Boutwell v. Grayson

• Citation: 79 So. 61,118 Miss. 80
• Decision Date: 08 July 1918
• Docket Number: 20342
• Court: United States State Supreme Court of Mississippi
• Parties: BOUTWELL, SHERIFF, ET AL. v. GRAYSON

79 So. 61

118 Miss. 80

BOUTWELL, SHERIFF, ET AL. v. GRAYSON

No. 20342

Supreme Court of Mississippi

July 8, 1918

Division B

APPEAL from the chancery court of Jones county, HON. G. C. TANN Chancellor.

Bill by A. E. Grayson and others against Allen Boutwell and another. Decree for plaintiff, and defendants appeal.

The facts are fully stated in the opinion of the court.

Affirmed and remanded.

Welch &amp Street, for appellant.

It is the contention of the appellant that this case is controlled by the case of Catlett v. Drummond, 74 So. 323. When suit was filed in the justice court, Hood was living at Laurel in beat number 2, and was personally served with process by the constable of that beat and he did not appear to object to the jurisdiction of the court or to suggest the transfer of the suit to beat number 5. Neither did his codefendants, Grayson and Cranford, appear.

The appellees concede in their bill that W. W. Hood was legally and properly served with progress, but say the judgment rendered against Hood by the justice is void, because they say that the judgment against Grayson and Cranford was void and the judgment of the court being void as to these two defendants, was void as to Hood also, citing the case of Comenitz v. The Bank, 85 Miss. 662, 38 So. 35. But as we read the case of Catlett v. Dummond, supra, it is necessary for Cranford and Grayson to appear in the justice court and object to the procedure of that court and having failed to do so, these appellees waived the personal privilege they had to have the case tried in beat number 5. So under the case of Catlett v. Dummond, the judgment was not void as to Grayson and Cranford, but was a valid judgment against Grayson, Cranford and Hood and the general demurrer should have been sustained. Under this authority the case of Comenitz v. The Bank, has absolutely no application.

Complainants furthermore do not show any meritorious defense to the suit in the justice court. True they say in their bill that the filing of this suit was a fraud on them, but this is a mere statement of the pleader and no facts are set up that would show any nature of defense at law to the suit instituted in the justice court. Comenitz v. The Bank, does not control in this case, because it is perfectly plain from the case of Catlett v. Drummond, cited above, that Grayson and Cranford waived any right they might have had to be sued in beat number 5, by failing to appear. But had they appeared, they could not have had the case removed to beat number 5, for trial for the reason that one of their defendants, Hood, was actually residing at Laurel in beat number 2, when served with process. This case being heard on demurrer to the bill of course the allegations of the bill are admitted, but at most the bill only charges that Hood, when residing in Laurel, had a purpose to return to Moselle and had at the time of the suing out of the injunction returned to Moselle. There is no kind of intimation in the bill that he was not actually residing in Laurel when he was served with process. On the other hand it says Hood and his family were then living in Laurel. Under our statutes all obligations are joint and several and the court having jurisdiction of one of the defendants, had jurisdiction of the other defendants. See Stein v. Finley, 25 Miss. 535.

In the case of Hattiesburg Hardware Company v. Pittsburg Steel Company, 76 So. 570, the court held that a judgment against one partner who was personally served with process, was good though the other partners were never in fact served with process and the judgment as to them was absolutely void.

While we think, as stated above, the case of Comenitz v. The Bank, has no application to this case, we must say in passing that Judge Whitfield meant to hold that a void judgment against one defendant made what would otherwise be a valid judgment against his codefendants void, then that opinion stands alone and unsupported so far as we can ascertain and must have been written without regard to Chapter 71, Miss. Code of 1906. The case of Stein v. Finley, 25 Miss. 535, which holds that section 2683, Miss. Code of 1906, abolishes all distinctions between joint and several obligations has never been overruled or even criticised, but has stood as the law in this state for more than sixty years. What does it matter as to the form of a judgment, whether it is joint or several, if all obligations, though joint in terms, be under the law joint and several.

We further insist that even if the contention of appellees be sound, that in that event they had a full, complete and adequate remedy at law, either by writ of certiorari or motion to quash, the execution and levy thereunder, and the general demurrer, should have been sustained. We respectfully ask that the case be reversed and the demurrer of the appellants sustained.

J. M. Arnold, for appellee.

As I understand this case and the contentions of the appellants, they are not here contending, really, that there is any valid judgment against Grayson and Cranford, but they are really contending here that they have a valid judgment against Hood, one of the codefendants in the original justice court proceeding.

Now our contention is that the whole proceeding in the justice court all of these parties, the appellees here, is absolutely null and void and no valid judgment was nor could the same be rendered for several reasons:

1. Because there was no jurisdiction in the court of beat number 5, to try and dispose of this case;

2. Because a judgment was rendered against all of the defendants and there was no service of process on Grayson and Cranford;

3. Because, even if the court had jurisdiction of the case, when a judgment was rendered against all of the defendants there without legal process on all, then the judgment was null and void as to all of the defendants.

As to these propositions, they are so very closely related that in discussing them I shall not take each up but present my ideas as a whole. It is true that this court decided the case of Catlett v. Dummond, 74 So. 323, and decided the same adversely to my contention here that if there had been legal service of process where a suit was filed in a district other than that in which a defendant resides he should appear and raise the question, but I submit that when this judgment was rendered in the justice court the law in Mississippi was exactly to the contrary; the rule was unquestioned by any lawyer at the time this case was disposed of by the justice of the peace, and property rights had been and have been acquired under the law as it was before the case of Catlett v. Dummond was decided, and I submit that these appellees were entitled to rely on the law as then written by this court. Beginning with the case of Hilliard v. Chew, 76 Miss. 763, and followed up by this court as late as the case of Molpus v. Bostick Lumber & Mfg. Co., 71 So. 16, this last case decided by Mr. Justice SYKES and which follows up to the Catlett case, the settled law of Mississippi, and I submit with all consideration and respect, that while the Catlett v. Dummond case does expressly overrule the Hilliard case it does not overrule, by name, the law as announced in the case of Molpus v. Bostick, 71 So. 16, and to overrule this last cited case would be to overturn property rights acquired under the then settled law of Mississippi, and I respectfully submit that the case of Catlett v. Drummond is wrong and urge this court to overrule it and re-establish the old rule in Mississippi, and to protect the property rights acquired in and under that right. If the case of Hilliard v. Chew, is to be reestablished in Mississippi, then that would dispose of this case and the contentions of the appellants here.

The appellants contend in their brief that under the case of Catlett v. Drummond, supra, it was necessary for Cranford and Grayson to appear in the justice court and object to the procedure there, I submit that under no claim of reasoning, and even if the rule announced in that case is to still be followed, can it ever be construed to extend beyond a case where there has been a legal service of legal process on the defendants and in this case there having been no legal service of process on them, that in no event is the judgment against them valid.

That there was no legal service of process on them so as to require that they defend the justice court case there can be no question, because Pruitt, constable of beat number 2 attempted to serve this process and as alleged in the bill went to Moselle which is in another beat and there attempted to execute the process. Section 171, Constitution of 1890 provides for the election of a competent number of justices of the peace and constable for each beat, and our own court in construing the Constitution of 1869 which had like section even said in Riley v. James, 73 Miss. 191, 18 So. 930: "Under the present Constitution, as under that of 1869, the jurisdiction of justices of the peace, and the executive power of constables granted by the Constitution, are limited to the district for which they were elected; in this case the bill alleges that Pruitt, constable of beat number 2, attempted to execute the process as to Grayson and Cranford at Moselle which...