Wilkerson v. Swayze

• Decision Date: 06 June 1927
• Docket Number: 26544
• Citation: 113 So. 327,147 Miss. 141
• Court: Mississippi Supreme Court
• Parties: WILKERSON v. SWAYZE et al. [*]

113 So. 327

147 Miss. 141

WILKERSON v. SWAYZE et al. ^[*]

No. 26544

Supreme Court of Mississippi

June 6, 1927

Division A

Suggestion of Error Overruled June 29, 1927.

APPEAL from chancery court of Yazoo county.

HON. V J. STRICKER, Chancellor.

Suit by Lillian Wilkerson against D. A. Swayze and others. Decree of dismissal, and complainant appeals. Affirmed and judgment rendered.

Affirmed.

T. H. Campbell and Ruth Campbell, for appellant.

I. The agreed statement of facts shows that complainant was an illegitimate child of Lutie Perry and that the decree attempting to remove the disabilities of minority of complainant was rendered in vacation. The sole question decided by the chancellor was that the proceedings had for the removal of the disabilities of minority of complainant were valid. It is from the decree based on this opinion that this appeal is prosecuted.

The appellant attacks the decree removing her disabilities of minority on the ground that the decree attempting to remove such disabilities was rendered in vacation, and the chancellor was without jurisdiction to render the decree in vacation for the reason that the petition on which the decree was rendered was made returnable to term time and was not triable in vacation.

This court in Wilson et al. v. McCorkle, 99 So. 366 decided that a false averment of a necessary jurisdictional fact constitutes a constructive fraud that renders the decree based thereon void. A petition for the removal of disabilities of minority may be returnable in vacation, but unless it is made returnable in vacation, section 301, Hemingway's Code controls.

This is purely a statutory proceeding and the statute must be strictly complied with; and in our opinion the actual issuance of process was necessary because the statute provides that "any relative or friend of the minor may appear and resist the application." However, the fatal and inherent defect in the proceedings attempting to remove the disabilities of complainant lies in the fact that the decree was rendered in vacation instead of term time.

The law is too well settled to cite authority to the effect that a judgment prematurely rendered is absolutely void. The court had no jurisdiction of the parties although he had jurisdiction of the subject-matter. In order to render a valid decree the law requires that the court must have jurisdiction of the parties as well as the subject-matter.

While the chancellor has jurisdiction to remove disabilities of minority in vacation, the cause must be made returnable in vacation or the parties must consent to the rendition of a decree in vacation. See Newman Lbr. Co. v. Pace et al. (Miss.), 102 So. 570; Callicott v. Horn (Miss.), 102 So. 850; Lake v. Perry, 95 Miss. 550; Marks v. McElroy, 67 Miss. 545 at 565; Ex parte Stanfield, 98 Miss. 219.

The facts in Poole v. Jones, 136 Miss. 645, are so different from the facts of the case at bar that a mere statement of these facts will convince the court that the Poole case decides nothing antagonistic to our position in this case and our contention, unless it be that "any relative or friend of the minor" is not a necessary party and need not have notice.

In the case at bar neither the petition nor the answer contemplated that it should be heard in vacation. It cannot be said, therefore, that the chancellor had jurisdiction of the defendant, L. M. Perry, at the time the decree was rendered. The decree was, therefore, a nullity and could not have life infused into it at the next term of court, or any succeeding term, because of the failure of the defendant to appear thereafter and object. See Ex parte Stanfield, 98 Miss. 219, which is decisive of the question.

The only power given by statute whereby the chancellor can remove disabilities of minority in vacation is section 263, Hemingway's Code. The petition for the removal of the disabilities was drawn under the code section above mentioned and prayed for process "as required by statute." On the petition, when filed, the clerk would have been required to issue process under section 2924, Hemingway's Code.

We grant that the defendant did admit the facts alleged in the petition to be true and we grant further that she stated in her waiver or answer that she joined in the petition and thought the relief should be granted, yet, we reply, the defendant did not consent that the relief prayed for should be granted any sooner than the time to which the petition made the process returnable, which was some five months later than the date of the decree rendered in vacation.

II. The procedure for the removal of disabilities of minority is purely a statutory proceeding and our statutes do not contemplate or provide for the removal of the disabilities of minority of an illegitimate. See section 301, Hemingway's Code.

Wise & Bridgforth, for appellees.

I. No fraud involved in removal of appellant's disabilities of minority. The appellant says that "The petition falsely and fraudulently alleges that the father of said Lillian W. Perry is dead, when in truth and in fact, said minor was illegitimate and had no father." But see Griffith, Mississippi Chancery Practice, section 341. Fraud is never presumed and must be pleaded with particularity. Weir v. Jones, 84 Miss. 602, 36 So. 533; Equitable Life Ins. Co. of U. S. v. Weil, 103 Miss. 186, 60 So. 133; Ann. Cas. 1915B 636.

The fact that an allegation is untrue does not even remotely show that it was fraudulently made--the false statement must have been knowingly made with fraudulent intent, and the pleadings must so show. Wilson v. McCorkle, 135 Miss. 525, 99 So. 366.

II. Process waived for removal of appellant's disabilities of minority. If it be necessary that process be actually issued and that process be actually served, it is because the statute actually requires it and does so in such a manner that the parties cannot waive it. That such is not the case and that in the proceeding for removal of a minor's disabilities a parent may waive both the issuance and service of process has been decided by this court. Poole v. Jones, 136 Miss. 645, 101 So. 786.

It is elementary law that the filing of an answer by a defendant not served with process is a waiver of the issuance and service of process, and just as effectively so as any written statement. 4 C. J. 1335 and 1353; 2 R. C. L. 330, 335-337, inclusive. Any other rule would be repugnant to legal logic.

III. The removal of appellant's disability of minority in vacation was valid. The appellant in the removal of her disabilities of minority, by the proceedings outlined above, manifestly was proceeding under section 544, Code of 1906, brought forward as section 301, Hemingway's Code. As the proceedings were had in 1915, this section and the one just preceding (section 543, Code of 1906; section 300, Hemingway's Code) provided a complete scheme for the removal of disabilities in contradistinction to the ex parte proceedings provided by section 545, Code of 1906. This scheme of removal of an infant's disabilities of minority is, of course, purely statutory and is not a matter of inherent chancery jurisdiction; therefore, the statutory steps provided in the sections above cited must be complied with. Lake v. Perry, 95 Miss. 550, 49 So. 569. See Marks v. McElroy, 67 Miss. 545, 7 So. 408. This court has, however, passed upon what constitutes a compliance with these various steps in most instances.

This court has held that these steps need not necessarily be actually performed according to strict, written word. Thus the application or petition must be filed; yet in applying the sister statute next following, section 545, Code of 1906, in Eastman-Gardner Co. v. Leverett, 141 Miss. 96, 106 So. 106, this court has approved the doctrine of virtual filing of such petitions, holding that when such petitions are acted on by the chancellor, prior filing will be presumed. This court has expressly said in Poole v. Jones, supra, where no process was ever issued or ever served that these steps may be waived by the defendants. This shows that a proceeding to remove an infant's disabilities of minority is not a magic rite or sacrosanct ritual.

The court sees that this statute does not govern the time of the hearing on such petitions; it does not say that the hearing shall be had "as in other suits." Since the statute presenting the procedural steps does not provide that the time or place for the hearing of applications or petitions therein provided for shall be as in other cases or suits, it would seem that where process is not waived, the hearing might be at any time, after service thereof is complete; and where waived, at any time thereafter agreeable to the chancellor and the parties, in view of the fact that the chancellor now has complete vacation powers in such matters. Section 546, Code of 1906 (section 303, Hemingway's Code).

That time of hearing may be waived by the defendant in matters of general chancery practice is well accepted law. 10 Ency. of Pl. & Pr., 14 and 15. See, also, Hart v. Bloomfield, 66 Miss. 100, 5 So. 620. Sections 506 and 507, Code of 1906 (section 262 and 263, Hemingway's Code) would together justify the rendering of such a decree at any time in vacation. See Griffith's Miss. Ch. Pr., section 618, page 700.

The Poole case becomes authority directly in point, that in view of section 263, Hemingway's Code (section 507, Code of 1906) the removal of appellant's disabilities of minority was legal.

IV. Removal of illegitimate minor's disabilities was legal. The contention that the court under the statutes had no power to remove the disabilities of a minor who is an illegitimate we think is plainly untenable. Section 1585, Code of 1906 (section 1352, Hemingway's Code), under chapter...