Wentworth v. Flowers

• Decision Date: 23 February 1932
• Docket Number: 29777
• Citation: 139 So. 624,163 Miss. 39
• Court: Mississippi Supreme Court
• Parties: WENTWORTH v. FLOWERS et al

139 So. 624

163 Miss. 39

WENTWORTH v. FLOWERS et al

No. 29777

Supreme Court of Mississippi

February 23, 1932

Division A

1. JUSTICES OF THE PEACE.

On collateral attack of judgment of justice of the peace rendered by default on constructive service, all jurisdictional facts not expressly adjudicated in judgment will be presumed.

2. JUSTICES OF THE PEACE.

Where judgment of justice of peace in attachment proceeding adjudicated that notice was given to nonresident defendant by mail addressed to post office address, there was no presumption that service of notice was completed by posting notices (Code 1930, section 171).

3. JUSTICES OF THE PEACE.

In attachment proceedings in justice of peace court, mailing notice to nonresident defendant alone held insufficient notice (Code 1930, section 171).

4. JUSTICES OF THE PEACE.

Where judgment in attachment proceeding in justice of peace court was not based on sufficient notice to nonresident defendant to require his appearance, it was void, and sale conferred no title on purchaser (Code 1930, section 171).

HON. R W. CUTRER, Chancellor.

APPEAL from chancery court or Franklin county HON. R. W. CUTRER Chancellor.

Suit by W. L. Wentworth against Mrs. Lennie Flowers and husband. From a decree for defendants, complainant appeals. Affirmed.

Affirmed.

Whittington & McGehee, of Meadville, for appellant.

The only question involved in this case is whether or not the judgment in attachment was valid and legal. If it was, then title to the property is in the appellant and should be confirmed, the sale made by the constable being in all respects regular and the deed being in all respects regular and valid. The rights of the parties herein depend upon the construction to be given to section 171 of the Code of 1930 providing for proceedings in attachments before justices of the peace.

It is the contention of the appellee that section 575, Code of 1930, controls in so far as it provides that judgment by default shall not be entered at the return term, unless it appears that the process has been served personally on the defendant.

Section 575 controls procedure in the Circuit Court.

Section 171 controls procedure in the Justice Courts.

It is the contention of the appellant that section 171 was fully complied with in rendering the judgment herein.

OPINION

Cook, J.

The appellant, W. L. Wentworth, filed a bill in the chancery court of Franklin county against Mrs. Lennie Flowers and her husband, Mack Flowers, seeking to quiet and confirm his asserted title to certain lands which were claimed by the defendants, appellees here.

The appellant claimed title to the land and property in question under and by virtue of a sale under an execution issued upon a judgment rendered in an attachment proceedings, and the record of the attachment proceedings and sale thereunder appears to be, in all respects, regular, except in one material respect hereinafter discussed.

The record discloses that the property in controversy was formerly the homestead of Alva Thornhill and the appellee, Mrs. Lennie Flowers, who was then the wife of the said Thornhill.

Alva Thornhill abandoned his homestead and moved to Louisiana, and, on the 19th day of September, 1929, the appellee was divorced from him.

On August 31, 1929, an attachment suit against the said Alva Thornhill was filed in the justice of the peace court and made returnable on September 7, 1929, and on September 13, 1929, upon an affidavit being filed alleging that the defendant in attachment was a nonresident, and that his post office address was Winnsboro, La., the justice of the peace mailed to said defendant notice of the pendency of the attachment against him, requiring the appearance of said defendant before the justice of the peace court on October, 19, 1929, and made proper proof of such mailing.

On October 19, 1929, a regular term day of the justice of the peace court, the defendant Thornhill failed to appear, and a judgment by default was rendered against him, which ordered the issuance of a special execution for the sale of the property levied upon. Thereafter this execution was issued, and, upon proper notice, the land was sold and conveyed to the appellant by the constable of the district; the proceedings of the constable under the execution appearing, in all respects, to be regular.

The judgment in attachment upon which the special execution was issued recites that affidavit was filed by the plaintiff, as required by...