79 So. 61 | Miss. | 1918
delivered the opinion of the court.
The Southern School Book Depository, a firm composed of Y. R. Smith, F. R. Carlton, C. Y. Smith, Mrs. R. N. Hughes, and T. M. Foster, filed a suit against E. A. Grayson, W. W. Hood, and R. H. Cranford in the justice of the peace court of district No. 2, Jones county, Miss., on a bond given by Grayson as principal and Hood and Cranford as sureties for one hundred and eighty-three dollars and twenty cents and for attorney’s fees. At the time of the filing of the suit, Hood, one of the sureties, was temporarily residing at Laurel, Miss., but retained his citizenship and legal residence ’at Moselle, Miss., in district No. 5, for the election of justice of-the peace in Jones county. Grayson and Cranford were both resident freeholders of district No. 5 of Jones county. Process was issued to the constable of district No. 2 of Jones county, who served the process upon Hood in district No. 2, Jones county. And then the constable of district No. 2 went into district No: 5 and delivered a copy of the summons to Grayson and Cranford. On the return day of the summons none of the defendants appeared in court, but made default. The plaintiff appeared in court by attorney and announced ready for trial, and thereupon a default judgment was entered against all the defendants, Grayson, Cranford, and Hood, for one hundred and eighty-three dollars, twenty cents principal, and fifteen dollars attorney’s fee, and cost. Upon this judgment execution was issued and placed in the hands of the
The defendants in the chancery court, being the sheriff and plaintiffs in the justice court, first filed a demurrer to the bill of complaint setting forth the following grounds of demurrer: First. There is no equity on the face of the bill. Second. The bill shows on its face that the judgment is valid and binding. And complete remedy at law. Third. That the bill shows on its face that the judgment is valid and binding. And then filed what is called a “special demurrer,” alleging as grounds of demurrer: That the bill shows on its face that the judgment against Hood is valid, legal, and binding; 'second, that the allegation of the bill that the judgment is joint is a mere conclusion of the pleader; third, that all distinction between joint and'Several actions have been abolished by statute in Mississippi. Fourth, that there is no equity in the bill as to Hood. Both of these demurrers were overruled by the chancellor, and an appeal granted to settle the principles of the case.
If process had been properly served upon all of the defendants, that would be true in this case; but in order to have a valid judgment there must be either a valid service of process upon the defendant, or an appearance or waiver of process.
This court decided, in Riley v. James, 73 Miss. 1, 18 So. 930, that a constable could not go beyond the confines of his district and serve process; that under the law he was elected by and for a district and was limited in his action to his district. It follows then that there was no service of process upon two of the defendants in court, but on the return day judgment was taken against all of the defendants. In the case of Carrollton Hardware & Imp. Co. v. Marshall, 78 So. 7, and in the case of Comenitz v. Bank, 85 Miss. 662, 38 So. 35, it was held that where there is a judgment void as to one it is void as to all, and that to authorize the entry of a valid judgment there must be
Affirmed, and remanded.