104 So. 293 | Miss. | 1925
The regular term of the circuit court in March, 1924, began on the third Monday in March, instead of the fourth Monday thereof. On the 26th of March, 1924, that being Wednesday of the second week of the term, an order was entered continuing the case. Afterwards, a motion was filed by the plaintiff to set aside the order continuing the case, on the ground that the order was erroneously entered, and on March 31, 1924, the court sustained the said motion and set aside the said order continuing the case. It does not appear that the defendant was in court when the order was made or when the motion was filed, and there is no showing that he was served with notice to set aside the order of continuance. Thereafter a judgment of default was entered against the defendant and the sureties on the forthcoming bond, in which it is recited that the defendant failed to appear or to file a plea in said case, and that it is adjudged that the defendant T.F. Willsford and the sureties on his bond, naming them, restore said automobile, a Buick sedan model 23/41, to the plaintiff, or pay it, the plaintiff, the value thereof, to-wit, one thousand forty-five dollars and forty-six cents; and it is further ordered and adjudged that the plaintiff, Meyer-Kiser Corporation, do have and recover of the defendant Willsford and the sureties on his bond, naming them, the sum of seven hundred dollars damages assessed in this case by verdict of the jury on a writ of inquiry for damages to said automobile by the wrongful detention thereof by the defendant, and all costs.
Prior to the rendition of this judgment there had been a motion for a writ of inquiry to assess the value of the *396 automobile in controversy, and a peremptory instruction to the jury that the jury find a verdict for the plaintiff and assess his damages at seven hundred dollars. There is a certificate of the official stenographer of the circuit court district that such stenographer took down all the evidence in shorthand in all cases tried in said court during said term, and that no evidence was taken down by said stenographer in said above styled case, in which a judgment was rendered on the 31st day of March, 1924.
The defendant and the sureties on the forthcoming bond have appealed from the judgment rendered, and have attacked the proceedings, first because the summons was not made returnable to the first day of the term, and it was error for the court at that term to render a judgment by default, and also because the case was continued and afterwards taken up during the term and disposed of, and for the further reason that the judgment rendered was for the sum demanded in the petition for writ of seizure, and the automobile was valued at the sum named in the said writ, and that the court, in addition to such judgment, rendered a judgment for seven hundred dollars damages, which was unauthorized by the conditions of the bond given.
In Howard Lumber Co. v. Hopson (Miss.), 101 So. 363, it was held that it was prejudicial error, reviewable on appeal, to render a judgment on process returnable to a past date, and that the purpose of the law requiring it to be returned to the first day of the term was discussed. At page 364, 101 So., the court said:
"The summons in this case being merely erroneous the question is whether or not the error complained of was harmful to appellant. If it was, appellant is entitled to a reversal and a new trial; if it was not, the judgment appealed from should be affirmed. The question seems easy of solution when we keep in mind the office of a summons for a defendant. The purpose is to get jurisdiction of the person of the defendant, and to inform him when and in what court he is to appear and make defense to the cause. The statute prescribes the *397 manner in which this shall be done. It is by a summons returnable on the first day of a future term of the court to be executed at least five days before the return day thereof. Concede that all persons are affected with notice when the regular terms of court are held, and concede, for the purpose of the argument, that all persons are affected with notice when special terms are to be held. Nevertheless, it was plainly the purpose of the statute that defendants summoned into court should not rely on such knowledge. Appellant had a summons commanding him to appear on a past date. Certainly the situation was calculated to confuse him and mislead him, especially if appellant was without actual knowledge when they were held. There is nothing in the record to show whether appellant was actually misled or not, except the fact that it failed to appear at the next term of the court, and, on account of such failure, judgment by default was rendered. There was such an error in the proceedings as was calculated to mislead appellant and may have done so. In other words, it was an error that denied appellant a substantial right, namely, to be served with the summons as required by the statute, returnable to the first day of a term of court to be held in the future."
We think the effect of the summons being returnable later than the first day of the term was to make the said case triable at the succeeding term. It is true the judgment would not be subject to collateral attack, but the defendant had a right to assume that the case would be triable at the term contemplated next after the return day, and the error here made is one correctable by appeal. It is in no sense a collateral attack.
In the second place, we think, when the court entered the order on the minutes continuing the case, that the defendant and the sureties had a right to act thereon, and to depart from the court until the next term, unless they were served notice of the motion to set aside such continuance, which appears not to have been done. And, third, it was error to enter the judgment against the *398 sureties on the forthcoming bond for the full demand of the petition and also for seven hundred dollar damages. The condition of the bond was to have the property forthcoming, and to satisfy the judgment, or to return the property. The judgment here rendered was, in effect, to increase the demand of the plaintiff above the total sum demanded. There is nothing in the record to show that the automobile was of less value than the sum demanded as being due thereon.
The judgment will be reversed and the case remanded.
Reversed and remanded.
