Cotton v. Harlan

• Citation: 87 So. 152,124 Miss. 691
• Decision Date: 28 February 1921
• Docket Number: 21544
• Court: United States State Supreme Court of Mississippi
• Parties: COTTON v. HARLAN

87 So. 152

124 Miss. 691

COTTON v. HARLAN

No. 21544

Supreme Court of Mississippi

February 28, 1921

1. JUSTICES OF THE PEACE. Court is one of record.

The court of a justice of the peace is a court of record and of general juricdiction.

2. JUDGMENT. On collateral attack on default judgment based on constructive service, jurisdictional facts presumed.

Where a judgment of a court of general jurisdiction is attacked collaterally, unless the contrary affirmatively appears from the record, all jurisdictional facts are conclusively presumed to have existed, whether there are recitals in the record to show them or not; and this rule applies, although the judgment attacked was rendered by default, on constructive service of process alleged to be defective.

3. JUSTICES OF THE PEACE. Attack in trover on judgment, under which sale was made held a collateral attack.

A claim in an action of trover that a judgment of a justice of the peace rendered by default, at a sale under which the property alleged to have been converted was purchased, is void because of defects in the service of process on the defendant therein, is a collateral and not a direct attack on the judgment.

HON. D M. MILLER., Judge.

APPEAL from circuit court of Pike county, HON. D. M. MILLER, Judge.

Trover by E. R. Harlan against W. R. Cotton. Judgment for plaintiff and defendant appeals. Reversed and rendered.

Judgment reversed.

F. C. Lee and R. G. Price, for appellant.

The only ground on which the court allowed this case to go to the jury was on the ground that Miss Lula Quin had made no affidavit that Cotten was a nonresident, and if her testimony had been allowed to stand, would have created a doubt at least in the minds of the jury, sufficient to make her attachment good. Quarrles v. Hiern, 14 So. 23, is decisive on this point and Judge COOPER held in that case as follows:

"While one against whom a judgment is rendered without notice, may have relief upon disproving the return of the officer, it is incumbent upon him to make clear and convincing proof; it will not be sufficient, if on the whole case, the matter is left in doubt."

Refused instruction No. 8 goes to the heart of this question, and should reverse this case. "The court instructs the jury for the defendant that if they believe from the evidence that Miss Lula Quin made an affidavit before Judge GWIN, J. P that the defendant in the attachment was a non-resident of the state of Mississippi, and that his post-office address was unknown, and that she had made diligent search and inquiry to ascertain the same without success or substantially to that effect, then Harlan got a good title at the sale under attachment and this is true whether or not the affidavit was filed, then you should find for the defendant."

We submit that the learned court erred, not only in excluding Miss Quin's testimony and refusing the above instruction but in doing so, allowed the justice of the peace to make good an impeachment on his own official record, by the statement "he didn't know."

Citing the same case above given, of Quarrels v. Hiern, it was further held: "Some faith and credit is to be given to the acts of sworn officers, and to the return they make in reference to the discharge of their official duties."

In this case, the justice of the peace did not testify that the affidavit had not been made, and his docket showed affirmatively that search had been made for Cotton, as well as inquiry, and that the address was still unknown.

In refused instruction No. 4 in light of the case of Quarrels v. Hiern, cited above, should have been given, it is as follows: "The court instructs the jury for the defendant that if Harlan purchased the automobile of Cotton when it was sold under the judgment and execution of Miss Lula Quin in good faith, and thereby became a bona-fide purchaser, is not effected by the irregularities in a judgment or in an execution and that if you believe from the evidence in this case that Harlan bought of W. R. Cotton in good faith, then he has a perfect title to same, and you should find for the defendant." The Quarrels case cited above, further holds:

"Under such circumstances, he was entitled to act upon the assumption that the officer had discharged his duty by making publication, and though irregularities may have existed in the publication on its notice, his title acquired at the sale cannot be effected. Long v. Reid, 53 Miss. 73; Hank v. Neal, 44 Miss. 212; Minor v. President, etc., of Natchez, 4 Smeedes and Marshall 602; Freeman on Execution, 286."

Referring to Harlan's testimony on page 8 at the top of the page, you will find the following testimony; Question. "Did you have any notice of any defects in the legal proceedings had by Miss Quin. Answer. "I did not." This goes to show that Mr. Harlan attended a constable's sale, and purchased the automobile in good faith, without notice of any legal defects, and under the case of Quarrels v. Hiern, cited above, his title to same should not be affected.

We respectfully submit that this case should be reversed.

E. G. Williams and J. J. Cassidy, for appellee.

The plaintiff's theory of the case is that the sale made in Miss Quin's suit is void, and that Harlan, having sold the car and appropriated the proceeds to his own use, is liable in conversion for the amount received for the car, less the debt owing by Cotton to Harlan. The lower court adopted that theory, and regulated the introduction of testimony and the instructions to the jury accordingly. That the sale made in the attachment suit of Miss Quin's against Cotten is absolutely void and the purchaser at said sale, Harlan therefore acquired no title, seems to us to be beyond dispute. Section 147 of the Code of 1906, section 139, Hemingway's Code; Ponder et al. v. Martin et al., 80 So. 388, and Carter v. Brandy, 71 Miss. 240, 15 So. 790, in which latter case it was held that in order to divest title of a nonresident brought in by publication, there must be conformity to law. The record of the justice of the peace, Judge GWIN, does not show that an affidavit as required by the section of the code just quoted was filed, and neither he nor Miss Quin can say that they ever thought that this was done. Miss Quin testified that she held up her hand and took some sort of oath, but even if she did, this does not meet the requirements of the statute and lower court correctly so held, record page 53. There was no effort to impeach Judge GWIN'S records; it was only sought to supplement or perhaps rather to perfect his imperfect records of the proceeding in his court, and his testimony was unobjectionable.

The sale made to Harlan under execution conferred no title on Harlan. He is liable to Cotton for the amount that he realized for the car less the debt owing by Cotton to him and no demand on him was necessary in order for Cotton to maintain this suit. It is a settled law in this state that where the taking is tortious no demand is necessary. ...