Walker v. Joyner

52 Miss. 789 | Miss. | 1876

Tarbell, J.,

delivered the opinion of the court.

Bill filed June 1, 1874, to enforce lien on real estate. Summons issued on same day, returnable first Monday in same-month, being the 7th day of that month, and the first day of' the then next term of the chancery court of Alcorn county. This process was served on the day of its issuance. The defendant did not appear. There was a pro confesso on the 10th of the same month. Final decree followed at once, without reference to a master.

It is assigned for error that process was improvidently issued, and that the final decree was rendered without a reference to a master.

The Code, § 1005, enacts that “process shall be made returnable on the next rule day in vacation succeeding its issuance, or on the first day of the regular term of the court, to-be held ten days after the issuance thereof.” This would seem to require process issued within ten days of the term to be made returnable to the next rule day in vacation, although service five days before its return is sufficient. However this may be, the other error assigned is fatal, as has been repeatedly held by this court.

Both grounds of error are technical, but they seem to be in accordance with the letter of the statute.

Decree reversed, and cause remanded.