Nance v. Webb , 42 Miss. 268 ( 1868 )

Shackelford, C. J.,

delivered the opinion of tbe court.

This is an action of assumpsit instituted, upon a promissory note to tbe April Term, 1868,-of tbe Circuit Court of Noxubee county. ■

Judgment by default at tbe same term of tbe court.

Tbe case is here by writ of error.

There are eight grounds of error assigned in this case, all having reference to tbe summons issued in the case, which, being condensed, are in substance as follows:

There was no cause of action endorsed upon tbe summons. There was no endorsement upon tbe summons when tbe same was issued by tbe clerk, or when tbe sheriff received tbe summons. There is nothing in tbe summons which shows tbe cause of action or amount claimed. Tbe summons does not demand any damages.

The declaration, does not follow the summons. The declaration is founded upon a cause of action wholly unknown to the summons. There is no summons claiming damages, or stating any cause of action to support subsequent proceedings. The said summons is void for uncertainty, in not stating any action, etc.

By an inspection of the summons in the record, it appears that it was issued on the twenty-sixth day of March, 1868, and has the seal of the court attached. It is directed to the sheriff of the county of Noxubee, commanding him to summon the defendant, Nance, to be and appear and answer the action instituted against her, on the second Monday after the fourth Monday of March, A.D. 1868.

This summons was regularly executed upon the plaintiff in error five days before the return day.

In articles 60 and 61, p. 488, of Be vised Code, appear the only requisites for a summons in a civil suit, in this State, except when otherwise provided for.

It is not required by either of these articles that the cause of action should be endorsed upon the summons. The only requisite seems to be that the defendant should be notified that an action has been commenced in the proper court against him or her.

These objections are clearly untenable. That the sheriff did not endorse upon the summons when he received it, is of no consequence. Whether he did or did not, is a matter which plaintiff in error has nothing to do with, or to complain of.

The grounds of error are frivolous, and were so considered by counsel, as he did not attempt to sustain them by an argument.

The case evidently was brought- into this court for procrastination.

Let the judgment be affirmed.