Carrollton Hardware & Implement Co. v. Marshall
| Decision Date | 18 March 1918 |
| Docket Number | 20010 |
| Citation | 117 Miss. 224,78 So. 7 |
| Parties | CARROLLTON HARDWARE & IMPLEMENT CO. v. MARSHALL |
| Court | Mississippi Supreme Court |
APPEAL from the circuit court of Carroll county, HON. H. H. RODGERS Judge.
Suit by the Carrollton Hardware & Implement Company against B. F Marshall and another. The circuit court, on appeal, affirmed an order of a justice of the peace for defendants quashing an execution and garnishment and plaintiff appeals.
The facts are fully stated in the opinion of the court.
Judgment affirmed.
Monroe McClurg and S. E. Turner, for appellant.
Passing directly to counsel's argument, page 5, planted like their statement of the facts upon the assumption that a partnership was beyond question, they proceed upon a false premise to reach an erroneous conclusion. Counsel lead off in their argument by saying that "the record nowhere shows that the defendants in the original suit had been served with process. They evidently refer to the 1913 justice record, and are mistaken about that. The record in this court shows the once existent record of the service of process on T. E. and B. F. Marshall and the offer to make legal proof of it. That it was issued and delivered to the constable who was allowed in his cost bill, shown on justice docket, for "serving and returning summons on two defendants" is not controverted. The constable who received and served that process on the day of its issuance was then and there in court with an exact copy of that summons and the personal service return endorsed thereon and ready to swear to it, and the plaintiff there and then moving the court to let him substitute the lost process, was denied. That much is in this record, notwithstanding counsel's statement of the failure of the record to show the service. That is our complaint, denial to show process and service. Swain v Gilder, 61 Miss. 667 (671), is one of the authorities relied on by us.
There may have been some irregularity in presenting the motion to complete the appeal in this cause by having the present justice to send up the papers in the case of T. E. and B. F. Marshall in which the process was lost, because they were presumed to be in his official keeping, but the proposition to substitute the served process was squarely put and as squarely denied.
Counsel undertake upon the authority of French v. State, 53 Miss. 651, to show that the service was bad on T. E. Marshall in 1913, and not sufficient to support a judgment by default against him. At most the return of the service upon T. E. Marshall may be irregular, but not void except upon the complaint of T. E. Marshall in that case. Besides it is a collateral attack by B. F. and cannot be entertained on these issues. But the case cited does not support counsel's contention. It shows the negative of tendering a copy of the service upon T. E. Marshall was sufficient in being read to him in person; the law did not require the delivery of the copy after reading the process; the defendant in such case must be considered to have waived the copy. The return and judgment in the French case was held erroneous only, not void. And in Comenitz v. Bank, 85 Miss. 662, the defendant who was served with process less than five days, not only enjoined the judgment herself, but prosecuted the appeal with the other defendants to this court. A direct attack by her upon the judgment directly against her on the void service. That is another new defense not before made and heard in the circuit court and this court will disregard it. The point made by counsel that the process proposed as the substitute for the original lost one bore a different date from the original, therefore the constable would not be heard to contradict it, the sufficient answer is, that was not the reason the court denied the motion to substitute. When that motion is sustained we will come to the full consideration of that.
Counsel, in responding (p. 10) to our original brief applicable to the garnishment proceedings, still argue as if the partnership had been proven. We have shown that it was not proven but on the contrary found by the court not to have existed at all.
It is now finally submitted that the appellant is justly and legally entitled to judgment here against the railroad company for the one hundred and sixty dollars garnished, and against the Bank of Carrollton and its sureties on the claimants' bond for the value of the property taken by it.
Hughston & McEachren, for appellee.
It will be observed from the foregoing facts that plaintiff was attempting to subject the property of a partnership composed of B. F. Marshall and F. L. Marshall, to the payment of a judgment rendered against T. E. Marshall and B. F. Marshall. In order that any property shall be condemned to satisfy a judgment, the burden of proof is on the plaintiff in execution to show: 1. A valid, subsisting judgment; 2. Proper execution and levy; 3. Title in defendant in execution, and 4. Liability of the property levied on to the demand sought to be enforced. The case at bar is lacking in several of these particulars.
Judgment is void. The record nowhere shows that the defendants in the original suit had been served with the process issued, and the judgment affirmatively shows that said defendants were not present in court. Before any court can render a judgment, valid and enforceable, it must have jurisdiction of the subject-matter and of the person of the one against whom the judgment is rendered except in proceedings in rem.
A judgment entered by default against a party who has not been served with process and who has not appeared in the action, is irregular and void. And due and proper service must appear upon the record before the court is authorized to render a judgment by default. 1 Black on Judgments, section 83.
"The test usually applied by the courts is that upon looking at the record it sufficiently appears that every fact has been found which is necessary to give a right to the party to have a judgment entered." Swain v. Gilder, 61 Miss. 667.
Applying this test it does not appear from the record that the court found that the defendants had been served with process, for even his judgment entered in said cause is silent as to process and service thereon, and shall this court now read into this record that which does not appear to have been in the same at the time the judgment was rendered. The return is irregular and void and will justify or sustain no judgment by default. French v. State, 53 Miss. 651.
The French case is almost an identical case with this one, there the process was served by exhibiting and reading the same to defendant, here it says that the summons was executed by reading to him, not by handing the defendant a true copy as required by law.
We most respectfully submit that there can be no question that a judgment by default on the above service of process is erroneous and void and if it cannot be enforced as against T. E. Marshall, it cannot be enforced against the co-defendant, B. F. Marshall, since the judgment is an entirety, and when void as to one is void as to all. Comenitz et al. v. Bank of Commerce, 85 Miss. 662.
Plaintiff, at the same time, attempted to supply the original summons, by filing What purported to be a substituted summons certified by W. A. Suddoth, constable, which said summons was dated October 20, 1913, when the docket of said justice of the peace shows that the original summons issued in said cause and placed in the hands of said Suddoth, was issued on the 15th day of October, the certificate and testimony of the said Suddoth if he had been allowed to testify, would have contradicted the record, and would not have sustained them, and this is not permissible, since the said records import verity.
Besides the plaintiff in execution, in order to supply what he...
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