Alexander v. Porter

41 So. 6 | Miss. | 1906

Mayes, L,

delivered the opinion of the court.

.The record in this case shows that the judgment entered by the ’ circuit court, is a void judgment. Suit was commenced in July, 1905, by an attachment against Mrs. Alexander, she being a nonresident at the time. Publication was duly made requiring her to appear at tbe September term, 1905, and at tbe September term, 1905, judgment by default was rendered against tbe defendant on tbis constructive service. On tbe motion to set aside tbe judgment in tbe lower court tbe invalidity of tbe judgment was not assigned as one of tbe reasons wby tbe court should vacate tbe judgment, and tbis point is made for tbe first time bere. While it is true that tbis court has decided that it will not take notice of any objection which is urged for tbe first time in tbe supreme court, yet it will not affirm a judgment void on its face, when appealed to tbis court, even though tbis objection was not made in tbe lower court. There is no judgment for tbis court to affirm. Tbe suit is merely a pending suit in tbe lower court.

The cause is reversed and remanded.