84 Miss. 188 | Miss. | 1904
delivered the opinion of the court.
The decree pro confesso was improperly taken. Sec. 916, Code 1892, provides that when an injunction is issued the fiat of the judge or chancellor granting the same “shall authorize the issuance of the process or writ returnable to the proper court or before the prouer officer.” In the instant case the fiat of the circuit judge granting the injunction did authorize the issuance of the necessary process, and ordered the same to be made returnable before the chancery court having jurisdiction ; but none was issued, other than the writ of injunction, and that gave no notice of the claim for damages, or of the statutory penalty demanded by the bill of complaint, and named no date when the defendant was required to appear and plead, demur, or answer thereto, as required by Code 1892, § § 34:14-3418. This was not a summons, in the meaning of the law, and imposed no duty upon the defendant. Joiner v. Bank, 71 Miss., 382; 14 South., 464. The object of a summons is to inform the defendant what is required of him under the law, and at what time and before what court he shall appear to make his defense. The writ served upon appellant in this case did not impart this information. It might well be that the defendant, not desiring to contest the issuance of a writ of injunction, and not being advised that any demand for damages or for a personal decree was contained in the bill of complaint, would not care to make any defense to the pending action, but would be willing that the same should go against him by default. Sec. 549 of the code provides that, after process is returned executed, “if the defendant shall fail to plead, answer or demur at the time required,” the complainant’s bill may then “be taken as confessed against such defendant.” But here there was no “time required” by the writ served upon defendant, commanding him to appear at any stated time, no return day was stated in the writ, and therefore no pro confesso could properly be taken.
It follows that, as the chancery court never obtained juris
The case is reversed, the decree pro confesso vacated and set aside, the injunction retamed until final determination, and the cause remanded for a hearing upon the merits.
