Rose v. Brister
| Decision Date | 10 January 1927 |
| Docket Number | 26107 |
| Citation | 145 Miss. 78,111 So. 129 |
| Court | Mississippi Supreme Court |
| Parties | ROSE v. BRISTER et al. [*] |
Suggestion of Error Overruled Feb. 7, 1927
. (Division A. Suggestion of Error Overruled Feb. 7, 1927.)
1 PROCESS. Evidence held to support chancellor's finding of personal service of summons.
Evidence held sufficient to support chancellor's decree that defendant had been personally served with summons as shown by deputy sheriff's writ.
2 EXECUTION. Debtor failing to interplead creditor and garnishees may not thereafter enjoin execution of judgment taken by creditor on indebtedness (Hemingway's Code, section 555).
Where debtor after having been served in garnishment proceedings failed to interplead in accordance with Code 1906, section 772 (Hemingway's Code, section 555), on creditor's bringing action on debt, jurisdiction of chancery court cannot thereafter be invoked to stay execution of judgment taken by creditor on indebtedness.
HON. HARVEY MCGEHEE, Chancellor.
APPEAL from chancery court of Leflore county, HON. HARVEY MCGEHEE, Chancellor.
Suit by Ida J. Rose against E. W. Brister and others. From a decree dissolving an injunction theretofore granted and dismissing the bill, complainant appeals. Affirmed.
Decree affirmed.
Everett & Forman, for appellant.
The court erred in rendering a decree sustaining the motion to dissolve the injunction and dismissing the bill. The chancellor was not warranted in his findings.
The appellant, Mrs. Ida. J. Rose, testified positively that no service of process was had upon her, but that after she was informed that a judgment had been rendered against her, she found in a desk at her home, which desk was used by Mrs. Cassidy, her bookkeeper, the copy of the summons which was supposed to have been served upon her, among some stationery in Mrs. Cassidy's desk, and that was the first time that she had ever seen this summons, and that it was not served upon her.
The only other evidence in the record is that of the summons itself with the sheriff's return, the testimony of Mr. A. R. Bew, the chancery clerk, and E. H. Crippen, the sheriff, who testified to what the records in their offices show.
We take the position that the testimony of Mrs. Rose as to what did not take place overcomes the record evidence and is the only evidence upon which the chancellor could base his opinion. Reichman-Crosby Co. v. Horton, 108 So. 443; section 2952, Hemingway's Code. If the summons was not served upon her and she had entered no appearance nor waiver of process, then the judgment was void. Boutwell v. Grayson, 118 Miss. 80; Bank of Philadelphia v. Posey, 92 So. 840; Theobald v. Gerdine, 93 Miss. 208; Duncan v. Gerdine, 58 Miss. 555.
Where the complainant had no service of process and was without the suit until the judgment became final, which was taken by default, then she had a right to maintain this bill of injunction. Oliver v. Baird, 90 Miss. 718.
This bill of complaint should have been maintained by the court because a judgment debtor who has been sued as a garnishee may maintain a bill of interpleader and is entitled to an injunction against the collection of the judgment until the rights of the parties have all been adjusted and settled. Henderson v. Garrett, 35 Miss. 554; R. R. Co. v. Fulton, 71 Miss. 386; McPherson v. Mathews, 108 So. 494. See also section 381 Hemingway's Code; Staple Cotton Co-Op. Ass'n v. Borodofsky, 104 So. 91.
It was the duty of the court to maintain this injunction until the October term of the chancery court of Leflore county to see the outcome of the suits of the tenants against Brister.
Osborn & Witty, for appellees.
I. Appellant contends that the chancellor erred in holding that the summons had been served on appellant by the deputy, Mr. Smith, and has cited with apparent confidence Reichman-Crosby Co. v. Horton, 108 So. 443, upon which both appellant and appellee relied in the argument before the chancellor.
The court held in that case that the question of whether or not the summons had been served was a question of fact to be determined by the chancellor from all the evidence in the case, and that the chancellor's opinion would not be disturbed when rendered on conflicting evidence.
As we understand the Reichman-Crosby case, it is that the sheriff's return is only prima facie true, and that when the service was denied positively by the defendant, it became a question of fact for the chancellor on the conflicting testimony. And the court will bear in mind that the summons was afterwards located by appellant among her papers in her house.
II. On the second proposition that the chancellor erred in dismissing the bill, we again direct the court's attention to the fact that the only relief sought in this bill was an injunction and that no other relief could be given under the allegations of the bill, and that when the motion to dissolve the injunction was sustained, the suit was at an end. Evans v. Money, 104 Miss. 264, 61 So. 309; Griffith's Chancery Practice, p. 484, citing Derdyn v. Donnelly, 91 Miss. 693; 33 So. 652; Bass v. Nelms, 56 Miss. 509; Davis v. Hart, 66 Miss. 642.
We say, therefore, that the appellee had a right to rely upon the above mentioned adjudications of this court when he prepared his decree dissolving the injunction and dismissing the bill even though section 381, Hemingway's Code indicates that the bill should not be finally dismissed until the next term of court.
The remedy of the appellant in this case was clearly stated in Y & M. V. R. R. Co. v. Fulton, 71 Miss. 384, 14 So. 271; Delta Ins. & Realty Agency et al. v. Fourth National Bank of Montgomery, 89 So. 817; Kellogg v. Freeman, 50 Miss. 127, is also controlling.
This is an appeal from a vacation decree of the chancellor dissolving an injunction to stay the execution of a judgment at law, and dismissing the bill of complaint.
The bill of complaint alleges that during the year 1925 the appellee E. W. Brister leased from the appellant certain farm lands which he cultivated during that year; that during the fall of 1925 he sold to the appellant his lease, mules, horses, farming implements, and corn for the sum of three thousand six hundred dollars; and that this trade was consummated by paying to the appellee the sum of one thousand five hundred ninety-two dollars, leaving a balance due him by her of two thousand eight dollars.
The bill further charges that after the consummation of this trade the appellee Brister moved from Sunflower county to Memphis, Tenn., leaving no property in this state; that on or about the 29th day of December, 1925, nine of his former tenants filed attachment suits against the appellee Brister as a non-resident, and joined the appellant as a party to said suits in order to bind in her hands whatever sum of money she might be owing to the appellee, the amount claimed by these several tenants in these suits against the appellee being one thousand six hundred one dollars and forty cents; that the appellant had filed separate answers to each of these suits against the appellee in which she had admitted an indebtedness to him of two thousand eight dollars; and that all of the said suits were at the time of the filing of the bill pending suits in the chancery court of Leflore county against the appellee Brister and the appellant.
The bill further charged that notwithstanding these suits were pending against the said appellee and the appellant as a joint defendant, the appellee, in March, 1926, had filed suit in the circuit court of Leflore county against appellant for the sum of two thousand two hundred forty-two dollars and thirty-four cents, and had secured a judgment against her for that sum; that the said judgment was void for want of jurisdiction in the circuit court to render the same, for the reason that no process was served on the appellant in said suit, and she had no notice or knowledge whatsoever of the pendency of said suit or the rendition of said judgment until an execution was issued thereon and placed in the hands of the sheriff to be levied on her property. The bill prayed that the sheriff be enjoined from levying the execution then in his hands; that the appellee Brister be enjoined from transferring the judgment or having any other execution issued thereon until the nine suits which were instituted by the appellee's former tenants had been heard and finally disposed of; and that on final hearing the default judgment entered against the appellant in the circuit court be canceled and annulled.
The appellee E. H. Crippen, sheriff of Leflore county, filed a separate answer denying that appellant was not served with process in the suit against her in the circuit court, and averring that she was, in fact, personally served with summons on March 26, 1926, by Frank Smith, a duly qualified and acting...
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