Naron v. Gwin

Mississippi Supreme Court

Naron v. Gwin

43 Miss. 346

DecidedMay 15, 1870

StatusPublished

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Bluebook

Naron v. Gwin, 43 Miss. 346 (Mich. 1870).

Pincite

Opinion

Simrall, J.:

This case is brought by writ of error from the circuit court of Oktibbeha county. The errors assigned are:

1st. That there is no plea or issue ; nevertheless, there is the verdict of a jury as upon issue joined.

The decisions in this court have been conflicting on this point. In the cases of Wilkinson v. Patterson, 6 How., 193, and Harrison v. Agricultural Bank, 2 S. & M., 307, for a similar error, the judgments were reversed ; but the appellate court rendered such judgments as the court below, on the state of the record, ought to have rendered. In the intermediate case of McAdams v. Massey, 1 S. & M., 660, the judgments were reversed and the cause remanded to the inferior court. In Garrett v. Felt & Reed, 32 Miss. Rep., 137, decided in 1856, the court conclude that it is a mere clerical error to certify that a jury was sworn to try the issue joined, when in fact there was no issue. At all events, the plaintiff in error was not prejudiced by submitting his case to a jury, and rendering judgment on the verdict, as -that judgment would be the same in effect, as if rendered on nil dicit, for want of plea. Therefore, the judgment was affirmed. In the case of Hewett v. Cobb & Co., 40 Miss., 62, the practice established in the case of Garrett v. Felt & Reed, was [348]*348adhered to. To give uniformity and stability to the practice, we adhere to the rule adopted in the two latter cases ; we do so the more readily, because the error (for error it is), does not operate injustice or harm to the plaintiff in error.

2d Error, insufficient service.

We regret that we are obliged to reverse this judgment, for the insufficient service of process. The sheriff fails to set out “ his proceedings under the writ,” as to the manner of service. It is his duty to report on the writ, what he has done. The court determines as to its. sufficiency. “ Executed by personal service,” and “executed in person,” according to repeated decisions, many of them reported, is not a good service, to support a judgment by default final.

Let the judgment be reversed and cause remanded.

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Simrall, J.:

This case is brought by writ of error from the circuit court of Oktibbeha county. The errors assigned are:

1st. That there is no plea or issue ; nevertheless, there is the verdict of a jury as upon issue joined.

The decisions in this court have been conflicting on this point. In the cases of Wilkinson v. Patterson, 6 How., 193, and Harrison v. Agricultural Bank, 2 S. & M., 307, for a similar error, the judgments were reversed ; but the appellate court rendered such judgments as the court below, on the state of the record, ought to have rendered. In the intermediate case of McAdams v. Massey, 1 S. & M., 660, the judgments were reversed and the cause remanded to the inferior court. In Garrett v. Felt & Reed, 32 Miss. Rep., 137, decided in 1856, the court conclude that it is a mere clerical error to certify that a jury was sworn to try the issue joined, when in fact there was no issue. At all events, the plaintiff in error was not prejudiced by submitting his case to a jury, and rendering judgment on the verdict, as -that judgment would be the same in effect, as if rendered on nil dicit, for want of plea. Therefore, the judgment was affirmed. In the case of Hewett v. Cobb & Co., 40 Miss., 62, the practice established in the case of Garrett v. Felt & Reed, was [348]*348adhered to. To give uniformity and stability to the practice, we adhere to the rule adopted in the two latter cases ; we do so the more readily, because the error (for error it is), does not operate injustice or harm to the plaintiff in error.

2d Error, insufficient service.

We regret that we are obliged to reverse this judgment, for the insufficient service of process. The sheriff fails to set out “ his proceedings under the writ,” as to the manner of service. It is his duty to report on the writ, what he has done. The court determines as to its. sufficiency. “ Executed by personal service,” and “executed in person,” according to repeated decisions, many of them reported, is not a good service, to support a judgment by default final.

Let the judgment be reversed and cause remanded.

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Bluebook (online)

43 Miss. 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/naron-v-gwin-miss-1870.

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