Yazoo & M. V. R. Co. v. Williams
| Citation | 138 Miss. 432,103 So. 200 |
| Decision Date | 16 March 1925 |
| Docket Number | 24486 |
| Parties | YAZOO & M. V. R. Co. v. WILLIAMS. [*] |
| Court | United States State Supreme Court of Mississippi |
1 GARNISHMENT. Judgment when void, may be collaterally attacked by garnishee sought to be held by writ based thereon.
A void judgment may be collaterally attacked by a garnishee, where he is sought to be held liable on account thereof on a writ of garnishment based on it.
2 DIVORCE. Return on process held not to render judgment void and so subject to collateral attack.
Return of officer on process for defendant in divorce, "Executed personal service on the within-named party," while not strictly following statutory form, shows that the process was executed personally, and presumably in lawful manner, and so does not render void the default judgment for divorce and alimony founded thereon, as is necessary for collateral attack of judgment.
HON. E. N. THOMAS, Chancellor.
APPEAL from chancery court of Sunflower county, HON. E. N. THOMAS, Chancellor.
Garnishment proceeding by Mrs. Mattie Williams against the Yazoo & Mississippi Valley Railroad Company. From an adverse decree, garnishee appeals; cross-appeal being also prosecuted. Affirmed on direct appeal.
Decree affirmed.
Chapman, Moody & Johnson, for appellant.
On behalf of the appellant it is contended that the money decree against the defendant, is void for the want of legal service of process. The return on the summons, as stated, is There are three modes by which a summons must be executed in order that the court may obtain jurisdiction of the defendant. Sections 2494 and 2495, Hemingway's Code.
The return must show the facts, not conclusions, as to how the writ was executed that the court, not the officer executing the writ, may determine whether there has been a compliance with the law. The facts must be positively stated in the return. From the facts, or want of facts, stated in the return, it is evident that there has not been a compliance with the law. French v. State, 53 Miss. 651; Dogan v. Barnes, 24 So. 965; Carrolton Hardware Co. v. Marshall, 78 So. 7.
We submit that a legal return is essential to the jurisdiction of the court to proceed to judgment, unless, of course, the defendant appears. No valid judgment by default can be taken where there is no return by the officer serving the writ, or where the return is so faulty or defective as not to show legal service of the writ. That is what appears in this case. 33 C. J. 1093; Moore v. Hoskins, 6 So. 500; Acme Lbr. Co. v. Vandergrift, 11 So. 657.
A valid judgment against the original defendant is essential to the validity of a final judgment against the garnishee, and, the garnishee is entitled to assert objections to the proceedings against the principal defendant which are of a jurisdictional character, or which would render the judgment void. Certainly in a suit like this you can do so on appeal. 28 C. J. 21; 28 C. J. 319; 28 C. J. 276; Schaller v. Marker, 114 N.W. 43; Gobbert v. Wallace, 5 So. 394.
J. O. Day, B. B. Allen and P. W. Allen, for appellee.
I. It is our contention that the original returns and original decree taken thereon may not now be attacked in this suit by the appellants who were not parties to it, nor may the verity and solemnity of this decree of a court of competent jurisdiction be attacked in this or in any other action, unless for such defects as render the judgment or decree therein complained of null and void; and, that any attack on this original judgment by strangers is a collateral attack, and cannot be made. But we desire to say in passing that the returns in the garnishment suit were regular and complied with the law. Section 1936, Hemingway's Code.
II. Appellants have waved any defect or irregularity that may have been in the returns by taking their appeal. It is a well-settled principle of law that an appearance at any time works a waiver of all defects in the returns and irregularities in the proceedings of the judgment in the lower court. Bustamenti v. Bescher, 43 Miss. 172; Young v. Rankin, 4 How. 27; Henderson v. Hammer, 5 How. 525; Graves v. Fulton, 7 How. 529; Memphis R. R. Co. v. Glover, 78 Miss. 467, 29 So. 89; Harrison v. Agricultural Bank, 2 S. & M. 307; Baird v. Ga. P. R. R. Co., 12 So. 547; Railroad Co. v. Wallace, 50 Miss. 244.
The garnishee cannot complain that the judgment against the defendant is based upon a defective service of process, and is therefore, irregular and voidable as to defendant. Hinds v. Miller, 52 Miss. 845; 2 R. C. L. 336; Ridenbaugh v. Sandlin, 14 Id. 472, 124 Am. St. Rep. 175, 94 P. 827; 2 R. C. L. 333.
Appellants are undertaking to make a collateral attack on a judgment of a court of competent jurisdiction. This may not be done. Any defect or irregularity that may appear in the original proceedings inures to the benefit of the original defendant on direct appeal only, and not to a stranger to that judgment. Edwin v. Heath, 50 Miss. 795; Lumpkin v. Russell, 108 Miss. 742, 67 So. 185. So we see that such a return may be amended, and if so then it is not void, but only voidable, and being only voidable is not subject to collateral attack. Rigby v. Lefevre, 58 Miss. 639; Campbell v. Hays, 41 Miss. 561; Harrington v. Wofford, 46 Miss. 31.
Should this court be of the opinion that this return is defective, or that it ought to be amended, then it is subject to amendment under section 2945, Hemingway's Code, and is not void. Hence we see that this writ and return are not void but only at most voidable, and being so, are not subject to being attacked collaterally as appellants in this appeal are trying to do. Sadler v. Trustees of Prairie Lodge, 59 Miss. 572; McCallum v. Spinks, 91 So. 694; Reeves Gro. Co. v. Thompson, 105 Miss. 729; Matheny v. Galloway, 12 S. & M. 475; Hale v. State, 72 Miss. 140, 16 So. 387; 23 Cyc. 872; Wright v. Edwards Hotel & City Ry. Co., 101 Miss. 470, 50 So. 332; Cannon v. Cooper, 39 Miss. 784; Allen v. Dicken, 63 Miss. 91; A. & V. R. R. Co. v. Thomas, 86 Miss. 27, 38 So. 770; Hanks v. Neal, 44 Miss. 212; Parisot v. Green, 46 Miss. 747; Wall v. Wall, 28 Miss. 409.
And we might continue on with a recitation of authorities on this proposition, all of which go to show that in a proceeding of this kind, it is not permitted of appellants to assail the decree of the court below rendered in a separate and independent suit. That decree imports verity, and may only be reached, where the proceedings are merely irregular or voidable, by a direct appeal by a party to it, and not by a stranger to the judgment or decree.
Mrs. Mattie Williams sued Henry Williams for a divorce and for alimony, and process was issued upon the filing of the bill for defendant on April 5, 1923, and the return upon the process is in the following language:
At the next ensuing term of court, the chancellor rendered a decree granting a divorce to the complainant, Mattie Williams, and awarding to her alimony in the sum of fifteen dollars per month and sixty dollars attorney's fee. On June 9, 1923, Mrs. Williams, by her solicitor, filed a written suggestion that the Yazoo & Mississippi Valley R. R. Co. was indebted to the defendant, and a writ of garnishment was issued on the 18th day of July, 1923, and process duly and legally served on the garnishee, the Yazoo & Mississippi Valley Railroad Company. At the return term of the writ of garnishment, on December 12, 1923, the chancellor entered a judgment by default in favor of Mrs. Mattie Williams and against the garnishee, the Yazoo & Mississippi Valley Railroad Company, in the sum of sixty-five dollars, reciting that the processes and proceedings theretofore were regular, proper, and in due form.
On May 12, 1924, the clerk of the chancery court issued an execution returnable the first Monday of May, 1924, against the Yazoo & Mississippi Valley Railroad Company, which was returned indorsed as follows:
At the December, 1924, term of that court, Mrs. Mattie Williams, the complainant below, filed a motion to correct the return of the officer in the original divorce case, and attached thereto a copy of an entry from the sheriff's docket, the mesne process docket K, at page 76 thereof, as to the return on the original writ, to-wit:
And the chancellor, after hearing proof and examining the mesne process docket, overruled the motion to amend the original process in the divorce case, from which Mrs. Mattie Williams prosecutes a cross-appeal here. But, in view of the conclusion reached by us, it will not be necessary for us to refer to or decide the questions presented by the cross-appeal. The main ground for reversal, as set up by the appellant, the Yazoo & Mississippi Railroad Company, is that the judgment by default against the original defendant, Henry Williams, who has never entered an appearance, is void because of the defect in the return, the return not showing the exact manner in which the process was served upon the defendant, Henry Williams.
Appellees insist that the judgment is not void and contend that the garnishee, the Yazoo &...
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