Brotherhood of Railroad Trainmen v. Agnew

• Decision Date: 28 May 1934
• Docket Number: 31270
• Court: Mississippi Supreme Court
• Parties: BROTHERHOOD OF RAILROAD TRAINMEN v. AGNEW

155 So. 204

170 Miss. 614

BROTHERHOOD OF RAILROAD TRAINMEN v. AGNEW

No. 31270

Supreme Court of Mississippi

May 28, 1934

Division B

Suggestion Of Error Overruled September 11, 1934.

APPEAL from chancery court of Hinds county HON. V. J. STRICKER Chancellor.

Suit by the Brotherhood of Railroad Trainmen against W. C. Agnew. From a judgment in favor of the defendant, the plaintiff appeals. Affirmed.

See also, 155 So. 205.

Affirmed.

Alexander, Alexander & Satterfield, of Jackson, for appellant.

Injunction against execution under a void judgment is a matter of equitable right.

2 Story's Eq. Jur., sec. 855; Robertson v. Aetna Insurance Co., 134 Miss. 398, 406; Walker v. Gulfport, Freeman Chancery, 85; Joslin v. Coffin, 5 How. 539; Crawford v. Redus, 54 Miss. 700; Sivley v. Summers, 57 Miss. 712; Oliver v. Baird, 90 Miss. 718; Hester v. Kembrough, 12 S. & M. 659; Welch v. Hannie, 112 Miss. 79, 87; Stewart v. Brooks, 62 Miss. 492; Newman v. Taylor, 69 Miss. 670, 673; Wilson v. Montgomery, 14 S. & M. 205.

A judgment by default without service of process is void and may be enjoined.

Duncan v. Gerdine, 59 Miss. 550; Jones v. Bank, 5 How. 43; Lapiece v. Hughes, 24 Miss. 69; Hale v. Bozeman, 60 Miss. 965.

Lotterhos & Travis, of Jackson, for appellee.

We readily concede that the chancery court has the power to enjoin execution under a void judgment as a general principle, but we deny that the judgment entered by the circuit court is void.

It appears that appellant could not proceed in chancery because, pending the appeal from the circuit court, it is attempting to go into the validity of the circuit court judgment and does not rely merely on some independent equity.

No harm could come to the appellant by being required to exhaust its recourse in the circuit court and by appeal therefrom before proceeding in chancery, because pending its supersedeas appeal there could be no execution in the law court.

OPINION

Ethridge, P. J.

Appellant filed its original bill in the chancery court of Hinds county alleging the invalidity of a judgment rendered in the circuit court against the appellant, and the improper service of process upon one J. E. Pierce, secretary and treasurer. Said judgment in the circuit court was a default judgment for the sum of one thousand one hundred ninety dollars. The injunction is predicated upon the allegation that J. E. Pierce, shown in the testimony to be "J. E. Pierce, secretary and treasurer" of a local lodge in Jackson, Mississippi, was not an officer of the brotherhood for the purpose of having process served upon him. The bill does not allege who was the proper person upon whom process might be served, and the record shows that the appellant had never designated the insurance commissioner of the state as its agent upon whom process could be served as required by section 5246, Code 1930, reading as follows:

"Every society, whether domestic or foreign, now transacting business in this state, shall, within thirty days after the passage of this article, and every such society hereafter applying for admission, shall, before being licensed, appoint in writing the superintendent of insurance and his successors in office to be its true and lawful attorney on whom all legal process in any action or proceeding against it shall be served, and in such writing shall agree that any lawful process...