Fleming v. Nunn & Anderson

Mississippi Supreme Court
Fleming v. Nunn & Anderson, 61 Miss. 603 (Miss. 1884)
Chalmers

Fleming v. Nunn & Anderson

Opinion of the Court

Chalmers, J.,

delivered the opinion of the court.

We must consider the finding of the Chancellor as satisfactorily establishing these facts. A single summons was issued from a justice’s court to Easter Fleming and her son, Emmett Fleming, on a joint debt. The constable made this return: “Executed this 11th dhy of December, 1882, by leaving a copy at their house of *606abode.” The copy was, in fact, handed to Mrs. Fleming. She attended the court on the day appointed. The justice being absent, the case was not tried. She did not attend the next regular term, at which, without further service, judgment by default was rendered against both defendants. She files this bill, seeking a cancellation of the judgment on the ground that in fact she did not owe the debt, and that by the service, no jurisdiction was acquired over her. It cannot be maintained. She knew of the rendition of the judgment against her, and appeared before the justice on the next day and tried to give a bond for supersedeas and appearance in the circuit court. The justice adjudged her sureties insufficient, and she took no steps to compel him to accept them or to induce them to justify. She took no steps by certiorari to test the correctness of his ruling as to the service upon herself of the writ, though she had six months within which to do so. It was not until after this time that she filed this bill to vacate the judgment, on the ground that she had not been served with process. The return on the process was equivocal, and the justice construed it as importing personal service on the complainant. It was competent for him so to do. The complainant had actual notice of the suit, and knew that the service had been so construed. Though she had abundant opportunity, she took no steps to correct it. We approve the finding and judgment. 1

The decree is affirmed.

Reference

Full Case Name
Easter Fleming v. Nunn & Anderson
Cited By
1 case
Status
Published
Syllabus
1. Chancery. Jurisdiction. Bill to vacate defective judgment. A parly having- actual notice of the suit and full knowledge of the rendition of a defective judgment against him, which he could have tested by appeal or certiorari, cannot after allowing the time for such pi-oceedings to elapse invoke the aid of the chancery court to relieve him of the result of his own laches. 2 Summons. Equivocal return. Right of justice issuing to construe. When the return on a summons is equivocal, it not appearing of which of two defendants are served, it is competent for the justice issuing the summons to construe the return and say whether the service was personal or not.