Parker v. Johnson

47 Miss. 632

• Court: Mississippi Supreme Court
• Decided: April 15, 1873
• Status: Published

Opinion

Tarbell, J.:

Action of assumpsit; judgment by default on insufficient return of service of summons in 1858 ; writ of error in 1869 ; citation was served on the attorney of record of Johnson; afterward the death of Johnson was suggested, and scire facias was personally served on M. Ellis, his administrator, in 1871. There is no appearance in this court, by or for the defendant in error. The only error assigned is, that “ the court erred in rendering judgment by default, because there was no sufficient return on the writ to justify it.”

Although a plea of the statute of limitations, Code of 1857, p. 401, art. 17, to the writ of error would, apparently, he sustained, we have no power to interpose it on our own motion. As we have no option, a reversal is inevitable, for the want of the proper plea.

Judgment reversed and cause remanded.