Davis v. Davis

99 So. 673 | Miss. | 1924

Sykes, J.,

delivered the opinion of the court.

The appellant, Florence V. Davis, instituted this suit in the chancery court against the appellee, Lee B. Davis. The original bill was filed in the chancery clerk’s office in 1915. In it the appellant, Mrs. Davis, seeks to recover a certain amount of money, and asks that certain lands of defendant be sold to satisfy the decree. In other words, the suit is an attachment suit in chancery to subject the lands of the defendant, Davis, to the satisfaction of her claim. The claim is one in tort. The allegations of the bill are, in effect, that the defendant misappropriated or embezzled certain sums of money from the complainant. The bill also alleges the fact that the defendant is a minor and is a stepson of complainant; that she is the testamentary guardian of defendant; that she is guardian both of his-person and estate; that the defendant has absconded from the state of Mississippi, and his whereabouts is unknown.

There was no personal service of process on the defendant, or on herself as guardian, or on any one else. Proof of publication was made for the defendant, and also in compliance with the statutes relating to attachments in chancery. The defendant failed to appear, a decree fro confesso and a final decree were duly rendered, and the lands were ordered to be sold to satisfy the indebtedness of the defendant to the complainant. A special commissioner was appointed, and the lands were sold, and bought by the complainant, and this report was confirmed by the chancellor. Some years thereafter this defendant appeared and moved the court to set aside all of the decrees entered in this case and allow him to answer the bill. Over the objection of the complainant the court sustained this motion, and this appeal is here prosecuted to settle the principles of the cause. It is unnecessary to go further into the details of this litigation, or to consider but one question argued by counsel in the cause.

At the time the complainant (appellant) instituted this suit she was the guardian of the appellee (defendant). As such guardian it was her duty to care for and manage the estate of the ward and report her acts and doings to the chancery court. It was her duty to defend any suits brought against her ward. The service of any process ini any suit against the ward contemplates a service of this process also upon the guardian. The positions of guardian of a ward and of complainant in a suit against this ward are antagonistic. As long as this relationship exists, a guardian cannot maintain a suit against the Ward; and neither can the ward against the guardian, except under' certain exceptional circumstances not here involved. This rule is thus stated in 12 E. C. L., p. 1148, as follows: •

“That an action at common law cannot be maintained between a guardian and a ward, while that relation exists, is clear. The character of the relation, the capacity in which the guardian acts, the duty to the ward’s property (even if a guardian ad litem may be appointed where he is interested), forbid that he should occupy the distinctly adverse position of suitor at common law, especially as to transactions occurring since the guardianship commenced. ’ ’

It is the contention of the appellant that this rule only relates to suits in the circuit court of this state, and that a guardian has a right to maintain a suit against a ward in the chancery court. This court has expressly decided that a ward cannot maintain a suit in the chancery court against his guardian. In the case of U. S. Fidelity & Guaranty Co. v. Jackson, 111 Miss. 752, 72 So. 150, the court quotes from many authorities to show that, as long as the relationship between guardian and ward exists, such a suit is not maintainable by the ward against the guardian in any court. The reasons which prohibit a ward from suing his guardian are equally applicable in a suit by a guardian against the ward. In- fact, the reasons are stronger for prohibiting the guardian from suing the ward because of his duty to preserve and care for the estate of the ward and represent the ward in any suits-against him. The court in the Jackson Case held that the decree of the ward against his guardian was void. Since the guardian cannot maintain a suit of this character against the ward, the decree in this case is void.

It is insisted by the appellant that these decrees in this case should have been attacked by original bill, and not by motion to set aside. Since the decree is void, it, is therefore a nullity, and does not terminate the action in which it is entered. In this ease the appellee could either attack it by an original bill or enter his appearance, as ne did in this case, and move to have it set aside and declared null and void. This rule is thus stated in section 117, Freeman on Judgments (4th Ed.):

“A void judgment is, in legal effect, no judgment. By it no rights are divested. From it no rights can he obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it, and all claims flowing out of it are void. The parties attempting to enforce it may he responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress. The first and most material inquiry in relation to a judgment or decree, then, is in reference to its validity; for, if it he null, no action up*on the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in any legislative or other department of the government, can invest it with any of the elements of power or vitality. It does not terminate or discontinue the action in which it is entered, nor merge the cause of action; and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judgment upon the same cause, either in the action in which the void judgment was’entered or in some other action.”

The decree of the court in sustaining the motion and permitting the defendant to answer was correct.

Affirmed and remanded.