83 So. 612 | Miss. | 1919
Lead Opinion
delivered the opinion of the court.
The appellee recovered a judgment by default against the appellant in a court of a justice of the psace and afterwards the cause was removed to the court below by a writ of certiorari. The court below overruled a motion to quash the writ of certiorari, and without -reversing the judgment of the justice of the peace ordered the cause to be tried on its merits, but afterwards rendered final judgment, from which this appeal is taken, as follows:
“This cause coming on to be heard on motion of C. E. Thompson, to enter such judgment as the justice court should have rendered, and the court having duly considered the same, and it appearing to the court that the defendant was duly served with process in justice*384 court, and it further appearing to the court that the judgment that ought to have been rendered in the justice court is apparent on the face of the records, it is therefore ordered and adjudged by the court without a jury that the plaintiff, C. E. Thompson, do have and recover of and from the defendant, the Postal Telegraph Company, a corporation, the sum of twenty-five dollars statutory penalty, and the further sum of one hundred and seventy-five dollars, actual damages sustained by plaintiff, together with six per cent interest from January 15, 1918, together with all costs, for which let execution - issue. ’ ’
One of the alleged defects in the judgment of the justice of the peace is that it was rendered without legal srvitoe of process. The summons for the appellant issued by the justice of the peace was not executed by the constable, but by a person claiming to act as the constable’s deputy; the return of service indorsed on the summons being signed: James Ewell, Constble> Boyce Thomas, Deputy Constable.” The record contains no evidence of the appointment of Thomas either as a deputy constable or as a special constable.
The statute makes no provision for a deputy constable and the appellee does not claim that it does; his contention being that we must presume that Thomas was a special constable appointed by the justice of the peace to serve the summons under the provisions of section 2732, Code of 1906, section 2231, Hemingway’s Code; but a sufficient answer thereto is that the return of service on the summons excludes such a presumption, for it clearly appears therefrom that Thomas did not claim to be acting as a special constable in serving the summons, but as a deputy of the regular constable.
The summons having been served by a person without authority to do so, the appellant was under no obligation to obey it; consequently the justice of the peace
Reversed and remanded¡
Dissenting Opinion
(dissenting).
I find myself unable to agree with the majority. The gist of the opinion may be found in the language of the Chief Justice speaking for the court. He .says: “The statute makes no provision for a deputy constable.” I think the court is clearly wrong in this statement of the law. The statute is in these words:
“Persons appointed to execute process. — In cases of emergency, and where a constable or sheriff or deputy sheriff cannot be had in time, the justice of the peace may appoint some reputable person to execute any process, the justice to be liable on his bond for all damage which may result to a party to the cause or other person from his appointment of an insolvent or incompetent person. Section 2732, Code of 1906, Section 2231, Hemingway’s Code.
The majority of the court seem to believe that the Code section provides for a “special constable,” but it fails to provide for the appointment of a deputy constable. Nothing in the statute warrants either conclusion. When we take into consinderation that all of the standard dictionaries treat “deputy” and “substitute” as synonymous, it will clearly appear that the statute confers upon the justice of the peace the power to appoint not a special constable, but it does in plain and, in my opinion, unmistakable terms, confer upon tile justice of the peace the exclusive power to appoint a deputy or substitute constable, when the emergency exists. A mere reading of the statute will disclose that
When the emergency arises under the statute the justice of the peace is expressly author:zd to appoint a reputable person to execute the process. In other words, the person so appointed is a substitute for or deputy of the elected constable.
Section 2731, Code of 1906, section 2230, Hemingway’s Code, admonishes the justice of the peace, if there be a constable in the district qualified to act,- the process shall not be directed to the sheriff.
In this case it is fair to assume that there was a constable elected in the district, and that there was a sheriff and deputy sheriffs of the county, but none of these officers could be found in time, and so it was he gave the preference to the constable and deputized the person who returned the writ to serve the writ for and in the place of the constable elect. That would carry out the spirit of the statutes of the state.
So, I think, that the return of the summons was entirely within the law and that the emergency appointee was the deputy of the constable made so by the only authority known to the law, and any other interpretation of the record is too refined and technical for the ordinary affairs of life.
The defendant in this case does not claim it was not served with process, but does claim the-return shows that the person serving the process was not authorized by law to serve the same. The trial justice of the peace, of course, knew that he had deputized the very man who returned the writ. So it seems to me, that
If we ignore as surplusage all of the return on the summons except the name of the appointee and the word “deputy,” I submit that the return is beyond criticism. I have been unable to find but one decision of this court which is in any way applicable to the present case. In Nelson v. Nye, 43 Miss. 126, this court approved a return in principle much like the one in this case. The court in that case said that a substantial compliance with the statute was sufficient, saying that, in the absence of anything to the contrary, the special deputy sheriff was duly authorized to serve the writ. The word “deputize” is thus defined:
“Deputize: To appoint a deputy; to appoint of commission one to act as deputy to an officer. In a general sense the term is descriptive of empowering one person to act for another in any capacity or relation, but in law it is almost always restricted to the substitution of a person appointed to act for an officer of the law.” Black’s Law Dictionary (2 Ed.), p. 358.