Opinion
No. 43684.
November 15, 1965.
1. Attachment in Chancery — writ quashed and bill dismissed as to wife who owned no interest in land.
Bill of complaint of judgment creditor bringing, by nonresident attachment, suit on judgment against husband and wife judgment debtors showed on its face that land did not belong to wife, and Court was correct in quashing writ of attachment and dismissing bill as to wife.
2. Attachment in Chancery — judgment creditor's suit on judgment — copy of foreign judgment exhibited to bill — sufficient to meet statutory requirements.
In judgment creditor's suit on judgment, attaching copy of judgment as exhibit to bill of complaint was sufficient compliance with statutory requirement that copy of any writing on which action is founded be attached to bill of complaint; and quashing of writ of attachment and dismissing bill as to judgment debtor on ground that copy was not properly authenticated was error. Secs. 1412, 1469, Code 1942.
3. Evidence — judgment creditor's suit on judgment — copy of foreign judgment exhibited to bill — sufficiency of authentication of judgment, a question of evidence and not of pleading.
Sufficiency of authentication of copy of foreign judgment attached as exhibit to bill of complaint of judgment creditor suing on judgment is question of evidence and not of pleading. Secs. 1412, 1469, 1746, Code 1942.
4. Evidence — judgment creditor's suit on judgment — copy of foreign judgment exhibited to bill — how judgment authenticated.
Judgment creditor bringing, by nonresident attachment, suit on judgment may proceed under state statute making admissible certified copies of records of any writing recorded by laws of any other state, or under federal statute providing for full faith and credit. 28 U.S.C.A., Sec. 1738; Sec. 1746, Code 1942.
Headnotes as approved by Ethridge, P.J.
APPEAL from the Chancery Court of Jones County, L.B. PORTER, Chancellor.
Kenneth E. Bullock, Wm. H. Odom, Laurel, for appellant.
I. The lower court erred in dismissing the suit on motion to quash. Cole v. Cole, 194 Miss. 292, 12 So.2d 425; Griffith's Mississippi Chancery Practice (2d ed.), Secs. 400, 400a.
II. The lower court erred in finding that the foreign judgment sued on was not entitled to full faith and credit by the courts of Mississippi. Stephens v. Roby, 27 Miss. (5 Cush.) 744; Stoer v. Ocklawaha River Farms Co., 223 Ala. 690, 138 So. 270; 50 C.J.S., Judgments, 456, 462, 504.
III. The lower court erred in finding that it did not have jurisdiction.
IV. The lower court erred in not allowing leave to amend. Cole v. Cole, supra; Jones v. McCormick, 145 Miss. 566, 110 So. 591.
Jack Parsons, Wiggins, for appellees.
I. It is necessary to exhibit a copy, certified by the custodian of the records, of any judgment or decree that has been rendered by another state or territory when it is the basis for a suit in our state. Davis v. Rhodes, 39 Miss. 152; Secs. 1469, 1746, 1754, Code 1942.
General Acceptance Corporation, appellant (called GAC), brought this suit in the Chancery Court of Jones County, by a nonresident attachment, against Mr. and Mrs. Holbrook, residents of Florida. Personal service of process was later had upon Mr. Holbrook. The bill alleged that he owned real property in Jones County, which was the subject of attachment; and that GAC obtained a judgment on December 4, 1963 in the Court of Record of Broward County, Florida, in the amount of $4,235. The suit was on the judgment. A copy of it was attached as an exhibit to the bill of complaint. A writ of attachment and publication process were issued.
(Hn 1) The chancery court sustained motions to quash the writ and to dismiss the suit, filed separately by defendants. It was correct in quashing the writ and dismissing as to Mrs. Holbrook, since the bill showed on its face that the land did not belong to her. Hence the order as to Mrs. Holbrook is affirmed.
However, the trial court erred in quashing the writ of attachment and dismissing the bill as to Mr. Holbrook. This was done on the theory that the copy of the foreign judgment attached to the bill of complaint as an exhibit was not properly authenticated. The order confused a pleading with an evidence question.
(Hn 2) Mississippi Code Annotated section 1469 (1956) requires that in actions founded on any writing, a copy of it shall be attached to the declaration or bill of complaint. Section 1412 makes this statute applicable to chancery courts. A copy of the Florida judgment was attached to the bill, which alleged sufficient to withstand demurrer. The suit was based on the judgment, and the exhibit copy was a sufficient compliance with section 1469. Hence the trial court erred in quashing the writ and dismissing the bill. Its order was without reservation and amounted to a dismissal with prejudice.
(Hn 3) Accordingly, we do not reach the question of the sufficiency of the authentication of the judgment of the Florida court. That is a question of evidence, and GAC has not offered that document into evidence as yet. Code section 1746 provides that copies of the record of any writing recorded by the laws of any other state, "shall, when certified by the officer in whose office the record is kept, under his seal of office, he received in evidence . . ." (Hn 4) Appellant may proceed either under that statute, or under the federal act. 28 U.S.C.A. § 1738 (1950); 20 Am. Jur. Evidence §§ 1014-1017 (1939); 8 Am. Jur. Pleading and Practice Forms § 378 (1957); see Cole v. Cole, 194 Miss. 292, 297-298, 12 So.2d 425, 427-428 (1943).
In summary, the order of the chancery court dismissing the bill as to Mrs. Holbrook is affirmed. The order as to Mr. Holbrook is reversed, and the cause is remanded for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
Gillespie, Jones, Brady and Inzer, JJ., concur.