Union Motor Car Co. v. Farmer

• Decision Date: 08 October 1928
• Docket Number: 27090
• Citation: 118 So. 425,151 Miss. 734
• Court: Mississippi Supreme Court
• Parties: UNION MOTOR CAR CO. v. FARMER. [*]

118 So. 425

151 Miss. 734

UNION MOTOR CAR CO. v. FARMER. ^[*]

No. 27090

Supreme Court of Mississippi

October 8, 1928

Division B

Suggestion of Error Overruled Nov. 5, 1928.

APPEAL from circuit court of Coahoma county, Second district, HON W. A. ALCORN, JR., Judge.

Action by the Union Motor Car Company against H. H. Farmer. From the judgment, plaintiff appeals. Reversed and rendered.

Judgment reversed.

Roberts & Hallam and Royden Dixon, for appellant.

The record not showing that a trial had been had and the result of that trial, the plaintiff had the right to assume that there had been no former verdict and to insist that the case be treated as a pending cause and that it be tried as such. In his effort to meet this contention, the defendant was permitted to show by parol and documentary evidence aliunde the record proper that a verdict for three thousand seventy-three dollars and twelve cents appeared. Over the objection of the plaintiff the court below admitted in evidence the record of the supreme court in Cause No. 23194, showing a judgment for plaintiff in this action entered on October 15, 1921, reciting such a verdict. But the court was not warranted in considering this evidence because that judgment was rendered in vacation, not on May 31, 1921, or at any time in vacation before the September term, 1921, intervened, but on October 15, 1921, and therefore at a time when, as held by this court, the court below was without jurisdiction to render the judgment. Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801. That judgment was therefore void, and being void was evidence of nothing. If it has no vitality as a judgment, it had no probative force as to any recital contained in it, including the recital that a verdict had been rendered. Being void it was void for all purposes and had no place on the minutes of the court. It could not therefore be evidence of the fact that a verdict had been rendered. The circuit court had no power to exercise its jurisdiction in this particular way. Theobold v. Deslonee, 93 Miss. 208, 46 So. 712.

There was error also committed by the court below in allowing the defendant to introduce oral evidence of the rendition of a verdict at a former form and to show an entry on the judge's trial docket in these words: "May 9, 1921, Monday, 9 o'clock, jury and verdict for plaintiff, three thousand seventy-three dollars and twelve cents." In the first place, it is not shown that this entry was made in this particular case. The style or number of the case to which that entry applies is not shown. Leftwich v. Day, 21 N.W. 731; Jones v. State, 38 A. S. R. 150; Grant v. State, 23 L. R. A. 723; Root v. Sherwood, 5 Am. Dec. 191; Walters v. Judkins, 16 Am. Dec. 585; Warner v. N.Y. C. R. R., 11 Am. Rep. 724, 729; State v. Waymike, 132 A. S. R. 699. It is only where the verdict has been entered on the minutes that the proper judgment can be rendered at a succeeding term. Easterling v. State, 35 Miss. 210; Gray v. Thomas, 12 S. & M. 111; Sec. 2437, Hem. Code 1917, Sec. 2606, Hem. Code 1927; Quillan v. Paine, 94 Miss. 696, 47 So. 898; Flanagan v. Auto Co., 132 Miss. 95, 95 So. 521; Sec. 3071, Hem. Code 1917, Sec. 3276, Hem. Code 1927; Sec. 742, Hem. Code 1917, Sec. 778, Hem. Code 1927; State v. Depeder, 65 Miss. 26; Sec. 2305, Code 1880.

Maynard, Fitzgerald & Venable, for appellee.

The situation, briefly stated, is that the case having been tried and verdict rendered for a money judgment, a motion for a new trial was filed by plaintiff and the court subsequently in vacation entered a void judgment on the verdict without acting on the motion for new trial; this judgment was set aside by the supreme court in so far as Cartledge, sheriff, was concerned. Treating this judgment of the court as void for all purposes, we have the case left with the verdict of the jury, a motion of plaintiff undisposed of to set this aside and for a new trial, and the duty of rendering a proper judgment in the cause. The plaintiff, however, contends that this is not the status of the matter but that the proper course is to try the entire case anew from the beginning, and that the trial which was had and the various steps taken are of no legal effect but that something, and it is not stated what, works the necessity of a venire facias. The only way for the curious result contended for by plaintiff to take place would be for something to have happened to have worked a discontinuance of the cause. This did not take place. Sec. 746, Hem. Code 1927, Sec. 710, Code 1917, Sec. 990, Code of 1906.

All unfinished business in any suit or proceeding goes over for future action and no cause or proceeding is discontinued because undisposed of. It was not discontinued because of the subsequent entry of the void judgment, as seems to be contended by plaintiff. Moore v. Hoskins, 66 Miss. 496; Boutwell v. Grayson, 118 Miss. 80.

A judgment must be within the pleadings and the proof. City of Hattiesburg v. Reynolds, 124 Miss. 352; Abrams v. Allen, 109 Miss. 688; Isler v. Isler, 110 Miss. 419; Willsford v. Meyer-Kiser Corporation, 139 Miss. 387.

Maynard, Fitzgerald & Venable, on suggestion of error, for appellee.

If is respectfully submitted that the judgment of the court is erroneous; first, because it denies the defendant trial by jury on a material issue in his case; second, because it denies defendant due process of law. It will be remembered that this case was a seizure proceeding in the lower court, suit being brought on a promissory note and a writ of seizure levied upon an automobile. On the trial the plaintiff introduced his promissory note and rested. The defendant then rested, and the plaintiff asked for and obtained a peremptory instruction of the jury to find for the plaintiff the amount due upon the note. No evidence relative to the car is introduced; the officer's return as to the seizure of the car was not offered in evidence; the officer's return as to its value was not offered in evidence and the verdict of the jury had nothing to say about fixing the value of the car or finding that the car seized was liable for the debt. The motion for new trial was made with the proceedings as recited in the opinion of this court. A judgment was entered omitting any reference to the car or the verdict of the jury; the case was appealed by plaintiff to this court. This court has held, rendering judgment here, that the car seized should be condemned and sold for the payment of the debt.

The statutes dealing with this question are found under Sec. 2606, Hem. Code 1927, Sec. 2436, Hem. Code 1917. Due process of law recognizes the right of controverting, by proof, every material fact which bears upon the question of right in the matter involved. 6 R. C. L., sec. 449, note 16.

The sections of the code on the enforcement of purchase money liens and in the action of repleving are similar in respect to the need of showing that the property seized by the officer is the property against which the debt is claimed, or in respect to which the right of possession is affirmed. In both actions the necessity of identifying the property is the same. Likewise, the necessity of fixing the value of the property under certain conditions. Cases decided by this court in respect to the action of repleving are equally applicable to proceedings to enforce purchase money liens. Brown v. Carriage Co., 93 Miss. 793; Johnson v. Ferguson, 144 Miss. 464; Johnson v. Tabor, 101 Miss. 78; Evans v. Piano Co., 140 Miss. 467.

In the case at bar the identity of the property was not passed on by the jury, and it is one of the essential issues under the statutes of summons and seizure. It seems to us clear, that the action of this court in rendering a judgment for the sale of the property is indistinguishable from the case where the court undertakes to settle the question of fact that the car seized by the sheriff was the car for which purchase money was due, and undertakes to reach this conclusion on evidence which was never introduced at the trial and with regard to which there was never afforded an opportunity to the defendant to combat. Even though it could be argued that a court should take judicial knowledge that an officer had made a return in the papers in the case and that the court would take judicial knowledge of what that return was, it certainly could not be argued that the court could assume that the statement by the officer in his return was indubitably correct, and hence a defendant had no right to be presented with the return and called upon the course of orderly procedure to meet it if he so desired. The burden is on the plaintiff and not upon the defendant. In the case at bar, if the plaintiff wished to recover merely a money judgment without proceeding against the car he had a right to do so. Until he manifested some intent by his evidence to prove the liability of the car, its identity and its due seizure, the defendant was not called upon to meet a case with which he was not confronted by the evidence.

This case does not involve a large amount, but we think it is of considerable importance because as we construe the decision and judgment of the court, the court cannot have the right to base action upon evidence not introduced before it, and take as indisputably true returns of officers when the statutes on the subject in the court simply say that returns of an officer shall be only prima facie correct.

OPINION

ETHRIDGE, P.J.

This action was brought by the appellant as plaintiff in the court below, based upon a promissory note executed by the appellee H. H. Farmer, for the balance of the purchase money of one Mercer car, or automobile, of the sport model pattern, No. 4296, purchased from the appellant. The action was instituted upon a writ...