J. A. Maloney & Co. v. Tatum

99 So. 129 | Miss. | 1924

Cook, J.,

delivered the opinion of the court.

The appellee, W. S. F. Tatum, filed a declaration in the circuit court of Forrest county against J. A. Maloney & Co., as a corporation whose domicile and post office address was 1182 Broadway, in the city of New York, seeking to recover the sum of one thousand seven hundred forty-two dollars and fifty-nine cents the value of three carloads of lumber alleged to have been sold to such corporation. The declaration alleged that one B. A. Cragin, Jr., was the agent of the said corporation in the city of Hattiesburg, upon whom process could be served, and the summons for the defendant was executed by delivering a copy to the said B. A. Cragin, Jr., and by mailing a copy to the home address of the defendant. At the term of court at which the process was returnable, the said B. A. Cragin, Jr., as amicus curiae, filed the following written instrument:

“Now comes B. A. Cragin, Jr., the alleged agent upon whom process was herein served as amicus curiae, and makes known to the court that he is not and was not at the time of service of process herein an agent upon whom process could be served; and he further makes known to the court that there is no such person, so far as he knows, as J. A. Maloney & Co., a corporation.

“He malíes known to the court that he has heretofore represented J. A. Maloney a partnership composed of E. A. Maloney and F. P. Maloney, each of whom are residents and citizens of the state of New York. But he makes known to the court that he did not at any time represent them in such manner as to authorize service of process upon him.

“The said B. A. Cragin, Jr., therefore, makes known to the court that upon advice, the process herein is void, and that this court is wholly without jurisdiction of the defendants.”

Upon the filing of this instrument the plaintiff called the said Cragin as a witness, and he testified that the facts stated by him as amicus curiae were furnished to him by a member of the partnership, and that he had filed the paper at the request of this partnership. Thereupon the plaintiff asked leave to withdraw its motion for a judgment by default against the defendant, and moved the court for leave to file an amended declaration within sixty days from that date. This motion was granted, and the plaintiff was ordered to deliver a copy of the amended declaration to counsel for the defendant. Shortly thereafter, and during the same term of court, an amended declaration was filed in which the defendants were sued as “ J. A. Maloney, E. A. Maloney, and F. P. Maloney, a partnership negotiating in trade under the firm name of J. A. Maloney & Co., citizens of the city of New York, in the state of New York.” At the next term of the court an order was entered in this cause in the following words:

‘ ‘ Comes the plaintiffs by his attorneys and moves the court for a judgment by default for the reason that they have failed or refused to interpose any defense to plaintiff’s amended declaration. Whereupon the court announced that it would sustain said motion. Whereupon there came and appeared Gr. W. Currie, attorney at law of the firm of Currie & Smith, and moved the court for leave to file pleas and prepare a defense to said action. The said attorneys, however, excepted to the action of the court when it announced that it would sustain plaintiff’s motion for a judgment by default, and it was only after that announcement that defendant’s attorneys asked permission to interpose a defense on the merits of said action. The court thereupon granted the defendants ten days from this date to prepare and file such pleas to plaintiff’s amended declaration as they saw proper to do.”

After the expiration of the ten days allowed in the foregoing order, a judgment was entered against the defendant for the amount sued for, the judgment reciting, in part, as follows:

“This day comes the plaintiff, by his attorneys, and since the order was entered in this case on January 9, 1923, on page 461, Book No. 7, of the Minutes of the Circuit Court, the defendants through Currie & Smith, their attorneys, have advised the court that they do not desire to interpose any defense to the cause of action as set forth in the amended declaration. Whereupon the plaintiff moved the court for judgment nil dicit.”

As we said in Baird v. Georgia Pac. Ry. Co., (Miss.), 12 So. 547: “As courts are always careful to avoid usurping jurisdiction, a suggestion from one in no way connected with the case (an amicus curiae) that its jurisdiction was wrongfully invoked, or was in danger of being exceeded, would be respected,” but where, as in the case at bar, the suggestion comes from one who represents the defendants, and,-in response to the motion to dismiss the cause, the declaration is amended so as to meet the objections that the defendant had not been sued in the proper capacity, and thereafter, in order to prevent a judgment by default from being entered, counsel representing the defendant appears and' moves the court for time to prepare a defense to the action and for leave to file pleas, and this motion is sustained by the court, and an order is entered granting the necessary time within which to prepare and file such pleas, we think this constituted an appearance and authorized the entry of a judgment upon the failure of the defendant to file pleas or interpose any defense.

' The judgment of the court' below will. therefore be affirmed.

Affirmed.