Marks, Rothenberg & Co. v. McElroy

• Decision Date: 21 April 1890
• Citation: 7 So. 408,67 Miss. 545
• Parties: MARKS, ROTHENBERG & CO. v. MAGGIE MCELROY
• Court: Mississippi Supreme Court

7 So. 408

67 Miss. 545

MARKS, ROTHENBERG & CO. v. MAGGIE MCELROY

Supreme Court of Mississippi

April 21, 1890

April 1890

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.

Action on an open account for goods sold, by Marks, Rothenberg & Co. against Maggie McElroy [formerly Roberts]. It was shown that the defendant was a minor at the time the debt was contracted. Witnesses testified to the correctness of the account, and that defendant, while a minor, promised to pay it. There was no direct evidence of the value of the goods or that they were necessaries. The controlling question in the case arose on the action of the court in excluding from evidence a decree of the chancery court of Hinds county purporting to remove the defendant's disabilities of minority prior to the purchase of the goods. Verdict and judgment for defendant. After motion for new trial overruled, plaintiffs appealed.

The opinion of the court contains a further statement of the case.

Judgment affirmed.

R. F. Cochran, for appellants.

1. We shall only insist on the error in excluding from evidence the decree removing appellee's disabilities of minority. The chancery court, as a court of record and general jurisdiction, had original jurisdiction to make this decree. The constitution conferred on it this power. See art. 6, § 16.

2. Decrees of courts of general jurisdiction are presumed to be valid, unless the contrary affirmatively appears. Cason v. Cason, 31 Miss. 578; Duncan v. McNeill, Ib. 704; Voorhees v. Bank, 10 Pet. 472.

And they cannot be collaterally impeached. Cannon v. Cooper, 39 Miss. 784; Cocks v. Simmons, 57 Ib. 183; Hughes v. Cummings, 2 P. 928; Wixson v. Devine, 7 Ib. 776; 16 N.W. R. 548; 33 Ib. 613; 39 Ib. 418; Frankfurth v. Anderson, 61 Wis. 107; Galpin v. Page, 18 Wall. 366; Kipp v. Collins, 33 Minn. 397.

It must be presumed that the court rendered its decree after acquiring jurisdiction. See authorities above; also Bank v. Ault, 1 N.E. 562.

The fact that the defendant was an infant does not affect the estoppel of the decree. Hanna v. Spotts's Heirs, 43 Am. Dec. 132.

3. Independent of the above considerations, defendant should not have been allowed to assail the validity of the decree under her rejoinder, wherein she denied the existence of the decree. In relying upon want of service or other defects, she should have averred the facts, in order that plaintiffs could have an opportunity to meet the issue. Cassady v. Miller, 5 N.E. 713.

Witherspoon & Witherspoon, for appellees.

The chancery court has no original jurisdiction in the matter of removing disabilities of minority. The jurisdiction to grant the decree in question is conferred by statute, and is special and limited, its exercise being dependent upon certain facts, the existence of which must appear on the face of the record. Notice, residence in Hinds county and other jurisdictional facts were necessary to be shown in the case. As none of these appear, the decree was properly excluded from evidence. Winston v. Miller, 12 S. & M. 552; Saffarans v. Terry, Ib. 690; Edwards v. Toomer, 14 Ib. 78; Claughton v. Black, 24 Miss. 185; Root v. McFerrin, 37 Ib. 17. See also George's Dig., p. 436, § 2; Ib., p. 616, § 46, and cases there cited.

OPINION

COOPER, J.

Appellant sued Mrs. McElroy to recover on an account for goods sold to her before her marriage. She pleaded infancy, to which the plaintiff replied, that before the purchase by her of the goods, for the price of which suit was brought, her disabilities, infancy, had been removed by a decree of the chancery court of Hinds county. To this the defendant rejoined by a general denial.

On the trial the plaintiffs offered in evidence the decree alone of the chancery court, to which the defendant objected, because it was not shown by said decree or otherwise that the chancery court of Hinds county had acquired jurisdiction of defendant to make said decree. The objection was sustained, and the decree excluded. The assignment of error raises no other question than the action of the court in this ruling.

The evidence was properly excluded. The rules of presumption which are applied in reference to judgments or decrees of courts brought collaterally into review are: 1. Where a court of general jurisdiction [a court of record], acting within the scope of its ordinary power, renders judgments or decrees, such judgments or decrees will be presumed to be in accordance with its jurisdiction. 2. Courts of limited jurisdiction [courts not of record] are presumed to have no jurisdiction other than that shown to exit. 3. Courts of record, exercising special powers conferred by statute in derogation of the common law, and proceeding according to the statute, and not according to the course of the common law are, as to their judgments or decrees in such matters, upon the footing of courts not of record. Freeman on Judgments, §§ 122, 123, 124, 132, 517, 521, 525; Williamson v. Berry, 8 How. 495; Thatcher v. Powell...