Postal Telegraph-Cable Co. v. Thompson

Smith, C. J., delivered the opinion of the court. The appellee recovered a judgment by default against the appellant in a court of a justice of the psace and afterwards the cause was removed to the court below by a writ of certiorari. The court below overruled a motion to quash the writ of certiorari, and without -reversing the judgment of the justice of the peace ordered the cause to be tried on its merits, but afterwards rendered final judgment, from which this appeal is taken, as follows: “This cause coming on to be heard on motion of C. E. Thompson, to enter such judgment as the justice court should have rendered, and the court having duly considered the same, and it appearing to the court that the defendant was duly served with process in justice [384] court, and it further appearing to the court that the judgment that ought to have been rendered in the justice court is apparent on the face of the records, it is therefore ordered and adjudged by the court without a jury that the plaintiff, C. E. Thompson, do have and recover of and from the defendant, the Postal Telegraph Company, a corporation, the sum of twenty-five dollars statutory penalty, and the further sum of one hundred and seventy-five dollars, actual damages sustained by plaintiff, together with six per cent interest from January 15, 1918, together with all costs, for which let execution - issue. ’ ’ One of the alleged defects in the judgment of the justice of the peace is that it was rendered without legal srvitoe of process. The summons for the appellant issued by the justice of the peace was not executed by the constable, but by a person claiming to act as the constable’s deputy; the return of service indorsed on the summons being signed: James Ewell, Constble> Boyce Thomas, Deputy Constable.” The record contains no evidence of the appointment of Thomas either as a deputy constable or as a special constable. The statute makes no provision for a deputy constable and the appellee does not claim that it does; his contention being that we must presume that Thomas was a special constable appointed by the justice of the peace to serve the summons under the provisions of section 2732, Code of 1906, section 2231, Hemingway’s Code; but a sufficient answer thereto is that the return of service on the summons excludes such a presumption, for it clearly appears therefrom that Thomas did not claim to be acting as a special constable in serving the summons, but as a deputy of the regular constable. The summons having been served by a person without authority to do so, the appellant was under no obligation to obey it; consequently the justice of the peace [385] should not have rendered judgment by default against it. The court below should shave set aside the judgment rendered by the justice of the peace and remanded the cause to him for further proceedings. McDugle v. Filmer, 79 Miss. 53, 29 So. 996, 89 Am. St. Rep. 582. Reversed and remanded¡