Jones v. McCormick

• Decision Date: 13 December 1926
• Docket Number: 25895
• Citation: 145 Miss. 566,110 So. 591
• Court: Mississippi Supreme Court
• Parties: JONES et al. v. MCCORMICK et al. [*]

110 So. 591

145 Miss. 566

JONES et al. v. MCCORMICK et al. ^[*]

No. 25895

Supreme Court of Mississippi

December 13, 1926

Division A

. (Division A.)

1 JUDGMENT. Personal judgment as well as sale held awarded by decree in suit on purchase-money notes.

Decree in suit on purchase-money notes held to award personal judgment as well as decree sale.

2 JUDGMENT. Exhibit of copy of record on which judgment sued on, was rendered, is not necessary.

It is not necessary, in suing on judgment or decree, to exhibit copy of record on which it was rendered, but it is enough to allege the required jurisdictional facts and exhibit copy of judgment or decree.

3 JUDGMENT. Foreign decree is to be given full faith both as personal and as confirming sale.

Decree of foreign court sued on is as between the same parties res judicata, and is to be given the same faith and credit as if rendered in the state, and this both as to the personal decree and the decrees ordering and confirming sale for application of proceeds on personal decree.

4. JUDGMENT. Effect of modification on appeal as continuing decree in force is for decision of court of that state rather than for foreign court in suit on judgment.

Effect of modification on appeal of decree of state court, as continuing decree in force as modified is for decision of court of the state, and not for court of another state in which suit is brought on the decree as modified.

5. EQUITY. Contention arising on answer only is not for consideration on demurrer to cross-bill.

A contention arising on answer, and not cross-bill, is not for consideration on demurrer to cross-bill.

HON. J. H. CALDWELL, Special Chancellor.

APPEAL from chancery court of Tate county, HON. J. H. CALDWELL, Special Chancellor.

Suit by Frank G. Jones and another against A. L. McCormick and others. From a decree overruling a demurrer to defendants' cross-bill, complainants appeal. Reversed and remanded.

Reversed and remanded.

Holmes & Sledge, Lamar Heiskell and Daggett & Dagget, for appellants.

The sole question presented to this court is whether or not the judgment in the chancery court of Lee county, Arkansas, is a final judgment and whether or not the court had the power to render a final judgment; and if it was a final judgment and the court had jurisdiction of the parties and subject-matter, then that all questions settled by the courts of Arkansas are final and cannot be adjudicated again in the courts of Mississippi.

The "full faith and credit" law is so well understood and fixed as a part of the organic law of the Union and of the states thereof, that there is nothing we can say that will add to this well-recognized principle of law. 15 R. C. L. 922, section 403. Mississippi is thoroughly committed to the above rule of law, and will give full faith and credit to the records of Arkansas, when properly authenticated. Faulteroy v. Lunn, 210 U.S. 230, 57 Law Ed. 1039.

The decisions of our own state are in line with those of other states and the United States supreme court. Wright v. Weisinger & Co., 5 S. & M. 210 13 Miss. 210; Miller v. Ewing, 8 S. & M. 16 Miss. 421; Armstrong v. Minkus, 93 Miss. 621, 47 So. 467.

This Arkansas court had jurisdiction of the subject-matter and of the person, this being admitted.

Did the state of Arkansas render a final judgment in favor of Hutton and Jones, the appellants, on notes sued on in Lee county, Arkansas?

McCormick admits that the judgment was rendered against him in Arkansas, as alleged in the bill; that it was a valid judgment, rendered by a court having jurisdiction of the subject-matter and over him personally. His only plea to this is that he had perfected an appeal from the judgment of the trial court, and he in effect prayed nothing more than that the action then pending in Tate county be delayed until the judgment of the appellate court should be rendered.

It would seem logical and reasonable that the duty should devolve on him to show to the satisfaction of the chancery court of Tate county, Mississippi, that the judgment of the trial court in Lee county, Arkansas, appealed from, had been reversed, vacated or modified by the supreme court of Arkansas. Of course, the only method by which this could be done would be to procure a copy of the judgment of the supreme court of Arkansas, certified, and make proffer of it into the chancery court of Tate county.

He has not presented to this court any record from Arkansas showing a different state of facts from those set up in the appellants' original bill and amendments thereto, but attempts by a cross-bill to reopen and retry in Mississippi issues that have been finally disposed of by court of competent jurisdiction in the state of Arkansas.

The appellants have made out a prima-facie case by filing their original bill with the amendments and exhibits thereto, and the questions presented by the cross-bill cannot be put in issue by the court in Mississippi. Under the decision in Bank of Eudora v. Ross, 168 Ark. 754, the chancery court of Lee county, Arkansas, having jurisdiction of the subject-matter and parties to the action, had power to render and did render a final judgment in favor of Hutton-Jones on the original notes sued on in Lee county, Arkansas. Under this judgment in Lee county, Arkansas, the land embraced within the mortgage was sold under order of court, the sale was confirmed and the judgment became final on January 25, 1923.

In Crawford & Moses Digest of the Arkansas Statutes, section 6233, a judgment is defined as "the final determination of the rights of the parties in an action."

The appeal taken by McCormick to the supreme court of Arkansas did not in any manner affect the finality of the judgment. Boyton v. Lumber Co., 84 Ark. 213; Ranson v. City of Pierre, 101 F. 665. The burden is on McCormick, appellee, to show that the judgment rendered in Lee county, Arkansas, was vacated or reversed on appeal. Cloud, Admr., v. Wiley et al., 29 Ark. at 81; Batesville v. Ball, 100 Ark. 496; Johnson v. Walls, 140 Ark. 591.

The question squarely presented on this record is simply this: What effect should be given the judgment entered by the Lee county chancery court in the trial of this cause by the chancery court of Tate county, Mississippi? The answer is elementary--the same effect that would be given it in Arkansas. Wright v. Weisinger, 5 S. & M. 210; Armstrong v. Minkus, 47 So. 467.

A judgment cannot be collaterally attacked, except where the question of jurisdiction is involved, and "in case of a domestic judgment collaterally attacked, the question of notice or no notice must be tried by the court upon an inspection of the record only; and where a judgment recites that the defendant was duly served with summons as required by law, it must be taken as true unless there is something in the record to contradict it." McDonald v. Ft. Smith, etc., R. R. Co., 105 Ark. 5; Ederheimer v. Carson Dry Goods Co., 105 Ark. 488; Crittenden Lbr. Co. v. McDougal, 101 Ark. 390; Kelley v. Laconia Levee Dist., 74 Ark. 202.

Proceedings in the chancery court of Lee county subsequent to the action of the Supreme Court of Arkansas. Under section 2177, Crawford & Moses Digest of the Statutes of Arkansas, the supreme court has the power to reverse, affirm, or modify the order or judgment appealed from, in whole or in part, as to any or all parts, and when the judgment has been reversed the court may remand or dismiss the cause and enter such judgment upon the records as may in its discretion seem just. Bertig v. Independent Gin. Co., 147 Ark. 581.

The relief given McCormick by the supreme court was one of recoupment against Bowen; and while it was held that the lower court erred, it was also held that such error could be cured by modifying the decree so as to allow McCormick to recoup as against Bowen. The judgment in favor of Hutton and Jones was not in any manner modified or changed, but was affirmed and the relief afforded McCormick against Bowen by way of recoupment was given by the supreme court by way of final judgment, so, therefore, the supreme court of Arkansas affirmed the judgment rendered in favor of Hutton and Jones and they did not remand the cause to the chancery court of Lee county for any other or further proceedings and, therefore, the chancery court of Lee county did not have jurisdiction of the cause at any subsequent date and the orders subsequently made by said court, although made in an endeavor to carry out that which the court believed to be the mandate or order of the supreme court, are all void for lack of jurisdiction.

Even if the cause properly came back to the Lee county court on the mandate of the supreme court and jurisdiction was properly conferred by the filing of the mandate, then the action of the Lee chancery court in rendering the decree dated January 23, 1924, in which relief was refused McCormick insofar as the judgments theretofore rendered in favor of Jones and Hutton were concerned, such decree when so rendered was final and even though conceded erroneous could be corrected only by direct attack on appeal and not in a collateral proceeding of this character in another state. Drignardello v. Gray, 68 U.S. , 1 Wall 637, 17 L.Ed. 697.

If it should be held that the appellees, defendant below, A. L. McCormick, could set up the defenses that he has attempted to make in his answer and cross-bill, then we might as well erase from our organic law article 4 of the Constitution of the United States, for it would be permitting him to disregard in the state of Mississippi the final judgments of a sister state and would permit him to try again all the issues that were tried in the court of competent jurisdiction in the state of Arkansas.

J. F Dean, E. D....