Oliver v. Baird

• Citation: 44 So. 35,90 Miss. 718
• Decision Date: 10 June 1907
• Docket Number: 12,716
• Court: United States State Supreme Court of Mississippi
• Parties: TYRE S. OLIVER v. HIRAM C. BAIRD ET AL

44 So. 35

90 Miss. 718

TYRE S. OLIVER v. HIRAM C. BAIRD ET AL

No. 12,716

Supreme Court of Mississippi

June 10, 1907

FROM the chancery court of Lowndes county, HON. JAMES F. MCCOOL Chancellor.

Oliver appellant, was complainant in the court below; Baird and another, appellees, were defendants there. From a decree dismissing the suit complainant appealed to the supreme court.

The object of the suit was to enjoin and annul a judgment obtained against complainant, as a nonresident, in an attachment proceeding in the circuit court, where judgment had been taken against him by default. The bill charged that the appellant never had any notice of the attachment proceeding until after the judgment had become final, that if notice had been sent him by mail it would have reached him that he called regularly for his mail, and that his post office address was well known to the plaintiff in the attachment proceedings. Proof of publication was not on file at the time of the entry of the judgment by default, and there was and is now no docket or other record entry in the circuit court showing that notice was ever mailed to appellant, and the clerk of the circuit court had no recollection of ever having done so.

Thomas J. O'Neill, and Alexander & Alexander, and Geo. B. Power for appellant.

"The rule that a record is conclusive evidence of its own verity is not applicable in a direct proceeding instituted for the purpose of showing its falsity as to a matter which, if false, shows that the court pronouncing it as a judgment had no jurisdiction of the person of the defendant, and consequently, that what purports to be a record is in fact no record at all. No consideration of public policy requires that one guilty of no negligence should be concluded by ex parte proceedings, of which he had no notice, because of a declaration made by the court, at the instance of his adversary, that he had such notice. . . . If the summons was not served the court had no power to adjudicate that, or any other fact, against her, and the whole fabric falls, unless she is forced in the outset to admit as true that which she avers to be false and that too when upon its truth depends her liability to its burden and upon its falsity her right to relief. We reiterate what was said in Sivley v. Summers, that, in direct proceedings instituted for the purpose of testing the validity of the judgment 'the truth must prevail though the record fails.' Relief may be sought through the interposition of the chancery court." Duncan v. Gerdine, 59 Miss. 550.

"A judgment pronounced without service of process, actual or constructive, and without a defendant's knowing that a court has been asked to adjudicate upon his rights is regarded with such disfavor at law that a variety of motions, writs and proceedings are there provided to overthrow it; and in many courts it is at all times and upon all occasions liable to be disregarded entirely upon having its jurisdictional informity exposed. But proceedings in equity are peculiarly appropriate for the exposure of this informity." Freeman on Judgments, sec. 495.

In this case there is no contention, and there could be none, that the appellant, who was the defendant in the attachment proceedings, had any actual notice of the instituting of the attachment suit or of its pendency. He is absolutely uncontradicted in his statements that he never heard of the institution or pendency of the suit until long after the judgment attacked had been rendered and then he learned of it only through a letter received from a correspondent in Columbus to whom he had written with reference to other business--some insurance matter. If notice was ever mailed to him by the clerk, he never received it.

There is no positive proof that notice was ever mailed to him; the clerk, when testifying in the chancery proceedings, could not recall the time, nor the occasion, nor the kind of notice that he sent or claimed to have sent and there was no docket entry of any such mailing from which any conclusion could be made; he could only say that he had mailed it because it was his general custom to mail such notices; he had absolutely no independent recollection of the incident.

It is a fact, as shown by the record, that, at the time of the rendition of the judgment in the attachment proceedings in the circuit court, there was no "proof of publication" before the court; true, the judgment recites that the cause came on for hearing on "declaration . . . proof of publication on defendant Tyre S. Oliver, and proof of mailing to said defendant,...