Schwartz Bros. & Co. v. Stafford, 30653

• Court: Mississippi Supreme Court
• Writing for the Court: Ethridge, P. J.
• Citation: 166 Miss. 397,148 So. 794
• Parties: SCHWARTZ BROS. & CO. v. STAFFORD
• Decision Date: 12 June 1933
• Docket Number: 30653

148 So. 794

166 Miss. 397

SCHWARTZ BROS. & CO.
v.
STAFFORD

No. 30653

Supreme Court of Mississippi

June 12, 1933

Division B

1. JUDGMENT.

In suit on judgment, it is not necessary to set out former declaration.

2. JUDGMENT.

Action of debt is proper form of action on judgment, and such cause of action is entirely new action and not continuation of former one.

[166 Miss. 398]

3. JUDGMENT.

When valid judgment is rendered, all rights of parties are merged therein.

4. PLEANING.

In action on judgment, setting out as exhibits to declaration former declaration was surplusage.

5. JUDGMENT.

In suit on judgment, the only general issue is nul tiel record, and other defenses must be made by special pleas.

6. JUDGMENT.

Judgment void for want of process may be attacked either directly or collaterally.

7. JUDGMENT.

In suit on judgment, conflict in evidence made by defendant's testimony that no process was served on him in original suit and deputy sheriff's evidence relied on to sustain service from fact that return was signed by him, coupled with his general recollection that he served some paper on defendant, made jury question.

8. JUDGMENT.

It is not collateral attack on judgment when it is between same parties for defendant to show that no process was served on him.

9. JUDGMENT.

In suit on valid judgment, defenses existing at time judgment was rendered are cut off.

HON. WM. A. ALCORN, Judge.

APPEAL from circuit court of Bolivar county HON. WM. A. ALCORN, Judge.

Action by Schwartz Bros. & Co. against J. H. Stafford. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Somerville & Somerville, of Cleveland, for appellant.

Rule at common law was that return of officer was conclusive on defendant.

21 R. C. L. 1321-1323; James M. Davant et al. v. R. G. Carlton, 53 Ga. 491.

[166 Miss. 399] Rule in many states is that uncorroborated statement of defendant will not overturn return of officer.

21 R. C. L. 1321-1323; Davis v. Dresback, 81. Ill. 395; J. M. Davant et al. v. R. G. Carlton, 53 Ga. R. 491; Tatum v. Curtis et al., 68 Tenn. 360.

Rule governing this case is that when accessibility of defendant to officer is shown the uncorroborated evidence of defendant is not sufficient to overturn the return of officer and his sworn testimony showing service.

Rose v. Brister, 145 Miss. 78, 111 So. 129; Wilson v. Shipman, 52 N.W. 576; Quarles v. Hiern, 70 Miss. 891, 14 So. 23.

Defendant should have enjoined judgment or moved to vacate judgment in case 3199 and cannot do so on this suit, same being a collateral attack.

Federal Reserve Bank v. Wall, 138 Miss. 204, 103 So. 5; 15 R. C. L. 838, sec. 311.

The judgment of the court and the return of the officer should not be set aside except on the clearest and most convincing evidence.

Duncan v. Gerdine, 59 Miss. 550; Quarles v. Hiern, 70 Miss. 894, 14 So. 23.

The learned court below erred in refusing our instruction advising the jury that the sheriff and all deputy sheriffs were sworn officers of the law and under bond to guarantee that they faithfully execute writs.

The court is quite familiar with the principle that if Stafford had filed a suit in the chancery court to cancel this judgment it would have been incumbent upon him to allege a perfect or a legal defense to the suit.

Harris v. Bolton, 7 Howard, 167; Sanders v. Robertson, 23 Miss. 389; Fore v. Folsom, 4 Howard, 282; Meridian v. Trussel, 52 Miss. 711.

In this case there is no hint that Mr. Stafford does not owe the debt and there is no semblance of equity in the alleged defence. Had Stafford appeared in the original [166 Miss. 400] suit and filed a plea in abatement he would have been required to swear to such a plea.

Mayfield v. Barnard, 43 Miss. 270, see page 277.

This is a suit brought under section 2303 of the Code of 1930 and was intended to be a suit on a judgment rendered by this court. The fact that such a suit must be brought within seven years is definitely stated in the cases of Locke v. Brady, 30 Miss. 21; Buckner v. Pipes, 56 Miss. 366, and Stith v. Parham, 57 Miss. 289, as well as the case of Hattiesburg Grocery Company v. Tompkins, 111 Miss. 592, 71 So. 866.

It has always been our idea that the judgment was not only what was actually written down but that the entire record went into the judgment and that in declaring on the judgment the entire record should be certified and that it would not be sufficient to merely declare on the judgment itself.

It is eminently proper for the Supreme Court to consider the appeal now presented.

Section 13 of the Code of 1930; Isaac Denson et al. v. Susan Denson et al., 33 Miss. 560; Humphreys v. J. H. Stafford, 71 Miss. 135; H. S. Gilleylen v. D. C. Martin et al., 73 Miss. 695, 19 So. 482; Brooks & Company v. Gentry, 108, Miss. 447; Johnson, Revenue Agent, v. Richey L. I. & M. Company et al., 126 Miss. 240, 88 So. 634.

If the court takes the view that we declared on the declaration and original note as well as the judgment we were certainly entitled to a directed verdict. The reason for this is that the pleadings of the defendant in no remote way denied the original debt and did not deny the filing of the first suit, which certainly stopped the running of the statute of limitations.

As to whether the defendant was entitled to a final judgment on the debt issue, or not, and whether the court could enter the judgment it did enter, continuing case No. 3199 for further hearing at the next term of court, [166 Miss. 401] in our consideration of the case of Gilleylen v. Martin, 73 Miss. 695, we find the statement made that this part of the judgment is not a final judgment from which an appeal can be prosecuted.

Sillers & Roberts, of Rosedale, for appellee.

The circuit judge was correct in permitting the case to go to the jury.

Reichman-Crosby Co. v. Horton, 143 Miss. 141, 108 So. 443.

There is no material difference between the facts in the case at bar and the facts in the Reichman-Crosby Co. case. In both cases the defendant testified that he was not served with a summons and in both cases the sheriff testified that he had served the summons, but that he...