Willis v. Tomes

• Decision Date: 05 January 1911
• Citation: 132 S.W. 1043,141 Ky. 431
• Parties: WILLIS v. TOMES et al.
• Court: Kentucky Court of Appeals

132 S.W. 1043

141 Ky. 431

WILLIS v. TOMES et al.

Court of Appeals of Kentucky.

January 5, 1911

Appeal from Circuit Court, Grayson County.

Action by J. J. Tomes and another against J. S. Willis and another consolidated with a motion by defendant named for a writ of possession. From a judgment for plaintiffs, defendant named appeals. Affirmed.

Milton Clark, for appellant.

G. W Stone, for appellees.

CLAY C.

In July, 1905, appellant, J. S. Willis, instituted an action before W. F. Spicer, a justice of the peace of McLean county against H. C. Willis, James Lowe, and appellee J. J. Tomes. The petition is as follows: "The plaintiff, J. S Willis, says that he is a citizen and a resident of McLean county, Ky. and that the defendant H. C. Willis is also a citizen and resident of McLean county, Ky. and that the defendants James Lowe and J. J. Tomes are citizens and residents of Edmonson county, Ky. Plaintiff says that on the ___ day of ___, 1904, he employed the defendant H. C. Willis to make cross-ties on about 90 acres of land belonging to this plaintiff at 10 cents per tie, for which said Willis went to work for this plaintiff and worked till the defendants James Lowe and J. J. Tomes came upon the land of plaintiff and ordered the defendant H. C. Willis to stop making said ties, and he at their orders stopped and refused to make said ties. Plaintiff says that at the time he employed H. C. Willis to make said ties he was to work all said timber on said land, which would have made 2,000 ties, and at that time ties were worth 33 cents per tie, but at present he is not able to get but 28 cents per tie, and the inspection is closer and harder than then, all of which plaintiff has been damaged in the sum of $99; and therefore plaintiff prays judgment against the defendant for $99, and his costs herein expended and for all proper relief." When the suit was brought, H. C. Willis was a citizen and resident of McLean county, while James Lowe and appellee Tomes were citizens and residents of Edmonson county. Process was executed on H. C. Willis in McLean county and on Lowe and Tomes in Edmonson county during the month of September, 1905. At the December term, 1905, of the justice's court, judgment was rendered by default against all the defendants to the action for the amount sued for, together with interest and costs. Thereafter an execution issued on this judgment to McLean county and was returned by the sheriff of that county, as to the defendant H. C. Willis, "No property found." Another execution was issued on the judgment to Edmonson county and was returned by the sheriff of that county, as to the defendants Lowe and Tomes, "No property found." In July, 1908, J. S. Willis, the plaintiff in that action, procured a transcript of the judgment rendered in the McLean justice's court, together with the taxation of costs, filed the same in the office of the clerk of the McLean circuit court, and caused an execution to issue thereon and to be placed in the hands of the sheriff of Grayson county. The sheriff levied the execution on a tract of land in Grayson county belonging to J. J. Tomes. He then advertised the land for sale, and sold 45 acres of it in satisfaction of the execution. After the sale of the land, appellees J. J. Tomes and his wife, Sarah J. Tomes, brought this action in the Grayson circuit court against J. S. Willis and the sheriff of Grayson county for the purpose of restraining the latter from conveying the land to appellant. In his petition and other pleadings, appellee charged that he was a nonresident of McLean county; that he was improperly joined in the action with the defendant H. C. Willis; that the court rendering the judgment had no jurisdiction of his person; and that the judgment and all proceedings thereunder were void. Appellee further pleaded that the land sold was exempt as a homestead. Appellant filed a special demurrer to the jurisdiction of the Grayson circuit court, and, without waiving this demurrer, pleaded to the merits. While the issues were being formed, and before the day of trial, appellant caused notice to be executed on appellee Tomes to the effect that on the 18th day of January, 1910, he would move the Grayson circuit court to award him a writ of possession of the land sold under the execution. To this motion appellee filed a written response, in which he pleaded that the judgment upon which the execution issued was void. Upon the trial of the case the motion for a writ of possession and the equity action were consolidated and heard together. Upon submission of the case the chancellor held that the judgment rendered in the McLean justice's court and all the proceedings heard thereunder were void, and judgment was entered accordingly. From that judgment this appeal is prosecuted.

The first question to be submitted is: Did the Grayson circuit court have jurisdiction? Section 285, Civ. Code, is as follows: "An injunction to stay proceedings on a judgment shall not be granted in an action brought by the party seeking the injunction in any other court than that in which the judgment was granted. Nor shall such injunction be granted unless the party applying therefor make affidavit that no injunction has been previously granted to stay the proceedings on said judgment." This court has construed this section and similar statutes in a number of cases. In the case of Davis v. Davis, 10 Bush, 274, it was held that an injunction to stay proceedings upon a judgment can only be granted in the court rendering it; that this rule applied to justice's, as well as to circuit, courts; and that a judgment in a justice's court must be enjoined in that court, although by reason of accrued interest the amount in controversy exceeds the jurisdiction of the court. It has also been held that a circuit court has no jurisdiction to enjoin the sale of property under an execution upon a judgment rendered in a justice's court (C. & O. R. R. Co. v. Reasor, 84 Ky. 369, 1 S.W. 599); or a quarterly court (McConnell v. Rowe, 1 S. W. 582, 8 Ky. Law Rep. 343 ^[1]); or a county court (Stahl v. Brown, 84 Ky. 325, 1 S.W. 540); or the Court of Appeals (Shackelford v. Patteson, 110 Ky. 863, 62 S.W. 1040, 23 Ky. Law Rep. 316). It has also been held that, when an execution issues on a judgment in the quarterly court and is returned "No property found," and an execution is then obtained in the circuit court on a transcript filed in the clerk's office of that court, an action to enjoin the collection of the execution must be filed in the quarterly court. Neeters v. Clements, 12 Bush, 359. In the case of Robinson v. Carlton, 123 Ky. 419, 96 S.W. 549, 29 Ky. Law Rep. 876, it was held that one who was not a party to an action in which a void judgment was rendered might attack the judgment collaterally. In the cases of Stevens v. Deering, 9 S. W. 292, 10 Ky. Law Rep. 393, and Spencer v. Parsons, 89 Ky. 577, 13 S.W. 72, 25 Am. St. Rep. 555, it was held that a void judgment might be resisted in any court in which it was attempted to be enforced, and not merely in the court in which it was rendered. In the later case of Jacobson v. Wernert, 41 S.W. 281, 19 Ky. Law Rep. 662, the court confined the doctrine announced in Stevens v. Deering and Spencer v. Parsons, supra, to cases where the plaintiff was seeking to enforce the judgment, and held that it did not apply, even though the judgment was void, in cases where it was sought to enjoin the judgment. The latest expression of this court upon the question may be found in Combs v. Sewell, 59 S.W. 526, 22 Ky. Law Rep. 1026, and Boyd v. Board of Councilmen, 117 Ky. 199, 77 S.W. 669, 25 Ky. Law Rep. 1311, 111 Am. St. Rep. 240. In the first case mentioned it was held that a void judgment of the county court could be enjoined in the circuit court. In the last-mentioned case it was held that, if the court in which the judgment was rendered had no civil jurisdiction, an injunction might be obtained in a court other than the court rendering the judgment.

From the foregoing it will be seen that there is some conflict in the opinions of this court. Our conclusion is that the court erred in announcing the rule set forth in the case of Jacobson v. Wernert, supra, and that the true rule is announced in Combs v. Sewell, supra, the latest utterance of the court upon this subject, that a void judgment may be enjoined in any court of competent jurisdiction, and not merely in the court rendering the judgment. Nor is this conclusion a violation either of the letter or spirit of section 285 of the Civil Code, for a void judgment is a nullity, and therefore no judgment at all. It follows that Jacobson v. Wernert, 41 S.W. 281, 19 Ky. Law Rep. 662, and all other cases announcing the same doctrine, in so far as they conflict with the foregoing rule, should be and they are hereby overruled.

For the convenience of the profession, we may say that there are two exceptions to section 285, which provide that an injunction to stay proceedings on a judgment shall not be granted, in an action brought by the party seeking the injunction, in any other court than that in which the judgment was rendered: (1) Where the judgment is void. (2) Where the court rendering the judgment has no civil jurisdiction.

As the land in controversy is located in Grayson county, and as appellee could enjoin the judgment of the McLean justice's court, if void, in any court of competent jurisdiction, it follows that the judgment of the Grayson circuit court was proper, provided that the judgment of the McLean...