Wainwright v. Atkins

• Decision Date: 07 April 1913
• Docket Number: 15,792
• Citation: 61 So. 454,104 Miss. 438
• Court: Mississippi Supreme Court
• Parties: M. E. WAINWRIGHT v. J. W. ATKINS

61 So. 454

104 Miss. 438

M. E. WAINWRIGHT v. J. W. ATKINS

No. 15,792

Supreme Court of Mississippi

April 7, 1913

APPEAL from the circuit court of Hinds county, HON. W. A. HENRY Judge.

Suit by J. W. Atkins against M. E. Wainwright. From a judgment for plaintiff, defendant appeals.

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

Affirmed.

Flowers Alexander & Whitfield, and Powell & Thompson, for appellant.

The court will notice from the record that J. W. Atkins paid the judgment in Louisiana on the 10th day of February, 1909. The amount of the judgment at that time was one hundred and ninety-eight dollars and fifty cents. Under the law the judgment carried with it interest from date. It is apparent that the interest alone on this judgment would raise it above the jurisdiction of the justice court and this, taken together with the other items set out in the record, show most clearly that the actual amount due by the judgment if anything, was over and above the jurisdiction of the justice court.

We wish to call the court's special attention to the fact that the declaration in Louisiana, upon which judgment by default was rendered, does not state a cause of action in that it did not charge or allege that the draft sued upon was ever accepted by the defendant there--the drawee in the draft--and hence no liability could attach, no cause of action arise. There was no issue presented by the declaration to be denied or traversed. There is no issue to which the default judgment could possibly be responsive, hence the judgment could not be valid and for that reason could be collaterally attacked either in the state of Louisiana or in any other state where it might be made the basis of the suit. This proposition has been settled and forever put at rest by the Supreme Court of the United States in the case of Henry T. Reynolds v Robert F. Stockton, 35 L.Ed. 464. We ask that the court carefully read the very able, and to our mind unanswerable opinion in that case by Mr. Justice BREWER and wherein there was not a dissenting voice.

"The provision of the Federal Constitution, that full faith and credit shall be given in each state to the judicial proceedings of every other state, does not require that a judgment rendered in a court of one state, which is not responsive to the issues presented by the pleadings and was rendered in the absence of the defendant, must be recognizd as valid in the courts of any other state.

"The fact of the judgment rendered in a court of one state does not preclude inquiry in the courts of another as to whether the judgment was so far responsive to the issues tendered by the pleadings as to be a proper exercise of jurisdiction on the part of the court rendering it.

"The rule which determines the conclusiveness of a state judgment in its own state is that it is conclusive only so far as it determines matters put in issue by pleadings, and this rule enters into and limits the constitutional provision as to the faith and credit which must be given in one state to judgments rendered in another.

"When a complainant states some cause of action, and in that suit service on, or appearance of, the defendant is made, a subsequent judgment therein rendered in the absence of the defendant, upon another and different cause of action than that stated in the complaint, is without binding force within the courts of the same state; and it has no better standing in the courts of another state."

See also the case of Richard Windsor v. William McVeigh, 23 L.Ed. (U. S.) 914. In this case the United States Supreme Court held that the doctrine, that where a court had once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is only correct when the court proceds after acquiring jurisdiction of the cause, according to the established modes of governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it. The court further said "that all courts, even the highest, are more or less limited in their jurisdiction; they are limited to particular classes of actions, such as civil and criminal; or to the particular modes of administering relief," etc.

"Though the court may possess jurisdiction of a cause, of the subject-matter and of the parties, it is still limited in its modes of procedure and in the extent and character of its judgments. It must act judicially in all things.

"If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the case be for personal libel, the court cannot order in the case a specific performance of a contract," etc.

So then, we say that if a court had passed such orders, or entered such judgment, it would have transcended its jurisdiction. See Bigelow v. Forrest, 76 U. S. X. 1 X, 700.

"And the reason is (says the court) that the courts are not authorized to exert their power in that way."

We respectfully submit that the same reasoning is applicable to the case at bar.

Whitfield, McNeil & Whitfield, for appellant.

We desire to call the court's attention, first, to the fact that the judgment in the Louisiana court was a joint judgment against J. T. Atkins, the plaintiff here, and M. E. Wainwright, the defendant here, for the sum of one hundred and seventy-five dollars, and interest and protest fee, and all costs, all of which amounts to two hundred dollars, forty-nine and one-half cents, and that this attachment suit in Mississippi was instituted by said Atkins, one of the said joint defendant, against M. E. Wainwright, the other joint defendant, for the sum of one hundred and ninety-eight dollars and fifty cents, and the circuit judge directed the jury to find for the plaintiff in said sum of one hundred and ninety-eight dollars and fifty cents. This is so manifestly and palpably reversible error that it will be wholly unnecessary and an entirely superfluous task for this court to wade through the maze of pleadings in this record. We, therefore, address ourselves to this point. It is too elementary to require the citation of authority to support it; that one of two joint defendants suing the other of two joint defendants can only, in law, recover from said other joint defendant by way of contribution one-half of the amount of the entire judgment rendered in solido and jointly against them both. It must, therefore, be manifest that Atkins could only have sued Wainwright legally and could only have recovered from said Wainwright the sum of one hundred dollars, twenty-four and one-half cents, in any event, and hence the peremptory instruction to find for the plaintiff in the sum of one hundred and ninety-eight dollars and fifty cents is incomprehensible and reversible error.

In support of this view, we direct the court's attention to the case of Mobile J. & K. C. R. Co. v. Hitt & Rutherford, wherein MAYES, C. J., said, "Since the damage claimed for the entire cotton on account of delay and neglect was three hundred and twenty-nine dollars and twenty cents and one hundred and fifty dollars of this was paid at the date the amended declaration was filed against the Mobile J. & K. C. R. Co., the circuit court was without jurisdiction. At the time the amended declaration was filed the real amount claimed could only be one hundred and seventy-nine dollars and twenty cents." It will be noticed that in that case a third party sued the two defendants, and one having paid one hundred and fifty dollars of the amount, the court held that said third party could then sue the other defendant only for the balance, and manifestly, where one of the two defendants himself sues the other defendant, he can only claim one-half the amount of the joint judgment.

While this point alone is sufficient to demand a reversal at the hands of this court, yet, inasmuch as there is another reversible error in this record, we will take the trouble to point it out and cases supporting our views with reference to it, so that if the court should not assent to the above argument and should overrule the case of M. J. K. C. R. Co. v. Hitt & Rutherford, that even then the case must be reversed on the other ground.

If Atkins, one of the two joint defendants, can sue the other joint defendant, Wainwright, for more than one-half of the full amount of the judgment as rendered by the Louisiana court, then we say he can sue him for the full amount, and he cannot split up his cause of action for the purpose of obtaining jurisdiction in the justice of the peace court. Taking the Louisiana judgment, we find that it is "for the sum of one hundred and seventy-five dollars, with legal interest from judicial demand together with the sum of three dollars and fifty cents protest fees, and for all costs of this suit." The legal interest on the face of the draft (one hundred and seventy-five dollars) from date of maturity, March 16, 1908, to date of judgment, February 10, 1909, at five per cent., the legal rate of interest in Louisiana, is seven dollars and eighty-five cents. The interest on the protest fee of three dollars and fifty cents from the date of the protest, April 6, 1908, to February 10, 1909, the date of the judgment, is fourteen and one-half cents, and the clerk's costs amounted to nine dollars and the record shows that the sheriff's fees were five dollars, which is properly and manifestly a part of the costs, and thus adding these sums we have, as follows:

Face of note

$ 175 00

Legal interst on note, from maturity to

date of judgment

7 85

Protest fee

3 50

...