Tallahatchie Lumber Co. v. Thatch

• Decision Date: 18 March 1918
• Citation: 78 So. 154,117 Miss. 260
• Court: Mississippi Supreme Court
• Parties: TALLAHATCHIE LUMBER CO. v. THATCH

78 So. 154

117 Miss. 260

TALLAHATCHIE LUMBER CO. v. THATCH

Supreme Court of Mississippi

March 18, 1918

Division B

On suggestion of error overruled. For former opinion see 77 So 532.

APPEAL from the circuit court of Forest county, HON. PAUL B JOHNSON, Judge.

Action between the Tallahatchie Lumber Company and C. F. Thatch. From a judgment for the latter, the former appeals.

The facts are fully stated in the opinion of the court.

Suggestion of error overruled.

Tally & Mayson, for appellant.

The vital question to be considered is this controversy is whether or not the claimant of property is absolutely barred and precluded from asserting any lien, claim of ownership to the property, because of the fact that in the principal proceeding the plaintiff therein had recovered a default judgment against the principal. In this case the learned circuit judge so held. He insisted that the status of the property was fixed by the judgment between the parties thereto and that no stranger or intervening party could assert any right to the subject-matter in the controversy.

The statute under which the suit between the original parties was brought, chapter 138, Acts, 1908, provides that the procedure under it shall be the same as that under section 3080, Code 1906, giving to seller a lien for the purchase money of goods. The practice under this latter statute is assimilated to the procedure to be followed in case of an attachment for debt. In attachment suits the trial of right of property shall not be had until after judgment in favor of the plaintiff in attachment. Code 1906, Section 163.

A claimant of property under our procedure is held at bay--unable to assert any right, until after the disposition of the principal case. He cannot be heard in court and yet the court holds that he is precluded by a procedure in which he is denied any voice at all. It is believed, if the court's ruling is correct, it is somewhat in contravention of section 14 of the state Constitution.

In a contest between the plaintiff and a claimant the judgment in favor of the plaintiff, as against the claimant is not evidence of the facts on which it rests. Ott v. Smith, 68 Miss. 773, 10 So. 70. A judgment is evidence against parties and privies alone. It binds none others. Howard v. Cousins, 7 How. 115.

Plaintiff must show not only that he has a judgment, but that the property seized is liable to the debt. Trice v. Walker, 71 Miss. 968, 15 So. 787. Appellant was not prohibited, being a stranger thereto from impeaching the validity of the judgment, if it could show that it had rights that would be injuriously affected by it. 23 Cyc. 1068. The judgment of course might be valid as between the parties and voidable as to strangers, so then appellant could show that the court did not have jurisdiction. 23 Cyc. 1068.

The court could have only held that the judgment precluded appellant from asserting any rights on the theory that it was res adjudicata. It could have been on no other, It lacks several essentials of being res adjudicata as to appellant. Before a judgment is res adjudicata four things must be shown: Identity of the subject-matter of the litigation; identity of the cause of action; identity of persons and parties to the action; and identity of quality in the persons for r against whom the claim is made. Creegan v. Hyman, 93 Miss. 481, 46 So. 952.

The judgment in chief lacked several essentials of being res adjudicata as to appellant. The circuit court did not have and should not have entertained jurisdiction. There appeared to be one hundred and seventy-one different claims aggregating three hundred and six dollars and sixty-eight cents. Each claim of course constituted an independent cause of action. This court has very recently held that the chancery court was the proper forum in which to combine a number of claims of this kind in one suit. Cooley v. Tullos et al., 76 So. 263.

The court though declined to reverse this case because of section 147, of the state Constitution. While the question of jurisdiction in the instant case may have been settled in favor of the appellee, if the sawmill company had raised it in the court below, in so far as the forum is concerned, still it could, in this court, challenge the jurisdiction of the court below as to the amount in controversy. Andrews v. Wallace, 72 Miss. 291, 16 So. 204.

The question of jurisdiction can be raised by a stranger to the record at any time. 23 Cyc. 1068; Beryman v. Hutchinson, 60 Miss. 872.

The orders were not negotiable and no suit could be instituted by the drawee, and while appellee claimed to be an assignee of the several alleged claims Mr. Thatch, the husband of appellee, testified that the assignments were made at the end of the month; the exhibit shows a mere order without consideration and not payable to anyone. They were mere merchandise checks issued for the convenience of the Mississippi company, not intended to be negotiable and were not so. No action could be predicated therein by the drawee, such instruments have recently been condemned as invalid by this court. Ovett Land & Lumber Co. v. Wimmerly, 109 Miss. 601, 190 So. 655.

The mere acceptance of orders, if such was done, did not give appellee a lien on any lumber. It merely created the simple relation of debtor and creditor between the parties to the original suit. Appellant was not permitted by the court to make an inspection of the so-called orders or assignment. The court would not permit it as it held the default judgment precluded appellant from making any inquiry into the question of the consideration on which the judgment was founded.

We are therefore of the opinion that this case ought to be reversed and judgment entered in this court for appellant.

S. E. Travis and Currie & Currie, for appellee.

In support of the legal contention that neither the title nor possession to this lumber was passed to the appellant at or before the time of the levy, we cite the following authorities: 1 Mechem on Sales, page 630, paragraph 754; same book page 631, paragraph 755, which reads as follows: "That no title passes, ordinarily, during the progress of the work, is now clear. This rule prevails in this country, contrary to the latter, but in conformity with the early English Rule, notwithstanding that, by the terms of the contract, the purchaser was to pay and has paid a portion of the price, in installment as the work progressed. It also prevails, notwithstanding the fact, that the purchaser has furnished a part of the materials and, by the weight of authority, it prevails though the purchaser not only paid the price in the installment as the work progressed, but also, in person or by his agent, superintended the work of construction."

Also the same book, page 635, paragraph 576, which is as follows: "Especially all goods yet to be separated from larger mass, a fortiori, the goods are yet to be separated and set off from a larger mass."

The foregoing authorities settled the law of this case so far as this point is concerned. This being true it at once becomes and is wholly immaterial whether the appellant had any notice of the lien or claim of the appellee, because in fact and law the title and possession of the lumber levied upon had not passed from the sawmill company to the appellant before the levy.

In the case of Atwood v. Meredith, 37 Miss. 635, reprint book 18, this court held that on a trial of the right of property levied on under execution, evidence of the nature and character of the debt, which is the foundation of the judgment, is irrelevant.

In the case of Clinton Atkinson, et al., v. A. E. Foxworth, administrator, 53 Miss. 741, this court held that the sureties on a claimant's bond in attachment cannot assign errors in the suit between the judgment creditor and his debtor. In the collateral suit between the claimant and the judgment creditor, the claimant is bound by the judgment in the principal suit unless that judgment is void. We could cite innumerable authorities upon this question, but certainly it is unnecessary to do so, and we content ourselves with the two citations which amply demonstrate the correctness of the ruling of the lower court on that question. Chapter 131 of the Laws of Mississippi, 1908, created a lien upon the lumber of the sawmill company in favor of the employee to secure payment of their labor; and this lien, and these liens were assignable, and the record shows that they were assigned to the appellee before the institution of his suit.

In the case of John D. Kerr et al., v. William Moore, 54 Miss. 286, it was held by this honorable court that the lien of a laborer acquired under the provisions of the act of April 5, 1872, Acts of 1872, page 131, like the lien of a mechanic, is assignable and his assignee may assert the claim and enforce the lien in same manner and to the same extent as the laborer.

The case of Cooley, et al., v. Tullos, et al., decided by this court on June 18, 1917, in which a suggestion of error was overruled on July 2, 1917, reported in Advance Sheets of the Southern Reporter, vol. 76, No. 2, at page 263, settles the question that the circuit court had jurisdiction to pronounce the judgments, if it chooses to do so, and that it is not essential that the action for the enforcement of such liens should be brought in the chancery court.

We respectfully submit that the peremptory instruction was properly granted and that the judgment ought to be affirmed.

OPINION

PER CURIAM.

The judgment appealed from in this case was affirmed without an opinion. The suggestion of error directs attention to the fact that this is the second suit which has presented for construction the written contract between the Tallahatchie Lumber Company and...