Meyer Bros. v. Whitehead

1. Summons. Return of service falsified. Judgment vacated. Section 1533, Code 1880. A defendant against whom a judgment by default has been rendered at the return term, upon a return of personal service of the summons made five days before the return day, may, under $ 1533 of the Code of 1880, at a subsequent term, have such judgment vacated by a motion for that purpose in the court where the judgment was rendered, and upon proof that the return of service of the summons is false, and that the writ was in fact served only four days before the return day thereof. 2. Same. Falsity of return. Issue submitted to jury. In such case the court may cause an issue of fact to be made up to test the truth or falsity of the return of service of the summons and submit the same to a jury to be tried. 3. Same. False return. Judgment vacated. Effect. Where a judgment is set aside in such circumstances the court should treat the ease as pending, and require the defendant to plead at once.

Appeal from the Circuit Court of Franklin County. Hon. J. B. Chrisman, Judge. Meyer Brothers sued T. J. Whitehead in assumpsit, and at the March term, 1883, of the court recovered a judgment by default against the defendant. ■ An execution' was issued upon this judgment on the 14th of November, 1883, returnable to the March term, 1884, of the court. On the second day of the last-mentioned term the defendant made a motion to quash the execution and vacate the judgment upon which it was based, on the ground that the summons, upon the service of which the judgment was rendered, was served on the defendant only four days before the first day of the term to which it was returnable, and that the statement in the return on the writ that it was served five days before the first day of the return term was false. An issue of fact was made up between the parties to determine whether the summons was served on the defendant less than five days before the first day of the return term, and was submitted to a jury for trial. They found in favor of the defendant, and the court rendered a judgment quashing the, execution and vacating the j udgment. The plaintiffs then moved that “ the court reinstate the case on the docket as a cause pending in the court,” which motion was overruled and the plaintiffs appealed. 1. The appellants insist that a record imports absolute verity and cannot be attacked by parol evidence. Murráh v. State, 51 Miss. 654-; Hahn v. Kelley, 34 Cal. 391; McDonald v. Leewright, 31 Mo. 29; Callen v. Ellison, 13 Ohio St. 446; Johnston v. Jones, 2 Neb. 126 ; Wilcox v. Kassick, 2 Mich. 165; Gh'anger v. Clark, 22 Me. 128 ; Cook v. Darling, 18 Peek. 393 ; Funerrand v. Lenard, 7 Allen 54; Idghtsby v. Harris, 20 Ala. 409; Coir v. Haven, 30 Conn. 190. 2. The proper remedy would have been in a direct proceeding against the judgment in the chancery court, as was the case in Duncan v. Gerdine, 59 Miss. 550. 3. However the court may believe ’ as to this question, this cause ought to be reversed and remanded as a case pending in the court below.. If the return of the sheriff was one day too late, then the return-, was good for the next term, and the case erroneously went off of the docket. The plaintiff ought not to be made to suffer by the wrong of the sheriff. Hid the court possess the power-after the lapse of the term to set aside the judgment,.founded, as it was, upon a false return of the officer ?.' It has been, decided by this court that this may be done by the chancery court on a proceeding commenced for that purpose. Duncan v. Gerdine, 50 Miss. 550. We can see no reason why the circuit court does not possess the same power in a direot proceeding for that purpose when the judgment is sought to be enforced and-no intervening right has accrued. The judgment is not a verity when founded upon a false return and is questioned in a direct proceeding between the parties to it. In some States the courts have held that the return may be shown to be false, even, in a collateral proceeding. Master v. Gray 49 Nans. 458.