Dogan v. Barnes

76 Miss. 566

• Court: Mississippi Supreme Court
• Decided: November 15, 1898
• Status: Published

Opinion

Woods, C. J.,

delivered the opinion of the cqurt.

The judgment by default at the return term on this return of the officer charged with the execution of the summons, viz.: ‘‘ Executed this writ by personal service on R. M. Barnes, this Jan. 6, 1891,” was erroneous, in that the return of the officer fails to state the facts upon which he based his conclusion that there had been personal service of the process. The statute then in force, and now in force, prescribes the manner of serving original process: “ (1) Upon the defendant personally, if to be found in the county, by handing him a true copy of the process. ’ ’ In the case before us the return does' not state that the process was served upon the defendant personally by handing him a true copy of the process. The facts showing the mode of service are not disclosed by the return. The service may have been by reading the summons to the defendant, for aught that appears, and such service has been held by this court, in French v. State, 53 Miss., 651, and in Thomas v. State, 62 Miss., 184, to be bad. The officer executing process should state the facts, showing what he did, and let the court draw the conclusion of law from the facts. In Rankin v. Dulaney, 43 Miss., 197, this return was held to be bad, viz.: “Executed by serving the within attachment personally” on the defendants, naming them.

It is thought by,counsel for appellant that, inasmuch as §1528, code of 1889, makes it unnecessary for the executing officer to state the particulars of the service, but that a general return of “executed” will be sufficient, that, therefore, this return is good. But this contention is unsound. There is a marked difference between the general return, “executed,” and the one shown here of personal service, on which judgment by default was rendered at the return term. The cases of Faison v. Wolf, 63 Miss., 21, and Semmes v. Patterson, 65 Miss., 6, clearly note the distinction between the general return ‘c executed, ’ ’ and an attempt to make the special return prescribed by the statute, and state the reasons for the distinction.

Affirmed.