74 So. 323 | Miss. | 1917
delivered the opinion of the court.
In January, 1914, appellant instituted suit upon an open account against Drummond, in the court of F. M. Featherstone, a justice of the peace in district No. 1 Hinds county. Drummond was personally served with summons more than five days before the return day thereof, and, failing to appear pursuant, to this summons, judgment by default was rendered against him. About a year after the rendition of this judgment, appellant sued out a writ of garnishment against T. E. Lewis, alleging that he was indebted to or had in his hands effects of the said Drummond. Lewis failed to answer this garnishment, and a judgment by default was rendered against him. Afterwards Drummond and Lewis exhibited their bill in the court below, alleging the foregoing facts, and that the judgment against Drummond by the justice of the peace is void for the reason that the debt upon which he was sued by appellant was contracted in Madison county, and that at the time of service of process upon him and of the rendition of the judgment he was a resident freeholder of justice’s district No. 5 in Hinds county, and that there was at the time an acting justice of the peace in district No. 5, qualified to try the suit, which allegations were not denied, and were found by the chancellor to be true. The bill did not allege, nor was any evidence introduced by appellees to show, that Drum-mond had a meritorious defense to appellant’s claim. The prayer of the bill was that the collection of the judgments rendered against appellees be perpetually enjoined; and the appeal is from a decree in accordance therewith.
The cause of action upon which Drummond was sued by appellant in the justice of the peace court was transitory in character and within the general jurisdiction of Such a court, and the fact that Drummond may have been at that time a freeholder or householder of another district cannot now be availed of by him, for the reason
In so far as appellee Drummond is concerned, the decree of the court below must be reversed, for the further reason that he neither averred nor proved that he has a meritorious defense to appellant’s claim. This must be done before he can obtain relief in a court of equity, even should it be conceded that the judgment rendered by the justice of the peace against him is void. Stewart v. Brooks, 62 Miss. 492; Newman v. Taylor, 69 Miss. 670, 13 So. 831; Walker Durr Co. v. Mitchell, 97 Miss. 231, 52 So. 583; Welch v. Hannie, 72 So. 861. Whether this, last reason for reversing the decree can be availed of against appellee Lewis we do not now decide. The case of Hilliard v. Chew, 76 Miss. 763, 25 So. 489, which was followed by and fully supports the court below, was erroneously decided, is in conflict with the cases hereinbefore cited, and is hereby overruled. In the case of Comenitz v. Bank, 85 Miss. 662, 38 So. 35, it does not appear, either from the statement of the case by the reporter or from the opinion rendered by the court, whether or not appellants had a meritorious defense to the judgment sought to be enjoined, so it may be that that case is not in conflict herewith.
Reversed and remanded.
