Schwartz Bros. & Co. v. Stafford

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

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.

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.

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 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, 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 was guided by his return and had no independent recollection of serving it. In the Reichman-Crosby Co. case, the chancellor found that the summons was not served, and in the case at bar the jury found that the summons had not been served.

Under the authority of the Heichman-Crosby Co. case, the case at bar should be affirmed.

The Supreme Court of Mississippi held that an attack upon a judgment in a case similar to the case at bar is a direct attack and not a collateral attack.

Kaufman & Sons v. Foster, 89 Miss. 388, 42 So. 667; 43 C. J. 663; Waterman v. Bush, 46 Wash. 212, 89 P. 556.

Where the attack is a direct attack, failure of service of process can be shown.

McKinney v. Adams, 95, Miss. 832.

The Supreme Court of Mississippi has held that in a scire facias to revive a judgment (which is practically the same case as we have here) that the defense could be interposed that the judgment was void.

Mathews v. Mosby, 13 Miss. (S. & M.) 422; Roberts v. Weiler & Haas, 55 Miss. 249.

In an action to revive a judgment the defense could be interposed that the original judgment was void.

34 C. J. 663; Johnson v. Carpenter, 108 N.W. 161.

An instruction on the weight of the evidence is erroneous.

Levy v. Holberg, 71 Miss. 66, 14 So. 537; Prine v. State, 73 Miss. 838, 19 So. 711; Yazoo & Mississippi Valley Railroad Co. v. Smith, 103 Miss. 150, 60 So. 73; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Coleman v. Adair, 75 Miss. 660, 23 So. 369; Alabama & R. Co. v. Searles, 71 Miss. 744, 16 So. 255; Alexander v. Dulaney, 16 So. 355; Ladnier v. Ladnier, 64 Miss. 368, 1 So. 492; Daniel v. Daniel, 4 So. 95; French v. Sale, 63. Miss. 386; Meyer v. Blackmore, 54 Miss. 570; Dunlap. v. Hearn, 37 Miss. 471; Stephenson v. McReary, 12 S. & M. 9; Lockhart v. Camfield, 48 Miss. 470; Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; Mabry v. State, 71 Miss. 716, 14 So. 267.

In an action on a note, admission of evidence that defendant owned valuable property in the county where he was served, which would be liable to execution, was not error where defendant denied service of process upon him, and where he had made no effort to protect the property, since it is not the ordinary conduct of men possessed of valuable property subject to sale or judgment to subject it to loss, and so defendant's conduct bears, although indirectly, upon the issue whether or not he was served.

Lunschen v. Peterson, 120 Minn. 288, 139 N.W. 506; 50 C. J. 578.

OPINION

Ethridge, P. J.

The appellants, Schwartz Bros. & Co., were plaintiffs in the court below, and brought suit upon a judgment rendered against the appellee, J. H. Stafford, in 1925, at the July term of the circuit court, filing therewith a copy of the judgment, and a former declaration upon which the judgment was rendered, as exhibits to said declaration.

The defendant pleaded the general issue, nul tiel record, and gave notice thereunder that he would introduce evidence to show that no summons or process was served upon him in the suit in 1925; and, for that reason, there was no judgment and the court had no jurisdiction over the person of said defendant, J. H. Stafford, since he did not appear in said cause.

The cause went to trial upon issue as to whether or not there had been a service of process in 1925; and, under appropriate instructions, the jury returned a verdict in favor of the defendant, J. H. Stafford, upon which verdict the court rendered a judgment in favor of the defendant, Stafford, in the present suit, but directed the defendant to appear at the next term of court and plead to the original suit,...