Gulf & Ship Island Railroad v. Ramsey

54 So. 440 | Miss. | 1910

Mayes, C. J.,

delivered the opinion of the court.

It appears from this record that on the 8th day of November, 1909-, Dr. C. H. Ramsey began a suit against Charles Youngblood, in the proper justice of the peace district of Jones county, for the sum of ninety-six dollars and thirty-two cents. On the day the suit was begun summons was issued by the justice of the peace, notifying Youngblood of the suit; the summons being addressed to “the sheriff or any constable” of the county, as required by law. The justice court for the district in which this suit was instituted was regularly held in the city of Laurel as the permanent place fixed for the holding of the court. The summons was personally executed on the 13th day of November, six days before the convening of the term of court by the justice of the peace at which this judgment was rendered, and the summons was served by “B. Duckworth, marshal of the city of Laurel, Miss., and ex-officio a constable;” the above being the exact return as it appears in the record. Section 3394, Code of 1906, provides that “The marshal shall be ex-officio a constable.” On the 19th of November, the defendant not appearing, a judgment by default was rendered against him. Immediately following the judgment the plaintiff in execution, Ramsey, made an affidavit under section 2743 of the Code of 1906, praying for the immediate issuance of an execution, and stating that he would be in danger of losing his debt if delayed, and also suggesting that the Gulf & Ship Island Railroad Company was indebted to Youngblopd, and praying for a writ of garnishment. The writ of garnishment was accordingly issued, and on the same day of the rendition of the judgment, on the 19th day of November, 1909,’ service of the garnishment was had on J. A. Gregory, agent of the railroad at Laurel, summoning the railroad company to appear at the next term of the justice court, to be held on the 4th day of December, 1909, in Laurel, at ten a. m., then and there to make answer, etc. The writ of garnishment was served personally on the 19th day of November by W. P. Valentine, constable. The justice court met on the 4th day of December, 1909, and, no answer being filed by the railroad company, a judgment by default was rendered against it on the garnishment for the full amount of the judgment, with six per cent, interest until paid.

Two or three days later, and after the adjournment of the justice court, the Gulf & 'Ship • Island Railroad Company took an appeal to the circuit court. When.the case was reached in the circuit court, and called for trial, appellants made a motion to be allowed to file their answer in the circuit court for the first time, accompanying the motion with the affidavit of W. L. Dunham, treasurer of the railroad. The affidavit denies that the railroad company owed anything to Youngblood at the date the garnishment was served on it, or that it has since owed him anything, and denies that it knows of 'any one that does owe anything to Youngblood. The affidavit further states that he undertook to make answer as required by law, and did make the answer, and mailed same to the proper justice of the peace on the 2d day of December, 1909, correctly addressed to him at Laurel, Miss., the place where the court was to be held. It is further stated in the affidavit that affiant did not know why the answer was never received by the justice of the peace, but on the 7th day of December it was returned, as unclaimed, to the office of the railroad company in Gulfport, and the answer so prepared and envelope are filed as exhibits. This affidavit is followed by an agreed statement of facts to the effect that no answer was filed as required by law; that the justice of the peace held his court on tire proper day, and that judgment against the garnishee was not taken until the afternoon of the day; that the postoffice of the justice of the peace is at Soso, Miss., a distance of ten miles from Laurel, but that Laurel was the place where the court was regularly held for two or three years preceding this occurrence. It is further agreed that all objections are waived that might be urged because the garnishee did not file the answer on the first day of the term of the circuit court, but objection is made on the part of appellee to appellant being allowed to file any answer, for the first time in the circuit court, and the right to object on this account is reserved and insisted upon. The circuit judge overruled the motion of appellants to be allowed to file an answer for the first time in the circuit court, and gave judgment against the railroad as for failure to answer, from which judgment the railroad appeals.

It is insisted by appellant that the judgment is void because it appears that the defendant in the original action was served with a summons by the marshal and ex-officio constable of the city of Laurel, but it does not appear from the return that the marshal served the summons within the city of Laurel, which constituted the limits of the jurisdiction within which the marshal had a right to act. It is then argued that as the judgment itself is void, then all process issuing from it is void, and therefore no .valid judgment could be rendered against the garnishee. Section 3894 makes the marshal an ex-officio constable. The marshal is a sworn officer, acting under oath, and all presumptions are to the effect that he has done his duty in serving the process and in the manner required by law. See 32 Cyc., p. 511 et seq., and notes.

The next contention is that under the circumstances the railroad company should be allowed to file answer for the first time in the circuit court. In the first place, it was the duty of appellant to know that the answer had been filed, if it desired to file an answer. The law requires the answer to be on file before the justice of the peace “by noon on the return day of the writ,” and if it be not on filé at that time judgment may be taken. See section 2347, Code 1906. If the party be there, and desire further time for answer, the court may, in its discretion, grant further time. If the party do not appear until after the noon hour but appears before the adjournment of the court, the court may even then allow the answer to be filed; but none of these things happened in this ease. The. mailing of the answer was not sufficient, unless it actually accomplished its purpose and was actually filed. The statute says the garnishee in a justice of the peace court “shall answer by noon on the return day of the writ,’'’ and if he fail to answer during the term of court at which he is required to answer he is then precluded from afterwards filing the answer, either in the justice court or on appeal in the circuit court. The same reasons which preclude a defendant from filing an offset for the first time in .the circuit court, on an appeal from a justice of the peace, preclude the filing of the answer of the garnishee under the same circumstances. Affirmed.