Hurst v. Gulf States Creosoting Co.

• Decision Date: 25 April 1932
• Docket Number: 29988
• Citation: 141 So. 346,163 Miss. 512
• Court: Mississippi Supreme Court
• Parties: HURST et al. v. GULF STATES CREOSOTING CO

141 So. 346

163 Miss. 512

HURST et al. v. GULF STATES CREOSOTING CO

No. 29988

Supreme Court of Mississippi

April 25, 1932

Division B

Suggestion Of Error Overruled, May 9, 1932.

APPEAL from circuit court of Rankin county, HON D. M. ANDERSON, Judge.

Action by Clyde J. Hurst and others against the Gulf States Creosoting Company. From a judgment overruling a motion to set aside judgment entered in vacation for defendant, plaintiffs appeal. Affirmed.

Affirmed.

H. C. Stringer, of Jackson, for appellants.

The fact that all parties thereto appeared, and consented to the proceedings, adds nothing to it, under the well established rule that consent cannot confer jurisdiction of the subject matter.

Bryan v. Welch, 157 Miss. 559, 128 So. 734.

The judge and the jury acting in vacation do not constitute a court. The judge had no more authority in the matter than a mere usurper.

State Highway v. Haines, 139 So. 168.

Counsel must request court to waive jury trial and its assent be obtained, before such procedure is proper.

Gibbs case, 124 Miss. 188.

The power vested under the statute in the trial court to try and dispose of the case in vacation, should be shown of record in order to distinguish the vacation judgment from one having the appearance of a vacation nature.

Ross case, 7 Miss. 47; Union Motor Car Co. case, 133 Miss. 318.

When a circuit court is organized to try and dispose of a case in vacation, the court becomes one of special and limited jurisdiction and all the necessary jurisdictional facts must be made to affirmatively appear of record or the findings of the trial court are void.

Gulf States S. Co. v. Gibbs, 124 Miss. 188, 86 So. 582; Adams v. Bank, 103 Miss. 744, 60 So. 770.

Section 579, Code 1930, provides that cases may be tried and disposed of in vacation, but does not provide all the necessary jurisdictional facts which are required to justify a trial of a case in vacation.

The litigating parties did not in term-time qualify the case for trial in vacation. The trial court gave no order resetting the case in term-time for trial in vacation. Therefore without these steps it did not acquire jurisdiction.

Union Motor Car case, 133 Miss. 318; Williams v. Simon, 136 Miss. 562, 99 So. 433; Y. & M. V. R. R. Co. v. Lauler, 130 Miss. 421; J. J. Newman Lumber Co. v. Pace, 137 Miss. 504, 102 So. 570; Maden v. R. R. Co., 66 Miss. 258, 6 So. 181; White v. R. R. Co., 64 Miss. 569, 1 So. 750; Boliver County v. Coleman, 71 Miss. 832, 15 So. 107; Craft v. DeSoto County, 79 Miss. 618, 31 So. 204; Hinton v. Perry County, 84 Miss. 546, 36 So. 567; Auber v. Y. & M. V. R. R. Co., 96 Miss. 340, 54 So. 158; Morgan v. State, 76 Miss. 656; Adams v. Board, 142 Miss. 696; Gulf States S. Co. v. Gibbs, 124 Miss. 188, 86 So. 582.

Counsel for appellants had no authority to settle or otherwise dispose of this case in vacation without the knowledge, consent and approval of appellants and the appellees knew that these limitations were upon appellants' counsel at the time the alleged trial was had. Appellants were not or are not bound by these acts of counsel for litigants.

Gambrell case, 103 Miss. 824; Goodrich Rubber Co. v. Holland, 131 So. 882.

J. C. Murray and S. L. McLaurin, both of Brandon, for appellee.

Section 577, Code of 1930, provides that a jury may be waived, with the assent of the court, and section 579 provides that by consent of parties, or their attorneys of record, the court may try cases in vacation as in term-time, and make and enter judgment therein in vacation and when any such judgments are so made and entered they shall have the same force and effect as if rendered in term-time.

An attorney, when agreeing to the entry of a judgment against his client, is presumed to be acting with the client's consent; and a judgment entered in accordance with such an agreement is ordinarily conclusive against the client. Where it is necessary, in order to obtain the setting aside of a judgment, to show a meritorious claim or defense, as the case may be, allegation or proof simply that the plaintiff or defendant has a meritorious claim or defense is insufficient; the facts on which the claim or defense is based must be set forth with sufficient detail to enable the court to determine therefrom whether the claim or defense is meritorious.

Cocke v. Wilson, 134 So. 686.

Argued orally by H. C. Stringer, for appellant, and by J. C. Murray, for appellee.

OPINION

Anderson, J.

By consent of the attorneys representing the respective parties in this cause, a judgment was entered in vacation in favor of appellee. Appellants made a motion to set aside the judgment on the ground that their attorneys had no authority to consent to the judgment, and that the court had no authority to enter the judgment in vacation. The motion was heard on affidavits and oral testimony, resulting in a judgment overruling appellants' motion. From that judgment, the appellants prosecute this appeal.

On March 15, 1930, appellants Clyde J. Hurst and wife, and about thirty others, filed their bill against appellee in the chancery court of Rankin county to recover damages for the alleged tortious overflow and injury to their lands by appellee. Appellee demurred to the bill. On September 20, 1930, appellants, and the other complainants in that case, dismissed their bill without prejudice. On December 10, 1930, appellants filed their declaration in the circuit court of Rankin county against the appellee to recover damages in the sum of twelve thousand dollars for the same alleged tort as that embodied in the chancery court cause. Appellants employed as their attorneys in this cause W. P. Searcy and H. C. Stringer, who were to receive as their fee for their services thirty per cent of what they might recover by suit or otherwise. The contract of employment was in writing; the last paragraph of the contract is in this language: "It is agreed and understood that neither party to this contract is to settle this case out of court without the knowledge, consent and approval of the other." H. C. Stringer retired from the case, and appellants thereupon employed M. S. McNeil, of Hazelhurst, and Stevens & Stevens, of Jackson, to be associated with W. P. Searcy in the conduct of the cause in their behalf. Hannah and Simrall, attorneys at Hattiesburg, and S. L. MoLaurin and J. C. Murray, attorneys at Brandon, represented appellee in the cause.

On May 16, 1931, during the vacation of the circuit court of Rankin county, there was filed in this cause with the circuit clerk of that court an agreement between the parties in this language: "Now comes plaintiffs and defendant, by their attorneys of record, and consent that this cause be tried before the court in vacation without a jury, and that judgment be entered by the court in vacation. This agreement was signed by all the attorneys of the respective parties, and marked filed by the clerk of the circuit court of Rankin county. On May 19, 1931, still during the vacation of the court, the following order was entered in the cause by direction of the circuit judge of the district of which Rankin county is a part: "This day this cause comes on to be heard before the court in vacation, without a jury the parties consent that judgment be entered for defendant. It is therefore considered by the court and so, ordered that plaintiffs have and recover nothing from defendant; that defendant go hence without day. The clerk of this court will enter this judgment on the minute book of this court in vacation." The order was signed by the circuit judge, and below his signature under the word "approved" there were signed the names of all the attorneys of record representing the respective parties, and below their signatures was a notation by the clerk that the judgment was recorded on the 22d day of May, 1931.

At the September, 1931, term of the circuit court of Rankin county appellants entered a motion to set aside the judgment and reinstate the cause for trial on the grounds above stated. In support of the motion, appellant Clyde J. Hurst testified orally before the court, and introduced affidavits of other witnesses. In substance, the evidence showed that the judgment was entered without the knowledge or consent of appellants, and that if the judgment was the result of a compromise agreement between the parties, by the terms of which any sum was paid by appellee to appellants' attorneys, the appellants had received no part...