Weisinger v. McGehee
| Decision Date | 04 May 1931 |
| Docket Number | 29358 |
| Citation | 134 So. 148,160 Miss. 424 |
| Court | Mississippi Supreme Court |
| Parties | WEISINGER v. MCGEHEE |
1 JUDGMENT.
Issues outside jurisdiction of court to determine in particular case cannot become res judicata by virtue of judgment.
2 JUDGMENT. Judgment in election contest over office of county superintendent, in view of issues determined, held not res judicata, in subsequent quo warranto proceeding, of issue involving contestant's removal from state (Code 1930 section 6258).
In election contest case, brought under Code 1930, section 6258, sole issue which court was authorized to submit to jury involved finding as to which person had greatest number of legal votes at the election. On appeal in that case, Supreme Court did not pass on question whether contestant, though successful, had removed from state and was thereby disqualified from holding office.
3. COURTS.
Where court in former case expressly declined to determine particular question, statements relative thereto were not within rule of stare decisis.
4. OFFICERS.
Term "inhabitant," within constitutional provision designating persons eligible to public office, includes concept of residence with intention of making home within state (Const. 1890, sections 241, 250; Code 1930, section 2908).
5. DOMICILE.
When woman marries, her domicile, and therefore legal residence, becomes that of husband.
6. SCHOOLS and SCHOOL DISTRICTS.
Successful candidate for county school superintendent, having subsequent to election, married man not resident of state and having removed therefrom, held not "inhabitant" of state and therefore disqualified to hold office (Const. 1890, sections 241, 250; Code 1930, section 2908).
APPEAL from circuit court of Franklin county., HON. E. L. BRIEN, Special Judge.
Quo warranto proceedings by Mrs. Ada Weisinger against Mrs. J. C. McGehee. From a judgment dismissing the information, plaintiff appeals. Affirmed.
Affirmed.
Kennedy & Geisenberger, of Natchez, for appellant.
When jurisdiction has once attached, the court has a right to decide any question arising in the case and errors of judgment or irregularities, however gross, which do not render the judgment absolutely void, are not available on collateral attacks.
A collateral attack cannot be made on a judgment nor its enforcement enjoined, where the court had jurisdiction of the parties and the subject-matter, however erroneous the judgment might be.
64 Miss. 409, 18 So. 847; Moore v. Ware, 51 Miss. 206; 34 C. J. 560; Crisco v. Adams, 123 Miss. 157.
Matters actually litigated and determined are res adjudicata.
Vinson v. Colonial & U. S. Mortgage Co., 116 Miss. 59.
The great preponderance of authority sustains the rule that the estoppel of the judgment covers all points which were actually litigated and which actually determined the verdict or finding, whether or not they were technically an issue on the face of the pleadings but a matter is not in issue in a suit which was neither pleaded nor brought into the contest therein.
Though a second suit is based upon a different demand, still a question of fact distinctly in issue and directly determined is conclusively established between the parties and is a bar to a re-adjudication of the same right, question or fact in a subsequent suit.
West Virginia National Bank v. Spencer, 77 S.E. 269; In re Evans, 53 L. R. A. 952; Lokowich v. City of Helena, 129 P. 1063.
The identity of the husband and wife is a fiction that does not prevail over the facts.
Williamson v. Osenton, 232 U.S. 619.
The question of this appellant's qualifications was a necessary issue in the election contest case? If the appellant had in fact been disqualified from holding the office, she could not maintain the suit in the election contest case.
Guice v. McGehee, 125 So. 433.
No one has challenged the right of this appellant to vote at Meadville, Mississippi; she has voted and paid her poll tax even up until the date of this trial. The election commissioners, with all this litigation pending, have continued to carry her name on the poll books and she has voted without ever having been challenged and is qualified to hold office.
McHenry v. State, 119 Miss. 301.
There is no prohibition against the husband having the same domicile as has the wife.
Where facts are conflicting the presumption is strongly in favor of an original, as against an acquired domicile, and a domestic rather than a foreign domicile.
The domicile of the husband is that of the wife only when the husband provides a domicile where the wife may go and stay at will. Under modern statutes affecting the status of married women it has been suggested that there is no reason why a wife should not require a separate domicile for any purpose known to the law. But the domicile of the husband is at least prima facie the domicile of the wife.
L. A. Whittington of Natchez, D. R. McGehee, of Meadville, and Wells, Jones, Wells & Lipscomb, of Jackson, for appellees.
When a woman marries, her domicile becomes that of her husband.
10 Am. and Eng. Enc. of Law, page 32; Hairston v. Hairston, 27 Miss. 704; Bates v. Incisa, 59 Miss. 313; Suter v. Suter, 72 Miss. 345.
It did not lie within the right of the relator to say where her residence was or what her domicile would be; the wife cannot fix the domicile, it must be and is fixed by the husband.
McHenry v. State ex rel. Rencher, 119 Miss. 289, 80 So. 763.
In order that a judgment may operate as res adjudicata and be conclusive evidence of a fact sought to be established by it, it must be made to appear that the same fact not only was in issue and determined in the former suit, but that it was a material fact therein. Facts found which were not necessary to uphold a former judgment do not conclude the parties.
15 R. C. L., par. 453, page 980.
In an election contest the statute seems to confine the inquiry to the question of who received a majority of the legal votes.
Pradat v. Ramsey, 47 Miss. 24.
Section 2816 of the Code of Mississippi 1917 provides that if any county officers shall remove out of the state, district or county for which he was elected or appointed, during the term of his office, such office shall thereby become vacant and the vacancy shall be supplied as the law directs.
The appellant filed an information in the nature of a quo warranto against the appellee to try the right to the office of superintendent of education of Franklin county, which office was claimed by both, the duties of which were being discharged by the appellee. From a judgment dismissing the information the appellant has brought the case to this court.
It will not be necessary to set forth the pleadings by which the questions for decision were presented, and no attempt will be made to do so.
It appears from the record that the parties hereto were candidates for the office of county superintendent of education of Franklin county in a special election held therefor in December, 1928; and the appellee was declared elected by the election commissioners, which declaration was contested by the appellant, under the provisions of the statute now appearing as section 6258, Code 1930. This proceeding finally resulted in a judgment for the appellant. The appellee declined to surrender the office, notwithstanding this judgment, necessitating this proceeding to try the right thereto.
The appellee admits the validity of the certificate of election awarded the appellant by the judgment of the court in the contested election case, her contention being that the appellant has removed from the state, and is therefore ineligible to the office into which she seeks to be inducted.
Under sections 241 and 250 of the state Constitution, inhabitants of the state only are eligible to public office, and the statute appearing as section 2908, Code of 1930, provides: "If any state, district, county, county district, or municipal officer shall remove out of the state district, county, or municipality for which he was elected or appointed, during the term of his office, such office shall thereby become vacant, and the vacancy be supplied as by law directed." If the appellant has removed from the state, she has lost the right which her election gave her to the office.
One of the appellant's contentions is that whether she has removed from the state was presented to, and decided by, the court in the contested election case, and is therefore a closed question here. The question is, not whether the appellant was a resident of the state when the contested election case was decided, but whether she is such now. We will assume for the purpose of the argument, but without deciding, that if the judgment in the contested election case is within the rule of res adjudicata here, it would render incompetent some of the evidence introduced by the appellee in support of her claim that the appellant is not eligible to the office of county superintendent.
The appellant, at the time of the special election, and when the contest growing thereout was pending, was an unmarried woman her surname being Guice. After that case reached this court on appeal, a motion was made therein by the present appellee to dismiss the appeal, for the reason that the appellant had removed from the state, and therefore was ineligible to the office. In reversing the judgment of the court below, and remanding the case for a new trial, the court (Guice v. McGehee, 155 Miss. 874, 124 So. 643, at page 648) stated why it would not sustain the motion to dismiss the appeal, and said, "We do not decide whether either this court or the...
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