Mobley v. Buchanan

30 Miss. 174

• Court: Mississippi Supreme Court
• Decided: December 15, 1855
• Status: Published

Opinion

Mr. Justice Fishek,

delivered the opinion of the court.

This was a bill filed on the chancery side of the Circuit Court of Chickasaw county.

The most important error assigned is, that the subpoena was served on the defendants below to answer the bill, only five days' before the return-day, and the defendants failing to appear, a decree pro eonfesso was taken, and a final decree thereupon made, according to the prayer of the bill.

The question thus presented is, whether the same rules of practice must be observed in chancery proceedings in the Circuit Court which are observed in the Superior Court of Chancery. The statute, after defining the equity jurisdiction of the Circuit Court, is as follows: “ Such process and prpceedings shall be had therein, as in similar cases are commonly had in the Superior Court of Chancery.”

To entitle a party to take a decree pro eonfesso in the Superior Court of Chancery, the process to bring the defendant into Court must have been served twenty days before the return-day. The proceedings in the Circuit Court must conform to the proceedings in similar cases in the Chancery Court. Under this requirement of the law, we are compelled to hold that the decree pro eonfesso was unauthorized.

Decree reversed, and cause remanded.