Opinion
No. 31247.
May 14, 1934. Suggestion of Error Overruled June 11, 1934.
1. JUDGMENT.
Judgment, if void, need not be set aside to be rendered ineffective.
2. ATTACHMENT.
When affidavit for attachment is upon ground of nonresidence of defendant, officer executing attachment writ is not required to make effort to summon defendant (Code 1930, section 137).
3. JUDGMENT.
On direct attack on judgment against defendant in attachment, defendant has burden to show meritorious defense and that statutory notices were not, in fact, posted (Code 1930, section 171).
4. JUDGMENT.
Defendant against whom judgment at law was rendered without service of process, if seeking relief from judgment in court of equity, must show not only want of notice but that he had good defense.
5. JUSTICES OF THE PEACE.
Justice of peace court is court of general jurisdiction, and, unless contrary affirmatively appears from record, all jurisdictional facts are conclusively presumed to have existed whether supported by recitals in record or not.
6. JUSTICES OF THE PEACE.
Rule, that all jurisdictional facts are conclusively presumed to have existed unless contrary affirmatively appears from record in justice court, is applicable, although judgment attacked was rendered by default, on constructive service of process alleged to be defective.
7. JUSTICES OF THE PEACE.
Absence of entries in docket of justice of peace showing that writ of attachment was issued, return of officer thereon, and mailing of notice to defendant in attachment, held not to invalidate proceedings under attachment, where proceedings were in all respects regular, especially where record of deed was accompanied by complete transcript of all proceedings showing every necessary step leading up to judgment and sale under attachment was taken (Code 1930, sections 1569, 3050).
8. ATTACHMENT.
Failure to establish by proof that defendant received notice of attachment proceedings while she was nonresident of state held not to affect validity of proceedings under attachment, where proof showed that notice of attachment was properly mailed to her true address (Code 1930, section 3050).
9. TIME.
Where sale of land under execution was advertised one day a week for three successive weeks, lapse of two weeks between time of last advertisement and time of sale held not to invalidate sale; advertisement not being required for three successive weeks next preceding day of sale (Code 1930, section 3037).
APPEAL from Chancery Court of Yazoo County.
Ruth Campbell, of Yazoo City, for appellant.
The judgment rendered in justice of peace court of S.D. Woods, successor to C.C. Elliott, deceased, was void.
The docket entries were not correctly kept as required by section 2074 of Mississippi Code of 1930.
In Morris v. Shyrock, 50 Miss. 590, it was held that a justice of the peace could not grant a new trial. This being true, we do not believe that the justice of the peace had authority to set aside the judgment after the expiration of the term at which it was entered. At common law, the circuit court, or common law court of general jurisdiction, had authority to issue a supersedeas against an execution, and such court had authority to set aside a judgment if it was void or to quash an execution if it was illegally issued in any respect. But we find no provision for any such procedure by the justice of the peace in this state. We do not find where a justice of the peace is authorized to issue a writ of supersedeas and suspend proceedings thereon in this court.
Howell v. Kersh, 119 So. 188.
An attachment proceeding is purely statutory and a judgment rendered by default must comply strictly with the law as provided, and neither one of the judgments complied with the law.
Sections 128 and 2978, Mississippi Code of 1930.
It is contention of appellant that the court has to have some evidence before it that she could not be found in Yazoo county and the only evidence it had was in the incorrect return of Yazoo city.
Collier v. Chamblee, 136 Miss. 257; Section 171, Miss. Code of 1930; Sections 2074 and 2973, Mississippi Code of 1930.
There was no evidence before the court when the judgment was taken the first time that Daisy Walton could not be found in Yazoo county, nor any evidence that notice was posted in three public places, or any evidence that any affidavit was made stating her postoffice address, or any evidence that notice was mailed to Daisy Walton, as none of these facts were disclosed by the judgment, docket entries or the papers before the court.
The notice does not state it was posted in three public places.
Section 171, Code of 1930.
One of the fundamentals of a valid judgment is that the court must have acquired jurisdiction of the person of the defendant, either by process legally served or by voluntary appearance on his part.
Bank of Richton v. Jones, 121 So. 823; Meyer v. Whitehead, 62 Miss. 387; Newman v. Taylor, 69 Miss. 670; Joiner v. Delta Bank, 71 Miss. 382.
The plaintiff cannot resort to parol to make valid a judgment void on its face. So far as the plaintiff is concerned that question is decided by the record alone.
4 C.J. 1326, 1327; Oliver v. Baird, 90 Miss. 722.
Execution writ was void, sale void and deed made thereunder was void.
Section 3012, Code of 1930.
If a person goes into a court of chancery and makes an attack upon a judgment and proceedings had in a court of law, and sets up a ground of defense to the action, and alleges the judgment void ab initio, then it is a direct attack and not a collateral attack.
Duncan v. Gerdine, 59 Miss. 550; Crawford v. Redus, 54 Miss. 700; Sivley v. Sumners, 57 Miss. 712; Drysdale v. Biloxi Canning Co., 67 Miss. 539; 2 Words Phrases, pages 1249 and 1250.
Barbour Henry, of Yazoo City, for appellees.
The proceeding is entirely a collateral attack in the chancery court on the judgment of the justice of the peace court.
The testimony shows that the address of Daisy Walton was correctly given all the way through the proceedings and that it was never changed.
The mere recital in the judgment that publication was made is sufficient.
Cotton v. Harlan, 124 Miss. 691.
All jurisdictional facts are conclusively presumed to have existed whether there are recitals in the record to show them or not.
McKinney v. Adams, 95 Miss. 832.
Even if the record failed to show valid process a decree of the chancery court that the process was invalid would not have been sufficient to make the judgment of the justice court void. But on the other hand where the issue was submitted to the court and he reviewed the case and held that the process was good and the judgment was good, we do not believe this court will seriously consider the matter.
The case of Motor Car Co. v. McDonald, 153 Miss. 409, holds that where process was returnable December 5, 1927, through an error instead of December 12, 1927, the magistrate's regular court day, a judgment by default entered on December 12th, the regular court day, was good and an execution issued under it could not be quashed. In other words, if the execution was returnable one week in advance it was automatically returnable to the succeeding court day and there is no claim that any proceeding took place on a void day.
Howard Lbr. Co. v. Hopson, 101 So. 262.
Appellant filed her bill to set aside and cancel a deed to certain real estate in Yazoo City. The cause was tried on bill, answer, and proofs, resulting in a decree in appellee's favor.
The bill charged that appellant was a resident of the state of Mississippi, and that while temporarily out of the state she was sued by appellee in attachment, upon the ground that she was a nonresident of this state; that judgment was rendered against her in said suit, and execution issued upon the judgment and levied upon property constituting her homestead, which was sold and deed made to appellee, the purchaser at the execution sale. Appellant charges that the proceedings in the justice of the peace court were void, therefore the execution sale was void, and she was entitled to have the deed canceled as a cloud upon her title. The deed conveying the property to appellee was recorded in deed records of Yazoo county, accompanied by a certified transcript of all the proceedings had before the justice of the peace, including a copy of the execution and the officer's return thereon, and is in all respects in full compliance with section 3050, Code 1930.
Appellant attacks the proceedings in the justice of the peace court upon several grounds. The attachment was sued out before C.C. Elliott, a justice of the peace of the county, who issued the attachment writ and entered a judgment for appellee. Elliott died without proceeding further in the cause and was succeeded in office by S.D. Woods. The judgment rendered by Elliott was void for reasons unnecessary to state. Both parties agree that it was void. Appellee, recognizing that the judgment was void, without asking the justice of the peace court to set it aside and without making a new affidavit for attachment or another attachment bond, proceeded to have Woods issue another writ of attachment and have it levied upon the property of appellant. Appellant contends that this amounted to a setting aside of the former judgment by Woods, which under the law he had no right to do, and all the proceedings had before Woods were void for that reason.
Section 2109, Code 1930, provides that whenever the successor to a justice of the peace shall enter upon the duties of his office he is empowered to conclude all business pending in his court "as if the proceedings had been originally instituted before him." The judgment rendered by Elliott being absolutely void, it was not necessary that it be set aside; it was a nullity, and Woods had a right to treat it as such. There was no setting aside of the judgment by Woods because there was no judgment to set aside; when he went into office he found simply a pending cause.
Appellant contends that the judgment and sale and conveyance thereunder were void because the officer's return on the writ of attachment showed that appellant could not be found in "Yazoo City" instead of Yazoo county. The ground of attachment was nonresidence. The affidavit for attachment stated that fact and further gave both the post office and street address of appellant. Under section 137, Code 1930, the officer executing the attachment writ is not required to make an effort to summon the defendant when the affidavit for attachment is upon the ground of nonresidence. The latter part of the section applies; it lays down the method by which the court acquires jurisdiction of the res by constructive service — publication of notice to the defendant.
Appellant contends that the proceedings are void because the record does not show affirmatively that section 171, Code 1930, requiring notice to appellant to be posted in three public places where they would likely be seen by persons in the district of the justice of the peace rendering the judgment, was complied with. The record shows that the notices were posted in three places in Yazoo county, one of which was the court house at Yazoo City. Appellant's position is that a compliance with the statute is jurisdictional and it was necessary for the record to show affirmatively that the notices were posted in three public places as required by the statute.
Treating the bill in this case either as a direct or a collateral attack — certainly it is one or the other — appellant's contention is without merit. First, as a direct attack: It devolved on appellant to not only show a meritorious defense to the action on which the judgment was rendered, but to go further and show that the notices were not, in fact, posted as required by the statute. A defendant against whom a judgment at law has been rendered without service of process, who seeks relief therefrom in a court of equity, must show not only want of notice but that he had a good defense to the action. He must do equity. Newman v. Taylor, 69 Miss. 670, 13 So. 831; 5 Pomeroy's Equity Jurisprudence (2 Ed.), section 2088 (667). Appellant not only failed to show that the notices were not posted as required by law, but the evidence, without dispute, showed that they were. Second, as a collateral attack: The courts of justices of the peace are courts of general jurisdiction. Unless the contrary affirmatively appears from the record, all jurisdictional facts are conclusively presumed to have existed, whether there be recitals in the record to show them or not, and this rule applies, although the judgment attacked was rendered by default, on constructive service of process alleged to be defective. Cotton v. Harlan, 124 Miss. 691, 87 So. 152.
The docket of the justice of the peace does not show any notation that the writ of attachment had issued, nor of the return of the officer thereon, nor of the mailing of the notice to appellant. Appellant contends that the proceedings were void for those reasons. It was held in Hughston v. Cornish, 59 Miss. 372, construing a statute of which section 3050, Code 1930, is a rescript, that a certified transcript contemplated by the statute should include the docket entries and if these were correctly kept need include nothing else. In the present case the docket fails to show the necessary entries, but the record of the deed is accompanied by complete transcript of all the proceedings in the justice of the peace court, and from this transcript there appears as a fact every necessary step in the proceedings leading up to the judgment, and the judgment entered thereon and the subsequent proceedings leading up to the sale, together with the deed made to the purchaser. Although it is important for the justice of the peace to make these docket entries, since every step that was required was taken at the time and in the manner provided by law, the absence of such entries does not destroy the legality of the proceedings, which, as stated, were in all other respects regular. The record of the transcript shows the existence of all the jurisdictional facts and necessary steps in order to reach a valid judgment. Section 1569, Code 1930, provides that copies of the record of any conveyance of land under the judgment of a justice of the peace, and of the record of a certified transcript of the proceedings had before the justice, and of the record of the execution and return thereon, authorized by law to be recorded with such conveyance, when certified by the clerk in whose office the record is kept, under his seal of office, shall be received as prima facie evidence of the validity of such deed and proceedings without further proof of the same. The certified copy provided by this statute was introduced in evidence. The presumption of validity afforded by the statute was not rebutted. There is no merit in this contention.
Appellant contends that the proceedings are void because she never received notice thereof. She does not deny the mailing of the notice and admits that when it was mailed she was out of the city of Chicago, where she resided at the time. It is true that the mailing of the notice is a jurisdictional fact. The proof showed without contradiction that it was properly mailed to her true address in the city of Chicago, Illinois. The law does not require proof that appellant received the notice. To so hold would practically destroy the effective use of the foreign attachment statute.
Appellant contends that the advertisement for the sale of the property was void because the sale was advertised to be on the first Monday of January, and two weeks after the last advertisement elapsed before the sale was made. There is no merit in this contention. Section 3037, Code 1930, is the governing statute. It provides that sale of land may be made on the first Monday of the month or on the first Monday or Tuesday of the circuit court of the county, and shall be advertised in a newspaper published in the county once a week for three successive weeks. Appellant admits in her bill that the advertisement in question appeared once a week for three successive weeks, but contends that the statute required the advertisement to be for the three successive weeks next preceding the day of the sale. The statute does not so provide, as does section 2167, Code 1930, providing for the advertisement of foreclosures in pais of deeds of trust.
Appellant's contentions that the property sold was a homestead, and that the claim, which was the basis of the judgment, was barred by the statute of limitations, are of so little merit as not to require a discussion.
Affirmed.