The clarion. [volume] (Jackson, Miss.) 1883-1888, 1885-03-11
B. MEYER, ct al,
THos. J. WHITEHEAD

Illus. y. w dlIEdEAD ]
From the Circuit Court of Franklin
county. J. B. Chrisman, Judge.
Practice. Return Of officer. Trial Of
issue as to truth Of same.
CAMPBELL, c. j.:
Meyer Bros. sued Whitehead on an
account, and a summons was issued and
placed in the hands of the sheriff, who
made return showing that it had been
personally served upon defendant more
than five days prior to the return term.
At the return term plaintiffs took judg-
ment by default That term and the
next term expired, and execution was
then issued, and levied on two bales of
cotton, to which Whitehead's wife in
terposed a claim. At the return term
of the execution, an issue was made up
to try the questionNas to the OWNERSHIP p
of the property. At this point, White
head moved to quash the execution,
discharge the levy, and vacate and
annul the Judgment, on the ground that
whereas the summons appeared to have
been served on him on Wednesday,
March 81, 1888, it was not, in truth,
served on him until the following day,
and that the judgment was therefore
void Thereupon the court, overruling
an objection by plaintiffs, directed an
issue of fact to be made up, as to wheth-
er the return of the sheriff was true or
or false, which issue was tried, and re-
suited in verdict for defendant, in
accordance with his motion. Plaintiffs
then asked the court to treat the case as
still pending, and require defendant to
plead. This the court refused to do,
and plaintiffs appealed. They assert
that it is inadmissable in a court of law
to controvert a shsriff7s return of pro-
cess, and that, if they are wrong as the
time, the court below, having vacated
the judgment, should have treated the
cause as pending, and proceeded with it
accordingly
Code 1888 provides that "the return
of the officer serving any process may in
the same action be shown to be untrue
by either of the parties" and removes
all ground of objection to proceeding
by writ of error c0Tam nobis or motion
as a substitute for it, before the court
which has rendered, judgment on a false
return of service oNa summons, to va
cate such Judgment.
In MdUield a. Barnard, AZ Miss, it
was held that the defendant, who desired
to question the officers return. should
plead in abatement. In the present case,
judgment was taken at the first term
upon service which appeared by the re-
turn to DE good to upheld such judgment.
If in fact, the summons was not served
until within five days Of the return day.
it did not require the appearance of the
defendant until the following term.
Code 1925. On his appearance at that
term, there was no pending case. for
Judgment was rendered at the first term.
He could not plead All he could do in
that court was to proceed to vacate the
judgment. This is what was done at the
subsequent term, to which an execution.
issued upon the judgment, was return
able. 1t was competent for the court to
direct an issue to try the question of
the alleged falsity of the return of the
officer There was no error in the
refusal of the court 10 disturb the
verdict, or in its action in vacating the
judgment thus found to be false. But
the court should then have treated the
case as pending one, and should have
required the defendant to plead at once.
SO as to entitle the plaintiff to a trial and
judgment, if found entitled to it.
Reversed, and judgment here, uacatinq
judgment by default, and case restored to
the docket Of the Circuit court, and re-
minded to be proceeded Nth as af no jueig-
'aent BY default had been gicen.
w. Z. Cassidy, for appellants.
Sessions q Cassidy, for appellee.