McCraney v. New Orleans & N. E. R. Co.

• Decision Date: 13 March 1922
• Docket Number: 22198
• Citation: 128 Miss. 248,90 So. 881
• Parties: MCCRANEY et al. v. NEW ORLEANS & N. E. R. CO
• Court: Mississippi Supreme Court

90 So. 881

128 Miss. 248

MCCRANEY et al. v. NEW ORLEANS & N. E. R. CO

No. 22198

Supreme Court of Mississippi

March 13, 1922

JUDGMENT. Judgment may be collaterally attacked at law and in equity where obtained by fraud; sustaining demurrer to replication to special plea setting up former judgment as obtained by fraud held error.

A judgment obtained by fraud is void, and may be attacked collaterally both at law and in equity; and it is error to sustain a demurrer to a replication to a special plea setting up a former judgment reciting a trial on the merits by a jury, where the replication to such plea sets up facts showing that such judgment was obtained by fraud, in that such suit was filed and judgment obtained without the knowledge of the plaintiff in the former suit or the parties in interest, and that no trial was had and no one authorized to sue had any knowledge of the suit or the said judgment.

SYKES AND COOK, JJ., dissenting.

HON. R S. HALL, Circuit Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Circuit Judge.

Suit by Fred B. McCraney and others, by their next friend, Mrs. Mamie McCraney, against the New Orleans & Northeastern Railroad Company for damages for the wrongful death of Travis McCraney. From a judgment of dismissal the plaintiffs appeal. Reversed and remanded.

Judgment reversed, and case remanded.

W. J Pack, for appellant.

The action of the court in sustaining the demurrer of appellee to the replication is assigned as error. It will be noted that this replication avers that the former judgment was not a determination of said suit on the merits; that these plaintiffs were not represented at said trial by next friend and in fact were not represented at all, neither was their mother; and that the declaration was prepared and filed by defendant's attorney, who was unauthorized to appear for plaintiffs or for their mother; and that each and every step taken in said suit was made altogether by the defendant; no testimony was presented to the court, and that the mother of these plaintiffs did not know anything about the filing of a suit. The replication further shows that the claim agent for the railroad at the time of the alleged settlement and payment to her one one thousand five hundred dollars represented to Mrs. McCraney that he was asking her to sign a paper showing that she got the money.

The demurrer admits the truth of all these facts set up in the replication, then how could it be held, we respectfully submit, that there has been such a trial and a judgment entered, as provided for by chapter 167, Laws of 1908, as amended by the Laws of 1914, chapter 214, being now section 501 of Hemingway's Code? Before a judgment can be plead in bar of a subsequent action for a death under this section, such judgment must be obtained in a trial upon the merits. In the case of Sudberry et al. v. The Meridian Fertilizer Factory, 64 So. 723, 106 Miss. 744, this section is set out in the opinion of the court and presumably in order that the bar might understand the interpretation by the court, the clause, "But the determination of such suit shall not bar another action unless it be tried on its merits," was italicised. No two cases could be more nearly alike on their facts than the Sudberry case, supra, and this case. In the former, the father had undertaken to have a judgment rendered, the defendant or insurance company acting for the defendant, taking charge of the litigation and having judgment rendered. In the latter the mother agreed to accept one thousand five hundred dollars and the railroad's attorney took charge of the law suit, prepared the declaration, marked it filed in his own hand writing, entered the plea for the railroad, and drew the judgment, all the time these plaintiffs being in complete ignorance of the same and even the mother not knowing that a suit was to be filed. As was well said in the Sudberry case, this statute was designed to prevent one interested party from agreeing upon and collecting a sum of money satisfactory to him, but not at all satisfactory to others or to the merits of the case. The statute seems to contemplate a jury trial. There has been no jury trial in this case. There has been no judgment satisfactory to the plaintiffs and there has been no suit determined upon the merits.

A judgment procured by collusion or a fraudulent arrangement between the parties of record, cannot be plead as a bar to another suit. 2 Black on Judgments, section 681-a. In the case of the Tennessee Coal & Iron Railroad Company v. Hayes, 12 So. 98 (Alabama), the plaintiff, a minor, was injured and his father, as next friend, settled with the defendant for a nominal sum and in an effort to make the settlement binding, agreed that suit should be filed and the judgment entered. This judgment recited that evidence was taken, etc. To the plea of res adjudicata. the plaintiff filed a replication setting up the fact as to how the former judgment was rendered. The trial court permitted the case to go to the jury, plaintiff recovered, and the judgment was affirmed. See, also, Town of Andes v. Ely, 158 U.S. 312, 39 Law Ed. 996.

"It is true that no actual fraud is charged in the replication against counsel representing the railroad, and with the high regard and love we have for our brother Bozeman, we cannot conceive of his knowingly committing a fraud on any person but, if his acts amount to constructive fraud, coupled with the actual fraud charged on the part of the claim agent, this, in itself, would vitiate the judgment relied upon. But we insist that independent of whether there was any fraud shown in the replication, it does show conclusively, that there was no trial upon the merits of the controversy, and that therefore it could not be plead as a bar to this action."

The appellants therefore respectfully submit that this case should be reversed and remanded.

Bozeman & Cameron, for appellees.

The rule is too well settled to require argument, by the decisions of this court and, we assume by the decisions of all courts of civilized countries, that every presumption is to be indulged in favor of the record of a court of general jurisdiction and it cannot be controverted in a collateral proceeding; and that every presumption is to be indulged in favor of the jurisdiction of courts of record and that their recitals are prima-facie true and they cannot be questioned in a collateral proceeding; and that a judgment imports verity. It is conclusive in its character and admits of no question. Every presumption is indulged in favor of its correctness and validity. We make bold to list some of the decisions of this court adhering to this rule: Martin v. Miller, 103 Miss. 754, 60 So. 772; Sweatman v. Dean, 86 Miss. 641; Moore v. Ware, 51 Miss. 206; Cannon v. Cooper, 39 Miss. 784; Vicksburg Co. v. Brennon, 20 So. 845; Sivley v. Summers, 57 Miss. 712.

Appellant relies very largely on the case of Sudberry v. Meridian Fertilizer Factory, 106 Miss. 744, 64 So. 723, which case, we submit, is readily distinguishable from the case at bar. We have been unable to get the original papers in this case, but upon referring to the brief of counsel for appellants, we find the statement made that the judgment of the justice courts shows conclusively that the suit was not based upon that claim for wrongful death, but to the contrary it clearly shows that the suit is based upon an alleged agreement to settle, etc.

Further in this same brief we find the following quotation from the declaration filed by the plaintiff in the original suit in the justice court: "That the said defendant, the Meridian Fertilizer Factory has confessed liability on account of the damages so sustained by them as the result of the death of the said William Sudberry, Jr., occasioned as aforesaid in the sum of two hundred dollars." But notwithstanding its confession of liability to said amount, the said defendant has not paid to the plaintiffs said sum. Wherefore the plaintiffs sue and demand judgment against the Meridian Fertilizer Factory, in the sum of two hundred dollars together with costs of suit.

It is evident therefore that the record of the suit in the justice court showed on its face, that there had been an agreement on the merits, of the case adjudicated between parties and that the suit was brought merely for the purpose of making a court record of the agreement referred to in the declaration. Nor does the judgment, as we understand the record in that case attempt to recite that there was any adjudication of the liability or the amount thereof or that there was any trial whatever on the merits.

With the record in this shape, the plaintiff filed a replication, setting up in vigorous and certain terms that the whole matter was the product of fraud from the first action through the rendition of the judgment. This replication was amply borne out, by the record in the case.

The case before the court now is entirely different. Here a suit, regular in every way, was filed in a court of competent jurisdiction; there the forum selected for a decision involving the death of a human being, was the lowly justice of the peace court, a fact of record which establishes without the assistance of evidence, the facts set up in plaintiff's replication.

As stated, however, all this seems beside the mark. The court has before it a judgment perfectly valid on its face rendered nearly ten years ago, by a court of competent jurisdiction. To hold such a judgment voidable by the allegation or proof of the facts as alleged in this replication would be to unsettle on a slight pretext, the judgment of our courts on which rests in consideration degree, the...