Solomon v. Tupelo Compress Co.
| Decision Date | 03 April 1893 |
| Court | Mississippi Supreme Court |
| Parties | J. S. SOLOMON v. TUPELO COMPRESS CO |
FROM the circuit court of Lee county, HON. LOCK E. HOUSTON, Judge.
On August 12, 1891, appellee instituted an action of assumpsit in the court below against R. G. Reading and J. S. Solomon. On August 12, 1891, process was returned by the sheriff of Lee county, executed as to Reading, and not found as to Solomon. Summons was also issued to Lauderdale county, which on August 13, was returned executed as to the defendant Solomon. On August 14, the following entry was made on the minutes of the court: "Came the parties by their attorneys, and, on application to the court, the defendant has, and is hereby given, leave to plead during this term."
On August 18, a plea was filed in the following words:
"TUPELO COMPRESS CO. v. R. G. READING AND J. S. SOLOMON.
And the said def't, by att'y, comes and defends the wrong etc., and for plea in this behalf says: They did not undertake and promise in manner and form as the plaintiff hath alleged in their declaration, and of this they put themselves upon the country.
On February 15, 1892, the record recites that the parties came by their attorneys, and that thereupon came a jury, which found for plaintiff, whereupon judgment was rendered against both defendants for $ 608 and costs. The defendant, Solomon, appeals. The only question considered by the court is, whether the above-mentioned plea was an appearance for both defendants. It is not necessary to make any further statement of the case.
Affirmed.
Hamm, Witherspoon & Witherspoon, for appellant.
Only one of the defendants obtained leave to plead, and the plea relied on as an appearance shows on its face that it was by only one defendant. This must refer to the one who had been served with a summons, and who had obtained leave to plead. The plea not only shows in the beginning that it is the plea of "the said def't," but is signed "J. L. Finley, att'y for def't." There is no significance in the fact that the plural form is used in the body of the plea. We confidently submit, therefore, that the record fails to show any appearance by the appellant, Solomon.
If the record leaves it doubtful as to which defendant appeared, the doubt must be resolved in favor of appellant. The court cannot presume that the defendant who obtained leave to plead, and who appeared, was Solomon, because such a presumption would compel the court, in case Reading was trying to vacate the judgment, to presume that he was the defendant referred to. When the record is silent, the court may presume the facts necessary to uphold the judgment, but the court will not indulge in a presumption which would logically lead to a contradiction of the record.
Allen & Robins, for appellee.
The plea is that of both defendants. In it both...
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Little v. Browning
... ... McCreary v. Jones, 96 Ala. 592, 11 So. 600; ... Frazier v. Resor, 23 Ill. 88; Solomon v. Tupelo ... Compress, 70 Miss. 822, 12 So. 850; Abbott v ... Semple, 25 Ill. 107), decide a ... ...
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Little v. Browning
...an appearance for all (McCreary v. Jones, 96 Ala. loc. cit. 594, 11 South. 600; Frazier v. Resor, 23 Ill. loc. cit. 89; Solomon v. Tupelo Compress Co., 70 Miss. 822, 12 South. 850; Abbott v. Semple, 25 Ill. 107), decide a different question in that they seem to be based upon the view that t......
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Day Lumber & Manufacturing Co. v. Citizens' Bank
... ... appearance of a defendant will waive necessity for service of ... process upon him. Solomon v. Compress Co., 70 Miss ... 822, 12 So. 850; Memphis, etc., R. Co. v. Glover, 78 Miss ... 467, ... ...