Gooch v. Glidewell

86 So. 705 | Miss. | 1920

Sam C. Cook, P. J.,

delivered the opinion of the court.

J. B. Gooch, appellant, a resident of McNairy county, Tenn., in the circuit court of Alcorn county, Miss., made affidavit for a writ of attachment against J. II. Glidewell, appellee, also a resident of McNairy county, Tenn., for the sum of six hundred dollars, and on the ground that the defendant, Glidewell, wag a nonresident of this state, and executed bond therefor conditioned according to law. The writ of attachment accordingly was issued, and was levied on certain personal property of the defendant found in Alcorn county.

Whereupon the plaintiff, Gooch, filed his declaration in attachment, in which he alleged that the defendant, Glide-well, was indebted to him in the sum of six hundred dollars by virtue of a certain judgment which plaintiff had recovered against the defendant in the court of one J. T. Williams, a justice of the peace in McNairy county, Tenn., on the 21st clay of June, 1911, and filed a certified copy of said judgment with his declaration. Plaintiff also set out in said declaration the statutes of Tennessee showing the jurisdiction of the justice of the peace. The amount of the judgment was four hundred sixty-two dollars and seventy-four cents and interest thereon at six per cent, from the date of its rendition.

To this declaration the defendant pleaded the general issue, and a second plea, in which he in substance charged that this judgment was obtained by fraud and that no legal process of any kind was served upon him before the judgment Avas rendered.

The plaintiff filed a replication to the second plea, denying the judgment Avas obtained by fraud, and denying the defendant was not served with legal process before said judgment Avas rendered, and averred that the defendant Ayas served with legal process, and filed as Exhibit A to the replication a copy of the original summons issued in the case, with the officer’s return thereon showing service.

In this state of the pleading the case went to trial, and it was agreed that both plaintiff and the defendant, were nonresidents of Mississippi, and resident of Tennessee, and had been continuously, thus leaving only the debt issue to be determined.

The plaintiff introduced J. T. Williams, who testified that he was the duly elected and actinc justice of the peace of McNairy county, Tenn., before whom the judgment being sued on in the instant case was rendered. He then identified the original summons which was issued by him in that case, and testified that he delivered the same to W. M. Prince, who at that time was a bailiff of said county, and that W. M. Prince returned the summons' to him, with his indorsement on the back of it showing service on the defendant. This summons, with the return of the officer thereon, was filed as Exhibit A to the testimony of this witness. The witness then identified' the magistrate’s judgment docket, which was kept by him at the time of the rendition of this judgment, and in which the judgment in favor of the plaintiff and against the defendant was duly entered. This was filed as Exhibit B to the testimony of this witness.

On cross-examination the witness testified that the summons in the case was not actually written out and signed by him, but was filled out and his name signed thereto by the plaintiff, J. R. Gooch, at his request and by his authorization and in his presence; that he was standing by Gooch at the desk when this was done; that he frequently had neuralgia and rheumatism in his hands, and at times he could hardly write; and that he had asked numbers of men to do the same thing that he requested Gooch to do.

The defendant then moved the court to exclude the writ and the judgment docket, as identified by this witness, on the ground that the testimony of the witness showed that he did not issue the writ or summons, that he did not sign the same, and that the judgment rendered in the case was null and void, which motion was sustained by the court, and plaintiff excepted. The defendant then moved the court to instruct the jury peremptorily to find for the defendant, when the court stated orally that, having excluded the summons and judgment, this ended the case, and the above motion was sustained and the plaintiff excepted.

The sole question presented in this case rests upon the contention of the defendant below that the Tennessee justice of the peace did not sign the original summons purporting to be issued by Mm, but that this summons was filled out by the plaintiff in the original suit, and the signature of the justice of the peace was also written by the plaintiff. It seems that the summons, on its face, was in strict accordance with the Tennessee statutes. The facts are undisputed. The summons was not signed by the justice of the peace, but his name was written by the hand of the plaintiff, at his request and in his presence.

The precise question has been decided by this court and by the supreme court of Tennessee. There is nothing in the statutes of this state, or in the statutes of the state of Tennessee, providing that the original summons must be signed by the officer issuing the same. The supreme court of Tennessee has expressed its opinion upon the question in the .instant case in Kirkwood v. Smith, 9 Lea, 228. In that case the Tennessee court said:

“It is an official act, which cannot be done by power of attorney. If done in his presence, with his approval, it ivould be valid.”

The exact point was not presented in the Tennessee but it is quite clear that the court, as a matter of course, Avould validate a summons which was signed by a third party, at the request and in the presence of the issuing officer.

The laAV in this state is well settled. This court has gone on record upholding the validity of process signed by a third person, in the presence of and at the request of the issuing officer. Gamble v. Trahen, 3 How. 32. See, also, Jackson v. State, 55 Miss. 532; Wimberly v. Boland, 72 Miss. 243, 16 So. 905.

The trial court was in error, and the case will be reversed and remanded.

Reversed and remanded.