JENNE v. DAVIS

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Docket Number

No. 27610.

Attorney(S)

Wise Bridgforth, for appellant. There is reversible error shown by the record in this: That process is defective. The summons was returnable to an impossible or past date; and, while this is not such an error as renders the judgment void, it is still such error, for which this court will reverse, on direct appeal. Howard Lumber Co. v. Hopson, 136 Miss. 237, 101 So. 323; 32 Cyc. 432; 20 Encyclopedia of Pleading and Practice, 1162; 21 R.C.L. 1267. Dabney Dabney, for appellee. We cannot possibly answer appellant's brief more sensibly or logically, than it is answered in the dissenting opinion in Howard v. Hopson, 136 Miss. 237, 101 So. 363. We urge this court to consider carefully this dissenting opinion. It undertakes to strike down a fraud, founded on an honest mistake of the clerk of the court, and one for which a plaintiff is in nowise responsible. Should this case be affirmed, a defendant may with impunity sit back with the full knowledge that he has been summoned to appear at the next succeeding term of court and do nothing, all the while "laughing in his sleeve" at the thought that by his inaction he is going to delay the trial of his case for another term, or else by appealing, put an expense on the plaintiff for which the plaintiff is in no wise responsible. See Harrison v. Black, 2 S. M. 307; Joiner v. Bank, 71 Miss. 382.

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JENNE v. DAVIS. Corpus Juris-Cyc. References: Judgments, 33CJ, section 51, p. 1090, n. 67.

APPEAL AND ERROR. Judgment. Entry of default judgment pursuant to summons returnable on past date required reversal.

Entry of default judgment pursuant to summons returnable on a past date, rather than to the next term of the circuit court of the county, held to require reversal.

ANDERSON, J.

Appellee brought this action in the circuit court of Yazoo county against appellant to recover the sum of two hundred and forty-four dollars. The declaration was filed on December 10, 1927, and summons issued and served on appellant on that date. The summons should have been made returnable to the next term of the circuit court of that county, which convened on the 2d day of April, 1928, but instead it was made returnable on the second Monday of April, 1927, a past date, and therefore an impossible date. At the April, 1928, term of the court, appellant failing to appear and make defense to the cause, judgment by default was taken against him for the amount sued for. From that judgment, he prosecutes this appeal.

This was error, for which the judgment must be reversed. Howard Lumber Co. v. Hopson, 136 Miss. 237, 101 So. 363.

Reversed and remanded.

JENNE v. DAVIS. Corpus Juris-Cyc. References: Judgments, 33CJ, section 51, p. 1090, n. 67.

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