Molpus v. Bostic Lumber & Manufacturing Co.

• Citation: 71 So. 16,110 Miss. 883
• Parties: MOLPUS v. BOSTIC LUMBER & MANUFACTURING COMPANY
• Decision Date: 13 March 1916
• Court: Mississippi Supreme Court

71 So. 16

110 Miss. 883

MOLPUS v. BOSTIC LUMBER & MANUFACTURING COMPANY

Supreme Court of Mississippi

March 13, 1916

March 1916

APPEAL from the chancery court of Lauderdale county, HON. SAM WHITMAN, Chancellor.

Suit by Mrs. M. J. Molpus against the Bostic Lumber & Manufacturing Company. From an order sustaining a demurrer to the bill complainant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

W. L Scott, for appellant.

That the judgment is void, cannot be denied successfully in the light of section 2724, Code of 1906, in part as follows "But every freeholder or householder of the county shall be sued in the district in which he resides, if there be a justice (of the peace) acting therein and qualified to try the suit, or in the district in which the debt was contracted, the liability incurred, or in which the property may be found." Also Turner v. Lilly, 56 Miss. 576; Heggie v. Stone, 70 Miss. 39, 12 So. 253; Hilliard v. Chew, 76 Miss. 763, 25 So. 489; Nation v. Lovejoy, 25 So. 494, to the effect; Hilliard v. Chew, Ib. "A judgment by default on personal service before a justice of the peace in a different district than that in which the defendant is a resident, freeholder, or householder, and in which the debts were contracted, and in which there is an acting justice of the peace qualified to try the action, is void."

Now as to the duty owing by complainant to Bostick, Lumber & Manufacturing Company, defendant, she (complainant) shows and it is admitted that her resources, after wasting, his own, and that in May, 1913, he owed her the handsome sum of two thousand, seven hundred and fifty-five dollars, while at the same time, the Bostick Lumber and Manufacturing Company had such a claim against him as amounted to two hundred, seven and fifty-one-hundredths dollars. Also that at one time she had furnished her son money to pay this debt but he would not, so he was sued by the Bostick Lumber & Manufacturing Company, who knew the law and knew that in order to obtain a valid judgment, it must bring its suit in the proper justice district, but nevertheless it elects to bring suit against him in a district other than that of his residence where the debt was contracted and where there was an acting justice, qualified to try same, and it takes a void judgment as a result thereof, to which she is not a party or privy by any means at all with either party, and in which she has no voice whatever, which void judgment is at once enrolled. Five days later she procures a conveyance to herself of the interest of her son in and to the land in question, taking a warranty deed to same which is at once recorded, which land according to the bill which is admitted lacks two hundred and fifty-five dollars of being worth as much as her bona fide debt against him. Her debt is admittedly valid, her right to collect cannot be denied. Self preservation is the first law of nature. Cary-Haliday Co. v. Cain, 13 So. 239. "The law requires good faith, but it does not pronounce it bad faith for one to look after his own interests and protect them, requiring only, in doing so, that he must not do anything in fraud of other creditors." McAllister v. Honea, 14 So. 264.

"That a conveyance in honest payment of a real debt is brought about by the action of the other creditors in pressing their claims, does not make it fraudulent. For a real debt, a conveyance may be made, even though other creditors are pressing. Ferguson et al v. Oxford Merc. Co., 27 So. 877.

"That a bank holding a claim against an insolvent corporation induced its stockholders to fill vacancies in its board of directors, in order that it might authorize a sale of its property to the bank to pay its debts, and took advantage of its proximity to the corporation to prefer its claim, did not invalidate such transfer, as against other creditors of the corporation. It seems to have used this advantage as it had the legal right to do, and no doubt the other creditors would have made the same use of the same advantage in collecting." Graham v. Morgan, 35 So. 874.

"During the pendency of an action against him, a husband can convey property to his wife, if no fraud can be proved. If it is in payment of a bona fide debt and for a debt that is actually in amount equal to the value of the property conveyed, although it is probable that the property would not be so conveyed if it were not for the suit then pending, this is no evidence of fraud, and under uniform decisions of our court, he has a right to prefer creditors."

As said in the last case cited, it may be that the property would not have been conveyed to complainant at this time, but for this suit pending (or the attempted institution of same), be that as it may, she had the right to collect her debt.

Under these decisions she evidently had the unqualified right to collect her bona fide debt, even though in doing so, she rendered it likely that the corporation could not collect its debt, but she had the right to look to her own fences, so long as she acted in good faith, and bona fide, which the bill shows she did, and which is admitted by the demurrer.

Sams & McCall and Baskin & Wilbourn, for appellee.

The first question to be considered is whether or not the judgment in favor of the Bostick Lumber & Mfg. Co. v. C. L. Molpus taken in the justice court was valid or void. The justice court had jurisdiction both of the persons and the property. The suit was had upon a promissory note executed in Meridian, Mississippi, by C. L. Molpus to the Bostick Lumber & Mfg. Co., April, 1909, payable at the Citizen's Nat'l Bank of Meridian, Mississippi., November 15, 1909. Said note provided for eight per cent interest per annum after maturity and provided for a reasonable attorney's fees if suit should be instituted to enforce payment thereon. The amount of the note came within the jurisdiction of the justice court and the note was made payable in Meridian, Mississippi, in district, one, of Lauderdale county, said state. Therefore, the court had jurisdiction both of the person and the amount involved. A judgment by default was taken by the plaintiff on said note May 26, 1913.

More than ten days after the date of the rendition of said judgment, a motion was filed by C. L. Molpus, defendant, to set aside said judgment as being void, on grounds that the suit should have been filed in Beat 5, instead of Beat 1. The record shows that personal service was had on the defendant more than five days before the judgment was taken. Said judgment was a good and valid judgment and was not subject to attack by the defendant, on said motion.

"Judgments are not merely prima facie evidence of their validity, but conclusive; and the parties to them are estopped by the record from denying their obligatory force, where the jurisdiction of the court appears by the record." (Anderson Miller, et al v. Samuel Ewing, et al. 8 Sm. & M. 421, et seq.) 5 Sm. & M. 210; 8 Sm. & M. 505; George's Digest, page 9437, section 15; 6 Sm. & M. 485; 41 Miss. 561; 2 G. 119-578; 2 G. 704-687; 2 G. 290; 2 H. 727-902.

"The record being the sole embodiment of the judicial proceedings, no other materials or utterances, oral or written, can be set up in competition with it. The law requires the record to be complete, and when it so purports to be on its face in law it is complete, and it is not subject to inpeachment. A party to be affected by the record, and desiring it to be complete before it is signed by the judge, but the exercise of ordinary care can see to it that it is correctly made up, and if he fails to do so he cannot afterwards complain. Childress v. Carley, 92 Miss. 573 and 574.

The record of the judgment was complete and showed jurisdiction in the justice court and the justice of the peace correctly overruled the ...