Hull v. Rosenbaum

66 So. 323 | Miss. | 1914

Cook, J.,

delivered the opinion of the court.

January 4, 1896, appellee, W. Rosenbaum, recovered judgment by default against appellant, G-. W. Hull, in a justice of the peace court, for two hundred, eighty-seven dollafs and seven cents. This judgment was about to expire by limitation, and so, on January 3, 1903, Rosenbaum instituted an action in the circuit court upon the judgment, accrued interest, and court costs, amounting to four hundred, ninety-five dollars and fifty-two cents. .Appellant was duly served with process, but failed to appear, and allowed judgment by default to be rendered against him by the circuit court.

It is upon the last-named judgment that appellee, Rosenbaum, brought the present suit, and appellant for the first-time entered his appearance and filed a special plea, averring that the judgment rendered by a justice of the peace upon two notes, alleged to have been signed by appellant, the sum total of the principle of which was in excess of two hundred dollars, and that therefore the judgment of the justice of the peace was void, because the justice court was without jurisdiction of the subject-matter of the suit, and that the judgment of the circuit court, rendered in 1903 on this void judgment, is also void.

Appellant filed with his plea the original declaration and exhibit thereto filed by appellee in the suit upon which the judgment now sued on was obtained, and it is contended that a mere reading of the declaration and, exhibit will disclose that the justice of the peace judgment was and is absolutely void, and could not, therefore, form a cause of action in the circuit court, and that it necessarily follows that the judgment by default taken in the circuit court in 1903 was also null and void.

Conceding his premises, it may be that the contention of appellant is sound; but after an examination of the declaration referred to, and the exhibit filed with same, we are unable to conclude that^ taken together, they disclose a lack of jurisdiction in the justice of the peace court. The declaration avers that a certified copy of the judgment rendered by the justice of the peace “is herewith filed, Exhibit A”; but as a matter of fact Exhibit A does not purport to be a certified copy of the judgment. On the contrary, it purports to be a certified copy of “Abstract from the Judgment Roll, Circuit Court, Kemper County, Mississippi.” It will be seen, therefore, that the declaration declares upon a judgment, and exhibits as evidence of the judgment a copy of the judgment roll. The copy of the roll does not, upon its face, show that the justice of the peace had rendered a judgment upon a matter of which he had no jurisdiction.

The averment of the declaration of itself makes- a cause of action, and the exhibit does not contradict the averment. So it appeared upon the face of the pleadings that the circuit court had jurisdiction to render the judgment which forms the basis of the present suit. The defense set up’ in the plea, if true, would have been available in the original suit in the circuit court, but is not available here, because, as before stated, upon the face of the pleadings in the first case the plaintiff was entitled to a judgment against defendant.

Affirmed.