Reichman-Crosby Co. v. Horton

108 So. 443 | Miss. | 1926

^* Corpus Juris-Cyc References: Process, 32Cyc, p. 516, n. 26; p. 517, n. 27. In the year 1923 Reichman-Crosby Company, a corporation, sued D.A. Horton and M.M. Horton on a note in favor of appellant, signed "Horton Lumber Co., per D.A. Horton," alleging in the declaration that D.A. Horton and M.M. Horton were partners doing business under the name of Horton Lumber Company. Summons were issued to D.A. Horton and M.M. Horton, on which the sheriff indorsed the following return: "I have this day executed the within writ personally by delivering a true copy of the same to the within named D.A. Horton and M.M. Horton," signing his name to the return as sheriff. No appearance was made, and judgment by default was taken, and afterwards an execution issued thereon, and certain property belonging to Mrs. M.M. Horton, the appellee, was levied upon and advertised to be sold by the sheriff. Thereupon Mrs. M.M. Horton sued out a writ of injunction in the chancery court restraining the appellant from selling said property. In the bill for injunction Mrs. Horton alleged that she was not a member of the Horton Lumber Company, and had no interest therein, and that she had never been served with a copy of the summons issued in the circuit court, and knew nothing of said suit until after the expiration of the term at which the judgment was rendered and until the execution was levied; that the first she knew of it was seeing the notice in the paper. On the hearing of the bill Mrs. Horton testified that she never had been served with a summons, and knew nothing of the suit until after judgment was taken, and that she was not a member of the Horton Lumber Company, and had no interest therein. The sheriff testified on direct examination that he served the summons upon Mrs. Horton by delivering her a true copy of it, but on cross-examination stated that he had no personal recollection about the matter; that he did not recollect whether or not he had delivered her a copy or whether he had been at her home serving papers; but that he was governed by the return on the writ. He also stated that the return was in the handwriting of a deputy, but that he dictated the return, and, where it was served by him, the return was signed by him as sheriff, and, where it was served by a deputy, the return was signed showing it was served by a deputy. The husband of Mrs. Horton, the appellee, testified that she had no interest in the Horton Lumber Company, and that he had no authority to sign her name to a note or to bind her in reference thereto, and also that, if she was ever served with summons, he knew nothing of it, and that he did not remember ever showing his wife the summons served on him. The chancellor found in favor of Mrs. Horton, and made the injunction perpetual, from which judgment this appeal is prosecuted.

It is insisted by the appellant that Mrs. Horton's testimony, she being an interested party, is not sufficient to overcome the presumption attaching to the sheriff's official return.

We think the testimony presented a question of fact as to whether the summons was actually served upon Mrs. Horton, and that the chancellor's decree is supported by evidence sufficient to sustain it.

The judgment of the court will, therefore, be affirmed.

Affirmed.