Downing v. Campbell

• Decision Date: 19 February 1923
• Docket Number: 22818
• Citation: 95 So. 312,131 Miss. 137
• Court: Mississippi Supreme Court
• Parties: DOWNING, et al. v. CAMPBELL

95 So. 312

131 Miss. 137

DOWNING, et al. v. CAMPBELL

No. 22818

Supreme Court of Mississippi

February 19, 1923

1. LANDLORD AND TENANT. Proceeding to dispossess tenant for failure to pay rent must be strictly followed; error to dissolve injunction and dismiss bill where affidavit void.

In a proceeding to dispossess a tenant for failure to pay rent the proceedings required by sections 2885 and 2886, Code of 1906 (Hemingway's Code, sections 2383 and 2384), must be strictly followed. Where a bill to enjoin the enforcement of a writ issued under a judgment of a justice of the peace charges that the affidavit was not in fact made by the person purporting to have made it, and this is not denied by the answer, but it says that her agent had authority to make it the affidavit is void, and it is error to dissolve the injunction and dismiss the bill.

2. LANDLORD AND TENANT. Affidavit of agent to dispossess must be personal, and state facts.

Under section 1011, Code of 1906, Hemingway's Code, section 731), an agent or attorney may make the affidavit in any proceeding where an affidavit is required; but the affidavit must be personal---that is to say, must be the act of the person making it---and, if made by an attorney, must show whether the knowledge is that of the attorney or the client. Where an affidavit is on its face that of the party, but is in fact not made by the party, but by an agent, it is void.

HON. G E. WILLIAMS, Chancellor

APPEAL from Chancery court of Coahoma county, HON. G. E. WILLIAMS Chancellor

Suit by M. C. Downing and others against Mrs. L. G. Campbell. From a judgment dissolving an injunction and dismissing the bill, plaintiffs appeal. Reversed and remanded.

Judgment reversed, and cause remanded.

Jno. W. Crisler and Chas. W. Crisler, for appellants.

The filing of an affidavit in the justice court was jurisdictional, and if the affidavit filed was so defective as to amount to no affidavit, the justice of the peace was without jurisdiction to proceed. Let us pause briefly and see what the facts are in the case regarding the making of the affidavit. The original bill, page 4 of the record, alleges: "Fifth: That said judgment is void for the further reason that no valid affidavit was ever lodged in said suit with the justice of the peace, in that the pretended affidavit recites that the same was made by Mrs. L. G. Campbell, whereas it is signed 'Mrs. L. G. Campbell, by R. H. Kirby, Agent and Attorney,' which is a method of swearing by proxy, not authorized by law, that Mrs. L. G. Campbell did not in fact make said affidavit and same is void."

The answer of the defendant, at page 17 of the record, answers this allegation in the following words: "Eight: She denies that said judgment is void for the reason that the signing of the affidavit by the defendant's counsel, and not by the defendant herself, is rendered invalid. On the contrary she alleges that said judgment is valid, and that said affidavit is entirely valid and that her counsel had full authority under the law to sign said affidavit."

It will be readily observed from these abstracts of the pleadings that there is no denial whatever of the charges made by the appellants that Mrs. Campbell did not make the affidavit. She answers to the charge simply that the affidavit is not rendered invalid because signed by her counsel, and states that he had full authority to sign. This is not a denial of the allegation that the affidavit was not made by Mrs. Campbell. Furthermore, there has never been any contention in this case, either in the pleadings, proof or argument that Mrs. Campbell ever made this affidavit. In fact it has been openly admitted that she did not.

In the case of Coppock v. Smith, 54 Miss. 640, where the affidavit recited that W. H. Coppock appeared and swore but was signed "W. H. Coppock, by R. W. Ware, Atty.," that this showed upon its face that the affidavit was made by W. H. Coppock in person, since no signature was necessary and the signature might be disregarded as surplusage. Let us then apply that rule to the affidavit in the removal proceedings in the justice court. The affidavit recites that Mrs. L. G. Campbell appeared and made the affidavit. This is presumptive that she did so. There is no presumption whatever that her attorney made the affidavit, for the affidavit contains no such recital and such is not even inferable from any other part of the affidavit, especially in view of the rule announced in the case just cited. The evidence of Mrs. Campbell's attorney in the present proceeding is that she did not make the affidavit and that the matter was handled entirely by him. The attorney does not say that he made the affidavit and it cannot be presumed from the affidavit that he did so; on the other hand, it is presumed that he did not and that Mrs. Campbell made it, which has been refuted by the record. Mr. Kirby insists in his answer that he had a right to sign the affidavit, and that he did sign it. We will not dispute that as the signature is not at all necessary. But there is a considerable distinction between making an affidavit and signing an affidavit.

But let us admit that Mr. Kirby, as agent and attorney for Mrs. Campbell, made the affidavit. Still there is nothing in the recitals of the affidavit to show that he had any personal knowledge of the thing he was swearing about. The statute authorizing an attorney to make an affidavit for his client does not authorize vicarious swearing. Even if Mrs. Campbell had had the positive and absolute knowledge, this would not authorize her attorney to make an affidavit concerning a thing of which he had no personal knowledge. As said by the court in Coppock v. Smith, supra. "The affidavit, however, must be personal; that is to say, it must be the act of the person making it. One man cannot swear for another."

This rule is also affirmed in the following decisions of our supreme court: Miller v. McDougall, 44 Miss. 689; Waller v. Shannon, 53 Miss. 500; Burks v. Burks, 66 Miss. 494, 6 So. 244

R. H. Kirby, for appellee.

The appellants in the case at bar sat quietly and allowed a judgment to go against them, and then allowed the time for appeal to expire, and then go into the chancery court and ask for relief by injunction, which that court on final hearing very properly denied them. The action of the court is upheld in all the cases bearing on the subject. 16 Am. & Eng. Ency. of Law, 377-385; Roots v. Cohen, 12 So. 593; Welch v. Hannie, 72 So. 863; Vicksburg Groc. Co. v. Brennan, 20 So. 845. We earnestly submit that the appellants are in any event concluded by the judgment and that they have no standing on this appeal.

The cases of Bowles v. Dean, supra and Wilson v. Wood, supra, set forth what the pleadings in removal proceedings under the statute should contain, and we submit that we come entirely within the requirements laid down in those cases. The decisions in those cases were made in a direct proceeding by appeal, and the points were raised seasonably and in the proper court. Therefore even though we did not come within the requirements there laid down, that fact would avail the appellants nothing in this cause, for they would be concluded by the judgment.

It is stated in counsel's brief that the record does not disclose any authority in the lower court to render final judgment against the appellants on a motion to dissolve the injunction. On this point we ask the court to turn to page 25 of the record, where the final decree recites on its face that the cause was "taken under the advisement for decree in vacation, the same being for final hearing, etc." The court may have been induced to embrace that language in the decree by reason of an agreement announced in open court by the counsel on the hearing of the cause. If, however, this should be considered an interlocutory instead of a final decree, then this appeal should be dismissed because it was not perfected within the time allowed for perfecting appeals from interlocutory decrees.

We earnestly and respectfully submit that the appellant's cause is without merit, and this case should be affirmed.

OPINION

ETHRIDGE, J.

This is an appeal...