Lester v. Watkins

Shackeleord, C. J., delivered the opinion of the court. A bill was filed in the Chancery Court of Panola county, on the 2d of May, 1866, by Appellees v. Appellants. On the same day an answer was filed by appellants, in the following words:— The joint and several answer of J. T. M. Burbridge, S. P. Lester, Neckle & Simpson, William S. Harris, and W. P. Watkins, to the bill of complaint of G. R. Watkins and Henry Laird filed against them in said court, answer and saith, that they admit all the allegations in the complainant’s bill contained, and agree that the decree be made according to the prayer-therein contained; also acknowledge due and legal service of citation, and waive all irregularities, if any exist. J. T. M. Burbridge, S. P. Lester, Neckle & Simpson, W. S. Harris, W. P. Watkins. [650] Marked “Filed by defendants, May 2, 1866. “ J. C. Harrison, Ol’k.” The cause was submitted on bill, answer, and exhibits, and final decree rendered in the cause on the 21st day of May, 1866. To reverse this decree the cause is brought into this court by appeal. The answer of the appellant furnishes the grounds for the only error assigned, which is as follows :— “ That the error does not show that any of the parties defendant below, were legally in court when the decree was taken against them. “No process to bring them into court was issued and returned executed. “ There was no proof of their signatures to the instrument of writing purporting to be an answer to the bill, and no appearance was entered.” The counsel for the appellants insist that the “ simple endorsement of the name G. G. Nelson, solicitor for defendants,” or what purports to be an answer to complainant’s bill, does not operate as an appearance, or bring the defendants into court, and rely upon the case of Hemphill v. Hemphill, 34 Miss. 69, and Byrne, Vance & Co. v. Jeffries, 38 Miss. 533, as deciding points on the question of appearance, and which sustains the position assumed by them in this assignment of error. In the case of Hemphill v. Hemphill, the plaintiff treated the following as an appearance : — • “ I acknowledge due and legal service of the within petition or complaint, waive summons, and consent that the same may be docketed, and judgment rendered at the present term of the Monroe court now in session. “ Win. Hemphill,” and proceeded to take judgment by default. The court held in this case that “ The judgment was void for want of jurisdiction of the defendant, who could only be brought into court by the process prescribed for that purpose, ' or by plea, or in proper person, and without plea, and [651] make the necessary waiver, and consent for judgment to be entered against Mm, neither of which appear to have been done.” It is clear, from the portion of the opinion just quoted from the case of Hemphill v. Hemphill, that if there had been a plea by counsel in that case, although there was no service of summons upon the defendant, that the appearance would not have been questioned by the court as to its sufficiency. The appellants in this suit appeared by their counsel. and answer the bill of complaint, admitting all the allegations of the same, waiving therein issuance of subpoena, and acknowledging service of the same, and waiving all irregularities, if any existed. They now ask for a reversal of the decree, because there is no proof on the record of their signatures to their answer. They could with the same propriety ask for a reversal of the decree, if service of the subpoena had been personally executed upon them before the filing of their answer, because there was no proof of their signatures to their answer being genuine, or that they were placed there by their counsel with their authority. After comparing the facts in this case with those of Hemphill v. Hemphill, we are unable to perceive their analogy. It is not at all probable, and cannot-be presumed, that a solicitor represented appellants in this cause in the court below without proper authority from them. Let the decree be affirmed.