Joiner v. Delta Bank

71 Miss. 382

• Court: Mississippi Supreme Court
• Decided: October 15, 1893
• Status: Published

Opinion

Campbell, C. J.,

delivered the opinion of the court.

The summon^ issued during the term of court, and returnable instanter, was a nullity, and did not confer jurisdiction on the court by virtue of its service. It was not amendable by virtue of § 2286 of the code of 1880, for it was not conformable to law in its command. If it had been returnable as required by law — § 1525, code of 1880 — and any matter required to be inserted was omitted, it would have been amendable; but it was, in its frame and purpose, violative of law, and good for nothing — without form and void as a summons — and the person served was under no obligation to pay any attention to it, and had the right to have it vacated at any time on petition or motion; and it was so good for nothing as to be subject to collateral attack by anybody whenever it was brought into question. There must be an effort to conform to law to entitle to the claim of mere irregularity in process.

The judgment refusing to vacate the judgment will be reversed, and, in pursuance of the long settled practice of this court, without any statute, the appellant will be held to be in court as a party to the suit for such further proceedings as may be had in the pending cause.

Reversed and remanded,.