67 So. 185 | Miss. | 1914
delivered the opinion of the court.
This is an appeal from a judgment by default, and' one of the assignments of error is that:
“It appears from the returns of the sheriff on the summons issued in said cause that the same was served on August 25, 1912, which was on Sunday and was an illegal day for the service of the summons, and the judgment rendered thereon was void.”
After the filing of this assignment of error, appellee filed a motion alleging that the return of the sheriff on this summons was erroneous, for the reason that it was in fact served on a day other than Sunday, and praying
It will not now be necessary for us to postpone the-hearing of this cause, for the reason that we have passed the call of the docket of the district from which it comes, and therefore the cause stands continued until the call of the docket for that district is again reached at the next term of this court.
Since the filing of the motion to postpone above referred to, a motion for permission to the sheriff to amend the return on the summons to accord with the alleged facts of the service thereof has been disposed of in the court below' adversely to appellee. After this-motion to amend was overruled in the court below, appellee filed another motion in this court, requesting the issuance of a writ of certiorari directing the clerk of the court below to send up the record of the proceedings on the motion to amend. A certified copy of this record, however, has now been filed with the clerk of this court, so that the issuance of such a writ is now unnecessary.
It appears from this record that the motion to amend was overruled on the ground that the court below was without jurisdiction to grant the relief prayed for, the recital in the order overruling it being as follows:
“The court having heard the evidence adduced by the plaintiff in support of said motion, and being thereof sufficiently advised, but being in doubt as to the jurisdiction of this court to order an amendment of the said return, because there is an appeal pending from the judgment rendered herein in the supreme court, it is therefor ordered that the said motion be and the same is hereby overruled.”
An examination of the authorities hereinafter cited will disclose that the rule governing the matter here in question is this: That where the process was in fact legally served, and the court thereby acquired jurisdiction of the defendant, “but the return of the officer or
The cases of Meyer Bros. v. Whitehead, 62 Miss. 387, and Kelly v. Harrison, 69 Miss. 856, 12 So. 261, are not here in point, for the question in those cases was not whether a sheriff should be permitted to amend his return on the process, but whether or not judgments by default should be vacated -because rendered upon returns of service of process shown to be false.
It follows from the foregoing views that the court below was in error in holding that it was without jurisdiction to grant the relief prayed for.
The order overruling the motion for leave to amend is reversed, and the cause, in so far as the proceedings therein under this motion are concerned, will be remanded to the court below.
Reversed and remanded.