Jackson Equipment & Service Co. v. Dunlop

• Decision Date: 08 April 1935
• Docket Number: 31632
• Citation: 160 So. 734,172 Miss. 752
• Parties: JACKSON EQUIPMENT & SERVICE CO. et al. v. DUNLOP et al
• Court: Mississippi Supreme Court

160 So. 734

172 Miss. 752

JACKSON EQUIPMENT & SERVICE CO. et al. v. DUNLOP et al

No. 31632

Supreme Court of Mississippi

April 8, 1935

Division B

Suggestion Of Error Overruled May 20, 1935.

APPEAL from the circuit court of Webster county HON. JNO. F. ALLEN Judge.

Petition for mandamus by the Jackson Equipment & Service Company and others against W. C. Dunlop and others. From an adverse judgment, petitioners appeal. Affirmed.

Affirmed.

L. Barrett Jones, Chambers & Trenholm, and Niles Moseley, all of Jackson, and Brunini & Hirsch, of Vicksburg for appellants.

This is a proceeding for mandamus based on a judgment of the board of supervisors and all of the defenses heretofore raised constitute a collateral attack and cannot be availed of.

Section 170, article 6, "Judiciary," of the Constitution.

The judgments of the board of supervisors are valid and binding until reversed in the manner and mode prescribed by law.

Section 253, Code of 1930; Arthur v. Adam & Speed, 49 Miss. 404; County of Yalobusha v. Carbry, 3 S. & M. 529; Attala County v. Grant, 9 S. & M. 77; Carroll v. Tishomingo County, 28 Miss. 38; Beaman v. Leake County, 42 Miss. 237; Jefferson County v. Arrighi, 51 Miss. 667; Warren County v. Klein, 51 Miss. 807; Taylor v. Marion County, 51 Miss. 731; Polk v. Tunica County, 52 Miss. 422; Howe v. State, 53 Miss. 57; Jefferson County v. Arrighi, 54 Miss. 668; Klein v. Smith County, 54 Miss. 254; Honea v. Monroe County, 63 Miss. 171; State v. Banks, 66 Miss. 431, 6 So. 184; Taylor v. Chickasaw County, 70 Miss. 87, 12 So. 210; Clay County v. Chickasaw County, 76 Miss. 418, 24 So. 975; Marion v. Waylard, 77 Miss. 343, 27 So. 619; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Simpson County v. Buckley, 85 Miss. 713, 38 So. 104; Robinson v. Itawamba County, 107 Miss. 352, 65 So. 461; Danis v. Lamar County, 107 Miss. 827, 66 So. 210; George County v. Bufkin, 117 Miss. 844, 78 So. 781.

The order of the board of supervisors allowing a judgment against the county is a judgment of a court created for that purpose, and such judgment is valid until reversed by an appellate court.

Arthur v. Adam & Speed, 49 Miss. 404; George County v. Bufkin, 117 Miss. 844, 78 So. 781; Madison County v. City of Canton, 158 So. 149.

If the judgments hereinbefore set out cannot be collaterally attacked, then petitioners are entitled to their writ of mandamus.

Section 255, Code of 1930; Carroll v. Tishomingo County, 28 Miss. 38; Beaman v. Leake County, 42 Miss. 237; Howe v. State, 53 Miss. 57.

That the judgment of the board cannot be collaterally attacked is recognized in the case of Warren County v. Klein, 51 Miss. 807.

Jefferson County v. Arrighi, 51 Miss. 677; Board of Police v. Grant, 9 S. & M. 90; Hinton v. Perry County, 84 Miss. 536; Wright v. Railroad, 101 Miss. 470, 58 So. 332; Borroum v. Purdy, 131 Miss. 778, 95 So. 677; Newton Bank v. Perry County, 135 Miss. 129, 99 So. 513; Choctaw County v. Tennyson, 161 Miss. 66, 134 So. 900.

This honorable court has been presented with situations where petitions for mandamus have been filed based upon judgments of the boards of supervisors. Further, this court has in these situations denied the writ because of the invalidity of the aforesaid judgments, but in all of these cases it is perfectly apparent that the sole reason for such decisions lay in the fact that the judgment did not recite the necessary jurisdictional facts.

American Oil Co. v. Bishop, 163 Miss. 249, 141 So. 271; Winston County v. Adams, 164 Miss. 162, 144 So. 476; Magee v. Simpson, 168 Miss. 318, 150 So. 753; Price v. Winston County, 157 So. 909.

In the absence of fraud or any irregularity apparent on the record, a judgment cannot be collaterally attacked by proof that, while the same was rendered on the day court adjourned, it was entered by the clerk several days thereafter on a blank page of the minute book next preceding the order of final adjournment and the judge's signature.

Childress v. Carley, 92 Miss. 571, 46 So. 164; Martin v. Miller, 103 Miss. 754; 60 So. 772; A. & V. Ry. v. Grigsby E. Thomas, 86 Miss. 40, 38 So. 770; Cotton v. Harlan, 124 Miss. 691, 87 So. 152.

A judgment of a court having jurisdiction of the subject-matter and the parties is res judicata of all questions which were necessarily involved, and which could have been presented, and not merely questions actually presented by the pleadings.

Dean v. Board of Supervisors of De Soto County, 135 Miss. 268, 99 So. 563; Federal Reserve Bank of St. Louis v. Wall, 138 Miss. 204, 103 So. 5; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Eastman-Gardner Co. v. Leverett, 141 Miss. 96, 106 So. 106.

Being in all things regular, the order "allowing a claim against the county is a judgment in favor of the claimant against the county, which, like any other judgment, cannot be collaterally questioned and is final and conclusive."

It has been frequently declared in general terms that all defenses relating to the validity of the claim on which a judgment against a county or municipality is based are concluded by the judgment, and that the validity of the claim cannot be litigated in mandamus proceedings to enforce the judgment.

Ralls County Court v. U.S. 105 U.S. 733, 26 L.Ed. 1220; Hill v. Scotland County Court, 32 F. 716; Fleming v. Trowsdale, 29 C. C. A. 106, 54 U. S. App. 574, 85 F. 189; Riverside County v. Thompson, 122 F. 860; Kinney v. Eastern Trust & Bkg. Co., 59 C. C. A. 586, 123 F. 297; Clews v. Lee County, 2 Woods 474, Fed. Cas. No. 2892; Cairo v. Campbell, 116 Ill. 305, 5 N.E. 114, 8 N.E. 688; Stevens v. Miller, 3 Kan.App. 192, 43 P. 439; Territory ex rel. Custer County v. Yellowstone County, 6 Mont. 147, 9 P. 918; Stenberg v. State, 48 Neb. 299, 67 N.W. 190; Sherman v. Langham, 92 Tex. 13, 39 L.R.A. 358, 9 L.R.A. (N.S.), 40 S.W. 961; State ex rel. Carpenter v. Beloit, 20 Wis. 77; State ex rel. Wilson v. Rainey, 74 Mo. 229; Bear v. Brunswick County, 122 N.C. 434, 65 Am. St. Rep. 711, 29 S.E. 719; Harkness v. Hutcherson, 90 Tex. 383, 38 S.W. 1120; Davenport v. Lord, 9 Wall. 409, 19 L.Ed. 704; U. S. v. Orleans, 98 U.S. 381, 25 L.Ed. 225; Louisiana ex rel. Nelson v. St. Martin's Parish, 111 U.S. 716, 28 L.Ed. 574, 4 S.Ct. 648; Hicks v. Cleveland, 45 C. C. A. 429, 106 F. 459; Rock Island County v. U.S. 4 Wall. 435, 18 L.Ed. 419; U. S. ex. rel. Masslich v. Saunders, 59 C. C. A. 394, 124 F. 124; Chicago v. Sansum, 87 Ill. 182; New Orleans v. U.S. 1 C. C. A. 148, 2 U. S. App. 125, 49 F. 40; Helena v. U.S. 43 C. C. A. 429, 104 F. 113; Edmundson v. Independent School District, 98 Iowa 639, 60 Am. St. Rep. 224, 67 N.W. 671; Lyons v. Cooledge, 89 Ill. 529; Cloud v. Lawrence, 12 Wash. 163, 40 P. 741; State ex rel. Abernethy v. Moss, 13 Wash. 42, 42 P. 622, 43 P. 373; People ex rel. Reynolds v. Rio Grande County, 11 Colo.App. 124, 52 P. 748; State ex rel. Ledger Pub. Co. v. Gloyd, 14 Wash. 5, 44 P. 103; Johnson v. Sacramento County, 65 Cal. 481, 4 P. 463.

The evidence fails to justify defenses.

Du Bose v. Board of Supervisors, 131 Miss. 770, 95 So. 676.

The testimony shows there was no register or book of any kind in the office wherein a notation could be made that the proof was filed, nor was there any definite place in the office for the keeping of such proofs. In other words, the whole thing was simply a "hit or miss" affair insofar as the officer of the board of supervisors was concerned.

The proof could have been filed with the clerk and misplaced. It could still be in the office, right at the present time without the knowledge of the clerk.

A. & V. Ry. v. Thomas, 86 Miss. 40.

The board did not attempt to show by any record at all that there were insufficient funds.

A. L. Ford, of Ackerman, and McKeigney & Latham, of Eupora, for appellees.

If the orders of the board of supervisors of Webster county, allowing the claims here under review, on collateral attack, are valid judgments, then the judgment of the lower court should be reversed with judgment here for appellants. But the contention of appellees is that the orders or judgments of the board of supervisors, allowing appellants' claims, are void, and that, being void, they confer no rights, and are, because void, subject to collateral attack.

Howe v. State, 53 Miss. 47.

The orders of the board of supervisors involved in this suit do not show the jurisdictional facts. Nothing is presumed on collateral attack in favor of a court of limited jurisdiction, but its record must show on its face that it had jurisdiction.

Adams v. First National Bank of Greenwood, 103 Miss. 744, 60 So. 660; Henderson Malpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Arthur v. Adam & Speed, 49 Miss. 404.

It is the first and one of the most important of all the duties of courts to see to it, before proceeding in any case, that the court has jurisdiction both of the subject-matter and of the parties.

Brotherhood of Ry. Trainmen v. Agnew, 170 Miss. 614, 155 So. 205; 15 C. J. 827, 828; Broom v. Jeff Davis County, 158 So. 344.

Publication of notice is not sufficient. The filing of the proof of the publication is strictly necessary.

Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 446; Merchants Bank v. Scott County, 165 Miss. 91, 145 So. 908; Peoples Bank of Weir v. Attala County, 156 Miss. 560, 126 So. 192; Austin-Western Road Machinery Co. v. Webster County, 154 So. 723; Oliver v. Baird, 90 Miss. 718, 44 So. 35.

The proof of publication on file is the process of the court returned, and is the legal evidence that the board of supervisors has acquired jurisdiction in the matter.

If publication for bids and the filing of the proof of the publication were necessary to the validity of the alleged contracts of the board of supervisors of Webster county in the matters at bar, the...