J. T. Moore & Co. v. Hoskins

Cooper, J., delivered the opinion of the court. The judgment entered by the justice of the peace in November, 1882, was void, because rendered at the return term, on service of process not shown to have been personal. Betts v. Baxter, 58 Miss. 329; Heirmann & Kahn v. Stricklin, 60 Miss. 234. The position is untenable that the entry of the void judgment operated as a discontinuance of the cause. In Germania Insurance Company v. Francis, 52 Miss. 467, it is said that a technical disoontinuauce could hardly arise in this state. In Meyer Bros. v. Whitehead, 62 Miss. 387, judgment had been rendered at the return term of the writ on a return showing personal service more than five days before the return day, and execution issued and was levied upon personal property, whereupon the defendant moved to quash the execution and vacate the judgment on the ground that in fact the writ was served less than five days before the return day. On proof taken, the motion was sustained, the judgment vacated, and the defendant discharged. On appeal to this court it was held that the defendant could thus attack the judgment. In delivering the opinion the judge said, arguendo, and in reply to the argument of plaintiff’s counsel, that the defendant having failed to plead at the second term had waived his right to vacate the judgment; “ on his appearance at that term (the second) there was no pending case, for j udgment was rendered at the first term. The party could not plead. All he could do in that court was to proceed to vacate the judg [500] meat.” This expression is seized upon by counsel for appellees as deciding that the entry of the judgment was a discontinuance of the cause. Such was not its effect, as is manifest from the result of that appeal. The observation was made as a justification of the delay of the defendant, and in response to the position assumed by counsel for appellant that the defendant was estopped by neglecting to plead at the second term. After the judgment in that case had been vacated by the court below, the plaintiff moved the court “ to reinstate the case on the docket as a cause pending in the court,” which motion was overruled in the court below. For this action, the cause was reversed, this court saying, “but when the judgment was vacated the court should have treated the case as a pending one, and should have required the defendant to plead at once, so as to entitle the plaintiff to a trial and judgment, if found to be entitled to it.” Reliance is chiefly put by counsel for appellee upon the case of Ralph v. Prester & Saunders, 28 Miss. 744, where the plaintiff, having secured a verdict, failed to take judgment thereon, and after the lapse of more than seven years moved for judgment. In determining that case the court ignored that section of the act of June 28,. 1822 (found now in § 2265 of the code of 1880) in reference- to the continuance by operation of law of all suits and proceedings “ remaining undecided” at any term of court, and decided that another section of the act, having reference to the correction of judgments in vacation, had no application to the case made. The court clearly missed the section of the act which should have controlled its decision. Much that was said indicates that the court would have held the cause to have been discontinued, but the decision turned upon the fact that the lapse of time after verdict would have barred a judgment if one had been entered, wherefore the right of the plaintiff then to enter judgment was denied. In the subsequent case of Person & Marye v. Barlow, 35 Miss. 174, it was decided, the same judge delivering the opinion who had delivered that in Ralph v. Prester & Saunders, that under like circumstances, “the plaintiff would be entitled to have judgment upon the verdict at any time before the right would be barred by limitation.” [501] In this case no notice was taken of what had been saiddn Ralph v. Prester & Saunders, nor was the right to judgment at the subsequent term found to flow from the provision of the act of 1822. The court gave no reason for its change of view, but silently overruled what was said in the former case with reference to discontinuance, without referring to it. The decision in Person & Marye v. Barlow, was right, for the reason given in Germania Ins. Co. v. Francis. It was not necessary that the justice of the peace should issue another summons before proceeding to vacate the void judgment and to render a valid one, for having acquired jurisdiction of the person of the defendants by virtue of the original process, and not having lost it by the entry of the void judgment, he might lawfully proceed in the cause. When the cause has been treated by the plaintiff as disposed of, notice of an intention on his part to proceed ought in justice to be given to the defendant; but its form and the method of service are immaterial, since its purpose is not to give the court jurisdiction, but to prevent a subsequent appeal by the defendant to equity to vacate the judgment as obtained by fraud or surprise. The judgment is reversed and vacated.