Heirmann v. Stricklin

60 Miss. 234 | Miss. | 1882

Cooper, J.,

delivered the ópinioñ of the court.

The judgment rendered by the justice of the peace on the twenty-eighth day of May, 1881, for the sum of $93 was not void. The process was shown to have been personally served on the defendant M. E. Stricklin, and W. L. Stricklin appeared and contested plaintiff’s demand. The judgment for $150.75, rendered on the twenty-fifth day of June, 1881, was void. It was a judgment by default at the return term, on service of process which is not shown to have been personal. The return was “ executed,” and while this return imports a legal service of the writ in some one of the ways provided by statute, it does not indicate whether it was personal or constructive, and it is only when it “ shall appear that the process has been served personally on the" defendant,” that a judgment by default may be entered at the return term. Code of 1880, sect. 1703. A judgment rendered in violation of the express prohibition of the statute is void. Betts v. Baxter, 58 Miss. 329. The chancellor erred in granting the relief prayed by complainant, and in sustaining the demurrer to the defendants’ cross-bill. The valid judgment for $93 was duly enrolled before the conveyances from the judgment-debtors to E. E. Brown and from E. E. Brown to complainant were filed for x-ecord. If these conveyances were bona fide, the lands were nevertheless subject to sale under this judgment, and on bill and answer alone ought to have been so subjected. The demurrer to the cross-bill should have been overruled. It is charged by the cross-bill that the complainants therein were creditors of M. E. and W. L. Stricklin, and they relied first upon their judgments, and if these were invalid, then upon the notes of the debtors which ante-dated all the conveyances. It is further charged that the conveyances to A. J. Stricklin were voluntary and fraudulent, all of which averments were admitted by the demurrer, and being admitted, the complainants in.the cross-bill were entitled to subject the land to the satisfaction both of the valid judgment and of the debt not reduced to judgment. Code of 1880, sect. 1843. It is not averred either in the bill or cross-bill that M. E. Stricklin parted with the possession of the land conveyed by her to E. E. Brown. It is only when the owner parts with the possession of the property, that sect. 1299 of the Code, prohibiting parol evidence to prove an absolute conveyance to be a mortgage, is applicable. Whether under the circumstances of this case it could be invoked to protect and cover up a fraud, it is not necessary to decide.

The decree on final hearing and the decree sustaining the demurrer to the cross-bill are reversed. The demurrer is overruled and the complainant allowed thirty days after the mandate shall have been filed in the court below to answer the cross-bill.