Robison v. Miller

57 Miss. 237 | Miss. | 1879

George, C. J.,

delivered the opinion of the court.

This was a proceeding to enforce a lien on land for a balance of the purchase-money. The defendants were the purchaser and his two sureties. The service of the summons as to the purchaser was in these words: Executed on Robert G. Robison, by leaving a true copy of the same with a member of his family over the age of sixteen, he being willing to take and deliver the same, as he could not be found in my county after diligent search.” On this service,' a pro confesso was entered and a final decree rendered.

It is now objected that the service is defective, in that it does not give the name of the member of the family to whom the summons was delivered. We do not regard this objection as well taken. It was objected in Morehead v. Chaffe, 52 Miss. 161, that the Christian name of the person was not stated in the return, and it was held that this was unnecessary, and that a substantial and not a literal compliance with the statute was all that was required. The total omission of the name can work no injury. The substantial thing to be done was to leave the summons with a member of the family of the defendant, over the age of sixteen years, and the return states that this was done.

But the return is fatally defective in not stating that this delivery was made at the usual place of abode of the defendant. The statute is express in requiring the delivery to be made at that place, and also in the requirement that, if a member of the family willing to receive the summons cannot be found at the usual place of abode of the defendant, then a copy of the summons shall be posted on the door of the defendant’s place of abode. Code 1871, §§ 701, 702. The absence of the defendant from his usual dwelling-place, and from the county, is regarded as temporary, and it is presumed that when the defendant returns to his county he will return to his dwelling, and that he will then receive the copy left for him. It might be that, if the delivery were made at another place, the person receiving the summons would not return in time to deliver it to the defendant, or would lose it before the return, or that it would be lost in the attempt to transmit it by another; and the statute does not contemplate or authorize the employment of any other agent than a member of defendant’s family to transmit the summons.

The final decree is also erroneous in providing that the amount ascertained to be due shall bear interest at ten per cent per annum. There is nothing in the bill or exhibits or proof which shows that the debt bore a greater rate of interest than six per cent. On the contrary, the master’s report of the amount due shows that interest was calculated at six per cent. The statute provides “ that all judgments and decrees, founded on any contract, shall bear interest after the rate of the debt on which such judgment or decree was rendered.” Code 1871, § 2279. Decree reversed and pro confesso set aside.