Nimocks v. McGehee

• Decision Date: 20 June 1910
• Docket Number: 14387
• Citation: 97 Miss. 321,52 So. 626
• Court: Mississippi Supreme Court
• Parties: RICHARD F. NIMOCKS v. JAMES F. MCGEHEE

52 So. 626

97 Miss. 321

RICHARD F. NIMOCKS v. JAMES F. MCGEHEE

No. 14387

Supreme Court of Mississippi

June 20, 1910

FROM the circuit court of Pearl River county, HON. WILLIAM H COOK, Judge.

Nimocks appellant, was plaintiff in the court below; McGehee, a constable, appellee, was defendant there. From a judgment in defendant's favor plaintiff appealed to the supreme court. The facts as stated by ANDERSON, J., were as follows:

"Rouse Bros. & Smith, a mercantile corporation under the laws of this state, recovered judgment by default in a justice of the peace court against the appellant, Nimocks. S. C. Smith was the justice of the peace before whom the judgment was recovered. He is a first cousin of H. S. Smith, a stockholder in and a director and president of Rouse Bros. & Smith. The appellant was county health officer of Pearl River county and for his services in that capacity the board of supervisors issued him a county warrant for $ 62.50, which warrant was in the hands of the clerk of the board ready for delivery, when the constable, McGehee, the appellee, having in his hands an execution on the judgment mentioned, levied the same on the county warrant in the hands of the clerk. Thereupon the appellant sued out a writ of replevin against the constable for the county warrant, and the case was tried in the justice's court and appealed to the circuit court which rendered judgment in favor of the constable, McGehee. Appellant contends that the judgment against him in favor of Rouse Bros. & Smith is void, because of the relationship of the justice of the peace who rendered the judgment to H. S. Smith, who was a stockholder in, and director and president of, the corporation, and, being void, he had the right to take the county warrant from the possession of the constable by replevin."

Affirmed.

Huddleston & Tally, for appellant.

There is error in the judgment appealed from, for the following reasons:

First. The judgment upon which the execution was issued was absolutely void.

Second. The execution levied upon the county warrant by the constable was itself void.

Third. The county warrant at the time the levy was made was in custodia legis, and not subject to levy.

The judgment was void because it was a judgment by default upon a cause of action brought by the plaintiff therein, Rouse Brothers & Smith, in the court of a justice of the peace, who was the cousin of H. S. Smith, a stockholder, director and president of the private corporation, plaintiff in the action.

Our constitution, sec. 165, is in these words: "No judge of any court shall preside on the trial of any cause, where the parties or either of them shall be connected with him by affinity or consanguinity, or, etc.

A judgment rendered in such a case is absolutely void and not voidable. If rendered by default it may be collaterally attacked. There is no waiver by failure to appear and object. The judgment is absolutely void and may be attacked anywhere. Howard v. Horton, 19 Am. St. Rep. 198. First National Bank v. McGuire, 47 L. R. A. 413; Crook v Newberg, 82 Am. St. Rep. 190.

The unbroken line of authorities is that the disqualification renders the judgment absolutely void and it can be attacked collaterally. That where it exists by the common law and not by statute or constitution it is waived by appearance and joining issue; but where it exists by statute or constitution it is not so waived. We have been unable to find a single authority for the contention of appellee, that such a disqualification (viz.: a constitutional one), is ever waived by a default.

As to the proposition, that the disqualification does not apply where one of the parties is a private corporation and the judge is related to a stockholder, we submit that the authorities cited above settle that in the affirmative beyond dispute. We grant that there is some seeming authority for the negative in the text of 23 Cyc. 584, 585, but when we examine the authorities cited in support, we find that it was not determined upon this point but upon some other, as in In re Dodge Mfg. Co., 33 Am. Rep. 579, it was held not to disqualify upon the ground,...