Am. Cotton Oil Co. v. La Valle House , 148 Miss. 259 ( 1927 )

^* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 372, n. 53; p. 527, n. 36; 4CJ, p. 680, n. 52; p. 682, n. 93. This is an appeal by the American Cotton Oil Company from a judgment of the circuit court of the Second judicial district of Bolivar county rendered at its November, 1926, term, setting aside a judgment of the same court rendered at a former term against the appellee and in favor of the appellant, and reinstating the cause on the docket of the court for trial.

The proceeding by which the judgment rendered at the former term of the court was set aside was under section 2952, Code of 1906 (section 3156, Hemingway's 1927 Code), which is a proceeding in the nature of a writ of error coram nobis. The ground upon which the former judgment was set aside was that the appellee had not been served with process, nor appeared to the action either in person or by attorney. Process in the cause for appellee showed personal service upon him; in fact, the entire proceedings in the cause, including the judgment which was set aside, were, on their face, regular and legal. Section 3945, Code of 1906 (section 3156, Hemingway's 1917 Code) is identical with section 1533, Code of 1880. The statute was before the supreme court inMeyer Brothers v. Whitehead, 62 Miss. 387, wherein it was held that the statute "removes all ground of objection to a proceeding by writ of error coram nobis, or motion as a substitute for it, before the court which has rendered judgment on a false return of service of a summons to vacate such judgment;" that a defendant against whom a judgment by default has been rendered at the return term upon a return of personal service of summons made five days before the return day thereof may, under this statute, 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 summons is false, and that, in fact, it had been served only four days before the return day, that 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 summons, and submit same to a jury for trial, and that, where the judgment is set aside in such a proceeding, the court should treat the case as pending, and require the defendant to plead at once.

At the threshold of the case we are met with the question whether the supreme court has jurisdiction of an appeal from such a judgment, and this is a question which the supreme court will raise on its own motion. Ward v. Whitfield, 64 Miss. 754, 2 So. 493; Talbot Higgins Lbr. Co. v. McLeod Lbr. Co.,147 Miss. 186, 113 So. 435. The question turns upon whether the judgment appealed from was a final judgment. Under section 33, Code of 1906 (section 8, Hemingway's 1927 Code), the supreme court can only review on appeal final judgments of circuit courts. The judgment here in question is not a final judgment. It is no more a final judgment than the judgment sustaining a motion for a new trial. It did not put an end to litigation in the trial court. There is to be another trial between the same parties, involving the identical cause of action upon which the first judgment was taken. It may be, as contended by appellant, that the court committed a grievous error against the appellant in setting aside the former judgment; but, if that be true, appellant's remedy to have the judgment reinstated is not impaired by a denial of his right to prosecute this appeal. In the first place, on another trial, appellant may recover judgment again. And, second, if judgment should be rendered in favor of the appellee, dismissing appellant's cause, the latter would have the remedy of appeal to the supreme court, and, on that appeal, would have the right to have the supreme court review the question whether there was error in setting aside the former judgment in favor of the appellant.

This court, therefore, will not pass on the question whether there was error in setting aside the judgment in appellant's favor and reinstating the cause. That question is not properly before this court, and cannot reach here until a final judgment is rendered in the cause.

Appeal dismissed.