Eastman-Gardner Co. v. Leverett

• Decision Date: 30 November 1925
• Docket Number: 25090
• Citation: 141 Miss. 96,106 So. 106
• Court: Mississippi Supreme Court
• Parties: EASTMAN-GARDNER CO. v. LEVERETT. [*]

106 So. 106

141 Miss. 96

EASTMAN-GARDNER CO. v. LEVERETT. ^[*]

No. 25090

Supreme Court of Mississippi

November 30, 1925

Division B

(Division B.).

1 JUDGMENT. Recital of prior "filing" of petition conclusive on collateral attack, notwithstanding clerk's notation.

On collateral attack on decree, removing disability of minority its recital that cause came on to be heard on petition therefor, and that petition was considered, is conclusive that petition was filed---that is, lodged with the clerk---prior to rendition of decree, notwithstanding clerk's notation thereon of filing on later date.

2 INFANTS. Petition for removal of disability held sufficiently signed.

Hemingway's Code, section 301, and Laws 1918, chapter 123, held more than satisfied by petition for removal of disability of minor signed by him, by aunt as next friend, by mother individually, and by minor brother and sister, by their mother as next friend.

HON. J. A. TEAT, Special Judge.

APPEAL from circuit court of Simpson county, HON. J. A. TEAT, Special Judge.

Action by Floyd M. Leverett against the EastmanGardner Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

C. S. Street and J. C. Street, for appellant.

The court erroneously refused to admit in evidence the petition of appellee for the partial removal of his disability of minority, the decree based thereon, the agreement to settle and the evidence that appellant had fully complied with the terms of said agreement. If the decree of the chancellor is valid, then it follows that the agreement and settlement made thereunder are valid and binding and this evidence should have been admitted and the peremptory instruction requested by appellant should have been given. The only question to be considered with reference to the decree is whether or not it is void, as was claimed by counsel for appellee on the trial in the lower court and with which the court agreed in sustaining the objection to its introduction.

The proceedings for the removal of the disabilities of minority are purely statutory and if the requirements of the statute are followed and complied with, the proceedings are valid unless rendered invalid for some reason outside of the record. It will be noted that the proceedings in this case were had after section 545, Code of 1906 (section, 302, Hemingway's Code) had been amended by chapter 123, Laws of 1918. The petition recited all of the jurisdictional facts required by the statute and we are unable to see why it does not comply with the law in every respect. The argument was made in the lower court by counsel for appellee that appellee's sister and brother, who joined in the petition, were incapable in law of joining as co-petitioners because of their minority. This position is unsound. The statute says if any two of such kindred, (that is, the nearest of kin within the third degree) shall unite with him in his application, it shall not be necessary to make any person defendant thereto.

As a matter of fact, however, in the present case the petition still shows that the two nearest of kin joined in the application, even if the two minors should be eliminated--that is, the next nearest of kin. The mother joins in the petition in her own person and the aunt joins as next friend for the minor, the petition stating that the father is dead, and in Bazor v. J. J. Newman Lumber Co., 97 So. 761, this court held that parties to the petition might be joined in the dual capacity of next friend and nearest of kin.

So we submit that the petition in this case clearly and fully sets out all the jurisdictional facts and the parties required by the statute join in the application and it is in all respects sufficient and valid. As was said in the Bazor case, supra, the cases of Jackson v. Jackson, 105 Miss. 868, 63 So. 275; Hardy v. Pepper, 128 Miss. 27, 90 So. 181; and Milham v. Higdon, 131 Miss. 260, 95 So. 433, do not apply because the statute has been amended since these cases were decided.

Collateral attack on decree. We understand the rule to be that if the decree is void, it may be attacked at any time, but if it is valid, and unquestionably this is, then this was a collateral attack on the decree which could not be made. Vicksburg Gro. Co. v. Brenan, 20 So. 845; Moore v. Ware, 51 Miss. 206; Criscoe v. Adams, 85 So. 119, 123 Miss. 37; Adams v. Adams, 102 Miss. 259, 59 So. 84; Martin v. Miller, 103 Miss. 75, 60 So. 772.

We are confident that the court will hold the decree valid and, therefore, not subject to collateral attack in this manner.

E. L. Dent and Hirsch, Dent & Landau, for appellee.

I. The court did not err in holding that the procoeeding for removal of disability of minority is void.

It is conceded that the appellee was a minor when injured and when the settlement was made. Therefore, if his disability of minority was not legally removed, he could make no legal or valid settlement for the various injuries received. In considering the question of removal of disability of minority, refer to sections 301 and 302, Hemingway's Code, as amended by chapter 123, Laws of 1918.

The court will observe that under this section an unamended application for removal of disability shall be in writing by the minor by his next friend, and "when such application or petition shall be filed," the clerk of the court shall issue process, etc. Chapter 123, Laws of 1918, requires the application to be in writing and if the applicant has no kindred within the prescribed degree, as required by section 301, Hemingway's Code, or if two of such kindred known to him or his co-petitioners shall unite with him in his application, which must be filed as required by section 301 Hemingway's Code, it shall not be necessary for the applicant to make any person defendant thereto. The act then provides that the court shall proceed to investigate the merits of such application. When the decree relating to the removal of appellee's disability of minority was taken, on which the appellant seems to stake its case, no written application for the removal of disability of minority of appellee had been filed in any court.

The court will observe that this decree was taken in vacation at Hickory, Mississippi, on August 18, 1920. No application or petition had been filed in any court at this time. The chancellor could not know that appellee wanted his disability of minority removed without the filing of a petition to this effect. This is necessary before the chancellor could render a valid decree. Barber v. Monier, 71 Miss. 726; Hardy v. McClelland, 53 Miss. 507; Smith v. Dry Goods Co., 79 Miss. 226. The decree shows none of the jurisdictional facts. The decree does not show the age, residence or relationship of any of the parties. This, we submit, is fatal to the validity of the decree. Steen v. Steen, 25 Miss. 513; Marks, Rothenberg & Co. v. McElroy, 56 Miss. 545; Lake v. Perry, 95 Miss. 550, 49 So. 569; Jackson v. Jackson, 105 Miss. 868, 63 So. 275; Boykins v. Collins, 37 So. 248; Bank v. Hoyt Bros., 74 Miss. 221.

There appears to have been a petition filed in the chancery court of the second district of Jones county, Mississippi, on August 19, 1920, one day after decree was signed by the chancellor at Hickory, Mississippi. This petition, however, is not sufficient. It nowhere appears that this is the petition before the chancellor when he rendered his decree at Hickory. It bears no date. It is not filed or numbered, as required by section 270, Hemingway's Code. It is not joined in by two of appellee's nearest adult kin, as the law requires. Mrs. Maudie Bond does not join in said petition, except as a representative of the minor. The two minor children could not join in said petition so as to make it effective and give the court jurisdiction. See Griffith's Miss. Chancery Practice, section 45, page 48; Rea v. Englesing, 58 Miss. 463. We are not making a collateral attack on the decree. Our position is that it is void. Lake v. Perry, 95 Miss. 550, 49 So. 569.

We, therefore, submit that the court below did not commit error in holding that decree attempting to remove the appellee's disability was void and, therefore, incompetent. This being true and the appellee being a minor, of course, no legal or valid settlement could be made with him which precluded a recovery.

C. S. Street, in reply, for appellant.

Counsel present two reasons seeking to show that the lower court was correct in excluding the petition and decree from evidence: (1) That the filing date appearing on the petition seems to be the day after the date of the decree; and (2) that the minor co-petitioners could not join in the application because of their minority.

As to the first question, it is well settled in this state that it is not necessary to actually write the word "filed" and the date on a paper presented for filing; that this is a mere clerical act of the clerk; that it is sufficient if the paper is actually lodged with the proper official and that the petition in this case had been actually filed and was before the chancellor when he signed the decree is shown by the highest and best proof that could be produced, viz: the recitals in the decree itself. By reference to the decree the court will note that it begins with the words, "This cause this day coming on to be heard on the petition, etc.," and further, the decree recites that "the chancellor having heard and considered said petition, and being fully advised in the premises, etc." This is final and conclusive that the petition had been filed and was before the chancellor, but the decree would be valid if the petition bore no filing date at all, and this being true, surely it is not made invalid by the fact that the clerk in the...