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Parker v. Johnson

John W. Parker v. B. F. Johnson

Parker v. Johnson, 47 Miss. 632 (1873)
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Court
Mississippi Supreme Court · State Highest Courts
Decided
April 15, 1873
Judges
Tarbell
Citations
47 Miss. 632
Syllabus
1. Practice in supreme court. — Where a defendant in error does not claim the benefit of the statute of limitations, against the writ of error, this court will proceed upon the merits, although that defense might have been sustained.
Summary
Error to the circuit court of Yalobusha county. Cothran, J. Contended that the judgment by default was erroneous, because of the insufficiency of the service of process on the defendant in the court below. 41 Miss. 553, 554.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Tarbell

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Tarbell, J.:

Action of assumpsit; judgment by default on insufficient return of service of summons in 1858 ; writ of error in 1869 ; citation was served on the attorney of record of Johnson; afterward the death of Johnson was suggested, and scire facias was personally served on M. Ellis, his administrator, in 1871. There is no appearance in this court, by or for the defendant in error. The only error assigned is, that “ the court erred in rendering judgment by default, because there was no sufficient return on the writ to justify it.”

Although a plea of the statute of limitations, Code of 1857, p. 401, art. 17, to the writ of error would, apparently, he sustained, we have no power to interpose it on our own motion. As we have no option, a reversal is inevitable, for the want of the proper plea.

Judgment reversed and cause remanded.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1895: 11904: 11918: 11920: 118952026peak 1895 · 1

Relies on it most ⓘ

  1. Shelton & Luck v. Sydnor102 S.E. 83 (Va. 1920)
  2. Farmer v. Allen85 Miss. 672 (1904)
  3. Town of Tutwiler v. Gibson78 So. 926 (Miss. 1918) · Dissent
  4. Lewis v. Buckley73 Miss. 58 (1895)

Most recent

  1. Shelton & Luck v. Sydnor102 S.E. 83 (Va. 1920)
  2. Town of Tutwiler v. Gibson78 So. 926 (Miss. 1918) · Dissent
  3. Farmer v. Allen85 Miss. 672 (1904)
  4. Lewis v. Buckley73 Miss. 58 (1895)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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