Jenne v. Davis

Counsel

Wise Bridgforth, for appellant. There is reversible error shown by the record in this: That process is defective. The summons was returnable to an impossible or past date; and, while this is not such an error as renders the judgment void, it is still such error, for which this court will reverse, on direct appeal. Howard Lumber Co. v. Hopson, 136 Miss. 237 , 101 So. 323; 32 Cyc. 432; 20 Encyclopedia of Pleading and Practice, 1162; 21 R.C.L. 1267. Dabney Dabney, for appellee. We cannot possibly answer appellant's brief more sensibly or logically, than it is answered in the dissenting opinion in Howard v. Hopson, 136 Miss. 237 , 101 So. 363. We urge this court to consider carefully this dissenting opinion. It undertakes to strike down a fraud, founded on an honest mistake of the clerk of the court, and one for which a plaintiff is in nowise responsible. Should this case be affirmed, a defendant may with impunity sit back with the full knowledge that he has been summoned to appear at the next succeeding term of court and do nothing, all the while "laughing in his sleeve" at the thought that by his inaction he is going to delay the trial of his case for another term, or else by appealing, put an expense on the plaintiff for which the plaintiff is in no wise responsible. See Harrison v. Black, 2 S. M. 307; Joiner v. Bank, 71 Miss. 382 .