Federal Reserve Bank of St. Louis v. Wall

• Decision Date: 01 December 1924
• Docket Number: 24336
• Court: Mississippi Supreme Court
• Parties: FEDERAL RESERVE BANK OF ST. LOUIS v. WALL. [*]

103 So. 5

138 Miss. 204

FEDERAL RESERVE BANK OF ST. LOUIS v. WALL. ^[*]

No. 24336

Supreme Court of Mississippi

December 1, 1924

Division A

1. HUSBAND AND WIFE. Presumed living together, in absence of contrary evidence.

In the absence of evidence to the contrary husband and wife will be presumed to be living together.

2 JUDGMENT. Jurisdictional facts conclusively presumed regardless of record recitals, where judgment collaterally attacked.

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.

3. HUSBAND AND WIFE. Presumptions as to separate ownership of personal property on premises occupied by husband and wife living together stated.

Where the husband and wife are living together, the husband is presumed prima facie to be the owner of personal property on the premises occupied by them, except as to articles specially fitted for and adapted to the wife's personal use, and used by her; the presumption as to such articles being that they are the property of the wife.

HON. W A. ALCORN, Judge.

APPEAL from circuit court of Bolivar county, HON. W. A. ALCORN Judge.

Proceedings by the Federal Reserve Bank of St. Louis against R. W. Wall. From the judgment rendered, the former appeals. Reversed and remanded.

Reversed and remanded.

Shands, Elmore & Causey, for appellant.

I. The fundamental question involved in this case is the question, did the court err in excluding the judgment rendered in favor of the appellant against W. F. Wall? If the ruling of the court is correct on this proposition then the appellant necessarily failed to sustain its case.

We submit that this is a collateral attack upon this judgment, because there was no averment nor pleading filed in the lower court, which in any way attacked the judgment. Let us consider what is meant by a collateral and direct attack on a judgment. McKinney v. Adams, 95 Miss. 832, 50 So. 474; Burke v. Institute Saving's & Loan Asso., 25 Mont. 315, 64 P. 881, 87 Am. St. Rep. 416.

In the instant case the judgment shows personal service of process on W. F. Wall. But the argument is made that the writ introduced on the trial fails to show that a copy was served on W. F. Wall. The return of the sheriff does not show that no service was had on W. F. Wall. The return is silent as to such service.

If we consider the attack in this case to be a direct attack on the judgment, there is not sufficient proof to show that no service was had on W. F. Wall. We have on one hand a solemn finding by the court that personal service was had on W. F. Wall. The court should not treat such finding lightly. On the other hand we have no evidence that the officer failed to serve the writ on Mr. Wall. The officer does not say by his return that he did not serve Mr. Wall. To say that Mr. Wall was not served, we must presume that by the silence of the officer he has failed to do his duty. In the absence of positive testimony to the contrary, we must presume that the officer did his duty.

In the case at bar the only issue made up by the parties, was an issue to determine the ownership of the property at the time of the levy. The judgment against Mr. Wall was in no way questioned by the pleadings. Cotton v. Harlon, 87 So. 152; Cocks v. Simmons, 57 Miss. 183 at 195.

When a collateral attack is made on a judgment the record itself must show affirmatively that the jurisdictional facts do not exist. All jurisdictional facts are conclusively presumed to have existed on a collateral attack, whether there are recitals in the record to show them or not. Cooley's Constitutional Limitations, 406; Ames v. Williams, 72 Miss. 760, 17 So. 762; Gillespie v. Hauenstein, 72 Miss. 838, 18 So. 602; Vicksburg Gro. Co. v. Brennan, 20 So. 845; Allen v. Dickens, 63 Miss. 91; Kelly v. Harrison, 69 Miss. 856, 12 So. 261; Sweatman v. Dean, 38 So. 231; Pollat v. Buie, 43 Miss. 151; White v. Simpson, 27 So. 297; McWilliams v. Norfleet, 60 Miss. 987; Martin v. Miller, 103 So. 754; 60 So. 772; Duncan v. McNeil, 31 Miss. 704; Cannon v. Cooper, 39 Miss. 704; Cason v. Cason, 31 Miss. 578.

In the case at bar there was no affirmative proof showing that the recitals of the judgment are untrue. Coogler v. Crosby, 72 S.E. 149; Black on Judgments, sec. 273.

II. This proposition is that there was sufficient (competent and relevant) proof introduced or offered to show that the property was owned by W. F. Wall at the time of the levy. We must take all proof which was introduced or offered as true, because no proof was offered by the appellee to dispute it.

We say proof of the possession and use of the automobile by W. F. Wall is prima-facie evidence of title in W. F. Wall. The supreme court of Mississippi so held in Ketchum v. Brennan, 53 Miss. 596. See also, Southern Wood Fiber Co. v. Thornton, 112 Miss. 258, 72 So. 1002; Strickland & Co. v. Lesesne & Todd (Ala.), 49 So. 233; Newman v. Bank, 67 Miss. 776.

The fact that the property was assessed to Mr. Wall and that he paid the automobile license is sufficient proof to establish at least a prima-facie case against Mrs. Wall. Barrett v. Cole, 114 Miss. 546, 72 So. 381. The declaration made by Mr. Wall in the insurance policy which he signed as agent for the insurance company in which he stated that he was the owner of the Packard automobile is a declaration admissible in this case and the court should not have sustained the objection of the appellee thereto. Craddock v. Walden (Ala.), 63 So. 534.

In conclusion we respectfully say that the lower court erred in excluding the judgment, for the reason that the judgment imports verity, and should not have been excluded. The attack made on the judgment was a collateral attack, and the judgment will be conclusively presumed to speak the truth when a collateral attack is made on it. A direct attack was not made on the judgment, because no issue whatever was raised in the lower court on any part of the judgment, and no proof whatever was introduced to sustain the attack, by the party making it.

The proof introduced was sufficient to make out a prima-facie case for the appellant, and the court should not have excluded the testimony.

Cutrer & Smith, for appellee.

I. It is undeniably true that the burden of proof is upon the plaintiff in attachment to establish ownership by defendant in attachment, of property levied upon by virtue of a writ of attachment, before the plaintiff in attachment can recover as against a claimant. Section 3268, Hemingway's Code; Section 155, Hemingway's Code.

The only evidence looking towards the ownership of the property in controversy by the defendant in attachment, was the fact that one witness had on two occasions, seen the defendant in attachment riding in the automobile in question, in company with others. The same testimony showed that the claimant had kept the automobile in her own garage, on her own premises, and that she had been in possession of it, using it as her property at all times. There was no testimony offered in evidence inconsistent with the ownership of the automobile by the claimant.

The fact that the defendant in attachment may have paid some taxes on or been assessed with an automobile on one or two occasions, could not serve to displace the ownership of claimant, or raise any presumption of ownership in the defendant in attachment.

II. In order to sustain any claim to subject any of the property of a defendant to sale for the payment of an alleged debt set up in an attachment proceeding, it is necessary that a legal judgment be rendered against the defendant in attachment sustaining the attachment, adjudicating an indebtedness due and owing by the defendant in attachment to the plaintiff in attachment, and a condemnation of the property in controversy to sale for the satisfaction of such indebtedness.

In support of this burden, the plaintiff in attachment introduced the attachment affidavit, bond, writ of attachment, or return on the writ of attachment, declaration, and judgment. The entire record was introduced and was complete in every particular, but there was one fatal defect in the record which would seem to make an end of the plaintiff's case. The writ of attachment directed the sheriff to summon the defendant to appear at the next regular term of the circuit court of the First District of Bolivar county. The summons was included in the writ. The statute required the execution of this writ upon the defendant, as welt as by a levy on the property of the defendant. The statute provided for the issuance of alias, pluries and testatum writs in the event the original writ should not be served personally upon the defendant in attachment. If none of the writs could be served upon the defendant, then the statute provided for a publication for the defendant. Alias and pluries summonses and testatum writs may be had at any time, either in term time or in vacation, without any order of the court; and in like manner, the clerk was authorized to issue notice by publication, if the defendant should not in any other way be summoned. Hemingway's Code, sections 130, 131, 132, 133, 2923, 2925.

The writ of attachment shows affirmatively, that there was no service of process had upon the defendant in attachment. The record shows furthermore, that there was no issuance of any alias writ, or any pluries writ, or any testatum writ, or any publication for the defendant. There is an entire want of the showing of any service of process upon the defendant in attachment.

As was said by the court in the case of Learned v Matthews, 40 Miss. 229, the "the facts are all of too...