Meyer Bros. v. Whitehead

Citations

• 62 Miss. 387

Syllabus

<p>1. Summons. Return of service falsified. Judgment vacated. Section 1533, Code 1880.</p> <p>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.</p> <p>2. Same. Falsity of return. Issue submitted to jury.</p> <p>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.</p> <p>3. Same. False return. Judgment vacated. Effect.</p> <p>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.</p>