T. A. Howard Lumber Co. v. Hopson

• Decision Date: 22 September 1924
• Docket Number: 24200
• Court: Mississippi Supreme Court
• Parties: T. A. HOWARD LUMBER CO. v. HOPSON. [*]

101 So. 363

136 Miss. 237

T. A. HOWARD LUMBER CO. v. HOPSON. ^[*]

No. 24200

Supreme Court of Mississippi

September 22, 1924

(En Banc.)

1 PROCESS. Indorsement on bock of summons held no part thereof of which defendant required to take notice.

Section 31913, Code of 1906 (section 2920, Hemingway's Code) provides that process to bring in defendants at law or in chancery shall be a summons commanding the officer to summon the defendant "to appear and answer on the return day." Section 3916, Code of 1906 (section 2923, Hemingway's Code), provides that summons in actions in the circuit court shall be made returnable on "the first day of the term, and shall be executed five days before the return day thereof." Summons was issued and personally served on the defendant returnable on a past date. There was an indorsement on the back of the summons to the effect that it was returnable on the first (Jay of the next term of the court. A judgment by default was taken upon such summons. Held, that the indorsement on the back of the summons was no part of the summons of which the defendant was required to take notice; that the judgment, though not void was erroneous.

2. APPEAL AND ERROR. Judgment by default, based on summons returnable to past date, though not void, held harmful error.

Section 3913, Code of 1906 (section 2920, Hemingway's Code) provides that process to bring in defendants at law or in chancery shall be a summons commanding the officer to summon the defendant "to appear and answer on the return day." Section 3916, Code of 1906 (section 292S, Hemingway's Code), provides that summons in actions in the circuit court shall be made returnable on "the first day of the term, and shall be executed five days before the return day thereof." Summons was issued and personally served on the defendant returnable on a past date. There was an indorsement on the back of the summons to the effect that it was returnable on the first day of the next term of the court. A judgment by default was taken upon such summons. Held, that the judgment, although not void, was erroneous, and the error harmful to the defendant, and on appeal should be reversed.

HOLDER, J., and SMITH. C. J., dissenting.

HON. R, S. HAUL., Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Action by the T. A. Howard Lumber Company against Hollis Hopson. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Deavours & Hilbun, for appellant.

We submit that this process, if not altogether void, is at least fatally defective and voidable, and the court erred in rendering a judgment by default against the defendant. Section 3916, Code of 1906, section 2923, of Hemingway's Code.

This process was not made returnable on the first day of the term of court, or at any time when the court was in session, but instead was made returnable to a past date. Hendricks v. Pugh, 57 Miss. 162, is very much like the case here.

We are not unmindful of the fact that our supreme court in Kelly v. Harrison, 69 Miss. 860, held that process somewhat similar was not a nullity because of a similar defect and that this was an irregularity which could not be taken advantage of by collateral attack. Whether the process in this case be void or defective and voidable, the result, it seems to us, is the same. There is no question here of the amendment of the process, or an application to amend the process in the lower court, but, the proposition here is whether the process is defective or voidable. The appellee stood on this process and his judgment is based thereon. Appellant has pursued the remedy pointed out in Kelly v. Harrison, supra, and has by direct appeal brought the case to this court. It is not a case of a collateral attack as was involved in Kelly v. Harrison.

In connection with this case we desire to call the attention of the court to the opinion rendered by Chief Justice CAMPBELL in Joiner v. Bank, 71 Miss. 384. This case is not exactly like the case at bar, but it holds that the process, violative of law, was good for nothing, and that the person served was under no obligation to pay any attention to it.

It seems manifest to us that this process was defective and voidable, if not void. If it is void, then no amendment could give it life and force. If voidable and defective, then no effort was made by amendment to correct the same. Appellee chose to stand on the process as it was. Appellant entered no appearance in the lower court, but has, within the time provided by law, prosecuted a direct appeal.

We respectfully submit that the court erred in rendering the default judgment against appellant on the process in question and therefore this case should be reversed and judgment entered here for appellant.

Pack & Pack, for appellee.

The judgment in this case is good. It is not technically a judgment by default except as to the question of the liability of the defendant. There was a jury of inquiry to assess the damages and the injury and the extent of injury was proved and the real judgment in the case was entered upon testimony and instructions of the court. So, the naked question in this case is: Was the summons utterly void?

We contend as matter of law that the whole summons read together is not void, is not even voidable, for the reason that it advised the defendant, the appellant, of the true date of the convening of the court, to-wit: the third Monday of November, 1923. Having taken the position that the summons is not void, we shall barricade ourselves with the following authority: Section 2945, Vol. 1, Hemingway's Annotated Mississippi Code, 1917; Section 3938, Miss. Code, 1906; Hale v. State, 72 Miss. 140, 16 So. 387; Dogan v. Bloodworth, 56 Miss. 419; Spratley v. Kitchens, 55 Miss. 578.

To illustrate and refresh our minds as to the vast distinction in law between the words "void" and "voidable," and between the facts "void" and "voidable" see: Jordan v. Missouri & K. Telephone Co., 116 S.W. 432, 433, 136 Mo.App. 192; Briscoe v. Macfarland, 32 App. D. C. 167.

The burden is always upon the person injuriously affected by a voidable thing, to avoid it. That burden is his, and Until he takes proper and appropriate action at the proper and appropriate time and place to void it he is bound by it.

The time and place for the appellant in this case to avoid the process was in the circuit court of Jones county, Mississippi, where it advised him the case was pending against him.

Now, the only objection which the appellant makes to this summons is that it was erroneously made returnable on the third Monday of October, 1923, a day already past when the summons was issued on the twentieth day of October, 1923.

As matter of law, this is no objection at all to the summons. The statute in this state fixes the return day of all process and requires the appearance of the defendant on that day, and subjects him to the rendition of a judgment by default against him unless he does appear and enter a defense. Section 2923, Hemingway's Code; Section 3916, Code, 1906; Section 566, Hemingway's Code; Section 783, Code 1906.

The above statutes fix the return day of the process and require the appearance of the defendant on the same day to enter his defense, failing in which subjects him immediately thereafter to judgment by default, or at any time thereafter requested by the plaintiff and before defense made. Such being the statutes of this state it is unnecessary under the general rule of law for the summons to specify the return day. The law charges the defendant with notice and knowledge of the return day. Cyc. 431, Vol. 32, under the title "Process."

Davis v. McCary et al., 100 Ala. 545, 13 So. 665 is directly in point, and is a case in which a judgment was rendered by default on a summons which did not specify any return day at all and did not even require the appearance of the defendant "at the next term" of the court, or according to the form of the code, for the reason the court held that the statute itself made the process "returnable to the next succeeding term," and that the return day of the summons is the first day of the court to which it is returnable.

And this is exactly and precisely what this court held, in legal effect, in the case of Kelly v. Harrison, 12 So. 261. The effect of the opinion of this court in the Kelly case, reported in 12 So. 261 (1892), is to overrule the case of Hendricks et al. v. Pugh, Administrator, (1879), relied upon by appellant. This court defined the requisites of a summons in the case of Nance v. Webb, 42 Miss. 268, Miss. Reprints Book 21, 104.

Currie & Currie, also for appellee.

The sole question in the case is whether or not this summons was void? If the summons was not void, the judgment is good.

The summons was not void under the laws of this state. In Nathaniel Harrison et al. v. The Agricultural Bank, 2 S. & M. 307, the court held a summons returnable to the wrong term of court is not void under the law. In Spratley et al. v. B. F. Kitchens, 55 Miss. 578, it was held by this court that: "Any writ issued without a seal upon it is amendable, under section 712 of the Code of 1871. Section 712 of the Revised Code of Miss. 1871 is the same as section 2945, Hemingway's Ann. Miss. Code 1917, Vol. 1; sec. 3938, Miss. Code 1906.

In Dogan, Sheriff, v. Bloodworth, 56 Miss. 419, it was held that a writ for the seizure of Agricultural products was not void although it named no defendant and contained no personal summons. In Hale v. State, 72 Miss. 140, 16 So. 387 this court held that: "A motion to quash the venire facias on the ground that the clerk's signature was omitted therefrom was properly overruled, process containing error's of omission being...