Alfred v. Batson

Mississippi Supreme Court
Alfred v. Batson, 91 Miss. 749 (Miss. 1907)
45 So. 465
Calhoon

Alfred v. Batson

Opinion of the Court

Calhoon, J.,

delivered the opinion of the court.

This was a declaration in ejectment, brought by the appellee, Batson, against the appellants, to recover certain land, to which there was a plea of not guilty. Batson claims title because of an execution issued by the circuit clerk on an enrolled and recorded judgment of the justice of the peace in favor of Batson against the appellants. In the course of the trial Batson, to make out his case, offered a transcript of the proceedings before the justice of the peace, enrolled in the circuit clerk’s office and recorded in the chancery clerk’s office. The solitary objection made in the court below on the trial was because there was no legal service upon the defendant in the justice of the peace court, for the reason that “ the record shows affirmatively that the said justice of the peace appointed one Wheat, a private person, to execute and return the writ, and there is no showing anywhere in the record that it was a ease of emergency, and that the constable, or sheriff, or a deputy sheriff, could not be had in time, and because the judgment purports to have been one for unliquidated damages, without showing that a writ of inquiry was had and verdict- thereon, and because the execution is one for costs and the costs are not itemized,” which objection was overruled.

It has been held that the book styled “ Docket of the Justice of the Peace ” contains the record of the proceedings of that *755court, a copy of which he is directed to transmit to the circuit clerk, and a certified transcript of which is required to be recorded. It is further held that a certified transcript from the chancery clerk’s deed books of the record of the copy of that docket, the execution and return and the sheriff’s deed, is enough for the purchaser at the sale of the land to have; and it is held in the same case that the docket record of the justice of the peace of the issuance and return of process is as much entitled to be accepted as true as would be a copy of the summons and the return on it certified by him, and the special appointment presumed to be valid. In Hughston v. Cornish, 59 Miss., 373, the very point was made as is made here. In the proceeding now before us, it must be taken that the special constable was properly appointed.

Affirmed.

Reference

Full Case Name
Houston Alfred v. Leonidas B. Batson
Cited By
1 case
Status
Published
Syllabus
1. Justice of the Peace. Judgment. Service of process. Special deputy. Sale of land. Execution. A sale of land under execution issued on a default judgment of a justice of the peace will not be void because tbe record fails to sbow the existence of circumstances authorizing tbe appointment of tbe person specially deputed to serve, and who executed and returned tbe original summons in tbe case. 2. Same. Presumption. Code 1892, § 2403. Code 1906, § 2732. Where a summons in a suit before a justice of tbe peace was executed and returned by a person specially deputed by tbe justice to serve tbe same, the existence of circumstances warranting tbe deputation, under Code 1892, § 2403, will be presumed, in tbe absence of a showing to tbe contrary.