Whitley v. Towle, 29921

CourtMississippi Supreme Court
Writing for the CourtGriffith, J.
Citation141 So. 571,163 Miss. 418
Docket Number29921
Decision Date09 May 1932
PartiesWHITLEY v. TOWLE

141 So. 571

163 Miss. 418

WHITLEY
v.
TOWLE

No. 29921

Supreme Court of Mississippi, Division B

May 9, 1932


(Division B.)

1. EXECUTORS AND ADMINISTRATORS. Petition for sale of decedent's lands in W. county to pay debts may be heard by chancellor in S. county within same chancery district (Code 1930, sections 322, 1691, 1694, 1695).

Administrator of estate filed petition for sale of lands of decedent to pay debts of the estate in Washington county, where the estate was being administered and where the lands were situated. Summons directed parties to appear before the chancellor in vacation in named city in Sunflower county, but in the same chancery district.

2. EXECUTORS AND ADMINISTRATORS.

General practice is to make petitions in estate matters returnable before chancellor at place of residence, if court is not scheduled elsewhere.

3. EXECUTORS AND ADMINISTRATORS.

Where petition in estate matter is desired to be heard when chancellor is scheduled in some other county within same chancery district, usual course is to have chancellor set place and date.

4. EXECUTORS AND ADMINISTRATORS.

Where chancellor is present at time and place in district specified in summons, and proceeds to hearing, chancellor's action is equivalent to previous designation of time and place specified in summons.

5. JUDGMENT.

In collateral attack on decree, jurisdictional facts are conclusively presumed to have existed, unless record affirmatively shows contrary.

6. JUDGMENT.

Fact that return of service of process is missing from record held insufficient to warrant setting aside decree on collateral attack.

[163 Miss. 419]

7. EXECUTORS AND ADMINISTRATORS.

Widow, through failure to appear and assert homestead rights in answer to petition to sell deceased husband's lands, waived homestead claim.

HON. S. F. DAVIS, Judge.

APPEAL from the circuit court of Washington county, HON. S. F. DAVIS, Judge.

Action by Harry Towle against Abbie Whitley. Judgment for the plaintiff, and the defendant appeals. Affirmed.

Affirmed.

Wynn & Hafter, of Greenville, for appellant.

It has been held with unvarying uniformity as well as unanimity, that a decree by the probate court, and sale of the land of a decedent without the citation and notice required by the statute, appearing either by positive evidence or recital in the record, is void. Not only as against its express provisions, but because it stands opposed to the universal principle of law and common justice, that no man can be deprived of his rights or concluded in any manner by the judgment of a court, without notice of the proceedings against him, either actual or constructive.

Root v. McFerrin, 37 Miss. 17.

It is a familiar principle, that a judgment is conclusive upon parties and privies, when the court has jurisdiction to render it. Unless such jurisdiction exists, the judgment is a nullity, and may be impeached collaterally. The jurisdiction must extend to the parties, as well as the subject-matter.

Root v. McFerrin, 37 Miss. 17.

If the appellant had been properly and legally served with summons, and had been duly and legally made a party to the proceeding to dispose of the land, even under this circumstance, she would not be estopped from asserting her homestead right in the property. The right of homestead was a right that is set apart to the widow [163 Miss. 420] by statute, as a matter of law; and, if the estate had any interest in the real estate formerly owned by J. H. Whitley in his lifetime, it was the fee simple title to said property for an amount over and above the homestead claim of the appellant. The petition, as filed, did not include a prayer to sell the property in its entirety, including the homestead right, but only asks that the interest of the estate in said real estate be sold.

The decree does not decide that five days' personal service had been had.

Sections 2969, 3052, Code of 1930.

The summons is ineffectual because the clerk of the court of Washington county, Mississippi, did not have the power and authority to issue a summons requiring the defendant to appear before the court held in Sunflower county, Mississippi, and that the decree rendered thereon was a nullity.

The venue is fixed in Washington county, Mississippi, and not in Sunflower county, Mississippi, of a petition to sell property located at Washington county, Mississippi, and owned by an estate being administered in Washington county, Mississippi and the appellant being a citizen and resident of Washington county, Mississippi.

Section 363, Code of 1930.

No matter whether the court be one of original and general, or of special and limited jurisdiction, it must appear, in either case, on the face of the record, that it had jurisdiction by the Constitution or laws of the land, both of the parties and the subject-matter, before it can deprive the citizen of his rights or property by its judgments.

Root v. McFerrin, 37 Miss. 17.

E. J. Bogen, of Greenville, for appellee.

The summons was a substantial compliance with the statutes. [163 Miss. 421]

Sections 2964 and 2965, Code of 1930.

The order of the chancellor for the sale of the land in question, setting out that the necessary service upon all parties had been had, is a sufficient recital in the record for a valid sale.

The appellant lost her right to claim homestead exemption by not asserting it in the chancery suit.

Miller v. Sherry, 2 Wall. 237; Henderson v. Still, 61 Miss. 391.

Where decree of court necessarily passes on a claim of homestead exemption, the decree cannot be questioned collaterally.

New Mexico Nat. Bank v. Brooks, 49 P. 949; Plant v. Carpenter, 19 Wash. 626, 53 P. 1109; Graham v. Culver, 3 Wyo. 655, 31 Am. St. Rep. 120, 29 P. 276.

The exemption of wages is a benefit...

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15 practice notes
  • Mississippi Power & Light Co. v. Smith, 30745
    • United States
    • Mississippi Supreme Court
    • March 12, 1934
    ...Co. v. Trotter, 60 Miss. 442; Railroad v. Humphrey, 83 Miss. 739; Moore v. Johnson, 103 Va. 88; M. & O. R. v. Johnson, 141 So. 581, 163 Miss. 418; M. & O. Railroad v. Bryan, 159 Miss. 528; Flowers v. Springer, 120 So. 198, 152 Miss. 897; Newton v. Homochitto Lbr. Co., 138 So. 564, 1......
  • Henritzy v. Harrison County, 33088
    • United States
    • United States State Supreme Court of Mississippi
    • January 24, 1938
    ...collateral one. Federal Reserve Bank v. Wall, 138 Miss. 204, 103 So. 5; Cotton v. Harlan, 124 Miss. 696, 87 So. 152. In Whitley v. Towle, 163 Miss. 418, 141 So. 571, the court, speaking through Mr. Justice Griffith, held that on a collateral attack a showing that the record does not show th......
  • Christensen v. Merchants' & Marine Bank of Pascagoula, 30646
    • United States
    • United States State Supreme Court of Mississippi
    • October 16, 1933
    ...attacked that all the jurisdictional facts are conclusively presumed unless the record affirmatively shows the contrary. Whitley v. Towle, 141 So. 571, 163 Miss. 418; Federal Reserve Bank v. Wall, 138 Miss. 204; Cotton v. Harlan, 124 Miss. 696. Under the code the chancery court was amply ve......
  • Mcrae v. Ashland Plantation Co., 33922
    • United States
    • Mississippi Supreme Court
    • January 8, 1940
    ...Muse, 60 Miss. 870; Cotton v. Harlan, 124 Miss. 691, 87 So. 152; Fed. Reserve Bank v. Wall, 138 Miss. 204, 103 So. 5; Whitney v. Towle, 163 Miss. 418, 141 So. 571; Brotherhood of Railway Trainmen v. Agnew, 170 Miss. 604, 155 So. 205; Starke v. Gildart, 4 How. (5 Miss.) 267; Cockerel v. Wynn......
  • Request a trial to view additional results
15 cases
  • Mississippi Power & Light Co. v. Smith, 30745
    • United States
    • Mississippi Supreme Court
    • March 12, 1934
    ...Co. v. Trotter, 60 Miss. 442; Railroad v. Humphrey, 83 Miss. 739; Moore v. Johnson, 103 Va. 88; M. & O. R. v. Johnson, 141 So. 581, 163 Miss. 418; M. & O. Railroad v. Bryan, 159 Miss. 528; Flowers v. Springer, 120 So. 198, 152 Miss. 897; Newton v. Homochitto Lbr. Co., 138 So. 564, 1......
  • Henritzy v. Harrison County, 33088
    • United States
    • United States State Supreme Court of Mississippi
    • January 24, 1938
    ...collateral one. Federal Reserve Bank v. Wall, 138 Miss. 204, 103 So. 5; Cotton v. Harlan, 124 Miss. 696, 87 So. 152. In Whitley v. Towle, 163 Miss. 418, 141 So. 571, the court, speaking through Mr. Justice Griffith, held that on a collateral attack a showing that the record does not show th......
  • Christensen v. Merchants' & Marine Bank of Pascagoula, 30646
    • United States
    • United States State Supreme Court of Mississippi
    • October 16, 1933
    ...attacked that all the jurisdictional facts are conclusively presumed unless the record affirmatively shows the contrary. Whitley v. Towle, 141 So. 571, 163 Miss. 418; Federal Reserve Bank v. Wall, 138 Miss. 204; Cotton v. Harlan, 124 Miss. 696. Under the code the chancery court was amply ve......
  • Mcrae v. Ashland Plantation Co., 33922
    • United States
    • Mississippi Supreme Court
    • January 8, 1940
    ...Muse, 60 Miss. 870; Cotton v. Harlan, 124 Miss. 691, 87 So. 152; Fed. Reserve Bank v. Wall, 138 Miss. 204, 103 So. 5; Whitney v. Towle, 163 Miss. 418, 141 So. 571; Brotherhood of Railway Trainmen v. Agnew, 170 Miss. 604, 155 So. 205; Starke v. Gildart, 4 How. (5 Miss.) 267; Cockerel v. Wynn......
  • Request a trial to view additional results

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