Mcintosh v. Munson Road Machinery Co.

• Decision Date: 23 January 1933
• Docket Number: 30331
• Citation: 167 Miss. 546,145 So. 731
• Court: Mississippi Supreme Court
• Parties: MCINTOSH v. MUNSON ROAD MACHINERY CO. et al

145 So. 731

167 Miss. 546

MCINTOSH v. MUNSON ROAD MACHINERY CO. et al

No. 30331

Supreme Court of Mississippi

January 23, 1933

Division A

Suggestion Of Error Overruled, February 6, 1933.

APPEAL from circuit court of Forrest county, HON. W. J. PACK, Judge.

Action in a county court by Tarver McIntosh against the Munson Road Machinery Company, in which a judgment was rendered for plaintiff. Plaintiff filed a motion against J. E. Gray sheriff of Forrest county, and the surety on his bond seeking to impose liability on the sheriff for failure to return an execution issued, and the county court dismissed the motion, the circuit affirmed the action of the county court, and plaintiff appeals. Reversed and remanded.

Overruled.

R. T. Hilton, of Jackson, and Tarver McIntosh, of Collins, for appellant.

Excuses are not sufficient to relieve sheriff of liability.

Morehead v. Holliday et al., 1 S. & M. 625.

Motions against sheriffs for failure to return execution to them directed, under the Code of 1871, section 227, are determinable in the court to which the process is returnable, and not to the county of the defaulting officer's residence.

Cox, Sheriff, v. Ross, 56 Miss. 481.

Court had no authority to set aside the default judgment at a subsequent term.

Tonkel v. Williams, 146 Miss. 842; Sagory v. Bayless, 13 S. & M. 153; Evans v. King-Peoples Auto Co., 135 Miss. 194, 99 So. 758; Beard v. McLain, 117 Miss. 316, 78 So. 184; Shirley v. Conway, 44 Miss. 434; Lane v. Wheelis, 46 Miss. 666; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Vicksburg Grocery Co. v. Brennan, 20 So. 485.

In an action against a sheriff and his sureties, brought by a judgment creditor, for the failure of the officer to return an execution, the officer cannot, by way of defense, impeach the validity of the judgment on which the execution was issued.

Daily v. State, 56 Miss. 475; Green v. Taylor, 111 Miss. 232, 71 So. 375; Vicksburg Grocery Co. v. Brennan. 20 So. 845; Union Motor Co. v. Cartledge, 133 Miss. 318, 97 So. 801.

All of the last-mentioned cases were on the same question involved here. The first three cases hold that the defense raised, which is similar to the ones raised here by the appellee, could not be raised in such a proceeding as this because it was a collateral attack.

We think we are absolutely correct in our position that conceding that appellee in the original suit had its plea on file in due time and default judgment was taken, the only relief from such was an appeal and not by collateral attack as attempted here.

Willsford v. Myer-Kiser Corp., 139 Miss. 387, 104 So. 293; Vicksburg Grocery Co. v. Brennan, 20 So. 845; Starks v. Gildart, 4 H. 267; Cotton v. Harlon, 124 Miss. 691, 87 So. 152.

T. J. Wills, of Hattiesburg, for appellees.

It is error to enter a judgment in the face of an unanswered plea if such plea requires an answer.

Taylor v. McNairy, 42 Miss. 276; Dean case, 2 S. & M. 213; Price case, 5 S. & M. 254; Hambrick v. Dent, 11 So. 608; Biloxi Lumber & Export Co. v. New Orleans Railway & Mill Supply Co., 28 So. 21.

A judgment by default cannot be taken while a plea, if not a nullity, remains on file undisposed of, even if it is defective.

Dalton v. Rhodes Motor Co., 153 Miss. 51, 120 So. 821.

The return on this writ is void for the reason that it does not show that it was served on the Munson Road Machinery Company, a corporation, the defendant in this case.

Anderson Mercantile, Co. v. Cudahy Packing Co., 127 Miss. 301, 90 So. 12.

McGowen, J., Cook, J., delivered the opinion of the court on suggestion of error.

OPINION

McGowen, J.

This action arose in the county court of Forrest county on a motion filed by the appellant, Tarver McIntosh, against J. E. Gray, sheriff of said county and the surety on his bond, seeking to impose liability on the sheriff for failure to return an execution issued in his favor against the Munson Road Machinery Company.

The sheriff appeared and answered, admitting the issuance of the execution and that he refused to levy on the property of the defendant in execution, for the reason that the judgment on which the execution was issued was void because the judgment was rendered at a time when there was on file in the county court rendering the judgment a plea of general issue, and that at a subsequent term from the term at which the original judgment was entered the county court treated the case as pending on its docket, and, on its own motion, vacated the default judgment against the defendant in execution and dismissed the cause. Such proceeding was instituted on authority of section 3317, Code 1930, which imposes liability upon sheriffs for failure to return executions placed in their hands.

The evidence discloses that at a term of the county court convening on September 8, 1930, a judgment was rendered by that court by default against the Munson Road Machinery Company for one thousand dollars principal and twenty-seven dollars and fifty cents interest, from which we quote the following, to-wit: "This cause came on for hearing, and it appearing to the court that the defendant, Munson Road Machinery Company, a corporation, has been duly and legally served with process in this cause by personally delivering a true copy of the summons to F. G. Munson, president of said company, on the 9th day of July, 1930, returnable to this court on the 14th day of July, 1930, and it further appearing to the court that the defendant has failed to plead to said declaration, but has wholly made default, and it appearing that the defendant is justly indebted to the plaintiff," etc.

This judgment was rendered on September 12, 1930. There was never any appeal from it. The record shows its enrollment on September 25, 1930. The execution thereon was placed in the hands of the sheriff on October 11, 1930; The September term of court having adjourned on September 26, 1930.

The county court clerk's docket showed no return of the execution by the sheriff.

After the convening of the October, 1930, term of court, the docket was called, and the court entered a judgment to the effect that the default judgment in the case was void because there was a plea on file, and dismissed the cause without prejudice, which action was taken without notice to McIntosh, the plaintiff.

The deputy county clerk and the plaintiff testified that on the date of the default judgment there was no entry on the general docket that any plea had been filed, and that there was no plea in the file of papers then in court. The deputy county clerk further testified that on July 14, 1930, she had filed a plea of the general issue, but had not entered it on the docket, and had forgotten it; that she "did not date it back," and it appears that, subsequent to the rendition of the default judgment, the filing of the plea was noted on the docket.

The execution could not be found, but McIntosh testified that he saw it in the clerk's office; that it was returnable to the November term, and that it had on the back thereof the following: "Executed 10/11/30. Execution set aside by T. J. Wills, lawyer in the case this the 3rd day of November, 1930. H. K. McLemore, D. S."

There were objections pro and con to the introduction of oral evidence, which seem never to have been passed upon by the trial court.

The county court, after hearing the evidence, overruled the motion against the sheriff and finally dismissed it.

There was an appeal to the circuit court where this action of the county court was affirmed, and appeal from the judgment of the circuit court is prosecuted here, and the action of the lower courts in holding that the judgment by default was void is presented here for decision.

If the appellee is correct in its contention that the judgment was void, then the sheriff was not liable for failure to return the execution.

Of course, it cannot be seriously contended that the notation, quoted above, on the execution was a return thereof in conformity to the statute, as the duty imposed upon the sheriff by law was to levy the execution on defendants' property, or, in default thereof, to return it nulla bona.

If the judgment in the case at bar was void, it was a complete defense to the motion against it. See Dailey v. State, 56 Miss. 475.

On appeal, this court has uniformly held that judgments by default, rendered when there is a plea on file, which plea is not a nullity, are erroneous, and many cases have been reversed for that reason. Beginning with the case of Dean v. McKinstry, 2 S. & M. 213, and ending with the case of Dalton et al. v. Rhodes Motor Co., 153 Miss. 51, 120 So. 821, this court has announced the rule that a judgment by default, rendered at a time when a plea is on file, even though it was defective, is an erroneous judgment, and, for that reason, the case would be reversed.

There seems to be no exception to this rule in the various appellate courts throughout the country. But our attention has not been called to a single case in which a judgment has been condemned as absolutely void. It may be that such a judgment might be vacated, as having been rendered through mistake, in a court of equity; but, where a court has jurisdiction of the subject-matter and of the parties, and renders a judgment at a term of court, it is without power to set aside such judgment after the term of court has elapsed. See Sagory v. Bayless, 13 S. & M. 153; Barker v. Justice, 41 Miss. 240; Shirley v. Conway, 44 Miss. 434; Wiggle v. Owen, 45 Miss. 691; Lane v. Wheless, 46 Miss. 666; Beard v. McLain, 117 Miss. 316, 78 So. 184; Evans v. King-People's Auto Company, 135 Miss. 194, 99 So. 758; and Bates v. Strickland, 139 Miss. 636, 103 So. 432.

In the case at bar it will be noted that the court distinctly...