Starling v. Sorrell

• Decision Date: 12 May 1924
• Docket Number: 23980
• Citation: 100 So. 10,134 Miss. 782
• Court: Mississippi Supreme Court
• Parties: STARLING v. SORRELL et al. Headnote 1. Judgments, 23 Cyc., p. 682; 2. Judgments, 23 Cyc., p. 682

100 So. 10

134 Miss. 782

STARLING v. SORRELL et al. Headnote 1. Judgments, 23 Cyc., p. 682; 2. Judgments, 23 Cyc., p. 682

No. 23980

Supreme Court of Mississippi

May 12, 1924

Division B

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS Judge.

Suit by Henry Starling, trustee, against J. H. Sorrell and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

R. C McBee, for appellant.

It will be observed that the judgment, nowhere attacks the sufficiency of the declaration, but strikes at the judgment sued on. The judgment sued on was in favor of the plaintiff, Henry Starling, and was against J. H. Sorrell, defendant, and B. B. Harper and Lucile Richburg, sure-ties. The first ground of demurrer on which the ruling of the lower court was based challenges the sufficiency of this judgment on the ground that "because it is an agreed judgment and the sureties on the replevin bond are not shown to have agreed thereto." That is to say that two of the defendants, to-wit: B. B. Harper and Miss Lucile Richburg, did not agree to the judgment.

I.

There is no difference in legal effect between a judgment by consent or agreement and one rendered "by a decision of the court. 11 Encyc. of Pleading and Practice, 1028. There is no question but that the court had jurisdiction of the parties and of the subject-matter. There is no question of fraud raised in the pleading, and therefore the judgment is binding so far as these elements are concerned. 34 Cyc. 1584, 1585, 1586. "A surety on a replevin bond, although not a party to the action, is concluded by the judgment therein by the force of his undertaking." Lee v. Grimes, 4 Colo. 185; Nimocks v. Pope, 117 N.C. 315, 23 S.E. 269.

It is not required that process be served on the sureties. They are presumed to be before the court when the court has undisputed jurisdiction of the principal obligor and the subject-matter. It is indeed not contended that they were not within the jurisdiction of the court wherein the agreed judgment was rendered, and because their names are not signed to the judgment, it cannot be presumed that the sureties did not consent to the judgment. Some other ground than want of consent must be shown. Clyburn v. Reynolds, 31 S.C. 91. "A consent judgment cannot be impeached collaterally, but only by a direct proceeding for fraud." Morris v. Patterson, 105 S.E. 25; Healey v. Deering, 121 A. S. R. 338; Adler v. Vankirk, 62 A. S. R. 133; Freeman on Judgments; Mayor, etc., City of Helena v. United States, 104 F. 113.

II.

It is sought to have the judgment declared void because it is not in the alternative for the return of the property or the value thereof in case the property cannot be returned. This agreed judgment is a money judgment and does not provide for the return of the property. While it is true that replevin judgments are generally required to be in the alternative, and our statute so provides, they are not void because of noncompliance with this general principle, but merely erroneous. Being merely erroneous, they are therefore not subject to collateral attack, and can only be remedied by appeal. 34 Cyc. 1546, 1547; Fromlet v. Poor, 29 N.E. 1081, 34 Cyc. 1541; American Preserves Company v. Bishop, 83 Ill.App. 439; Dec. Dig. Rep. (103). The judgment is not subject to a collateral attack. A very full discussion of this question is found in Morrill v. Morrill, 23 A. S. R. 95, and also in Jackson v. Astor, 39 Am. Dec. 281.

III.

Counsel contends that this agreed judgment is void because the entire record in the original cause is not exhibited to the declaration of appellant. It is not necessary that this be done, because the purpose of this judgment was simply to show the fact of its own rendition, and the legal consequences which result from that fact. Aron v. Chaffee, 72 Miss. 159.

Whittington & Bradford, for appellees.

The demurrer of appellees challenged the validity of this judgment as not erroneous, but as a nullity ab initio. It is true as a general rule in this state, and at common law, that the legal presumption in favor of the jurisdiction of a court having general jurisdiction of a cause of action is conclusive, and its judgment cannot be collaterally attacked where no want of jurisdiction is apparent of record. Whenever the record of such a court is merely silent upon any matter, it will be presumed, notwithstanding, such silence, that whatever ought to have been done was not only done, but that it was rightly done. Yet from a cursory examination of the judgment sued on in this cause, it will be observed that no presumption can be indulged in support of it. 15 R. C. L. 374, 896. "Legal presumptions do not come to the aid of records except as to acts or facts as to which the record is silent. Want of jurisdiction appears on the record whenever what was done is stated, and which having been done was not sufficient in law to give the court jurisdiction." Hahn v. Kelly, 34 Cal. 391; Pioneer Land Company v. Maddux, 109 Cal. 633, 50 A. S. R. 67; St. Johns v. Holmes, 20 Wend. (N. Y.) 609, 32 Am. Dec. 603. The purported judgment in this cause is conclusive against no one except J. L. Haley and he is not shown to be a party defendant in this case, nor any attorney for the defendants, or their agent or representative. "A judgment is inoperative against those who have not consented to, or authorized its entry." 15 R. C. L. 86, 643; 15 R. C. L. 316, 843; McComb v. Doe (Miss.), 8 S. & M. 505; Enos v. Smith, 7 S. & M. 85; Campbell v. Brown, 6 Howard, 106; 28 Cyc. 1059.

"The sureties on a replevin bond may be discharged from liability to the same extent as sureties upon other obligations by agreement between plaintiff and defendant to the injury of the sureties." 24 Am. & Eng. Ency. of Law 542. The whole record should have been annexed to the declaration in this cause to show that the court had proper jurisdiction of all parties, and that no variance occurred between the pleadings, and the judgment. Smith v. Frank Gardner Hardware & Supply Company, 36 So. 9; Code of 19067, sec. 4233, Hemingway's Code, sec. 3062.

R. C. McBee, for appellant in reply.

It is too late to say that if Sorrell did not appear and plead, a judgment by default should have been taken and a writ of inquiry awarded. That may have been the proper judgment if he were absent, but this court is bound to presume, first, that he was present, and second, that he consented to the entry of this judgment. Cannon v. Cooper, 39 Miss. 784; Henderson v. Winchester, 31 Miss. 290. "The presumption that a judgment is correct exists wherever there is a possible state of facts which would justify the judgment." Duncan v. McNeill, 31 Miss. 704. The record doesn't show whether Sorrell consented or not. It doesn't show whether J. L. Haley was authorized to make the agreement for a judgment or not; on the strength of the above authorities, we say, in a collateral attack on the judgment this court is bound to presume that the possible state of facts existed that would render this judgment valid.

OPINION

SYKES, P. J.

The appellant, Starling, trustee, sued appellees (defendants) in the circuit court of Leflore county upon the following judgment rendered in Issaquena county:

"State of Mississippi, County of Issaquena.

"Henry Starling, Trustee, v. J. L. Haley, Jr., et al.,

No. 568.

"We agree that in the replevin case pending in the circuit court of Issaquena county, Miss., a judgment shall be rendered in favor of the plaintiff against the defendants and the sureties upon the replevin bond for the sum of two thousand five hundred dollars.

"Said judgment to be as follows:

"By consent of plaintiff and defendants in this case, it is ordered and adjudged that the plaintiff, Henry Starling, Trustee, shall have of and recover from J. H. Sorrell, defendants, and H. B. Harper and Lucile Richburg, sureties upon the replevin bond, the sum of two thousand five hundred dollars and all costs herein expended; said judgment to bear six per cent. interest from March 6, 1922.

"It is further agreed that no execution shall issue against this judgment prior to December 1, 1922.

"It is further agreed that this judgment shall constitute no lien upon the property, real or personal, of J. L. Haley or J. L. Haley, Jr., known as the Smedes property located near Smedes Station, Sharkey county, Miss.

"This judgment shall be enrolled only in Issaquena county.

"Ordered, adjudged and decreed, this 6th day of March, 1922.

"It is agreed that this judgment shall be entered the first day of the circuit court of Issaquena county, Miss.

"Witness our signatures, this 28th day of February, 1922.

"PERCY & PERCY, Attorneys,

"J. L. HALEY."

This judgment was duly enrolled in Issaquena county. Demurrers were filed by the defendants alleging that this judgment is void. The causes assigned are, first, because the judgment does not provide for the alternative return of the property in accordance with the statute relating to a judgment in replevin; that the declaration fails to make exhibits a certified copy of the entire record; that the sureties on the replevin bond are not...