Duncan v. Gerdine, 59 Miss. 550

Cooper, J.,

delivered the opinion of the court.

We are satisfied from an examination of the record that the Chancellor rightly found as a fact, that the summons issued in the proceedings at law, in the suit of Robertson v. Duncan, was returned by the deputy sheriff Miller, as having been by him executed personally upon Mrs. Duncan and her husband, and we shall consider the case just as if the original summons with the return thereon was still among the files of the papers in said suit. The questions thus presented, aside from those going to the competency of the witnesses, to whose testimony exceptions were taken, are two : —

First, is it permissible for Mrs. Duncan in this proceeding to attack the validity of the judgment against her, by showing that the return of the officer on the writ was false, and that in fact she never had been notified in any manner of the pendency of the suit ? and if this question be determined in her favor, second, has she introduced sufficient evidence to overturn the presumption which exists in favor of the truth of the return as made by the officer?

We consider the first of these questions as already settled in this State by the former decisions in the cases of Crawford v. Redus, 54 Miss. 700, and Sivley v. Summers, 57 Miss. 712; but, if it be not, we have no hesitation or doubt in deciding it in the affirmative. The rule that a record is conclusive evidence of its own verity is not applicable in a direct proceeding instituted for the purpose of showing its falsity as to a matter which, if false, shows that the court pronouncing it as a judgment had no jurisdiction of the person of the defendant, and, consequently, that what purports to be a record is in fact no record at all. No consideration of public policy requires that one guilty of no negligence should be concluded by ex parte proceedings, of which he had no notice, because of a declaration made by the court, at the instance of his adversary, that he had such notice. If in fact Mrs. Duncan was not served with the process of the court, by what rule of law or reason shall she be required to submit to have her property sold for the satisfaction of that which is only the pretence of a judgment ? It is not sufficient to reply that the court which rendered the judgment has adjudicated the fact that she was served with the summons, for if the summons was not served the court had no power to adjudicate that, or any other fact against her, and the whole fabric falls, unless she is forced, in the outset, to admit as true that which she avers to be false, and that too when upon its truth depends her liability to its burden, and upon its falsity her right to relief. We reiterate what was said in Sivley v. Summers, that, in direct proceedings instituted for the purpose of testing the validity of the judgment, “ the truth must prevail, though the record falls.” Relief may be sought through the interposition of the Chancery Court. Freeman on Judgments, § 495.

In determining the sufficiency of the evidence introduced to impeach the record, it is necessary first to eliminate so much of the testimony as was delivered by witnesses incompetent to testify. And, first, as to the competency of Mrs. Duncan as a witness. The controversy is between her and the representative of a deceased person; its purpose is to free her from a liability to the estate existing in the lifetime of the deceased. The Chancellor, however, in the opinion delivered by him, in overruling objections to her competency, states that, though she is prohibited by the letter of the statute from testifying, she is not forbidden by the spirit of the statute, because the facts testified to by her were not in relation to any communication with the deceased, or touching any matter of which he had personal knowledge, and therefore, as he could not have contradicted her if alive, she is a competent witness. We do not concur in this view. The law declares that “ no person shall testify as a witness to establish his own claim to any amount, for or against the estate of a deceased person, which originated during the lifetime of such deceased person, or any claim he has transferred since the death of such decedent.” There is no limitation or qualification of the prohibition, nor does the case at bar come within the rule laid down in Strickland v. Hudson, 55 Miss. 235. In that case the deceased on a former trial had testified in the cause, and, after her death on a subsequent trial, evidence was given of her former testimony. Under these circumstances it was said that Strickland should have been permitted to testify as to all matters covered by her evidence. It was the introduction in evidence of the testimony of the deceased which rendered him competent as to the matters covered by her evidence. In that case the witne'ss, though dead, spoke through the lips of others, and therefore she was treated as living as to that testimony. It is not what the witness testifies to that makes him competent or incompetent under the statute, but it is the fact that the controversy is between the living and the dead; and the silence which death has imposed on the one the law imposes on the other ; absolute equality is sought by the statute, and beyond this we did not go in the case cited.

R. W. Miller, the deputy sheriff, was incompetent to deliver testimony contradicting the return made by him on the writ. Stone v. Montgomery, 85 Miss. 83.

Excluding this testimony, to which objection was made in the court below, the allegations of the complainant’s bill are sustained only by the testimony of her husband, which is insufficient to overturn the presumption of the truth of the return. He states that his wife went to the town of Aberdeen, which is out of the county of Colfax, some days before the service of the writ purports to have been made, and did not return until after the rendition of the judgment against her. In this we think he is mistaken, for it is shown that on the second and third days of February (two and three days before the rendition of the judgment) she appeared before a magistrate of the county, and made oath to two pleas in abatement, which were filed in the Circuit Court of that county on the 12th day of February. It is proved that this officer lived in the vicinity of the residence of Mrs. Duncan, and we are impressed with the belief that she was at home, or at least in the county, when these jurats were subscribed by her. If she was there then, there is no reason to believe she was not at the same place at the date of the service of the writ. The husband further testified that the officer delivered to him the copy of the writ for his wife; this may be true, and yet he may have also delivered a copy to the wife ; it was his duty so to do, and he returned that he had performed this duty, and in the absence of clear proof to the contrary we must presume that the return is true.

Decree affirmed.

Case Details

Case Name: Duncan v. Gerdine

Court Name: Mississippi Supreme Court

Date Published: Apr 15, 1882

Citation: 59 Miss. 550

Court Abbreviation: Miss.