Hirsch Bros. & Co. v. R. E. Kennington Co

• Citation: 155 Miss. 242,124 So. 344
• Decision Date: 28 October 1929
• Docket Number: 28013
• Court: United States State Supreme Court of Mississippi
• Parties: HIRSCH BROS. & CO. v. R. E. KENNINGTON CO

124 So. 344

155 Miss. 242

HIRSCH BROS. & CO. v. R. E. KENNINGTON CO

No. 28013

Supreme Court of Mississippi

October 28, 1929

Suggestion of Error Overruled Nov. 18, 1929.

(In Banc.)

1. ATTORNEY AND CLIENT. Judgment. Joining of party in suit by attorney without authority to represent party is fraud in law without regard to motive; equity will relieve by injunction or other appropriate remedy against judgment rendered against party joined in suit by attorney without authority.

The joining of a party in a suit by an attorney who has no authority to represent the party so joined is a fraud in law without regard to the motive actuating the attorney in taking such action, and equity will relieve by an injunction, or by other appropriate remedy, against the judgment rendered against a party, where he was so joined in the suit by an attorney having no authority to so do.

2 EQUITY. Judgment. Court of equity will see that wrong and oppression are not inflicted under guise of legal procedure judgment entered against party joined by attorney without authority may be set aside, vacated or enjoined in appropriate proceedings.

A court of equity, in the exercise of a broad discretion, will see that wrong and oppression are not inflicted under the guise of legal procedure, and a judgment entered against a party in a suit in which such party was joined by an attorney without authority may be set aside, vacated, or enjoined in appropriate proceedings.

3. ATTORNEY AND CLIENT. Judgment. Attorney appearing for party will be presumed to have had authority; party attacking judgment on ground he was joined in suit by attorney without authority has burden of proof; mere fact that one has acted as attorney for another does not alone and of itself create relation; relation of attorney and client must be created by contract or by law.

Where an attorney appears for a party in litigation proceedings pending in court, or to be instituted therein, it will be presumed that he had authority to appear, and the burden is upon the party attacking the judgment to show clearly that the attorney had no power to act. The mere fact that one has acted as attorney for another does not alone and of itself create the relation, but it must be created by contract or by law.

4. PRINCIPAL AND AGENT. Person dealing with agent must determine scope of agency; attorney may be employed by an agent or person authorized by principal; party affected by employment of attorney by agent must be charged with notice of scope and power of agent.

A person dealing with an agent of another person must determine the scope of the agency, and, while an attorney may be employed by an agent or person when authorized by his principal so to do, the party affected by such employment must be charged with the notice of the scope and power of the agent or agency.

5 JUDGMENT. Defendant, in action to enjoin judgment, may show that attorney entering appearance was unauthorized; proof to enjoin judgment by reason of unauthorized appearance of attorney must clearly establish right to relief.

In an action to enjoin a judgment, the defendant may show that the attorney who entered an appearance for him was not authorized to do so, but, to entitle to relief from such judgment, which has been rendered against a party by fraud or by an unauthorized appearance, the proof must clearly establish the right to relief.

6. GARNISHMENT. Judgment debtor was not proper person to serve process on against nonresident in garnishment proceeding based on such judgment (Hemingway's Code 1927, section 4507).

A judgment debtor is not a proper person to serve process upon against a nonresident in a garnishment proceeding based upon the judgment against the defendant in the judgment, under section 4507 of Hemingway's Code of 1927, if the agent is an interested party whose interest is adverse to that of his principal.

7. JUDGMENT. Suing out of injunction against judgment because of unauthorized appearance by attorney does not release errors going to validity of judgment; jurisdictional defects are not cured by statute providing that injunction, staying execution shall operate as release of all errors (Hemingway's Code 1927, section 389).

The suing out of an injunction against a judgment, because of an unauthorized appearance by an attorney, does not release errors going to the validity of the judgment, but only releases errors as could be availed of on an appeal. Jurisdictional defects are not cured by this statute.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, First district HON. V. J. STRICKER, Chancellor.

Bill for injunction by Hirsch Bros. & Co., against R. E. Kennington Company. From a judgment dismissing the bill and awarding damages, complainant appeals. Reversed and rendered.

Judgment reversed.

R. H. and J. H. Thompson, of Jackson, for appellant.

A garnishment writ cannot be validly served on the defendant in the judgment on which it is based.

Supreme Mistic Circle v. Sommers, 108 Miss. 54, 66 So. 322; Wuchter v. Pizzutti, 276 U.S. 13, 48 S. Ct. 259, 72 L.Ed. 446.

The attorneys unauthorized appearance in the justice of the peace court, as if employed by the complainant when he was not so employed, did not give validity to the judgment rendered against complainant as garnishee.

4 C. J. 1323; Great Western Mining Co. v. Woodman of Alston Milling Co., 12 Colo. 46, 13 Am. St. Rep. 204; Winters v. Means, 25 Neb. 241, 13 Am. St. Rep. 498; Vilas v. Pittsburg & Montreal R. Co., 123 New York 440, 20 Am. St. Rep. 771; Mullins v. Riegar, 169 Mo. 521, 70 S.W. 4, 92 Am. St. Rep. 651.

The following decisions of this court are adverse to the above contention but they should not be followed as authoritive, they should be overruled.

Schirling v. Scites, 41 Miss. 644; Knowland v. Sartorious, 46 Miss. 45; 2 Encyc. P. & P. 690; Miller v. Ewing, 8 Smedes & M. 421; 2 Encyc. P. & P. 685; Hartean v. Hartean, 14 Pickering (Mass.) 181, 25 Am. Dec. 372; Brief of Daniel Mayes in Miller v. Ewing, 8 S. & M. 424; Wuchter v. Pizzutti, 276 U.S. 13.

The suit at bar is not a suit to stay the execution of a judgment at law and it is not within the meaning of section 389, Hemingway's 1927 Code. It is a suit to vacate and annul a pretended judgment on the ground that the court rendering it did not acquire jurisdiction of the person of the complainant, the defendant in the pretended judgment, and therefore the pretended judgment was utterly void.

R. B. Ricketts and Hendrix, Burkett & Forman, all of Jackson, for appellee.

If there are any deficiencies, imperfections or errors in the judgment, either against the original defendants or against appellant, here as garnishee, all such have been released.

Section 389, Hemingway's Code of 1927.

Where a party has an opportunity of presenting his case properly before the appropriate tribunal for relief it is too late, after the question has been adjudicated against him to ask that the judgment against him be set aside for any causes which existed at the time and which were known to him or which by reasonable diligence he might have ascertained.

Henderson v. Herrod, 23 Miss. 454; Commissions v. Patrick, S. & M. Ch. 111; Green v. Robertson, 4 Miss. 80; Houston v. Smith, 10 Miss. 600; Davis v. Presler, 13 Miss. 468; Leggett v. Morris, 14 Miss. 729; Lee v. Hooker, 15 Miss. 601; Pass v. Dykes, 16 Miss. 96; Semple v. McGatagan, 18 Miss. 98; Meek v. Howard, 18 Miss. 502; Bruner v. Bank, 23 Miss. 406; Yonge v. Billups, 23 Miss. 407; Scroggins v. Howorth, 23 Miss. 514; Roots v. Cohen, 12 So. 593 (Miss.) ; Love v. Pass, 22 Miss. 159-60; Haber v. Lane, 45 Miss. 608; Jordon v. Thomas, 34 Miss. 72.

Process may be served upon any agent of a corporation found within the county where suit is brought, no matter what character of agent such person may be.

Sec. 4507, Hemingway's Code, 1927; Columbia Star Milling Co. v. Brand, 115 Miss. 625, 76 So. 557.

Where an attorney enters the appearance of the litigant in a lawsuit, such appearance is binding upon the person for whom the entry of appearance is made, even if such attorney be unauthorized and the remedy of the person injured is to seek and recover damages against the attorney for his unauthorized act.

Knowland v. Sartorious, 46 Miss. 45; Schirling v. Scites, 41 Miss. 644.

OPINION

Ethridge, P. J.

This is an appeal from the chancery court of Hinds county dismissing a bill for injunction and awarding damages. The injunction was sued out against a judgment, seeking to cancel the judgment, procured by R. E. Kennington Company against appellant in a garnishment proceeding, instituted upon a judgment in favor of R. E. Kennington Company against Mr. and Mrs. C. W. Donnell.

In August, 1924, R. E. Kennington Company instituted a suit on open account in the court of J. H. Penix, police justice of the city of Jackson and ex officio a justice of the peace, against Mr. and Mrs. C. W. Donnell. The Donnells were served with personal summons, but the judgment against Donnell was not rendered until the 11th day of September, 1924, at which time a judgment was rendered against C. W. Donnell and Mrs. C. W. Donnell for one hundred thirty-nine dollars and forty-five cents, with interest and costs. On September 26, 1924, Kennington Company filed a paper in the justice of the peace court suggesting that Hirsch Bros. of Louisville, Ky., were indebted to the defendant in the judgment, and suggested the issuance of a writ of garnishment against Hirsch Bros., of Louisville, Ky. On the same day the justice of the peace entered this garnishment proceeding on his docket, naming the garnishees as Hirsch Bros., and issued a writ of garnishment to be served on Hirsch Bros., Louisville, Ky.

On the 27th day of ...