Walton v. Gregory Funeral Home

• Decision Date: 14 May 1934
• Docket Number: 31247
• Citation: 154 So. 717,170 Miss. 129
• Court: Mississippi Supreme Court
• Parties: WALTON v. GREGORY FUNERAL HOME

154 So. 717

170 Miss. 129

WALTON v. GREGORY FUNERAL HOME

No. 31247

Supreme Court of Mississippi

May 14, 1934

Division B

Suggestion Of Error Overruled June 11, 1934.

APPEAL from chancery court of Yazoo county HON. M. B. MONTGOMERY Chancellor.

Suit by Daisy Walton against the Gregory Funeral Home. From a decree in favor of the defendant, the plaintiff appeals. Affirmed.

Affirmed.

Ruth Campbell, of Yazoo City, for appellant.

The judgment rendered in justice of peace court of S.D. Woods, successor to C. C. Elliott, deceased, was void.

The docket entries were not correctly kept as required by section 2074 of Mississippi Code of 1930.

In Morris v. Shyrock, 50 Miss. 590, it was held that a justice of the peace could not grant a new trial. This being true, we do not believe that the justice of the peace had authority to set aside the judgment after the expiration of the term at which it was entered. At common law, the circuit court, or common law court of general jurisdiction, had authority to issue a supersedeas against an execution, and such court had authority to set aside a judgment if it was void or to quash an execution if it was illegally issued in any respect. But we find no provision for any such procedure by the justice of the peace in this state. We do not find where a justice of the peace is authorized to issue a writ of supersedeas and suspend proceedings thereon in this court.

Howell v. Kersh, 119 So. 188.

An attachment proceeding is purely statutory and a judgment rendered by default must comply strictly with the law as provided, and neither one of the judgments complied with the law.

Sections 128 and 2978, Mississippi Code of 1930.

It is contention of appellant that the court has to have some evidence before it that she could not be found in Yazoo county and the only evidence it had was in the incorrect return of Yazoo city.

Collier v. Chamblee, 136 Miss. 257; Section 171, Miss. Code of 1930; Sections 2074 and 2973, Mississippi Code of 1930.

There was no evidence before the court when the judgment was taken the first time that Daisy Walton could not be found in Yazoo county, nor any evidence that notice was posted in three public places, or any evidence that any affidavit was made stating her postoffice address, or any evidence that notice was mailed to Daisy Walton, as none of these facts were disclosed by the judgment, docket entries or the papers before the court.

The notice does not state it was posted in three public places.

Section 171, Code of 1930.

One of the fundamentals of a valid judgment is that the court must have acquired jurisdiction of the person of the defendant, either by process legally served or by voluntary appearance on his part.

Bank of Richton v. Jones, 121 So. 823; Meyer v. Whitehead, 62 Miss. 387; Newman v. Taylor, 69 Miss. 670; Joiner v. Delta Bank, 71. Miss. 382.

The plaintiff cannot resort to parol to make valid a judgment void on its face. So far as the plaintiff is concerned that question is decided by the record alone.

4 C. J. 1326, 1327; Oliver v. Baird, 90 Miss. 722.

Execution writ was void, sale void and deed made thereunder was void.

Section 3012, Code of 1930.

If a person goes into a court of chancery and makes an attack upon a judgment and proceedings had in a court of law, and sets up a ground of defense to the action, and alleges the judgment void ab initio, then it is a direct attack and not a collateral attack.

Duncan v. Gerdine, 59 Miss. 550; Crawford v. Redus, 54 Miss. 700; Sivley v. Sumners, 57 Miss. 712; Drysdale v. Biloxi Canning Co., 67 Miss. 539; 2 Words & Phrases, pages 1249 and 1250.

Barbour & Henry, of Yazoo City, for appellees.

The proceeding is entirely a collateral attack in the chancery court on the judgment of the justice of the peace court.

The testimony shows that the address of Daisy Walton was correctly given all the way through the proceedings and that it was never changed.

The mere recital in the judgment that publication was made is sufficient.

Cotton v. Harlan, 124 Miss. 691.

All jurisdictional facts are conclusively presumed to have existed whether there are recitals in the record to show them or not.

McKinney v. Adams, 95 Miss. 832.

Even if the record failed to show valid process a decree of the chancery court that the process was invalid would not have been sufficient to make the judgment of the justice court void. But on the other hand where the issue was submitted to the court and he reviewed the case and held that the process was good and the judgment was good, we do not believe this court will seriously consider the matter.

The case of Motor Car Co. v. McDonald, 153 Miss. 409, holds that where process was returnable December 5, 1927, through an error instead of December 12, 1927, the magistrate's regular court day, a judgment by default entered on December 12th, the regular court day, was good and an execution issued under it could not be quashed. In other words, if the execution was returnable one week in advance it was automatically returnable to the succeeding court day and there is no claim that any proceeding took place on a void day.

Howard Lbr. Co. v. Hopson, 101 So. 262.

OPINION

Anderson, J.

Appellant filed her bill to set aside and cancel a deed to certain real estate in Yazoo City. The cause was tried on bill, answer, and proofs, resulting in a decree in appellee's favor.

The bill charged that appellant was a resident of the state of Mississippi, and that while temporarily out of the state she was sued by appellee in attachment, upon the ground that she was a nonresident of this state; that judgment was rendered against her in said suit, and execution issued upon the judgment and levied upon property constituting her homestead, which was sold and deed made to appellee, the purchaser at the execution sale. Appellant charges that the proceedings in the justice of the peace court were void, therefore the execution sale was void, and she was entitled to have the deed canceled as a cloud upon her title. The deed conveying the property to appellee was recorded in deed records of Yazoo county, accompanied by a certified transcript of all the proceedings had before the justice of the peace, including a copy of the execution and the officer's return thereon, and is in all respects in full compliance with section 3050, Code 1930.

Appellant attacks the proceedings in the justice of the peace court upon several grounds. The attachment was sued out before C. C. Elliott, a justice of the peace of the county, who issued the attachment writ and entered a judgment for appellee. Elliott died without proceeding further in the cause and was succeeded in office by S.D. Woods. The judgment rendered by Elliott was void for reasons unnecessary to state. Both parties agree that it was void. Appellee, recognizing that the judgment was void, without asking the justice of the peace court to set it aside and without making a new affidavit for attachment or another attachment bond, proceeded to have Woods issue another writ of attachment and have it levied upon the property of appellant. Appellant contends that this amounted to a setting aside of the former judgment by Woods, which under the law he had no right to do, and all the proceedings had before Woods were void for that reason.

Section 2109, Code 1930, provides that whenever the successor to a justice of the peace shall enter upon the duties of his office he is empowered to conclude all business pending in his court "as if the proceedings had been originally instituted before him." The judgment rendered by Elliott being absolutely void, it was not necessary that it be set aside; it was a nullity, and Woods had a right to treat it as such. There was no setting aside of the judgment by Woods because there was no judgment to set aside; when he went into office he found simply a pending cause.

Appellant contends that the judgment and sale and conveyance thereunder were void because the officer's return on the writ of attachment showed that appellant could not be found in "Yazoo City" instead of Yazoo county. The ground of attachment was nonresidence. The affidavit for attachment stated that fact and further gave both the post office and street address of appellant. Under section 137, Code 1930, the officer executing the attachment writ is not required to make an effort to summon the defendant when the affidavit for attachment is upon the ground of nonresidence. The latter part of the section applies;...