Tate v. Doe ex dem. Weir

24 Miss. 465

• Court: Court of Appeals of Mississippi
• Decided: October 15, 1852
• Status: Published

Opinion

Mr. Justice Yerger

delivered the opinion of the court.

In this case a declaration in ejectment was filed and notice directed to Tate and Moore and five other persons, as tenants in possession. An ordinary summons was also issued in the case. The notice and summons were only served on Tate and Moore. At the return term Tate and Moore failed to appear, and judgment by default was taken against the casual ejector, and a judgment for costs against Tate and Moore, with an order for a writ of habere facias possessionem.

The rule on the subject of costs in ejectment is this: When the action is undefended and judgment is entered against the casual ej ector, no judgment can be given for costs. The only remedy the lessor of the plaintiff has for his costs, is an action for mesne profits, in which, at the discretion of the jury, they are recoverable as consequential damages. Adams on Eject. 334. The judgment for costs in this case was, therefore, irregular.

With regard to the judgment by default, where there are several tenants in possession, part of whom are served and part not served with notice, the rule is, that the judgment by default may be taken against the casual ejector for those served, but not against the others, unless it appear by affidavit that the parties are joint tenants, in which case service on part will authorize a judgment by default against the casual ejector for all. Adams on Ejectment, 238.

The judgment rendered in this case, though informal, seems to be for the whole premises, against all the tenants. It is erroneous, therefore, and must be reversed.

Let the judgment be reversed, and the cause remanded.