J. T. Moore & Co. v. Hoskins

Citations

• 66 Miss. 496

Syllabus

<p>1. Service oe Process. Judgment by default on service not shown to be personal.</p> <p>A judgment by default at the return term upon service of summons not shown to be personal is void. Betts v. Baxter, 58 Miss. 329 ; Herman v. Strichlan, 60 lb. 234.</p> <p>2. Discontinuance. Entry of void judgment.</p> <p>The entry of a void judgment does not operate as a discontinuance of the cause.</p> <p>3. Entry oe Void Judgment. Bight ofplaintiff to vacate; when exercised.</p> <p>If a defendant has in fact been summoned, but the judgment by default at the return term is void because the return fails to show personal service, the plaintiff, at any time before the judgment would have been barred by limitation if valid, may by motion have the judgment vacated, and a valid one rendered, provided notice thereof is given to the defendant.</p> <p>4. Practice. Motion to vacate judgment. What notice required.</p> <p>In such case, the defendant having been in fact originally summoned, the notice need not be by another summons. The form and method of giving the notice are immaterial, since its purpose is not to acquire jurisdiction but to prevent surprise and fraud.</p>