193 So. 805 | Miss. | 1940
Charlie Cullens, the appellant, filed a bill for divorce against his wife, Otye Leslie Cullens. The defendant filed an appearance and waiver of service of process on the hearing of the case in accordance with the provisions of Chapter 244 of the Laws of 1936, but this appearance was filed on the 25th day of October, 1939, and the term of the Chancery Court of the County began on Monday, October 23, 1939, and the bill for divorce had been filed on September 15, 1939, prior to the convening of the said regular term of Court. The chancellor refused to grant the relief sought by the appellant for the reason that he did not believe the defendant was legally in Court, and he granted an appeal to settle the principles of the case, which appeal is now before us.
Chapter 244 of the Laws of 1936 reads as follows:
"An Act providing how a defendant may waive the service of process and/or enter an appearance in civil causes without filing any pleading therein.
"Section 1. Be it enacted by the Legislature of the State of Mississippi, That any party defendant who is not a minor, lunatic, or convict of felony, may, without filing any pleading therein waive the service of process, or enter his or her appearance, either or both, in any civil *734 cause or proceeding for all purposes, with the same effect as if he or she had been duly served with process, in the manner required by law on the day of the date thereof; provided such waiver of service or entry of appearance be in writing dated and signed by the defendant and duly sworn to, or acknowledged, by him or her, or his or her signature thereto be proven by two subscribing witnesses, before some officer authorized to administer oaths. But such written waiver of service or entry of appearance must be executed after the day on which the suit or proceeding was filed and be filed among the papers in the cause and noted on the general docket.
"Sec. 2. That this act take effect from and after sixty days after its passage.
"Approved March 21, 1936."
It was the chancellor's opinion, we are informed, that the provision in the above statute, "with the same effect as if he or she had been duly served with process, in the manner required by law on the day of the date thereof;" provided such waiver of service or entry of appearance be in writing dated and signed by the defendant and duly sworn to, or acknowledged, before some officer authorized to administer oaths, as therein provided, required the waiver to precede the date of the term of the Court, and desires a construction of the statute as to whether it was permissible to file such waiver on the date on which it was filed, or, in other words, after the beginning of the term of Court. Prior to the enactment of the statute above quoted, it had been held in a number of cases that a written waiver of service of summons and consent to appear was sufficient to support a judgment. Hemphill v. Hemphill,
"As the appearance anciently was an actual one, so the pleading was an oral altercation in open court in the presence of the judges. During this altercation, a minute in writing was made by the proper officer, comprising a short notice of the nature of the action, the time of appearance of the parties in the court, and the acts of the court itself during the pleading; and this was called the record.
"The appearance of the parties is no longer by actual presence in court. It is effected on the part of the defendant by making a certain formal entry in the proper office of the court, expressing his appearance. Stevens on Plead. 22-26.
"If, in the case of Hemphill v. Hemphill, it was intended to say that appearance to the action could only be effected by plea, or in proper person, without plea, in open court, and making the necessary waiver and consent for judgment; and that it could not be done out of term time by entry on the complaint, — of appearance to the action (in the proper office, and before the clerk of the *736
court), we are not willing to sanction the doctrine of that case to that extent." The reporter, who as the distinguished James E. George, construed the ruling of Byrne, Vance Co. v. Jeffries, supra, to overrule Hemphill v. Hemphill, supra, and so stated in the fourth syllabus to the case; however, in subsequent cases, the Court adhered to Hemphill v. Hemphill although the Court had held that the party may appear in Court by plea, although no process had been served, and thereupon jurisdiction of the person is by the plea conferred on the Court insofar as that point is concerned. Chambliss v. Chambliss,
In the case of Townsend v. Beavers (Miss.),
"It will be observed that this waiver was acknowledged before the chancery clerk, and that it specifically and completely identified itself with the court, the matter and the particular petition therein to which it was addressed. It goes into greater particularity than is mentioned in the new statute on this subject, Chap. 244, Laws 1936. Had this waiver been written at the bottom of the petition itself and acknowledged before the clerk, its validity would be without question, under Byrne v. Jeffries,
"All of the heirs being thus in court, they made no contest of the petition, and a decree pro confesso was taken *737 against them, and thereafter a final decree for the sale of the lands as prayed."
The statute above quoted, Chapter 224, Laws of 1936, we construe as being a legislative direction to the parties to take their heads out of the sands of technicalities, and proceed along the highway of common sense to the shrine of justice. All of our modern tendencies are to simplify proceedings so as to bring controversies to trial on their merits, and to administer justice according to law with as much speed as is consistent with due consideration of the matters involved. We think the statute authorizes the appearance without plea, and places safeguards around such waiver of process and entry of appearance as will prevent, as far as any pleading would, collusion in the suit or fraud upon the courts. We see no reason why parties may not appear under this statute during the term of Court and have their controversies adjudicated, where process had not been served, as fully and effectively as if it had been served in sufficient time to have taken a default for want of pleading. Should the Court at any time believe that there was collusion between the parties, or a fraud attempted on the Court, it has full power to inquire into such matters, and if sufficient facts were found to justify, it might deny relief or dismiss a suit conceived in collusion or fraud.
The judgment of the Court below will be reversed and the cause remanded for further proceedings.
