Yazoo County MsArchives Court.....Newell, Mr 1839
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Deb Haines ddhaines@gmail.com December 8, 2005, 12:01 am

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Newell et al. v. Briggs et al.

page 45

The sheriff made affidavit that he had served the citation on the attorney of 
records, for defendant in error to appear at the December term of said court, 
but had made diligent search for the citation and could not find it. It also 
appeared that fifteen days had elapsed since the plaintiff in error was bound 
to know that his citation had not been served, and no steps taken for an alias 
citation: Held, that the cause must be dismissed for laches of plaintiff in 
not applying for an alias citation.

MOTION to dismiss for want of citation.

Grayson, for the motion.
Fitch, contra.

Per Curiam, PRAY J.—This cause is presented to us on a motion to dismiss the 
same for want of citation return served.

The motion is resisted upon an affidavit of A. G. Harrison, a deputy sheriff 
of Yazoo county, who states, "that on the 13th day of November, 1838, he 
executed in this case a citation on S. M. Grayson, the attorney of record, for 
the defendants in error, to appear at the High Court of Errors and Appeals at 
the December term, 1838, to defend said suit. That he has made diligent search 
for the said citation but cannot find it."

This affidavit relieves the plaintiff in error from all charge of laches. He 
has exercised all the diligence the law can require. The motion, therefore, as 
it is now presented, wou1d be overruled, if no subsequent neglect had 
occurred. But there has been a lapse of fifteen days since he was bound to 
know that his process had not been returned; and no step has been taken for an 
alias; for this neglect the cause must be dismissed with damages and costs.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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