February 15, 1932.
Summons to appear on past day is void, and service thereof gives court no jurisdiction of defendant's person.
There is no special appearance in Mississippi, and defendant appearing for any purpose waives want of process (Code 1930, sections 2999, 3000).
3. JUSTICES OF THE PEACE.
Defendant's appeal from justice court and appearance in circuit court and motion to quash process and dismiss for want of jurisdiction constituted appearance and waiver of absence of process (Code 1930, sections 2999, 3000).
4. JUSTICES OF THE PEACE.
One against whom judgment is recovered by default in justice court without process can enjoin execution or take cause to circuit court on certiorari (Code 1930, section 72).
APPEAL from circuit court of Simpson county. HON.W.L. CRANFORD, Judge.
Wm. Lofton, of Mendenhall, for appellant.
The court erred in overruling the motion of appellant to dismiss the cause. The judgment rendered against the defendant in the justice court was a nullity because he was not there and was not summoned to be there. He appealed the case to the circuit court, where he made his motion to dismiss the case, and that is the procedure sanctioned by the authorities in this state.
Fleming v. Nunn, 61 Miss. 603.
There are cases in this court that hold that judgments are absolutely void are subject to collateral attack, but the better practice is by way of appeal or certiorari.
A summons to appear on a day wholly past is void and confers no jurisdiction.
Hendricks v. Pugh, 57 Miss. 157.
The defendant made no appearance in the justice court, and so the justice court had no jurisdiction of his person, and on appeal the circuit court had only such jurisdiction, as the justice court had, which was none. W.D. Dunn, of Mendenhall, for appellee.
Under Code 1906, par. 3947, so providing, where a judgment or decree is reversed on the appeal of a defendant for want of service or defective service of process, new process is unnecessary and the defendant will be presumed to have entered his appearance to the cause in the court from which the appeal was taken when the mandate shall be filed therein; an appeal by a defendant from a judgment rendered by a justice of the peace, gives the circuit court jurisdiction of defendant's person for all purposes of the case.
Illinois Central Railroad Company v. Swanson, 92 Miss. 485, 46 So. 83.
Sections 3946 and 3947 of the Code of 1906 are the same in verbiage as sections 2999 and 3000 of the Code of 1930.
When appellant, Turner appealed the case to the circuit court, he then and there entered his appearance and the circuit court did the proper thing in overruling his motion to dismiss for want of jurisdiction and ordering a trial de novo which was accordingly done and judgment therein entered for appellee here, and this case should be affirmed.
The appellee sued the appellant in the court of a justice of the peace of Simpson county on an itemized sworn account for fifty-seven dollars and fifty-nine cents, and recovered a judgment by default for the amount sued for. From that judgment the appellant appealed to the circuit court of that county, where there was a trial resulting in a verdict and judgment in appellee's favor for the amount sued for. From that judgment the appellant prosecutes this appeal.
The only question in the case for serious consideration is one of jurisdiction. The justice of the peace before whom the suit was brought had jurisdiction of the subject-matter, and if the appellant had been properly served with process would have had territorial jurisdiction and jurisdiction of the person of the appellant. But the service of the summons on the appellant was void under the following state of facts: Summons was issued by the justice of the peace for the appellant on July 25, 1929, and served on July 29, 1929, but was made returnable on July 10, 1929 — a past date — and therefore an impossible return day. The appellant failing to appear, judgment by default was rendered against him by the justice of the peace on August 10, 1929. From that judgment the appellant appealed to the circuit court, and in the circuit court made a motion to quash the process and dismiss the cause for want of jurisdiction in the justice of the peace court and therefore in the circuit court. This motion was overruled; thereupon the cause was tried on its merits, resulting in the judgment in appellee's favor.
A summons to appear on a past day is void. The court acquires no jurisdiction of the person of the defendant. Hendricks v. Pugh, 57 Miss. 157.
The appellee concedes that the justice of the peace had no jurisdiction of the person of the appellant, but contends that the appellant, by his motion in the circuit court to quash the process and dismiss the cause for want of jurisdiction, voluntarily appeared to the cause and thereby waived the failure to serve summons on him as required by law. Illinois Cent. Railroad Co. v. Swanson, 92 Miss. 485, 46 So. 83, decided this question in favor of appellee's contention. That was an action before a justice of the peace where judgment by default without personal service was had against the defendant, who appealed to the circuit court, where he made a motion to quash the process and to dismiss the cause for want of jurisdiction. The motion was overruled by the circuit court; and on appeal to the Supreme Court, this court held with the circuit court that under sections 3946 and 3947, Code of 1906 (especially the first section), of which sections 2999 and 3000 of the Code of 1930 are rescripts, the defendant by his motion voluntarily appeared, and thereby waived the want of jurisdiction of his person. There is no such thing as a special appearance in the courts of this state. McCoy v. Watson, 154 Miss. 307, 122 So. 368.
Where a court has jurisdiction of the subject-matter and suit is brought in the proper venue, the appearance of the defendant in the cause for any purpose is an appearance for all purposes. It is a general appearance. It is a waiver of the want of process on defendant. This principle, however, has nothing to do with the right of a defendant to have a cause dismissed where the court is without jurisdiction of the subject-matter, or where there is a lack of territorial jurisdiction. In such case the defendant has the right to plead, in abatement of the cause, the want of jurisdiction; his appearance for the purpose is not a limited appearance. It is general; nevertheless it does not waive such want of jurisdiction. Mississippi Cent. Railroad Co. v. Calhoun, 140 Miss. 289, 105 So. 519; Heggie v. Stone, 70 Miss. 39, 12 So. 253; and Cain v. Simpson, 53 Miss. 521, were all cases where the court was without territorial jurisdiction. The court held in those cases that the defendant could appear and object to the jurisdiction of the court without waiving the jurisdiction.
As shown above, this is a cause in which the court had jurisdiction of the subject-matter, including territorial jurisdiction; there was only the lack of jurisdiction of the person, and, by appeal and appearance in the circuit court and motion to quash the process and dismiss the appeal for want of jurisdiction, the appellant waived the lack of process on him. It is true the result is that appellant is deprived of a trial of the cause before the justice of the peace, but that was brought about by his own misconception of the remedy to pursue. He should have either enjoined the execution of the judgment of the justice of the peace, or taken the cause up to the circuit court on writ of certiorari under section 72 of the Code of 1930. If he had pursued the latter course, the circuit court would have reversed the judgment of the justice of the peace and sent the cause back to the justice of the peace to be proceeded with legally. McDugle v. Filmer, 79 Miss. 53, 29 So. 996, 89 Am. St. Rep. 582.