American Cotton Oil Co. v. House

• Decision Date: 12 November 1928
• Docket Number: 27062
• Court: Mississippi Supreme Court
• Parties: AMERICAN COTTON OIL CO. v. HOUSE. [*]

118 So. 722

153 Miss. 170

AMERICAN COTTON OIL CO. v. HOUSE. ^[*]

No. 27062

Supreme Court of Mississippi

November 12, 1928

Division A

1. JUDGMENT. Only essential terms of judgment should be treated as conclusively adjudicated.

In determining effect of judgment, only the essential terms thereof should be treated as conclusively adjudicated by the court.

2. JUDGMENT. Mere recital in judgment that defendant appeared is insufficient to sustain judgment against defendant not served with summons.

Mere recital in judgment that defendant appeared and announced ready for trial not being essential to validity of judgment by reason of fact that plaintiff was entitled to judgment by default held insufficient to sustain a judgment against defendant, who was not served with summons.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court, Second district, Bolivar county, HON. W A. ALCORN, JR., Judge.

Suit by the American Cotton Oil Company against La Valle House and another. From a judgment pursuant to petition of writ of error coram nobis setting aside original judgment as to defendant named, plaintiff appeals. Affirmed.

See also, 148 Miss. 259, 114 So. 321.

Judgment affirmed.

Shands, Elmore & Causey, for appellant.

The fundamental question to be decided by the court is, did the trial court commit error in vacating its former judgment, and in reinstating the cause for a new trial? Appellee has adopted the writ of error coram nobis to obtain the revocation of the said judgment. The office of the said writ is to obtain a recall of a judgment because of the existence of a fact which was unknown to the court, and which if it had been known would likely have prevented the rendition of the judgment. For a full discussion of the law applicable see 5 Enc. of Plead. & Prac. 26. The appellee contends that the judgment should be recalled because he was not served with summons and did not enter his appearance in person nor by attorney. Therefore, appellee says that the solemn adjudication of the court, that he did appear, is untrue. We have always regarded, and we think the people generally regard judgments of courts as the highest evidences of debt known to the law; that the presumption obtains that judgments are made after most careful deliberation. In this case appellee says that a fact found to be true is untrue. Such being a finding by the court based upon physical facts which transpired under the very eye of the court. The court found that appellee appeared. That is a matter, which the court observed, and found to be true. See Reed v. Bright, 134 S.W. 653. This court in the past has not been quick to overthrow the integrity of a solemn judgment. Speaking through Judge SHARKEY, the court said, in Miller v. Ewing, 8 S. & M. 431: "We admit then that the jurisdiction of the court is a subject of inquiry, even in the judgments of our own courts; but how is the inquiry to be made? That is the question. It is a question of evidence, and comes down to this: Will parol evidence be received in a court of law to contradict the record by proving a fact to be untrue which is affirmatively asserted to be true on the record? If so, then any fact may be disproved--one as well as another. This would be making judgments but prima-facie evidence--good until disproved. If a party may open and reverse a judgment by denying that he appeared by attorney, he may also deny an appearance made in proper person. It would open the door to an inquiry as to the employment of an attorney or as to the appearance of the party, to be decided by a jury, and judgments, instead of being the end, would often be the beginning of litigation. A judgment before it could be said to impart verity on its face, would require the aid of a second judgment establishing the jurisdiction of the court in the first." This case was cited with approval in Corry v. Buddendorff, 98 Miss. 98, 43 So. 84.

No one will doubt that a party may appear and be bound by a judgment even though he may never have been served with process. He may appear by attorney, even though never served with process. He will be bound by an appearance entered by an attorney, even though never served with process, and even though the attorney has no authority to represent him. See Jones v. Hunter, 4 How. 342. In the case at bar the court adjudicated that an appearance had been entered. In the last case cited, the court likewise adjudicated that an appearance had been entered, by reason of a plea filed by an attorney, although the attorney did not have the authority to enter such appearance. Can it be satisfactorily explained upon principles of sound reason why the adjudication of the court in the case at bar should be less sacred than the recitals in a plea filed by an attorney? Cannot the adjudication of the court be considered in lieu of evidence showing an appearance?

On the proposition that the appellee was not served with summons, we find that appellee's testimony is not altogether satisfactory. He first stated during the trial that he knew nothing of the suit until Mr. Craggs advised him of the judgment. He finally stated that he had seen the summons in Mr. Dean's office during the ginning season, and saw his name in it, which latter statement contradicts his first statement. And then we must consider that the appellee waited more than two years, and until a short time after the deputy sheriff died to start this proceeding. Some credence must be given to the returns of officers, sworn to do their duty, and under the decisions of this court, no return will be overthrown except by "the clearest and most convincing proof." Quarles v. Hiern, 70 Miss. 891, 14 So. 23; Duncan v. Gerdine, 59 Miss. 550.

Roberts & Hallam, for appellee.

The appellant has narrowed the issue to the question of whether or not the trial court committed error in vacating its former judgment and in reinstating the cause for a new trial. This court has spoken in no uncertain terms on this question. The basis of the action is Sec. 3156, Hem. Code, 1927, which reads as follows: "Return of officer may be questioned by parties.--The return of the officer serving any process may, in the same action, be shown to be untrue by either of the parties, but the officer himself shall not be permitted to question its truth." The appellee La Valle House, under the decision in Meyer Brothers v. Whitehead, 62 Miss. 387, filed the petition for a writ of error coram nobis. Petitioner might have filed a motion as a substitute for this petition. In the opinion of the court in this case Judge CAMPBELL said: "Sec. 1533, Code of 1880 (Being identical with Sec. 2962, Hem. Code 1917, and 3156, Hem. Code 1927) provides, 'the return of the officer serving any process may in the same action be shown to be untrue by either of the parties, and 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 rendered judgment on a false return of service of a summons to vacate such judgment." Certainly, as is set out in the opinion, if the petitioner should be allowed to show "that the judgment taken at the first term upon service of the summons, which appeared by the return to be good to uphold the judgment at the return term" was not in fact served within five days of the return term and on this proof the court set aside the judgment and reinstated the case, then without question the petitioner should be granted the right to come in and show that as a matter of fact no summons was ever served upon him, and that is what the court did in the present case. This being the case the court was right in not granting the peremptory instruction asked for by the appellant.

It seems to be also urged by appellant that because the judgment attacked recited that the appellant appeared, this recitation is conclusive, notwithstanding the fact that it is absolutely false and a fraud upon the appellee. Many cases are cited by appellant to sustain his position that the recitals of the judgment constituted final adjudication of the matter. Among other cases appellant cites the opinion of this court in Corry v. Buddendorff, 98 Miss. 98, 54 So. 84, which opinion quotes from the opinion in Miller v. Ewing, 8 S & M. 421. In the latter case Justice SHARKEY, in addition to the part of his opinion quoted in the Corry case at page 429, said: "On inspection of the record it appeared from the officer's returns that Williams had been served with process, but Fiske had not. Williams alone filed the plea. In a subsequent part, however, the record states that afterwards, to-wit: on, etc., came the within-named Henry Hall, etc., as well as the within-named Edward Williams and Abijah Fiske, within named, by their attorneys, etc. It seems that on a verdict against them the court rendered judgment against both, by name. The question was, whether Fiske was estopped. This was evidently mere recital by the clerk. The court decided that where there is no appearance and no notice, and the record shows such to have been the case, the judgment is not binding on the party. On this ground the judgment was not regarded as conclusive on Fiske, because there was no appearance for him. The court seemed to lay much stress on the fact that the attorney appeared for Williams alone, and it was thus virtually conceded that, if the record had shown an appearance by Fiske by attorney, he would have been estopped. . . . We have just seen that a mere recital that the party appeared, does not conclude him, and the same point has been decided in the same way by this court. After a very full investigation of the question, the court decided that the second plea, which averred that the party had not been served with process, and did not appear by himself or...