Courtney Bros. v. John Deere Plow Co

• Decision Date: 26 April 1920
• Docket Number: 21064
• Citation: 84 So. 185,122 Miss. 232
• Court: Mississippi Supreme Court
• Parties: COURTNEY BROS. v. JOHN DEERE PLOW CO

84 So. 185

122 Miss. 232

COURTNEY BROS. v. JOHN DEERE PLOW CO

No. 21064

Supreme Court of Mississippi

April 26, 1920

March 1920

1. EXECUTION. Where injunction restraining execution of a money judgment at law is partly dissolved, personal judgment for true amount of indebtedness should not be granted.

Under section 622, Code of 1906 (section 382, Hemingway's Code), where an injunction restraining the execution of a judgment at law for money is, in part, dissolved, the decree should be limited to the partial dissolution and the award of a personal decree on the injunction bond for such damages as the defendant may have sustained, and should not grant a personal judgment for the true amount of the indebtedness ascertained, as the above section has the force and effect of a judgment against the obligors on the bond, and, when certified to the court in which the enjoined judgment was rendered, authorizes the issuance of an execution by that court for the true amount of the indebtedness.

2 EXECUTION. Code provides for recovery of damages, including costs, on partial dissolution of an injunction staying proceedings on money judgments at law.

Section 623, Code of 1906 (section 383, Hemingway's Code) provides for the recovery of damages at the rate of 5 per centum of the amount found due, including the costs, upon the dissolution in part, of an injunction obtained to stay proceedings on a judgment at law for money.

HON JAS. G. McGOWEN, Chancellor.

APPEAL from the chancery court of Calhoun county, HON. JAS. G MCGOWEN, Chancellor.

Bill for injunction by Courtney Bros. against the John Deer Plow Company, to enjoin levy of an execution upon a judgment for defendant against complainants, with cross-bill by defendant asking a decree for the true account of the debt, admitting the judgment to be excessive. From a decree for defendant, complainants appeal. Affirmed in part and reversed in part.

See, also, 83 So. 50.

Decree reversed.

W. J. Evans and W. J. Stone, for appellants.

Counsel for appellee misconstrues the main points at issue in the case at bar. Their arguments and citation of authorities do not throw any light on the points at issue. The stenographer's notes having been stricken from the record, it follows that the case must be decided on the pleadings and the decree of the chancellor. We contend that on the record in this case no possible statement of facts could justify the judgment rendered by the court below. The main points at issue in this case as we understand it, are as follows:

(1) Whether or not the appellants had a right to the writ of injunction at the time of the issuance of the same. (2) Whether or not any damages should have been awarded against the appellants for the alleged wrongful sueing out of the writ of injunction. (3) Whether or not the appellants should have been taxed with any costs that accrued in the circuit court cases, or in the case in the chancery court, prior to the filing of the cross-bill by the appellee.

The pleadings and the decree of the chancellor show conclusively that the circuit court judgments were absolutely void for the want of notice or the proper process on the defendants in the circuit court; and since the said judgments were absolutely void, there could be no legal and valid executions issued on such judgments. The courts have uniformly held that judgments of this kind may be enjoined by a court of equity, and our own court has held that executions and judgments void for the want of proper process may be enjoined.

This principle is sustained by the following authorities: Cuncan v. Gerdine, et al., 59 Miss. 550; Southern Express Co. v. Craft, 43 Miss. 508; Hilliard et al. v. Chew, 76 Miss. 763; Winter v. Coulthard, 94 Iowa 312.

It therefore, follows that if appellant were entitled to the writ of injunction at the time the same was issued, the awarding of any damages against them by the court below was error. See cases above cited, and, in addition thereto, the case of Burrows v. Jones, 79 Miss. 214.

Counsel for appellee in their briefs filed in this case do not produce any argument or cite any authority holding that the appellants should be taxed with damages in this case, as awarded by the chancellor in his decree, or taxed with any costs in the circuit court proceedings, or on the bill for injunction prior to the filing of the cross-bill by the appellee. In fact, the brief of counsel for appellee in this case is not responsive to the main issues involved, and in their endeavor to avoid a discussion of those issues we find them traveling in a circle.

Counsel for appellee seem to base their claims on the case of Hale v. Bozeman, 60 Miss. 965, which is altogether a different case from the case at bar; and even in that case it does not say that the party seeking the writ of injunction should be taxed with damages.

Counsel for appellee also claim that the appellants should have tendered and paid into court the amount of money which they admit to be due. The pleadings in this case show that the appellants expressed the desire to pay whatever amount they were legally due, or whatever amount the chancellor might find to be due at the hearing of the cause on its merits. But, as we have stated, the judgment in this case is absolutely void, and our attention has not been called to any adjudicated case which holds that before a party can obtain relief in a court of equity against such a void judgment, he must deny and show that he is not indebted to the party obtaining the judgment. The effect of such a rule would be that a void judgment is prima-facie evidence of indebtedness. We do not think that such can be the rule. See, in this connection, the case of Iowa Union Telegraph Co. v. Boylan, et al., 52 N.W. 1122.

Since there were no valid judgments against the appellants at the time the executions enjoined were issued, the issuance of the executions was certainly unauthorized and void. Our court has repeatedly held that an absolutely void judgment, or execution based upon such void judgment, can be collaterally attacked anywhere at any time. Certainly, under the facts of this case, the appellants should not be punished by taxing them with the statutory damages and the costs of the proceedings had in the circuit court.

Counsel for appellants here reiterate the facts and arguments contained in their original brief in this case and say that the decree of the chancellor rendered against the sureties on the injunction bond is absolutely contrary to, and in the face of, section 622 of the Code of 1906, as construed in the case of Steadman et al. v. Butler, 49 So. 614.

We submit that this case should be reversed and remanded to the circuit court of Calhoun county for a jury trial, and that the appellee should be taxed with the costs of this appeal.

W. D. & J. R. Anderson and A. T. Stovall, for appellee.

The evidence having been stricken from the record the court can only look to the pleadings and decrees in this cause for the purpose of determining whether prejudicial error was committed by the trial court. The question is whether or not the final decree rendered in this cause was an impossible decree under the issues presented by the pleadings. In order to determine this question the court will treat as having been proven whatever was necessary to be proven to sustain the decree. In the absence of the evidence, any conceivable state of facts, possible of proof, will be assumed in favor of the correctness of the action of the trial court. This principal is sustained by the following authorities: Covel v. Smith, 68 Miss. 296, 8 So. 850; Christman v. Russel, 73 Miss. 452, 18 So. 656; Gwin v. Williams, 27 Miss. 324; Bernheim Bros. v. Brogan, 66 Miss. 184, 6 So. 649.

The court held in its final decree that the judgment on which the execution was issued which was enjoined (the last judgment) was void. This court held this under the authority of Comenitz v. Bank of Commerce, 85, Miss. 662. Comenitz had been sued with several others. Judgment by default was taken against all of the defendants, including Comenitz who had not been served with process as much as five days before judgment. The court held that the judgment was void as to Comenitz for that reason, and being an entirety was void as to all the defendants. Applying that principle to these judgments the court held that because the first judgment was against S.W. Courtney and O. D. Courtney, while S.W. Courtney had not been served with process, as stated in the last clause of the judgment, the judgment was therefore void as to S.W. Courtney and being an entirety, it was void as to O. D. Courtney. Then the court held that by the entry of the first judgment, the power of the circuit court over the cause had been exhausted; that without further notice the court had no power at a subsequent term of the court to take up the cause and enter the last judgment which was rendered; that this judgment was void.

Having held both circuit court judgments void the court proceeded to try the merits of the cause of action anew on bill, answer, cross-bill and proof, resulting in the final decree in the record. In order that this court may see the case as presented to the court below we will now state some of the main propositions of law contended for on the trial by appellee.

Even tho a judgment be void, because rendered without notice, it will not be enjoined except upon a showing of a meritorious defense to the debt on which it is based. Newman v. Taylor, 69 Miss. 670, 13 So. 831; Steward v. Brooks, 62 Miss. 492.

Even if equity has jurisdiction, a defendant at law is not entitled to an injunction to resist the collection of the whole of a judgment against him, if he admits that a part of the debt on which the...