Burton v. Cramer

86 So. 575, 123 Miss. 848

Opinion

Sam Cook, P. J.,

delivered the opinion of the court.

This suit was instituted in the circuit court of Kemper county. The suit was begun by Joe Cramer, and the appellant was defendant. The summons was issued by the clerk without affixing his official seal, and there was no notation or certificate by the clerk, certifying that his office was not furnished a seal. The process was not served personally upon the defendant, the return shows that the defendant was not found, and the sheriff served the process in the following manner:

“I have this day executed the within writ on Dave Burton, the within-named defendant, by posting d true copy of same on the front door of defendant’s place of abode in my county. The said defendant could not be found in my county, nor could I 'find any member of said defendant’s family over age of sixteen years willing to receive the same at his usual place of abode and home.

“This the 8th day of Feby., 1918. N. Gr. Briggs, Sheriff, by R. A. Brayan, D. S. and Constable.”

The defendant was not served with proper process. “The writ was not good without the seal of the court, or a statement of the fact, if there were no seal.” Pharis v. Conner, 3 Smedes & M. 87. The seal, or fin accounting for its absence, was absolutely necessary to warrant a judgment by default. The defendant was not brought into court.

Reversed and remawded.