Perkins v. Thompson , 127 Miss. 864 ( 1921 )

Cook, J.,

delivered the opinion of the court.

On July 29, 1919, appellant instituted suit on an open account against appellee, and on the same day a summons was personally served on appellee, commanding him to appear at a term of the circuit court to be held on the third Monday of January, 1919. At the January, 1920, term of the court, judgment by default was entered, and on April 28,1921, a writ of garnishment was issued and served on the Alcorn Electric Light Company. Thereupon ap-pellee appeared and filed a petition, setting up that the judgment entered against him was void for the reason that he Avas summoned to appear at a date long past the time of the service of the summons, and praying that the judgment be set aside and vacated. Appellant demurred to this petition, and the court overruled this demurrer, and entered an order vacating the judgment, and holding that the suit Avas a pending cause to be tried on the merits. Thereupon appellant prayed for and was granted an appeal to settle the principles of the case.

The action of the court in holding the suit to be a pending cause was correct, and consequently there was no final judgment from which an appeal may be prosecuted, and therefore the appeal will be dismissed.

Appeal dismissed.