Meyer Bros. v. Whitehead

62 Miss. 387

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

Opinion

Campbell, C. J.,

delivered the opinion of the court.

Section 1533 of the Code of 1880 provides that “the return of the officer serving any process may in the same action be shown to be untrue by either of the parties,” and removes all ground of objection to a proceeding by writ of error coram nobis, or motion as a substitute for it, before the court which has rendered judgment on a false return of service of a summons to vacate such judgment.

In Mayfield v. Barnard, 43 Miss. 270, it was held that the defendant, who desired to question the officer’s return of service of a summons in a pending action, should plead in abatement. In this case judgment was taken at the first term upon service of the summons, which appeared by the return to be good to uphold a judgment at the return term. If in fact it was not served until within five days of the return day, it did not require the appearance of the defendant until the next term after that to be held within five days. Section 1525 of the code. On his appearance at that term there was no pending case, for judgment was rendered at the first term. The party could not plead. All he could do in that court was to proceed to vacate the judgment. This is what was done at the subsequent term, to which an execution issued upon the judgment was returnable. It was competent for the court to direct an issue to try the question of the alleged falsity of the return of the officer as to the service of the summons.

The jury found the issue in favor of the defendant, and the court refused to disturb the verdict, and vacated and annuled the judgment rendered on the return thus found to be false. In this there was no error. But when the judgment was vacated the court should have treated the case as a pending one, and should have required the defendant to plead at once, so as to entitle the plaintiff to a trial and judgment if found to be entitled to it.

Judgment reversed, and judgment here vacating the judgment by default, and taxing the appellant with the costs of the trial of the motion to vacate and ike cost of entering the judgment by default, and case restored to the docket of the circuit court to be proceeded with as if no judgment by default had been given, and remanded to be proceeded with in the court below.