T. A. Howard Lumber Co. v. Hopson

101 So. 363, 136 Miss. 237, 1924 Miss. LEXIS 121

• Court: Mississippi Supreme Court
• Decided: September 22, 1924
• Docket: No. 24200
• Status: Published

Opinions

Anderson, J.,

delivered the opinion of the court.

This is an appeal by T. A. Howard Lumber Company from a judgment by default against it in favor of appellee Hollis Hopson, rendered by the circuit court of Jones county. The question is whether the judgment should be recovered on account of an error in the summons to be hereinafter pointed out. The cause arises out of this state of facts:

On October 20,1923-, appellee brought an action against appellant in the circuit court of the Second district of Jones count y for damages for a personal injury suffered by him, alleged to have been caused by the negligence of appellant. The next regular term of circuit court of the Second district of Jones county due after the bringing of appellee’s action was fixed by law to begin the third Monday of November, 1923 (chapter 141, Laws 1922). Process for appellant was issued on the same day appellee’s declaration was filed. The clerk, in issuing summons, instead of making it returnable at a future term of court as provided by statute, made it returnable on the third Monday of October, 1923, a past date. The summons was in due form commanding appellant “to appear before the circuit court of the Second district of the county of Jones, state of Mississippi, at a term of said court held the third Monday of October, 1923, at the city of Laurel, Miss.,” etc. This summons was served on appellant on the same day it was issued, October 20, 1923. There was personal service according to the statute. Indorsed on the back of thé summons besides a statement of the court, wherein the cause was pending and the style of the case, there was the following:.

“Summons. Summons issued October 20, 1923, returnable third Monday November, 1923. Returned and filed this 22d day of October, 1923. [Signed] J. T. Herring-ton, Clerk of the Circuit Court.”

Appellant entered no appearance at the next term of the court which convened on the 22d day of November, 1923. A judgment by default, was entered against appellant on said summons, and a, writ of inquiry awarded, followed by a trial thereon resulting in a verdict and judgment in favor of appellee against appellant in the sum of. one thousand dollars.

Appellant’s contention is that, even though the judgment against it be not void, still it is erroneous because the summons upon which it was based was returnable at a past date, and that the error was harmful and on appeal there should be a reversal because of such error, while on the part of appellee it is contended, first, that there was no error in the issuance of the summons, and, second, that if there was it was such an error as did not render the judgment void, and therefore appellant is without ground of complaint.

Section 3913, Code of 1906 (section 2920, Hemingway’s Code) provides that process to bring in defendants at law or in chancery shall be a summons, and shall command the officer to summon the defendant “to appear and answer on the return day.” Section 3916, Code of 1906 (section 2923, Hemingway’s Code), provides among other things, that summons in actions in the circuit court shall be made returnable on “the first day of the term, and shall be executed five days before: the return day thereof.”

Appellee’s contention is that the error of the clerk, in making the summons returnable to a past date, was cured by the indorsement on the back of the summons which shows that it was returnable at a future date, namely, the third Monday of November, 1923; that the error could have done appellant no harm, because said indorsement was at least sufficient to put appellant on inquiry as to the return day, which, if pursued, would have led unerringly to a knowledge of the fact that the true return day was the third Monday of November, . 1923, instead of the third Monday of October, 1923, a past date. It is at once apparent that this contention is based on the theory that the indorsement on the back of the summons was a part of the summons required by law to be served on appellant. This position is unsound. There is no such requirement of law. The indorsement on the back of a summons for a defendant constitutes no part of the summons required to be served on the defendant, and, if entered by the officer on the copy handed the defendant, the latter is.not required to take any notice thereof. The court and the time and place of holding the same, set out in the command of the summons, are controlling- on a defendant. We hold, therefore, that the summons in this case was erroneous, in that it was made returnable to a past date.

Appellee says, however, that, if mistaken in that contention, under the authority of Kelly v. Harrison, 69 Miss. 860, 12 So. 261, the judgment complained of is not void, but merely irregular, and such irregularity cannot be taken advantage of even on appeal. In that case as here, the summons for defendant was made returnable to a past date, judgment by default was taken upon which execution was issued and levied upon land of the defendant. The defendant, by means of a petition for supersedeas of the execution, sought to have the execution quashed and the judgment declared void, because of said irregularity in the summons. The opinion of the court so far as it touches the question here involved, held that the irregularity in the process for the defendant did not affect the jurisdiction of the court over the person of the defendant; that, in rendering the judgment by default, the court might have erroneously held that the summons wras sufficient to show legal service, but that, if there was such error, the remedy of the defendant to correct it was by appeal, and, if he failed to pursue that remedy, he could not attack the judgment as a nullity, nor have it reconsidered by the court which rendered it after the lapse of the term at which it was rendered, and that, for the correction of such errors in the judgments of inferior courts, resort must be made to the supreme court by appeal; that no other court had jurisdiction. It is true the court in that case did not decide that the error complained of was a harmful error, which on appeal would have entitled the defendant to a reversal. Plainly, that question was not before the court. The court, however, clearly held that for the correction of such an error the remedy was by appeal. .

Tlie summons in this case being merely erroneous the question is whether or not the error complained of was harmful to appellant. If it was, appellant is entitled to a reversal and a new trial; if it was not, the judgment appealed from should be affirmed. The question seems easy of solution when it is kept in mind the office of a. summons for a defendant. The purpose is to get jurisdiction of the person of the defendant, and to inform him when and in what court he is to appear and make defense to the cause. The statute prescribes the manner in which this shall be done' It is by a summons returnable cfti. the first day of a future term of the court to be executed at lease five days before the return day thereof. Concede that all persons are affected with notice when the regular terms of court are held, and concede, for the purpose of the argument, that all persons are affected with notice ■ when special terms are to be held. Nevertheless, it was plainly the purpose of the statute that defendants summoned into court should not rely on such knowledge. Appellant had a summons commanding him to appear on a past date. Certainly the situation was calculated ito confuse him and mislead him, especially if appellant was without actual knowledge when they were held. There is nothing in the record to show whether appellant was actually misled or not, except the fact that it failed to appear at the next term of the court, and, on account of such failure, judgment by default was rendered. There was such an error in the proceedings as was calculated to mislead appellant and may have done so. In other words, it was an error that denied appellant a substantial right, namely, to be served with the summons as required by the statute, returnable to the first day of a term of court to be held in the future.

Reversed and remanded.