Boutwell v. Grayson, 79 So. 61

79 So. 61 | Miss. | 1918

Ethridge, J.,

delivered the opinion of the court.

The Southern School Book Depository, a firm composed of Y. R. Smith, F. R. Carlton, C. Y. Smith, Mrs. R. N. Hughes, and T. M. Foster, filed a suit against E. A. Grayson, W. W. Hood, and R. H. Cranford in the justice of the peace court of district No. 2, Jones county, Miss., on a bond given by Grayson as principal and Hood and Cranford as sureties for one hundred and eighty-three dollars and twenty cents and for attorney’s fees. At the time of the filing of the suit, Hood, one of the sureties, was temporarily residing at Laurel, Miss., but retained his citizenship and legal residence ’at Moselle, Miss., in district No. 5, for the election of justice of-the peace in Jones county. Grayson and Cranford were both resident freeholders of district No. 5 of Jones county. Process was issued to the constable of district No. 2 of Jones county, who served the process upon Hood in district No. 2, Jones county. And then the constable of district No. 2 went into district No: 5 and delivered a copy of the summons to Grayson and Cranford. On the return day of the summons none of the defendants appeared in court, but made default. The plaintiff appeared in court by attorney and announced ready for trial, and thereupon a default judgment was entered against all the defendants, Grayson, Cranford, and Hood, for one hundred and eighty-three dollars, twenty cents principal, and fifteen dollars attorney’s fee, and cost. Upon this judgment execution was issued and placed in the hands of the sheriff," who proceeded to make levy upon the property of one of the defendants for two hundred and four dollars and eighty-five cents and costs. Thereupon the defendants in said suit filed a bill in the chancery court of Jones county setting out the facts about said suit and alleging that they were not indebted to the Southern School Book Depository Company in any amount, and that each of the defendants in the justice judgment were residents and freeholders of district No. 5 of Jones county, and that by reason of the fact that they were residents of district No. 5, and by reason of the fact that the constable had no authority to go into district No. 5 and serve, or attempt to serve, process beyond the confines of the district, the process attempted to be served and the judgment taken thereon are void, ánd prayed for and obtained an injunction restraining the sale of their property.

The defendants in the chancery court, being the sheriff and plaintiffs in the justice court, first filed a demurrer to the bill of complaint setting forth the following grounds of demurrer: First. There is no equity on the face of the bill. Second. The bill shows on its face that the judgment is valid and binding. And complete remedy at law. Third. That the bill shows on its face that the judgment is valid and binding. And then filed what is called a “special demurrer,” alleging as grounds of demurrer: That the bill shows on its face that the judgment against Hood is valid, legal, and binding; 'second, that the allegation of the bill that the judgment is joint is a mere conclusion of the pleader; third, that all distinction between joint and'Several actions have been abolished by statute in Mississippi. Fourth, that there is no equity in the bill as to Hood. Both of these demurrers were overruled by the chancellor, and an appeal granted to settle the principles of the case.

It is insisted here that this case is governed by the ease of Catlett v. Drummond, 113 Miss. 450, 74 So. 323; and that the defendants in the justice court would have to appear on the return day and present their objections to the jurisdiction of the court by motion or otherwise, and if decided adversely to them appeal to the circuit court. In the ease of Catlett v. Drummond, 113 Miss. 450, 74 So. 323, the defendant was properly summoned in the district in which the suit was filed by the proper officer of the district, and there was no question of the validity of the summons so served. The court held that the questions of jurisdiction as to the residence of the parties, and as to where the debt was contracted, were questions of fact, which could be denied and would depend upon proof, and that for that reason the judgment would not be void the jurisdiction facts not appearing on the face of the record, and a judgment by default under section 808 of the Code is equivalent to a verdict on issue enjoined.

If process had been properly served upon all of the defendants, that would be true in this case; but in order to have a valid judgment there must be either a valid service of process upon the defendant, or an appearance or waiver of process.

This court decided, in Riley v. James, 73 Miss. 1, 18 So. 930, that a constable could not go beyond the confines of his district and serve process; that under the law he was elected by and for a district and was limited in his action to his district. It follows then that there was no service of process upon two of the defendants in court, but on the return day judgment was taken against all of the defendants. In the case of Carrollton Hardware & Imp. Co. v. Marshall, 78 So. 7, and in the case of Comenitz v. Bank, 85 Miss. 662, 38 So. 35, it was held that where there is a judgment void as to one it is void as to all, and that to authorize the entry of a valid judgment there must be legal process or waiver thereof upon all of the defendants against whom judgment was taken. It follows that the judgment in the present case is void. If the plaintiff had elected on a return day to have proceeded to take judgment merely against Hood, and the judgment had been so entered, the. contention of the appellant would be entertainable; but having elected to take judgment against all without legal process, against two of the defendants in said judgment, the judgment is void as an entirety. The entry of a void judgment would not discontinue the suit instituted. Moore & Co. v. Hoskins, 66 Miss. 496, 6 So. 500. And the plaintiff in the justice court may have summons issued as to the other defendants, directed to the proper officer, if he so desires; and on the return day the question, may be presented in proper manner as to whether the justice has jurisdiction of the defendants. Of course, on the remand of the cause the defendant in chancery suit may answer denying the allegation of the bill if they can do so.

Affirmed, and remanded.