Fleming v. Nunn & Anderson

61 Miss. 603

• Court: Mississippi Supreme Court
• Decided: April 15, 1884
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

We must consider the finding of the Chancellor as satisfactorily establishing these facts. A single summons was issued from a justice’s court to Easter Fleming and her son, Emmett Fleming, on a joint debt. The constable made this return: “Executed this 11th dhy of December, 1882, by leaving a copy at their house of abode.” The copy was, in fact, handed to Mrs. Fleming. She attended the court on the day appointed. The justice being absent, the case was not tried. She did not attend the next regular term, at which, without further service, judgment by default was rendered against both defendants. She files this bill, seeking a cancellation of the judgment on the ground that in fact she did not owe the debt, and that by the service, no jurisdiction was acquired over her. It cannot be maintained. She knew of the rendition of the judgment against her, and appeared before the justice on the next day and tried to give a bond for supersedeas and appearance in the circuit court. The justice adjudged her sureties insufficient, and she took no steps to compel him to accept them or to induce them to justify. She took no steps by certiorari to test the correctness of his ruling as to the service upon herself of the writ, though she had six months within which to do so. It was not until after this time that she filed this bill to vacate the judgment, on the ground that she had not been served with process. The return on the process was equivocal, and the justice construed it as importing personal service on the complainant. It was competent for him so to do. The complainant had actual notice of the suit, and knew that the service had been so construed. Though she had abundant opportunity, she took no steps to correct it. We approve the finding and judgment. 1

The decree is affirmed.