Kaufman & Sons v. Foster

• Decision Date: 28 January 1907
• Citation: 42 So. 667,89 Miss. 388
• Parties: KAUFMAN & SONS v. J. M. FOSTER
• Court: Mississippi Supreme Court

42 So. 667

89 Miss. 388

KAUFMAN & SONS v. J. M. FOSTER

Supreme Court of Mississippi

January 28, 1907

November 1906

FROM the circuit court of Jefferson county, HON. MOYSE H WILKINSON, Judge.

The appellants, Kaufman and others, conducting business under the partnership name of M. Kaufman & Sons, were plaintiffs in the court below; the appellee, J. M. Foster, was the defendant there. From a judgment in favor of defendant the plaintiffs appealed to the supreme court.

In 1898 a judgment by default for $ 194.47 was rendered in plaintiffs' favor against the defendant, Foster, in the court of a justice of the peace, and was duly enrolled. In 1905, as the same had never been satisfied and would in a short time be barred by the statute of limitation, the plaintiffs filed suit on the judgment against defendant to revive the same. This suit was instituted in the same court in which the judgment had been rendered, but before another justice of the peace, who had succeeded the former justice in office. Defendant was duly summoned to defend this suit on the judgment; appeared in the justice court on the return day, and set up the defense that the judgment sued on was void because, although such judgment recited that defendant had been duly served with process before judgment, such was not the case; that defendant's first knowledge of the judgment rendered in 1898 was when he had been recently summoned to defend the suit brought to revive such judgment. The plaintiffs did not appear at the trial of the case, and the justice of the peace accordingly entered a non-suit. The plaintiffs later appealed to the circuit court, and on the trial there the defendant again set up the same defense as in the justice court. The docket of the justice of the peace who rendered the original judgment was offered in evidence by plaintiffs, the same reciting that service had been duly made upon defendant before rendition of judgment; and, after proof that the original papers in the case wherein such judgment was rendered had been lost and could not be found after diligent search, and further proof that the judgment had not been satisfied, plaintiffs rested. In addition to his own testimony that no service of process had ever been made upon him as recited in the judgment, the defendant showed by the testimony of the former constable in office at the time the suit was instituted in 1898 that, although the entry upon the magistrate's docket showed that he had made service upon defendant, this was not true. No objection was made by plaintiffs to such oral testimony. Judgment having been rendered in favor of defendant, the plaintiffs on appeal assigned for error the action of the court in allowing such oral testimony to controvert the terms of the judgment charging that it was a collateral attack upon a public record, of which no prior notice had been given to plaintiffs.

Affirmed.

H. C Mounger, for appellant.

A magistrate's court is a court of record, and its judgments import verity just as much as do the judgments of other and higher courts. This judgment rendered in 1898 recited that defendant, Foster, had been duly and personally served before judgment. Plaintiffs, the appellants here, had a right to rely on such recitals. The judgment as shown upon the justice's docket is as follows:

"Nature of Action: Promissory note of date of February 22, 1893, for the sum of $ 128.23, with interest in ten per cent. Plaintiffs' attorney, J. E. Torry. This cause of action filed April 7, 1898, returnable April 23, 1898. Constable's return April 18, 1898. J. T. Foster, constable.

"This 23rd day of April, 1898, this cause coming on for hearing and it appearing to the satisfaction of the court that the defendant had been served with personal notice for five full days, and the defendant being wholly in default, it is ordered by the court that the plaintiffs, M. Kaufman & Sons, do have and recover of and from the defendant the sum of $ 198.47, and $ 2.55 costs in this behalf expended, for all of which let execution issue. Adjudged this 23rd day of April, A. D. 1898. M. V. GALBREATH, J. P."

Now, as it is distinctly stated in the judgment that defendant was duly notified for five days before return day, it was error in the lower court to allow oral testimony to the effect that no service was actually had on defendant. Defendant was allowed to impeach the record without filing counter affidavit or other pleading in writing to notify plaintiffs what his defense would be. Oral testimony should not be allowed in any instance to impeach the judgment of a court. This judgment was evidently carefully written, recited all necessary jurisdictional facts, and the legal presumption is that defendant was thus...