Opinion
No. 29696.
April 18, 1932.
1. JUSTICES OF THE PEACE.
Parties litigant are not charged with notice of time and place of holding courts of justice of peace (Code 1930, section 2076).
2. JUSTICES OF THE PEACE. Default judgment against garnishee, entered by justice of peace after service of garnishee summons, not specifying time and place for hearing, held void and ineffective ( Code 1930, section 2076).
Writ of garnishment was issued by clerk of circuit court on March 23, 1931, and was directed to the sheriff, commanding him "to summon the" garnishee to appear before a named justice of the peace of Monroe county "at his office in 2nd District of Monroe County, Mississippi on the ____ day after ____ of April, 1931 . . ." The garnishee did not obey the command of the writ, and on April 18, 1931, a judgment by default was rendered against it in favor of the judgment creditor for the amount of the judgment.
APPEAL from chancery court of Clay county. HON. J.A. FINLEY, Chancellor.
McClellan Tubb, of West Point, for appellant.
Section 1840 of the Code of 1930 suggests the form for the writ of garnishment and leaves a space in that form for the naming of the day, month and year, when the garnishee shall be required to answer the writ of garnishment.
The process to bring in defendants at law and in chancery shall be a summons, and it shall command the officer to summon the defendant to appear and answer on the return day.
Section 2965, Code of 1930.
A writ of garnishment as to the garnishee is original process and must be executed as such.
Jefferies v. Harvey, 38 Miss. 97; Roy v. Heard, 38 Miss. 544; Hoffman v. Simon, 52 Miss. 302.
The purpose of a summons 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.
Howard Lumber Company v. Hopson, 101 So. 363.
All that is necessary for a summons to contain is the form set out in the statute, the blanks therein to be properly filled.
Guess v. Smith, 56 So. 166.
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.
Sheffield v. Friedberg, 84 Miss. 188, 36 So. 242.
The days or times for holding justice courts in Mississippi is not fixed by statute but is fixed by the justices of the peace themselves and is not necessarily a matter of record in any place except on the docket of the justice of the peace and, further there is no designated place in the district fixed by the statute for the holding of justice courts but it is a discretionary matter with the justice of the peace.
A judgment which is void for want of notice, or jurisdiction over the person or thing, may be attacked collaterally.
Campbell v. Brown, 6 Howard 106; McComb v. Ellett, 8 S. M. 505; Hemphill v. Hemphill, 34 Miss. 68; Theobald v. Deslonde, 93 Miss. 208, 46 So. 712.
It was improper for the justice of the peace to render judgment upon the void summons served upon defendants.
The summons being returnable to a past date, which was an impossible date and the law not fixing the time or place of the next term, that being left to the discretion and convenience of the justice of the peace, was void.
Howell v. Kersh, 119 So. 186, 152 Miss. 266.
Howard Lumber Company v. Hopson, 101 So. 363, 136 Miss. 234, and Kelly v. Harrison, 12 So. 267, 69 Miss. 856, cases rest on a summons in a circuit court, whose terms are fixed by law, and all citizens are charged with knowledge of the day of the meeting thereof.
No terms of a justice court are fixed by law, no citizen can be charged with notice as to when a justice court is held, except such notice as may be given him in process served upon him. Paine Paine, of Aberdeen, for appellees.
Irregularities in the process of a court do not make a judgment void, and the process could have been amended so as to cure the irregularity if the appellant had appeared at sometime in the lower court and made objection to the irregularity in the process.
21 Ruling Case Law, page 1267; Kelly v. Harrison, 69 Miss. 856.
Where process was issued returnable on its face to a past date or to a day before the regular court day, due to clerical error, the process was not void and the judgment thereon was valid except by attack on direct appeal, and could not be attacked collaterally.
Howard Lumber Company v. Hopson, 101 So. 363; Motor Car Company v. McDonald, 153 Miss. 409; D.W. Sweatman v. J.N. Dean, 86 Miss. 641.
Howell v. Kersh, 152 Miss. 266, holding that the process was void and the judgment void should be overruled as contrary to the long established law of the state of Mississippi and contrary to the general rule.
Kelly v. Harrison, 69 Miss. 856; Howard Lumber Company v. Hopson, 136 Miss. 237; Motor Car Company v. McDonald, 153 Miss. 409; Sweatman v. Dean, 86 Miss. 641; Milburn v. State, 11 Mo. 188, 47 Am. Dec. 148; Kelly v. Gillman, 29 N.H. 385, 61 Am. Dec. 648.
The copy of the writ in omitting the date of which one of the court days it was returnable to, was not void, but simply irregular or voidable, and the judgment taken on the return date as shown on the original writ cannot be attacked by a collateral proceeding.
If any matter required to be inserted in or endorsed on any process be omitted, such process shall not on that account be void, but it may be set aside as irregular or amended on such terms as the court shall deem proper; the amendment may be made upon an application to set aside or quash the writ.
Section 2991, Miss. Code of 1930.
The omission of the date of the court day in April from the copy served on the appellant, was due to a clerical error on the part of either the clerk of Clay county who issued the writ and who made the copy, if he did make it, or it was due to a clerical error by the sheriff of Clay county, if the sheriff made this copy.
Argued orally by Thos. F. Paine, for appellee.
This is an appeal from a decree dismissing an original bill. The record contains only the original bill, the exhibits thereto, the citation for the defendants, and the decree of the court. The case was evidently considered by the court without objection from the parties as if it were presented by bill and demurrer thereto.
The bill was filed by the appellant and alleges, in substance, that Reed Brothers, a corporation, obtained a judgment in the court of the justice of the peace against Roden, and had the same enrolled in the office of the clerk of the circuit court of Clay county. On the 23d day of March, 1931, a writ of garnishment was issued thereon by the circuit clerk directed to the sheriff, commanding him "to summon the said Swift Packing Company to be and appear before the H.E. Bird, justice court of Monroe county at his office in 2nd district of Monroe county, Mississippi on the ____ day after ____ of April, 1931, then and there to answer as garnishee whether they are indebted to the said defendant," etc.
The appellant did not obey the command of the writ, and on the 18th day of April, 1931, a judgment by default was rendered against it in favor of Reed Brothers, Inc., for the amount of judgment against Roden.
The defendants to the bill, the appellees here, are Reed Brothers, Inc., the clerk of the circuit court, and the justice of the peace, and the prayer thereof is that these defendants be enjoined from issuing execution against the complainant on the judgment against it.
The ground on which the appellant bases its claim for an injunction is that the judgment against it is void, for the reason that the writ of garnishment on which it was rendered is void.
The decree of the court below dismissing the bill was affirmed by this court on a former day on the authority of Kelly v. Harrison, 69 Miss. 856, 12 So. 261, and Howard Lumber Co. v. Hopson, 136 Miss. 237, 101 So. 363. The attention of the court was not then called to the case of Howell v. Kersh, 152 Miss. 266, 119 So. 186. Thereafter a suggestion of error was filed by counsel for the appellant without referring therein to Howell v. Kersh, but the court while considering the suggestion of error brought that case to light, called counsel's attention thereto, and permitted a reargument in the light thereof.
In Kelly v. Harrison and Howard Lumber Co. v. Hopson, judgments rendered by default by circuit courts on summons returnable to a past date were held valid, except on direct appeal therefrom. In Howell v. Kersh, a judgment by default rendered by a justice of the peace on a summons returnable to a past date was held void, for the reason that the summons on which it was based, was void. The opinion in Howell v. Kersh did not refer to Kelly v. Harrison and Howard Lumber Co. v. Hopson; but the distinction between the former case and the latter cases is that in Kelly v. Harrison and Howard Lumber Co. v. Hopson the summons was to answer a suit filed in the circuit court, the date for the convening of which and the place where to be held being both fixed by law, while in Howell v. Kersh, the summons was to answer a suit in the court of a justice of the peace, both the time at which and the place where the court is to be held being fixed not by law, but by the justice of the peace himself. Section 2076, Code 1930. Parties litigant are charged with notice of the time and place of holding circuit courts, but not with notice of the time and place of holding the courts of a justice of the peace.
Howell v. Kersh controls here; consequently, the judgment hereinbefore rendered by us must be set aside, the judgment of the court below reversed, and the cause remanded.
Reversed and remanded.