Torrey v. Jordan

Mississippi Supreme Court

Torrey v. Jordan

5 Miss. 401

DecidedJanuary 15, 1840

StatusPublished

This text of 5 Miss. 401 (Torrey v. Jordan) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Torrey v. Jordan, 5 Miss. 401 (Mich. 1840).

Pincite

Opinion

Mr. Justice Trotter

delivered the opinion of the court.

This judgment is manifestly erroneous. It is contrary to every principle of justiceffo render a judgment against a party who has had no notice of the proceeding against him, and consequently no opportunity to defend himself. . It does not alter the effect of this principle, that the two defendants below, who had no notice, are merely the sureties of George Torrey. The judgment against him cannot be evidence against them, even in a subsequent suit upon his bond, because having no notice of the motion on which it is grounded, they can in no way be considered parties to it. This was so ruled by this court at a former term, in the case of Carmichael v. The Governor, and in Pennsylvania in the case of Carmack et al. v. The Commonwealth, 5 Binney, 184. The recital that issue was joined upon the motion, is no evidence of the appearance of the parties not served with process. It would be doing violence to every rule of construction, as well as to the rights of the parties, to hold that the recital in this case embraces any other parties than those who were served with the notice.

Let the judgment be reversed, and the cause remanded.

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Mr. Justice Trotter

delivered the opinion of the court.

This judgment is manifestly erroneous. It is contrary to every principle of justiceffo render a judgment against a party who has had no notice of the proceeding against him, and consequently no opportunity to defend himself. . It does not alter the effect of this principle, that the two defendants below, who had no notice, are merely the sureties of George Torrey. The judgment against him cannot be evidence against them, even in a subsequent suit upon his bond, because having no notice of the motion on which it is grounded, they can in no way be considered parties to it. This was so ruled by this court at a former term, in the case of Carmichael v. The Governor, and in Pennsylvania in the case of Carmack et al. v. The Commonwealth, 5 Binney, 184. The recital that issue was joined upon the motion, is no evidence of the appearance of the parties not served with process. It would be doing violence to every rule of construction, as well as to the rights of the parties, to hold that the recital in this case embraces any other parties than those who were served with the notice.

Let the judgment be reversed, and the cause remanded.

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Bluebook (online)

5 Miss. 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/torrey-v-jordan-miss-1840.