Carrollton Hardware & Implement Co. v. Marshall

78 So. 7 | Miss. | 1918

Ethridge, J.,

delivered the opinion of the court.

The Carrollton Hardware & Implement Company, a corporation, filed a suit in justice of the peace court in Carroll county against B. F. and T. E. Marshall. A judgment by default was entered, and some years after the entry of this judgment B. F. & F. L. Marshall took a contract with Carroll county to build a bridge and bought bridge material from a nonresident concern, the Bank of Carrollton guaranteeing payment for the material and taking security, including the bridge material and the contract of the county with B. F. & F. L. Marshall, and on this guaranty of the bank the material was shipped and came into the possession of B. F. & F. L. Marshall. In the shipping of the bridge material there seems to have been an overcharge of freight, and the Carrollton Hardware & Implement Company sued, out execution and issued writs of garnishment on the judgment, and under said execution an officer levied upon the bridge material, and the bank filed a claimant’s issue and gave bond for the forthcoming of the. material under the execution. The railroad was garnished for the amount it may have been due to B. F. and T. E. Marshall, and answered that it did not owe B. F. and T. E. Marshall anything, hut that it owed B. F. & F. L. Marshall a named amount for freight overcharge, and suggested that said debt was not subject to garnishment on the judgment against B. F. and T. E. Marshall. B. F. & F. L. Marshall were summoned into-court to propound any claims they may have to the interest owing by the railroad, and filed an answer showing' that they were partners, and that the debt due from the road was a partnership debt, and that the judgment against B. F. and T. E. Marshall would not authorize the levying upon the firm property or garnishing debt due the firm of B. F. & F. L. Marshall. B. F. Marshall, appeared in the justice of the peace court, and so did the bank, and moved the court to amove the levy and quash the garnishment, which motion the justice of the peace sustained, and the hardware company appealed to the circuit court. The burden was upon the plaintiff in execution to show liability to execution and garnishment, and when it introduced the transcript of the proceedings in justice court, objection was. made that the judgment was void because it did not show any service of process upon the defendants in the original judgment upon which execution was issued. The court reserved ruling, and at the conclusion of the hearing took the matter under advisement for two days, during which two days the hardware company produced an alleged summons found in the residence of the justice of the peace who rendered the original judgment reciting that the constable had executed the summons by reading to the defendant T. E. Marshall the same. It also produced the constable and tendered him as a witness to prove that he had executed summons on B. F. Marshall, and offered a summons certified to be a copy of the original summons to the best of the knowledge and recollection of the said constable. The circuit judge held the judgment void, and quashed the execution, and discharged the garnishment, and Carrollton Harware & Implement Company appealed here.

Neither the transcript of the record from the justice of the peace court nor the original papers in the files certified hy the justice of the pes.ce showed service .of any process upon either B. F. or T. E. Marshall in the original judgment rendered hy R. N. 'Gray, justice of the peace, and no process or return thereon was delivered to Norwood, present justice of the peace hy the representatives of Gray, the former justice iof the peace, who had died since the original trial. •The judgment of Justice of the Peace Gray was a default judgment, showing on its face that the parties were called and came not, but failed to recite that they or either of them had been served with process, and there was no notation made upon the docket of the justice of the peace of the return of the process, .showing personal service. Section 2726 of the Code or 1906 (section 2225 of Hemingway’s Code) provides:

“ Every justice of the peace shall keep a well-bound hook, styled ‘Docket,’ in which he shall enter the names of the plaintiff and defendant in any suit brought before him, and the character of the suit; the time of issuing process and when returnable, and a copy of the return made thereon by the officer; the time of filing the defendant’s set-off, if any; the appearance or default of parties' summoned to appear;. the date and amount of the judgment; the execution when issued, and a copy of the return thereon; the appeal,, when and by whom demanded, and all the proceedings before Mm touching the suit; and he shall make like entries of all proceedings of a'criminal nature before him heard and determined. And it shall be the duty of a justice, when required, to .furnish to either party a certified copy of such proceedings, and of all papers and process relating thereto.”

Section 83 of the Code of 1906 (section 63 of Hemingway’s Code) provides that in case of appeal from a judgment of the justice of the peace the justice of the peace shall at once make up a transcript of the record and properly transmit the same to the clerk of the circuit court. It is this copy of the entries on his docket which the justice of the peace is to transmit and certify to the circuit court on appeal. Hughston v. Cornish, 59 Miss. 372. The justice of the peace had no authority to enter the judgment, unless the parties were personally served with process in the manner required by law, and his docket should have shown the officer’s return, as required by the Code section above cited.

If we concede that the appellant from a justice of the peace could show the service of process by the officer making the same or by any paper not filed with the justice of the peace, it would not avail the appellant here, because the process returned as to the defendant T. E. Marshall shows on its face that it was not served in the manner required by law. This kind of service has been expressly condemned by this court in the cases of French v. State, 53 Miss. 651, Thomas v. State, 62 Miss. 186, and Dogan v. Barnes, 76 Miss. 568, 24 So. 965.

The judgment being rendered against T. E. Marshall and B. F. Marshall jointly as an entire judgment, it cannot be valid, and cannot be supported, unless there be service of process on each of the defendants. If it is void as to one it is void as to all. Comenitz, v. Bank of Commerce, 85 Miss. 662, 38 So. 35. In addition to actually proving the serving of the process by the constable, there would necessarily have to be proof that the summons was returned to the justice of the peace because he would not be authorized to proceed until such return was made, and the record wholly fails to show any such return. The judgment of the lower court is accordingly affirmed.

Affirmed.