Betts v. Baxter

58 Miss. 329 | Miss. | 1880

George, J.,

delivered the opinion of the court.

This is a motion in the court below against a constable and his sureties for a failure to return an execution at the proper time. The court excluded from the evidence the judgment on which the execution issued, upon the ground that it was void. The judgment excluded was x'endered by a justice of the peace upoix a return on the summons of constructive service oix the defendant. It is insisted that the constable had no power under the statute to make aixy service under the summons but personal seiwice, and hence that the return was void. This would be true if the service is to be tested by the provisions of the Code contained iix the chapter in relatioix to justices of the peace; but sect. 701, contained in the chapter on Circuit Courts, by its express terms applies to original process in all the courts of this State, and by that section constructive service of process is px-ovided for and regulated. It is further insisted ■ that the judgment is void because reixdex'ed on constructive service at the retux'n-term of the summons. This positioix iscox’reet. By sect. 632 of the Code of 1871, applied by sect. 630 to all courts in this State, it is provided that “ no judgment shall be entered at the return-term ” unless on pex'sonal service oix the defendant. The statute is peremptory, and its plain mandate cannot be avoided or evaded. Constructive service is purely a creation of the statxxte, axxd is a substitute allowed in certain cases for the positive notice required to be given to a defendant. Its effect and value are only that which the statute provides. When, therefore, the statute permits constructive service, and at the same time declares that no judgment by default should be rendered on it at the return-term, it in substance declares that such service is good only as service to the second term after it is made, and, therefore, any judgment taken before that term is void. The same result on both the questions herein discussed will be reached under the Code of 1880. Sect. 1585 of that Code, being a part of the chapter on the Circuit Court, and in which chapter is found a provision allowing constructive service of process and a provision prohibiting judgment at the return-term on such service, extends all the provisions of the chapter to all other courts, where such provisions are not restricted in their nature or by express enactment to particular courts. The judgment rendered by the justice of the peace was therefore void, and properly excluded from the evidence.

Judgment affirmed.