Ladnier v. Ladnier

• Decision Date: 28 February 1887
• Citation: 1 So. 492,64 Miss. 368
• Court: Mississippi Supreme Court
• Parties: SYLVAN LADNIER v. CELESTINE LADNIER

1 So. 492

64 Miss. 368

SYLVAN LADNIER v. CELESTINE LADNIER

Supreme Court of Mississippi

February 28, 1887

APPEAL from the Circuit Court of Harrison County, HON. S. H. TERRAL Judge.

Celestine Ladnier instituted suit on a certain promissory note against Eli Ladnier before a justice of the peace and obtained judgment thereon. The entry on the docket of the justice is as follows:

CELESTINE LADNIER v. ELI LADNIER,

Eighty-one dollars. Assumpsit.

"Summons issued July 9, 1885, returnable July 18, 1885; continued till August 8, 1885. Now comes the case to be heard, parties appearing in person and by counsel, the court having satisfaction in the premises, it was therefore ordered and considered by the court that the plaintiff, Celestine Ladnier, recover of and from defendant, Eli Ladnier, the sum as claimed in the above case, together with all costs of this suit, for which let execution issue this the 18th of August 1885." The summons gave notice that Eli Ladnier was to appear "to answer the demand of Celestine Ladnier of eighty-one dollars, it being the amount of a promissory note given the 2d day of May, 1885." A return of "nulla bona" having been made on an execution issued upon this judgment, the plaintiff appeared and made an affidavit (under § 1767, Code of 1880), that defendant had fraudulently sold and transferred certain personal property to his brother, Sylvan Ladnier, to avoid the payment of her judgment. The justice of the peace filed this affidavit, but disposed of it by indorsing it "overruled by court after dismissal of case." The plaintiff appealed to the circuit court. Eli and Sylvan Ladnier both testified on the trial in that court, and denied any fraud on their part. The evidence was conflicting. Sylvan Ladnier testified that his brother was indebted to him in the sum of one thousand and ninety dollars, and sold him the property in question in part payment of this debt, and that he was a bona fide purchaser for value.

The jury found in favor of the plaintiff, Celestine Ladnier, and Sylvan Ladnier appealed.

The court instructed the jury for the plaintiff as follows:

"1. The court instructs the jury that the only question before them is whether the defendant sold the property in question with intent to defraud this plaintiff, and if they believe from the evidence that Eli Ladnier sold said property to Sylvan Ladnier, his brother, to defraud and defeat the payment of the note sued on, then they must find the issue for the plaintiff."

"3. The plaintiff asks the court to instruct the jury that the sale of property by an insolvent or one in failing circumstances while a suit is pending against him is a circumstance indicating a fraudulent intent on his part to defraud his creditors."

"4. The sale of all the property of an insolvent debtor at the time and place and to one person is a circumstance indicating the fraudulent intent of the debtor, and is to be considered by the jury as a circumstance to be weighed by them in deliberating on their verdict."

Judgment reversed.

Roderic Seal and Calvit Roberts, for the appellant.

1. The transcript from H. Crawfoot, the justice of the peace before whom the original case of Celestine Ladnier v. Sylvan Ladnier was tried, only shows this much and no more: "The court having satisfaction in the premises, it was therefore ordered and considered by the court that the plaintiff, Celestine Ladnier, recover of and from defendant, Eli Ladnier, the sum claimed in the above case, together with all costs of this suit." This so-called judgment was not for a specified sum, and if no sum specified, it is clear that it is not a judgment. This record fails to show any sum that was claimed. The Code 1880, § 2196, requires every person desiring to sue before a justice of the peace to "lodge with him the evidence of debt, statement of account, or other written statement of the cause of action." This record fails to show any of these requisites. Now, what was sued for in this case? Thence it follows that no claim was sued for, and the supposed judgment was for no specified sum, and absolutely void. There is a wide difference in this case and the case of Nellie E. Swain, Admx., v. P. N. Gilder, 61 Miss 667. In that case it is shown that the suit was based on a promissory note filed when the suit was brought, and the defendant appeared in open court and confessed judgment in favor of plaintiff for one hundred and forty-five dollars and interest. This was sufficiently certain. No such proceeding was had in this case. It will not be seriously contended that a justice of the peace can issue an execution upon a judgment formed in his mind and not entered of record. If so, then § 2193 of the Code of 1880 is a mere nullity and of no force. Said § 2193 requires every justice of the peace to keep a well-bound book, styled a docket, in which he shall enter the names of the parties in any suit brought before him and what is sued for, the time of issuing process and when returnable, and the return made therein by the officer, etc the appearance or default, and the date and amount of the judgment, and it is further made the duty of the justice under this section when required to grant to either party a certified copy of such proceedings and of all the papers and process relating thereto. This fails to show a copy of the claim sued on, any of the papers, or even a transcript from such docket.

2. The instructions for plaintiff were not based on the testimony before the court. They assumed facts to be proven that were not proven.

3. The third instruction assumes the fact that Eli was insolvent or in failing circumstances when this suit was pending against him, as a circumstance...