Finklea Bros. v. Powell

• Decision Date: 28 October 1940
• Docket Number: 34217
• Citation: 189 Miss. 454,198 So. 293
• Court: Mississippi Supreme Court
• Parties: FINKLEA BROS. et al. v. POWELL

198 So. 293

189 Miss. 454

FINKLEA BROS. et al. v. POWELL

No. 34217

Supreme Court of Mississippi

October 28, 1940

APPEAL from the circuit court of Washington county, HON. S. F DAVIS, Judge.

Suit involving foreign judgment by Charles E. Powell against Finklea Brothers and others. From the judgment, the defendants appeal, and the plaintiff cross-appeals. Affirmed on direct and on cross-appeal.

Affirmed on direct and on cross-appeal.

Ernest Kellner, of Greenville, for appellants and cross-appellees.

In order to sustain the judgment in this case against the appellants, Finklea Brothers Crop Dusting Corporation and the alleged partnership of Finklea Brothers, the Louisiana judgment, being the only evidence thereof in this record must affirmatively show that the Louisiana court had jurisdiction over their persons.

Woodville v. Pizzati, 119 Miss. 442.

The full faith and credit provision of the constitution applies to the record and proceedings of courts of other states only so far as they have jurisdiction. Whenever there is a want of jurisdiction of either the subject-matter or the parties, the record is not entitled to credit. The constitutional provision does not preclude inquiry into the facts necessary to give jurisdiction to the court rendering the decree.

Hopkins v. Hopkins, 174 Miss. 643.

It is inconceivable that the judgment sued on in this case, which, by reference to the interlocutory decree, expressly leaves open the question of whether the partnership or the corporation, or either of them, had been served with process, can have any validity against either the partnership or the corporation, and certainly not sufficient validity to sustain the judgment in this case against the appellant corporation and the appellant individuals as an alleged partnership.

Judgments rendered under statutes similar and almost identical with the Louisiana statute under which the judgment was rendered against the alleged partnership in this case have been consistently held by the Supreme Court of the United States to be of no force or effect in suits thereon in another state.

D'Arcy v. Ketchum et al., 11 How. 165; Hall v. Lanning, 91 U.S. 160; Flexner v. Farson, 248 U.S. 289; Aikmann v. Sanderson & Porter, 47 So. 600; Victor Cornille & DeBlonde v. R. G. Dun & Co., 79 So. 855; Bolton v. Rouss, 80 So. 226; Underwood v. Brook Mays & Co., 146 So. 503.

The judgment of the Louisiana court sued on in this case is void because: (1) The Louisiana statute under which service of process upon the alleged partnership was sustained violates the due process clause of the Federal Constitution. (2) It affirmatively appears from the judgment sued on that the Louisiana statute under which service of process upon the alleged partnership was sustained was not complied with.

Relying solely on the decision of the Supreme Court of the United States in the case of Baldwin v. Iowa State Traveling Men's Association, 283 U.S. 522, 75 L.Ed. 1244, counsel for appellee contend that under the full faith and credit clause of the Federal Constitution the judgment of the Louisiana court sustaining its jurisdiction is conclusive. The decision relied upon is not in point because: (1) The full faith and credit clause was not involved because neither of the courts concerned was a state court. (2) The judgment sued on in this case is void upon its face as to both appellants and can be attacked anywhere at any time.

Where the record shows on its face that the court rendering the judgment had no jurisdiction, there can be no recognition of the judgment in another state.

34 C. J., sec. 1614 (e) and notes 57, 60 and 61; Theobald v. Deslonde, 93 Miss. 208; Paepcke-Leicht Lbr. Co. v. Savage, 137 Miss. 11; Schwartz Bros. v. Stafford, 166 Miss. 397.

Thomas & Cook, of Greenville, for appellee and cross-appellant.

It is the contention of the appellee that Article 4, Section 1 of the Constitution precludes a retrial on all questions determined by the judgment rendered against the appellants in the Louisiana courts, that the full faith and credit clause of the Constitution of the United States requires the courts of the State of Mississippi to give full force and effect to the judgment of courts of other states.

We submit that the question to be determined by this court is whether or not the judgment of the Louisiana court amounts to res judicata on the question of the jurisdiction of that court over the persons of the appellants. It is our contention that it is a matter of no moment that the appearance of the appellants was stated to be a special one expressly saving any submission to the jurisdiction of the court.

Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.

Baldwin v. Iowa State Traveling Men's Assn., 283 U.S. 522, 75 L.Ed. 1244; Am. Surety Co. v. Baldwin, 287 U.S. 155, 77 L.Ed. 231; In re Barber, 51 F.2d 123; Davis v. Davis, 305 U.S. 32, 83 L.Ed. 26; Hall v. Wilder Mfg. Co., 52 A. L. R. 723; Hopkins v. Hopkins, 174 Miss. 643; Ostrander-Seymour Co. v. Grand Rapids Trust Co., 50 F.2d 567; Serpell-Winner-Jordan, Inc., v. Crete Mills, 51 F.2d 1028, 80 A. L. R. 716; So. Pacific Co. v. Van Hoosear, 77 R. (2d) 903; Stoll v. Gottlieb, 305 U.S. 165, 83 L.Ed. 104; Titus v. Wallick, 306 U.S. 282, 83 A. L. R. 653; Welch v. Kroger Groc. Co., 180 Miss. 89, 177 So. 41; Woodville v. Pizzati, 119 Miss. 442; Alliance Trust Co. v. Armstrong, 185 Miss. 148, 186 So. 633.

Alwine L. Mulhearn, of Tallulah, La., and McHenry, Lamkin & Titche, of Monroe, La., for appellee and cross-appellant.

In brief, appellee's view of the case is this: When the declaration was filed in the Chancery Court of Washington County, no plea of jurisdiction was available to defendants, who had previously urged and lost that issue. The sole questions to be contended in Mississippi should have concerned the nature of the judgment to be rendered, predicated upon the Louisiana judgment.

Two ancient platitudes are decisive of the case: "Everyone is entitled to his day in court" and "There must be an end to litigation." Our American system of jurisprudence guarantees a person due process of law and a hearing in court. But one hearing is enough. When defendants were sued in Louisiana, they had a choice of (1) defending the case there, or (2) waiting for the litigation to reach Mississippi and defending in the latter state. They chose the former alternative. In the Louisiana court, defendants fought the citation, the jurisdiction, the merits, the quantum. Nor was it a sham battle. The case was contended vigorously and in detail. Defendant partnership can in this court no more reopen the issue of jurisdiction than it can litigate again the merits of the cause of action. It chose to have its day in court in Louisiana; the points there decided are now and forever settled between these parties.

Once the question of jurisdiction has been raised in a state court and suit is thereafter filed on the judgment rendered in one state court in a second state, the question of jurisdiction cannot again be raised.

Baldwin v. Iowa State Traveling Men's Assn., 283 U.S. 522, 75 L.Ed. 1244; Van Matre v. Sankey, 148 Ill. 536, 23 L. R. A. 665.

The court below, in rendering judgment in favor of the cross-appellant, used the civil law phrase contained in the Louisiana judgment, "in solido, " when, as we contend, it should have used the phrase applicable to common law judgments, that is to say, "jointly and severally."

An obligation or debt "in solido" is identical with a debt "jointly and severally."

2 Bouvier's Law Dictionary (8 Ed.), p. 1525; Webster's New International Dictionary (Ref. History Ed. 1927) p. 1117, footnote; George T. Bishop, Inc., v. Jones, 17 La. App. 410, 136 So. 101; Breedlove v. Nicolet (7 Pet.), 413, 8 L.Ed. 731; Art. 2091, La. Rev. Civ. Code, 1870.

Argued orally by S. B. Thomas and Charles Titche, for appellee and cross-appellant.

OPINION

Griffith, J.

Suit was instituted by appellee, as plaintiff, in the District Court of the State of Louisiana for the Parish of Tensas, against the Finklea Bros. Crop Dusting Corporation, and Finklea Brothers, a partnership, and J. A. Finklea, J. C. Finklea and Ray Finklea, as individuals, wherein it was charged that the defendants in their crop dusting operations, through the means of airplanes, had negligently destroyed the apiary of the plaintiff, located in said parish. Service was had on the defendants by serving an employe of theirs then present in Louisiana.

The individual defendants appeared specially in the Louisiana court and filed their individual exceptions to the jurisdiction of that court, and showed that the residence of said individual defendants was in Mississippi, that neither of them was, or had been, in Louisiana, and that the attempted service on the alleged agent or employe was insufficient to bring said individual defendants into that court. The exceptions were sustained as to the individuals.

At the same time Finklea Brothers,...