Cotton v. Harlan

Oct 15, 1920
No. 21544
Versions:
Smith, C. J.,

delivered the opinion of the court.

This is an action in trover, begun by the appellee to recover of the appellant the Aralue of an automobile, alleged to have been the property of the appellee and to have been converted by the appellant to his own use. The appellee purchased an automobile at a sale under a judgment in attachment against the appellee rendered in the court of a justice of the peace. One of the grounds of the attachment, as appears from the affidavit by which the proceeding Avas begun, was that the defendant therein was “a nonresident of this state.” The judgment recites that publication was made for the defendant, but is silent as to whether or not the judgment creditor filed with the justice of the peace an affidavit “showing the post office of the defendant, or that he has made diligent inquiry to ascertain it without success,” as required by section 147 of the Code of 1906 (Hemingway’s Code, section 139), and no such affidavit appears among the papers in the proceeding which were introduced' in evidence by the appellee. Each of the parties introduced parol testimony relative to the filing of this affidavit, from which the court below seems to have decided that the affidavit had not been filed, and that the justice of the peace was consequently without jurisdiction to render the judgment, for a peremptory instruction re*696quested by'-the appellant ivas refused, the jury was directed to return a verdict for the appellee after assessing his damages, and there was a verdict and judgment accordingly.

Whether or not the judgment creditor filed with . the justice of the peace in the attachment proceeding the affidavit required by the statute, setting forth the post office of the defendant therein, or the creditor’s failure to ascertain it, cannot be inquired into here, for the reason that the court of a justice of the peace is a court of record and of general jurisdiction. Brian v. Davidson, 25 Miss. 213; Stevens v. Mangum, 27 Miss. 481; Vicksburg Grocery Co. v. Brennan, 20 So. 845. And where a judgment of such a court is attacked collaterally, as in the case here (McKinney v. Adams, 95 Miss. 832, 50 So. 474), unless the contrary affirmatively appears from the record, all jurisdictional facts are conclusively presumed 'to have existed, whether there are recitals in the record to show them or not. Cooley’s Constitutional Limitations, 406; Ames v. Williams, 72 Miss. 760, 17 So. 762; Gillespie v. Hauenstein, 72 Miss. 838, 17 So. 602; Vicksburg Grocery Co. v. Brennan, 20 So. 845; Allen v. Dicken, 63 Miss. 91; Kelly v. Harrison, 69 Miss. 856, 12 So. 261.

An exception to this rule is made by few" courts, where the judgment attacked was rendered in a proceeding in which process Avas served upon a nonresident defendant by publication of the summons, without an appearance by him; but, according to the Aveight of authority, such an exception is arbitrary and illogical, and Ave so hold. Cason v. Cason, 31 Miss. 578; Black on Judgments (2d Ed.), vol. 1, section 271 and 281; 15 R. C. L. 889; Applegate v. Lexington, 117 U. S. 255, 6 Sup. Ct. 742, 29 L. Ed. 892; Hardy v. Beaty, 84 Tex. 562, 19 S. W. 778, 31 Am. St. Rep. 80; McHatton v. Rhodes, 143 Cal. 275, 76 Pac. 1036, 101 Am. St. Rep. 125.

The cases of Ponder v. Martin, 119 Miss. 156, 80 So. 388, and Carter v. Brandy, 71 Miss. 240, 15 So. 790, relied on by the appellee, are not here in point. In the first, the *697question of the validity of the decree complained of arose on a direct appeal therefrom; and in the second, the infirmity in the title to the land involved did not arise out of any defect in the decree under which it was sold, but out of a defect in the sale made pursuant to the decree, and, as the court in its opinion pointed out, the rules applicable to a collateral attack upon a judgment or decree did not apply.

The peremptory instruction requested by the appellant should have been given.

Reversed, and judgment here for the appellant.

Reversed.