City of Meridian v. Trussell

52 Miss. 711 | Miss. | 1876

Campbell, J.,

delivered the opinion of the court.

Defendant in error sued the city of Meridian in ejectment. Summons was returned by the sheriff, executed, ‘ ‘ by delivering to E. V. Early, mayor of the city of Meridian, a true copy of the same, this 11th November, 1874.” At the May term, A. D., 1875, a judgment by default was taken on the 17th May. Early had ceased tó be mayor, and Shearer had become such. On the 18th of May a motion was made by the city authorities to set aside the judgment by default, rendered the day before, and to set aside and vacate the return of the sheriff on the summons. In support of the motion an affidavit of E. Y. Early, that the summons had not been served on him ■while mayor, was filed, and an affidavit of Shearer, that he had not heard of the action of ejectment until the call of the case on the 17th May, when judgment by default was rendered, and that he believed the city had a good and substantial defense to the action. An affidavit of the sheriff in support of his return on the summons was filed. The motion was refused, and this is the error complained of here. We are unwilling to follow the supreme court of Alabama in its decisions, cited by counsel for plaintiff in error, that a return of ■service of summons on the mayor was not sufficient to authorize a judgment by default without evidence aliunde that the person named in the return was in fact mayor.

The court did right to refuse to set aside the return indorsed by the sheriff on the summons, but we are unable to perceive •on what just ground the court refused to set aside the judgment by default. Looking at the circumstances disclosed by the record, this refusal appears to have been wanton, arbitrary, and erroneous; wherefore the judgment is reversed, and cause remanded, with leave to defendant below to plead to the action.