Magee v. Griffin, No. 48983

• Decision Date: 27 April 1977
• Docket Number: No. 48983
• Citation: 345 So.2d 1027
• Parties: E. B. MAGEE v. John GRIFFIN and General Motors Acceptance Corporation.
• Court: Mississippi Supreme Court

Page 1027

345 So.2d 1027

E. B. MAGEE v. John GRIFFIN and General Motors Acceptance Corporation.

No. 48983.

Supreme Court of Mississippi.

April 27, 1977.

Roland C. Lewis, Jean D. Muirhead, Jackson, for appellant.

Robert W. King, Jackson, for appellees.

Before PATTERSON, P.J., SMITH and LEE, JJ., and FEDUCCIA, Commissioner.

SMITH, Justice, for the Court:

E. B. Magee has appealed from the final judgment of the Circuit Court of Lincoln County sustaining the defense of res judicata set up in the answer and dismissing his suit against John Griffin and GMAC in which he claimed to have suffered damages in that the defendants had caused him 'to become ill, upset, to be humiliated, embarrassed, one to suffer much mental anguish,' to lose possession of his automobile and to incur attorney's fees.

Magee's declaration recited that he had financed his purchase of a Pontiac automobile through GMAC under a contract providing that he make monthly payments until the automobile was paid for. He alleged that 'at all times material hereto, the defendant, John Griffin, was acting in his capacity as an agent, servant, and employee of the defendant, GMAC.'

Magee's declaration charged that he had made the payments of $135.80 per month required by his contract with GMAC for the months of August and September, 1972 by mailing them directly to GMAC at New Orleans, that Griffin, as agent of GMAC, represented to him, Magee, that he should make the October, 1972 payment directly to Griffin in cash, and that his, (Magee's) wife did so.

Magee alleged further that 'it was not until July 7, 1973, that plaintiff was informed by a summons from the Circuit Court of Lincoln County that a default had been made in reference to his account with GMAC.'

Griffin and GMAC answered and interposed, among other defenses, the defense of res judicata, exhibiting the entire file in its former action brought against Magee in the Circuit Court of Lincoln County for 'Claim and Delivery' (Title 11, Chapter 38, §§ 11-38-1 through 11-38-9 Mississippi Code Annotated (Supp.1976)) under its contract with Magee covering the sale and purchase of the automobile in question, based upon Magee's default in the payments required by his contract. It is undisputed that a summons was duly served upon Magee personally in the action and this fact is recited in Magee's declaration in the present suit. It is also undisputed and recited in Magee's declaration that he, Magee, deliberately failed to respond to the summons, declined to appear or answer, and allowed GMAC's action to proceed to final judgment against him. There was no appeal from the judgment and the automobile was repossessed in due course under this judgment of the Lincoln County Circuit Court.

In the present case, the Circuit Court of Lincoln County, following a hearing conducted upon the defense of res judicata based upon the former suit, sustained the plea and dismissed Magee's suit against Griffin and GMAC. It is from that judgment of dismissal that Magee now appeals.

Justices Smith, Robertson and Sugg are of the opinion that the action of the trial court in sustaining the plea of res judicata was correct, and that the judgment appealed from should be affirmed both as to Griffin and GMAC. Chief Justice Gillespie and Justices Inzer and Broom consider the court's action to have been correct as to GMAC but to have been error as to Griffin and would affirm as to GMAC and reverse and remand as to Griffin. Justices Patterson, Walker and Lee are of the opinion that the trial court's action was error as to both appellees and would reverse and remand. It will be observed, therefore, that six justices have voted to affirm the sustaining of the plea and the dismissal of Magee's case as to GMAC and therefore the judgment appealed from will be affirmed as to GMAC.

Those justices voting to affirm both as to GMAC and to Griffin consider that the sine qua non, the indispensable fact necessary to Magee's present suit is a wrongful repossession of the automobile and the alleged consequent humiliation, embarrassment and 'mental anguish' occasioned thereby. It is apparent from the record, and this is not challenged, that GMAC, in its action brought against Magee, faithfully pursued the remedy which the law provides and that the repossession was accomplished under the solemn judgment of the Circuit Court of Lincoln County, lawfully obtained. It is of paramount significance, these justices believe, that Magee was duly served personally with a summons in the Claim and Delivery action in the manner and form and for the time required by law and thus learned of the nature and purpose of the action against him. This is conceded and recited in Magee's declaration in the present suit. It is also conceded in like manner that Magee deliberately, and for reasons known only to himself, declined to respond to the summons or to assert any defense, and particularly failed to interpose the affirmative defense of payment to Griffin, who was 'at all times material hereto . . . acting in his capacity as an agent, servant, and employee of the defendant, GMAC.' GMAC's action was predicated upon Magee's default under his contract and proof of payment to Griffin 'acting in his capacity as agent' of GMAC would have been a perfect defense. If Magee had pled payment and had prevailed he would have effectually prevented the repossession of the car and avoided the 'embarrassment, etc.' which, in his present suit he claims to have suffered on account thereof. The final judgment in the claim and delivery action finally and, we think, conclusively, established Magee's default and the right of GMAC to repossess; these issues may not now be relitigated by him.

Under the undisputed circumstances, we do not think Magee could deliberately refuse to answer the claim and delivery action and allow the facts charged in the declaration to be taken as true and confessed, that is, the fact that he was in default under his contract to pay, and willfully suffer the case to proceed to judgment, permit the automobile to be repossessed by legal process, and afterward maintain a suit against Griffin and GMAC, the central and essential issues in which would again be the legal right of GMAC to take the car following Magee's default.

It is true that the law on this subject has not been dealt with uniformly in the cases and text books.

Learned treatises are invaluable aids to judges and are entitled to respect and consideration. However, the conclusions of authors (and decisions of the courts of other states) are not binding upon this Court and should be followed only to the extent that such conclusions and decisions clearly are based upon sound reason and common sense and are such as reasonably may be calculated to lead toward desirable results. A distinguished justice of the United States Supreme Court once remarked, (in effect) that he felt no obligation to perpetuate error or to follow decisions of that Court if he later became convinced that such decisions were wrong, unwise or foolish or had produced undesirable results.

Where the result of a principle or policy produces or is capable of producing clearly undesirable results it should be discarded as less than useful and a new principle or policy more in accord with reason and practical common sense substituted. Multiple suits, where one would suffice, are obviously undesirable. It should be made clear in this case that in Mississippi, where a court of competent jurisdiction, having jurisdiction of both the person and subject matter, proceeds to final judgment from which there is no appeal, the result is binding upon the defendant and the essential facts may not subsequently be relitigated.

It should be borne in mind that the suit by GMAC against Magee was one for 'claim and delivery,' an entirely new and more comprehensive form of action than replevin, authorized by Mississippi Code Annotated sections 11-37-1 et seq. (1972), adopted March 28, 1973.

Mississippi Code Annotated section 11-38-7 (Supp.1976) (of the Claim and Delivery Act) provides:

The defendant, or any interested person, may contest the demand of the plaintiff on or before the return day of the writ by filing an answer in writing, under oath, of his claim or defense, itemizing his account, if any, and the case shall be then at issue between the parties, and shall be tried as other cases in the court. The judgment or judgments of the court shall adjudicate and adjust the rights of the several parties as to the subject matter of the suit, and cost may be adjudged accordingly.

It is apparent that an important purpose of the enactment of the legislation was to provide a new form of action whereby the entire controversy would be settled in one suit, thereby preventing the necessity of multiple suits and appeals arising out of the same subject matter which often resulted under the old replevin statutes. It should be noted that section 11-38-7, supra, provides that the defendant may contest the demand of the plaintiff by filing an answer, under oath, setting up his 'claim or defense.' It also provides that the case be tried as other cases are and that the Court 'shall adjudicate and adjust the rights of the several parties as to the subject matter of the suit.' Mississippi Code Annotated section 11-38-3 (Supp.1976) contains this provision: 'The judge shall have jurisdiction to hear the cause, or any matter pertaining thereto . . . and to enter such orders and judgment thereon as to adjust the rights of the parties in the subject matter.'

In the suit for claim and delivery brought by GMAC against Magee under the new statutes, the Court found that Magee had defaulted, and then, 'the court having had a hearing', proceeded to find for GMAC, and to enter final judgment accordingly.

The subsequent suit by Magee against GMAC and Griffin was, in effect at least, an effort on Magee's part to make a collateral attack upon the final judgment in the prior...