Jones v. Lewis

Mississippi Supreme Court

Jones v. Lewis

37 Miss. 434

DecidedOctober 15, 1859

StatusPublished

This text of 37 Miss. 434 (Jones v. Lewis) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jones v. Lewis, 37 Miss. 434 (Mich. 1859).

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Opinion

Harris, J.,

delivered the opinion of the court.

This cause originated in a motion in the court below, to reinstate a judgment alleged to have been lost by the destruction of the court-house of Attala county by fire. The. proceeding was instituted under the special provisions of the Act of the Legislature of 1858. Testimony was submitted to the court tending to establish the existence of the judgment originally, and the loss of the record thereof by fire, and judgment was rendered by the court sustaining [437]*437said motion. From this judgment, on said motion, a writ of error is prosecuted.

The first assignment of error, relates to the proof of the service of notice on the defendants in said judgment, required by the act. The act simply requires the service of notice five days before the motion, without prescribing how or by whom it shall be served. In this case the notice was served by a constable, who filed his affidavit in court with the notice, showing how he had served it. The objection made is, that the notice should have been served by an officer. We think proof of service by any one, whether an officer or a private individual, was sufficient. All that the act designed was, that the court should be informed that the defendants had been notified fully of the proceedings against them, so that they might resist the motion if they desired to do so. This object was as fully accomplished by the notice in this case, as it could have been by service by the sheriff. We think, therefore, there was no error in this respect. This disposes of the second ground of error, which relates also to the sufficiency of the proof of service of the notice.

The third ground of error is, that the court erred in admitting the testimony of Jackson, the clerk of the court, as to the cause of action on which the judgment was founded, unless the entire record was supplied, and all the papers connected with the original judgment.

To this it is sufficient to say, that the Legislature have not so required ; and we cannot require more than the act, under which this proceeding was had, has directed.

The last error assigned, which it is material to notice, is, that the judgment was reinstated for too large an amount.

The record does not purport to set out all the testimony in the cause ; and we are unable, therefore, to consider this assignment.

Let the judgment be affirmed.

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Harris, J.,

delivered the opinion of the court.

This cause originated in a motion in the court below, to reinstate a judgment alleged to have been lost by the destruction of the court-house of Attala county by fire. The. proceeding was instituted under the special provisions of the Act of the Legislature of 1858. Testimony was submitted to the court tending to establish the existence of the judgment originally, and the loss of the record thereof by fire, and judgment was rendered by the court sustaining [437]*437said motion. From this judgment, on said motion, a writ of error is prosecuted.

The first assignment of error, relates to the proof of the service of notice on the defendants in said judgment, required by the act. The act simply requires the service of notice five days before the motion, without prescribing how or by whom it shall be served. In this case the notice was served by a constable, who filed his affidavit in court with the notice, showing how he had served it. The objection made is, that the notice should have been served by an officer. We think proof of service by any one, whether an officer or a private individual, was sufficient. All that the act designed was, that the court should be informed that the defendants had been notified fully of the proceedings against them, so that they might resist the motion if they desired to do so. This object was as fully accomplished by the notice in this case, as it could have been by service by the sheriff. We think, therefore, there was no error in this respect. This disposes of the second ground of error, which relates also to the sufficiency of the proof of service of the notice.

The third ground of error is, that the court erred in admitting the testimony of Jackson, the clerk of the court, as to the cause of action on which the judgment was founded, unless the entire record was supplied, and all the papers connected with the original judgment.

To this it is sufficient to say, that the Legislature have not so required ; and we cannot require more than the act, under which this proceeding was had, has directed.

The last error assigned, which it is material to notice, is, that the judgment was reinstated for too large an amount.

The record does not purport to set out all the testimony in the cause ; and we are unable, therefore, to consider this assignment.

Let the judgment be affirmed.

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37 Miss. 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-lewis-miss-1859.