Smith v. Frank Gardener Hardware & Supply Co.

• Decision Date: 22 February 1904
• Citation: 83 Miss. 654,36 So. 9
• Court: Mississippi Supreme Court
• Parties: NAPOLEON B. SMITH v. FRANK GARDNER HARDWARE COMPANY

36 So. 9

83 Miss. 654

NAPOLEON B. SMITH v. FRANK GARDNER HARDWARE COMPANY

Supreme Court of Mississippi

February 22, 1904

FROM the chancery court of Jones county. HON. STONE DEAVOURS Chancellor.

Smith appellant, was complainant in the court below; the hardware company, appellee, was defendant there. From a decree dismissing the bill of complaint and denying complainant all relief, he appealed to the supreme court.

The appellee company filed its petition in a justice of the peace court against one Ingram, a contractor, and appellant, Smith the owner, to enforce a lien for certain material furnished Ingram. The petition does not aver Smith owed Ingram anything at the time notice was given to him. Ingram did not answer this petition. Smith did appear, and filed his answer denying any indebtedness to the contractor at the time notice was served on him, and denying all the material allegations of the petition, and the case was continued at the request of plaintiff. At a subsequent term of the justice of the peace court a judgment was rendered as if by default against Smith, no disposition having been made of his answer. When execution on this judgment was sought to be levied, Smith filed the bill in this case seeking to permanently enjoin said execution, alleging, inter alia, that the judgment against him was obtained by fraud and that it was void.

Reversed.

R. E. Halsell and Harper & Potter, for appellant.

The judgement taken by default against Smith is clearly void on the face of the record. Academy v. Port Gibson Co., 80 Miss. 526; Reid v. Gregory, 78 Miss. 249.

It was clearly erroneous in the court to enter judgment by default, while the answer of Smith, which was a complete and full denial of all the material allegations of the petition, remained on file and undisposed of. Hambrick v. Dent, 70 Miss. 59.

Shannon & Street, for appellee.

The burden of proof is on appellant to sustain the material allegations of his bill, where the same are denied by appellee's answer, and in this case he has not done so. Williams v. Cammack, 27 Miss. 209; McGehee v. White, 31 Miss. 41; Kearny v. Jeffries, 48 Miss. 343; Fulton v. Woodman, 54 Miss. 158; Davis v. Hart, 66 Miss. 642; Shackelford v. Brown, 72 Miss. 380.

There is a conflict in the proof as to whether appellant assumed the payment of appellee's claim, and the chancellor having decided the question of facts against him, it should be given the same weight as a verdict of a jury. Davis v. Richardson, 45 Miss. 499; Apple v. Ganong, 47 Miss. 189; Harrington v. Allen, 48 Miss. 492; Wilson v. Beauchamp, 50 Miss. 24; Deredeyn v. Donovan, 81 Miss. 696; Vicksburg Bank v. Moss, 63 Miss. 74; Stevens v. Magee, 81 Miss. 644.

OPINION

TRULY, J.

The judgment by default, taken in the court of the justice of the peace against N. B. Smith, even if regularly taken, was absolutely void. The petition filed by appellee in that court, assuming it to be fully sustained by proof, shows no legal ground for recovery against Smith. There is no definite averment that Smith personally was...