Opinion
No. 38790.
October 5, 1953.
1. Appeal — Supreme Court — appellant's brief, when accepted as confessed.
On appeal, in absence of brief or oral argument by appellee, Supreme Court may accept appellant's brief as confessed, and may reverse or reverse without prejudice if not convinced by examination of record that judgment appealed from is correct.
2. Limitation of actions — pleading — declaration sufficient to show claim not barred by limitation.
Declaration, alleging that defendant became indebted to plaintiff for professional services in specified amounts on dates specified, which were more than three years before commencement of suit, without specifically alleging that such amounts became due and payable on the dates that indebtedness accrued therefor, did not necessarily show on its face that the claim was barred by the three year statute of limitations. Sec. 729, Code 1942.
3. Appeal — pleading — judgment of dismissal reversed and remanded for trial de novo.
Where default judgment on open account for professional services was set aside in lower court for want of legal process on defendant and suit was dismissed as being barred by three year statute of limitations, on plea interposed to that effect by defendant, though plaintiff sought to amend declaration by alleging that fees for such services allegedly rendered more than three years before commencement of suit, did not become due until later and within period of limitations, to which defendant interposed motion to strike amendment, and on plaintiff's appeal to Supreme Court, though properly served with process, appellee filed no brief in response to brief for appellant, and made no oral argument, judgment of dismissal should be reversed and cause remanded for trial de novo without prejudice and with leave to amend declaration.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Lauderdale County; JESSE H. GRAHAM, Judge.
B.A. Duncan, Meridian, for appellant.
I. The court erred in affirmance of judgment of county court in which it issued a restraining order in vacation on an unsworn petition at an ex parte hearing and without requiring a bond to be made by the defendant-appellee as made and provided by law before the issuing of the restraining order.
II. The court erred in sustaining the county court in overruling the motion of appellant to require the appellee to give a good and solvent bond to cover any damage the appellant might suffer due to the issuance of the restraining order which motion was filed the next day after issuance of restraining order.
III. The court erred in sustaining the county court in the overruling of appellant's replication to appellee's answer to original declaration in which appellant plead estoppel and res judicata in that a judgment had been rendered on the declaration on February 13, 1951, from which no appeal had been taken, or any motion timely filed to set same aside, all of which the appellee had due and timely notice by procuring a release in vacation of a writ of garnishment and also appearing before the clerk of the court and obtaining an extension of time in which to pay accrued court costs, all of which was done on or about March 2, 1951.
IV. The court erred in sustaining the county court's refusal to require the appellee to exhaust his legal remedies before issuance of the restraining order for as stated in appellant's replication the amount of the original judgment being in jurisdiction of circuit court, appellee still had the right of appeal to said court from the judgment of February 13, 1951.
V. The court erred in sustaining the county court's refusal to hear any proof as to the accrual date of the account sued on as agreed to by the parties at time same was made.
VI. The court erred in sustaining the county court's judgment holding that the account sued on was barred by the statute of limitations when there was absolutely no proof that the appellee had resided in this State all of the time between the making of the account sued on and the filing of suit on same as the law provides that absence from the State tolls the statute of limitations.
No attorney listed for appellee.
On this appeal we have a brief filed by the appellant in support of his assignment of error but after due notice of the appeal by publication to the appellee as a non-resident he has filed no reply brief. We ascertain from correspondence had between the Clerk of this Court and the attorney who represented the appellee in the trial court that such attorney has not been employed to represent the appellee before this Court, and that he has been informed that the appellee desired no further representation in the case.
It was held in the case of W.T. Raleigh Co. v. Armstrong, 165 Miss. 380, 140 So. 527, that a judgment, in the absence of a brief or oral argument by the appellee, will be reversed without prejudice, where appellant's brief is fairly convincing of error. In other words, (Hn 1) in the absence of a brief or oral argument by appellee this Court may accept appellant's brief as confessed and reverse or reverse without prejudice when not convinced by examination of record that the judgment appealed from is correct.
Again in the case of Columbus G. Ry. Co. v. Basson, (Miss.) 176 So. 600, where no brief had been filed by the appellee and there had been no oral argument the Court said: "The state of the record as appears on examination of the brief for appellant is such that under the authority of Raleigh Co. v. Armstrong, 165 Miss. 380, 140 So. 527, the judgment should be and will be reversed without prejudice and the cause remanded."
In the more recent case of Ramsey v. Milner, 192 Miss. 120, 4 So.2d 889, the Court again held that where no brief or oral argument was filed or made by appellee and the answers to appellant's points as ground for reversal were not manifestly apparent, the Supreme Court would reverse judgment without prejudice and remand the cause. See also Gulf, M. O.R. Co. v. Webster County, 194 Miss. 660, 13 So.2d 644.
Nothing more need be said to justify a reversal and remand of this case, except for the necessity of laying down a rule or guide on a retrial on remand in view of the state of the record now before us.
On December 30, 1950, the appellant brought suit in the county court on open account against the appellee to recover the sum of $225.00 for professional services, and it was alleged in the declaration that the defendant became and was indebted to the plaintiff on or about February 19, 1947, in the sum of $150.00 of the said amount and on or about November 11, 1947, for the remaining $75.00 thereof. It was not specifically alleged that these amounts became due and payable on the dates that the indebtedness accrued therefor. (Hn 2) In other words, the declaration did not necessarily show on its face that the claim was barred by the three year statute of limitation, Section 729, Code 1942, and in answer to the plea of this statute of limitation under a proceeding had and conducted after a judgment by default had been rendered against the defendant, the plaintiff sought to amend his declaration so as to show that these fees for professional services were not to become due by agreement of the parties until after the defendant should have first paid the charges for hospitalization at the infirmary where the plaintiff was a member of the medical staff.
Upon the filing of the declaration, a summons was issued for the defendant who was then alleged to reside in Lauderdale County, where the suit was filed. The sheriff's return on the process recited that the same had been executed on the defendant "by posting a true copy of same on the door of defendant's usual place of abode in my county. Defendant could not be found in my county nor could I find any member of defendant's family over the age of 16 years at his place of abode." On this constructive service of process a default judgment was taken for the sum sued for at the second term of the court thereafter. Thereupon there was a suggestion of garnishment, followed by the issuance and service of a writ of garnishment, upon the employer of the defendant. Then upon the payment by the defendant to the attorney for the plaintiff of the sum of $30.00 and an additional sum of $35.00 on the judgment the garnishment was released upon the alleged promise of the defendant to thereafter make weekly payments of $7.50 each. Later a second writ of garnishment was issued, and thereupon the defendant filed a motion in vacation, some 60 days after the rendition of judgment, to set the judgment aside for want of process, and in this motion the county court was asked to grant a restraining order to prevent the levy of the writ of garnishment until such time as the court could hear the motion to set aside the default judgment after due notice to the plaintiff. The restraining order was issued without bond.
Thereafter the default judgment was set aside on the ground that the defendant "was not legally served with process." The cause was then remanded to the docket of the county court for further proceedings.
At the next term of the court a plea of res adjudicata filed by the plaintiff was overruled and the defendant interposed the plea of the three year statute of limitation hereinbefore mentioned. Thereupon the plaintiff asked leave of the court to amend his declaration so as to allege specifically when the fees for the services sued for became due and payable. No order was entered on the application to amend the declaration. However, the amendment to the declaration was filed and the defendant moved to strike the same on the ground that it had been filed without leave of the court being first had and obtained. Thereupon the suit was dismissed as being barred by the said statute of limitation. Orders appear in the record reciting that the court heard oral proof as to the manner in which the process had been served prior to the rendition of the default judgment, and reciting that the court found that the process "was left at the home of a disinterested, outside, or third party and did not in any wise meet the requirements of service of process." No testimony upon that issue appears in the record.
(Hn 3) In view of the foregoing, and other rulings of the court, we have concluded that under the cases hereinbefore cited the cause should be reversed and remanded to the circuit court for trial de novo without prejudice and with leave to the plaintiff to file such amendment to his declaration as he may see fit so as to show wherein, if at all, the statute of limitation is inapplicable, and in order that a record may be made of the proof on that issue, the trial court now having jurisdiction of both the subject matter and the parties, since the defendant by his various pleadings has entered his appearance in court.
Reversed and remanded.
Roberds, Lee, Holmes, Arrington, Ethridge and Lotterhos, JJ., concur.