J. B. Colt Co. v. Ward

99 So. 676 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

The appellant filed suit in the circuit court against the appellee for two hundred ninety-one dollars and seventy cents, together with interest from September 4, 1920, on a certain promissory note executed September 22, 1919, and due and payable September 24, 1920. The defendant pleaded the general issue and also a special plea, in which special plea he alleged that the plaintiff ought not to have and recover in said action because on or about the 10th day of August, 1920, an attachment was sued out by S. V.. Hollingsworth against the J. B. Colt Company, returnable at the September term of the circuit court; that at the same time of the suing out of the attachment, R. A. Ward, the defendant in the present suit, was summoned in the manner and form as required by law as garnishee and required to answer under oath in writing whether he was indebted io the said J. B. Colt Company, and, if so, in what sum and whether due or not; that the said R. A. Ward answered, admitting the debt to the said J. B. Colt Company, and that the said J. B. Colt Company, plaintiff, is the same J. B. Colt Company that is defendant in the said attachment suit, and that Ward, who is defendant in the pres'ent suit, is the same Ward who is garnishee in that suit; that publication was made for the said J. B. Colt Company in an attachment suit and at the September term of the circuit court a judgment was taken by default against J. B. Colt Company in favor of the plaintiff in the attachment suit, Hollingsworth, and that the judgment was taken against the said R. A. Ward, garnishee, on his answer, which answer was filed September 6, 1920; that said judgments were entered in the minute book of the circuit court, and that thereafter executions were issued on the said judgments and that defendant, Ward, paid to the sheriff, who held and served such executions, the money adjudged against Ward as garnishee, whereby he was and became discharged of his debt to the plaintiff in the present suit. The entire proceedings of the attachment suit are made exhibit to the special plea, and show that publication for the said J. B. Colt Company was made in the issues of the Star Herald, a newspaper published at Kosciusko, Miss., on August 13, August 20, August 27, and September 8, 1920. The notices so published did not state the post office address of the defendant, an affidavit having been made by the attorney for Hollingsworth that such post office address could not be ascertained after diligent inquiry. The proof of publication of the said notices was made on the 4th day of September, 1920, and filed on the 7th day of September, 1920. The judgment appears to have been rendered on the 7th day of September, 1920.

To this special plea the plaintiff demurred on- the ground that the judgment showed bn its face that said judgment was null and void because taken on the return term of the court against a nonresident by service of publication only, and not by personal service of summons, and that a judgment can only be rendered against the garnishee when there is a valid judgment against the attachment defendant, and, where a judgment is void on its face, that it is the duty of the garnishee to plead such fact, and because the court had no jurisdiction at such term to render any judgment. The demurrer was overruled, the plaintiff declined to plead further, and final judgment was entered sustaining the plea of res judicata and dismissing the plaintiff’s suit.

It is provided by section '566, Hemingway’s Code (section 783, Code of 1906), that judgment by default shall not be entered at the return term unless it appear that the process has been served personally on the defendant.

In Alexander v. Porter, 88 Miss. 585, 41 So. 6, this court held that a judgment entered on publication without personal summons at the return term was void. It is said by the appellee here that the court in the case of Alexander v. Porter used the term “void” unadvisedly, and that it should be construed to mean “voidable,” and that that judgment of reversal was on a direct appeal and was not a collateral attack, and that such question cannot be raised in this case because it is a collateral attack, and the judgment was merely voidable and not absolutely void. The court in the Alexander Case pronounced the judgment to be absolutely void; the court saying in its opinion in that case:

“There is no judgment for this court to affirm. The suit is merely a pending suit in the lower'court.”

We think under the statute above referred to that the court is prohibited from entering a judgment at the return term unless there is personal summons upon the defendant. The defendant in the attachment suit on such publication has until the next term of the circuit court before any judgment can be entered finally disposing of the litigation. He may appear at the next term and contest the suit with the attaching creditor,' and therefore the judgment is void and the plea of res judicata is bad and the demurrer ought to have been sustained. It is said by the appellee that, if the judgment is void, the attachment suit is still a pending suit, and therefore that the present action could not be maintained against the appellee. It is unnecessary for us to pass upon this phase of the case because we are not fully advised from the record whether the suit is still a pending suit. That question may be raised and other appropriate questions by new plea.

The judgment of the court will be reversed, and the cause remanded for further proceedings.

Reversed and remanded.