H. Lupkin & Sons v. Russell

Smith, C. J., delivered the opinion of the court. This is an appeal from a judgment by default, and' one of the assignments of error is that: “It appears from the returns of the sheriff on the summons issued in said cause that the same was served on August 25, 1912, which was on Sunday and was an illegal day for the service of the summons, and the judgment rendered thereon was void.” After the filing of this assignment of error, appellee filed a motion alleging that the return of the sheriff on this summons was erroneous, for the reason that it was in fact served on a day other than Sunday, and praying [744] that the cause be postponed to a later day, so that this error could be corrected in the court below. It will not now be necessary for us to postpone the-hearing of this cause, for the reason that we have passed the call of the docket of the district from which it comes, and therefore the cause stands continued until the call of the docket for that district is again reached at the next term of this court. Since the filing of the motion to postpone above referred to, a motion for permission to the sheriff to amend the return on the summons to accord with the alleged facts of the service thereof has been disposed of in the court below' adversely to appellee. After this-motion to amend was overruled in the court below, appellee filed another motion in this court, requesting the issuance of a writ of certiorari directing the clerk of the court below to send up the record of the proceedings on the motion to amend. A certified copy of this record, however, has now been filed with the clerk of this court, so that the issuance of such a writ is now unnecessary. It appears from this record that the motion to amend was overruled on the ground that the court below was without jurisdiction to grant the relief prayed for, the recital in the order overruling it being as follows: “The court having heard the evidence adduced by the plaintiff in support of said motion, and being thereof sufficiently advised, but being in doubt as to the jurisdiction of this court to order an amendment of the said return, because there is an appeal pending from the judgment rendered herein in the supreme court, it is therefor ordered that the said motion be and the same is hereby overruled.” An examination of the authorities hereinafter cited will disclose that the rule governing the matter here in question is this: That where the process was in fact legally served, and the court thereby acquired jurisdiction of the defendant, “but the return of the officer or [745] other proof of service fails to show that fact, or is otherwise irregular or defective, it may be amended after judgment,” provided the amendment will not have the effect of invalidating an otherwise valid judgment. 23 Cyc. 872, and authorities cited in note 48; 1 Freeman on Judgments (4th Ed.) Section 89b; note to Malone v. Samuel, 13 Am. Dec. 172. The eases of Dorsey v. Peirce, 5 How. 173, and Hughes v. Lapice, 5 Smedes & M. 451, are in harmony with the rule as here announced, for the reason that each of them comes within the exception or proviso thereto. In Planters’ Bank v. Walker, 3 Smedes & M. 409, the amendment under consideration was sought to be made before judgment, and the court in the course of its opinion, after referring to the fact that it had been held in Dorsey v. Peirce, supra, that an amendment of this character cannot be made after judgment, stated that the reason this cannot be done is “that it would cause a reversal and seriously affect rights acquired under it.” Such an amendment can be made even after an appeal has been taken from the judgment rendered, and when certified to the appellate court will be considered by it in disposing of the cause. 1 Freeman on Judgments (4th Ed.), section 89b; Hefflin v. McMinn, 2 Stew. (Ala.) 492, 20 Am. Dec. 58; Talcott v. Rosenberg, 8 Abb. Prac. N. Y. (N. S.) 287; Borrego v. Territory, 8 N. M. 446, 46 Pac. 361; Gonzales v. Cunningham, 164 U. S. 613, 17 Sup. Ct. 182, 41 L. Ed. 572. The cases of Meyer Bros. v. Whitehead, 62 Miss. 387, and Kelly v. Harrison, 69 Miss. 856, 12 So. 261, are not here in point, for the question in those cases was not whether a sheriff should be permitted to amend his return on the process, but whether or not judgments by default should be vacated -because rendered upon returns of service of process shown to be false. It follows from the foregoing views that the court below was in error in holding that it was without jurisdiction to grant the relief prayed for. [746] Whether or not the rule of the common law that the refusal of the lower court to permit an amendment of this character to be made is not subject to review on appeal has been modified by section 775■ of the Code, is not now before us, and we express no opinion relative thereto, for the reason that the court below did not decide the controversy on its merits, but overruled the motion on the ground that it was without jurisdiction to grant the relief prayed for. Avery v. Bowman, 39 N. H. 393; note to Malone v. Samuel, 13 Am. Dec. 175. The order overruling the motion for leave to amend is reversed, and the cause, in so far as the proceedings therein under this motion are concerned, will be remanded to the court below. Reversed and remanded.