, to find that summons was not served; officer's return of service is not final and conclusive, and conflict in testimony in reference thereto is for chancellor's decision in suit to enjoin execution based on default judgment on ground that defendant was not served with summons.

In a suit to enjoin execution on a judgment rendered by default on a return of the sheriff showing personal service, where the plaintiff testifies positively that she was never served with summons, and knew nothing of the suit or the judgment until after the court had adjourned at which such judgment was rendered, and the sheriff testifies that he has no personal recollection of serving the summons, but that from his return and the custom of his office he served it, the chancellor is authorized to find that the summons was not served, if he believes the plaintiff's evidence. An officer's return of service is not final and conclusive and the conflict in testimony in reference thereto is for the chancellor's decision.

HON ALLEN Cox, Chancellor.

APPEAL from chancery court of Webster county, HON. ALLEN COX Chancellor.

Suit by Mrs. M. M. Horton against the Reichman-Crosby Company for an injunction. Judgment for complainant, and defendant appeals. Affirmed.

Judgment affirmed.

McKeigney & Latham, for appellant.

The holding of the chancellor is erroneous. We fully appreciate the rule that the finding of the chancellor on a disputed question of fact, unless manifestly wrong, will not be disturbed. But there is more involved here than a disputed question of fact.

A writ of summons issued out of the circuit court of Webster county to the sheriff commanding him to summon the appellee, as a party defendant, with D. A. Horton, at the suit of the appellant here. The sheriff solemnly certified to that court that he had served the writ by true copy on D. A. Horton and M. M. Horton. The return on the summons, as it appears in the transcript, speaks for itself. If she received a copy of that summons--and the sheriff's return says that she did--the matter ends as a matter of law, and the judgment of the circuit court of Webster county is a valid outstanding judgment against her.

If the officer's return on the writ of summons in evidence is sufficient on its face to uphold the judgment of the circuit court, by default, against appellee, and we submit that it is entirely sufficient, then is the uncorroborated testimony of appellee sufficient to overcome the officer's return? We think not.

The sheriff served the writ on appellee. His return so shows. The law presumes that his return is correct; that it is true; that the sheriff did what he certifies by his return that he did. The burden of proof is on appellee to overcome this legal presumption of regularity. The position of appellee is, in effect, that the sheriff's return is false, a fraud. She has the burden to overcome the legal value of the officer's return as evidence. What quantum of evidence is necessary and sufficient to overcome what appears to be the official act of the sheriff? The testimony of the interested defendant alone? If this is the law, court judgments by default in many instances rest upon a foundation of sand.

We respectfully insist that where the officer's return shows proper execution of summons, and the testimony of the interested defendant says that the writ was not served on her, the official act of the sheriff, as reflected by his return, endorsed on the back of the summons, must prevail. The appellee is entitled to no relief unless she shows affirmatively that the sheriff's return is a fraud. Her testimony shows nothing of the sort. She merely denies receiving a copy.

We submit that the decree of the court should be reversed and judgment entered here dismissing complainant's bill.

Cunningham & Berry and Eudy & Patterson, for appellee.

The sheriff made a defective return through one of his deputies and on this defective return a judgment by default was taken against the defendants at that term. On the writ of execution, following, the sheriff levied on certain real estate, the property of the defendant, Mrs. M. M. Horton, and advertised it for sale. The issue was joined on the question of whether or not any process was in fact served on her at all. This she had a right to contest under section 2952, Hemingway's Code.

The chancellor heard the testimony of appellee, Mrs. Horton, who in a...

To continue reading

Request your trial
7 cases
  • Atterberry v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 21 Diciembre 1995
    ......at 925. . Page 626 .         The defendant also cites Reichman-Crosby v. Horton, 143 Miss. 141, 108 So. 443 (1926) and Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780 (1970). Both of these cases deal with the ......
  • Schwartz Bros. & Co. v. Stafford
    • United States
    • United States State Supreme Court of Mississippi
    • 12 Junio 1933
    ...Co. v. Horton, 143 Miss. 141, 108 So. 443. There is no material difference between the facts in the case at bar and the facts in the Reichman-Crosby Co. case. In cases the defendant testified that he was not served with a summons and in both cases the sheriff testified that he had served th......
  • Lampton-Reid Co. v. Allen
    • United States
    • United States State Supreme Court of Mississippi
    • 11 Enero 1937
    ...notice of the alleged grounds of reformation (which was not even alleged in No. 6376) at the time he took title. In Reichman Crosby v. Horton, 143 Miss. 141, 108 So. 443, the defendant testified positively, clearly and that she was never served with any summons in the former suit, though he......
  • Rose v. Brister
    • United States
    • United States State Supreme Court of Mississippi
    • 10 Enero 1927
    ...did not take place overcomes the record evidence and is the only evidence upon which the chancellor could base his opinion. Reichman-Crosby Co. v. Horton, 108 So. 443; 2952, Hemingway's Code. If the summons was not served upon her and she had entered no appearance nor waiver of process, the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT