Nelson v. Rogers

Decided April 15, 1868

Mississippi Supreme Court · decided 1868-04-15

Hon. W. I). Bradford, judge. A statement of the case will be found in the brief of counsel for plaintiff in error. This was an action of assumpsit, on open account for services as overseer rendered by intestate, husband of defendant in error, in his lifetime to Nelson, administrator of C. N. Goree, deceased: It appears by the record that summons was issued November 16, 1866, and executed on Nelson same day. On December 14, 1866, plaintiff Rogers filed her declaration.

Decided 1868-04-15

Jeffords, J.,

¶1delivered the opinion of the court.

¶2The decision of this case depends entirely on the disposition made of the first, assignment of error, which is as follows:—

*639. “ The court erred in rendering a judgment by default at the return term; the declaration not having been filed at the date of the issuance of the writ.” .

¶3As the ruling of the court in the case of Merritt v. White, 37 Miss., p. 440, conclusively settles and disposes of this question, and as we do not feel .disposed to disturb the holding in that case, we have no alternative but to reverse this case.

¶4Let the cause be remanded, with directions that the Circuit Court proceed to render judgment according to law, as though the former judgment had not been pronounced.