90 So. 881 | Miss. | 1922
delivered the opinion of the court.
The appellants through their next friend brought suit against the appellee for the death of their father, Travis McCraney, alleging that he was killed by- the defendant wrongfully on the 29th day of March, 1912; that at the time of his death his age was thirty-nine years, and that by reason of his death through the negligence of the ap-pellee they had been deprived of the support, comfort, help, and companionship of the father, and demanded judgment
“And for further plea in this behalf the defendant says that this action ought not to be maintained, because it says that heretofore Mrs. Mamie McCraney, widow of said Travis McCraney, deceased, and mother of the plaintiffs, impleaded this defendant in this honorable court to the June term, 1912, thereof, in a certain plea of trespass on the case for the same cause of action involved in this case, to wit, for the injury and death of said Travis McCraney, in that certain cause numbered 217, styled Mrs. Mamie McCraney v. New Orleans & Northwestern Railroad Company, said suit being brought for the benefit of the said Mrs. Mamie McCraney, widow, and the children of said Travis McCraney, deceased, the plaintiffs in this suit; and such proceedings were thereupon had in that plea that after-Avard, a>t the said June term, 1912, of this honorable court, by the consideration and judgment of this honorable court, the said plaintiff, Mrs. Mamie McCraney, for the benefit of herself and all the parties in interest, recovered against this defendant for the death of said Travis McCraney damages in the amount of one thousand five hundred dollars, as Avell as all costs of court, as by the record thereof still remaining in this honorable court more fully appears. Copies of the declaration, plea, and judgment in said cause are filed hereAAdth as parts hereof, marked Exhibits 1, 2, and 3. And this the defendant is ready to verify.”
As an exhibit to this plea they filed a declaration in the said suit which was filed by Mrs. Mamie McCraney, the AvidoAV of Travis McCraney, and the mother of these plaintiffs in the present suit. The original declaration made' exhibit to the plea above set out in the present suit alleged that Travis McCraney left surviving him as his only heirs the plaintiff, his Avidow, and certain named children, Avho are the present litigants, and alleged that by reason of the death of Travis McCraney the plaintiff and her children had been deprived of support and maintenance
“And the defendant, by its attorney, comes and defends the wrong and injury when, etc., and says that it is not guilty of the said supposed grievances above laid to its charge, or any or either of them or any part thereof, in maimer and form as the plaintiff hath above complained against it. And of this it puts itself upon the country.”
To tlie special plea of defendant in the present suit, above set out, plaintiffs filed a replication in which they allege that the former judgment should not bar these plaintiffs because said suit was not tried on its merits ; that the declaration in said cause was prepared by the attorney representing the defendant, marked filed in his handwriting, and upon the same date of the filing of said declaration; that the said defendant’s attorney filed a pretended plea of the general issue, and thereupon procured the entrance of a judgment in favor of one Mrs. Mamie MeCraney, the mother of these plaintiffs; but that there was no trial whatever upon the merits of said suit, no testimony Avas presented to the court, and that the said Mrs. Mamie Me-Craney, the mother of these plaintiffs, nor none of these plaintiffs, knew anything about the filing of said suit and the procurement of said order. They further alleged that they Avere minors at the time of the filing of the former suit, and Avere not represented by either a guardian or next friend, and that their rights Avere not and could not be determined. They further alleged that the appearance of said attorney for the plaintiffs, who Avas also attorney for the defendánt, Avas unauthorized, and that the said attorney had no right to file, or attempt to file, a declaration and take an order that would preclude the rights of the plaintiffs; that the amount paid to Mrs. Mamie MeCraney,
The replication was demurred to and the demurrer sustained, plaintiffs declined to plead further, and the suit was dismissed, from Avhich judgment this appeal was prosecuted. In our opinion the sustaining of the demurrer to the replication Avas error. If the allegations of the replication are true, fraud Avas perpetrated on these plaintiffs, no suit Avas authorized to be brought, no evidence was offered, no trial was had, and the whole proceeding was void.
The statute on actions for injuries producing death (section 721, Code of 1906), as amended by the Laws of 1908, chapter 167 (Hemingway’s Code, section 501), provides that in case of death by Avrongful or negligent act, etc., the action for damages may be brought in the name of the personal representative of the deceased person, for the benefit of all persons entitled under the law to recover, or by the Avidow for the death of her husband, or by the husband for the death of his wife, or by the parent.for the death of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a
In the present case the recitals of the judgment are:
“The issue being joined, comes a jury of good and lawful men, . . . who, having heard the evidence and the instructions of the court, retired to consider their verdict, and presently returned into open court the following verdict,” reciting the verdict for a given sum, followed by a judgment therefor.
In the opinion of a majority of the court this is different from the case of Sudberry v. Meridian Fertilizer Factory, 106 Miss. 744, 64 So. 723, in which case the judgment pleaded as res jvdicata showed on its face that it was a default judgment. In the present case the judgment recites that the jury heard the evidence and instructions and returned a verdict, upon which judgment was entered.
It is not necessary in the present appeal to decide what effect it would have on the judgment rendered in the first suit, if it were shown that it was filed by the consent of authority of the widow, if it was not in fact tried on its merits by the jury.
The replication to the plea distinctly alleges fraud. It alleges that neither their mother nor themselves authorized such suit to be filed or knew anything of such suit having been filed; that it was filed and judgment taken by the attorney for the defendant without their authority. It is further alleged that the claim agent represented that the document signed by Mrs. McCraney was merely a document to shoAV payment.
It is well settled in this state that judgments and decrees procured by fraud are void both in equity and at law. In Plummer v. Plummer, 37 Miss. 185, it is stated in the first syllabus:
*258 “A decree obtained by fraud is void both at law and equity, and may be so treated in any collateral proceeding in either forum; and hence the husband may, in a suit to recover property in the possession of the wife’s vendee, show that a decree obtained by the wife against him for a divorce a vinculo, and adjudging the property to be hers, was obtained by fraud; and upon establishing his title, and the fraud in the decree, he will be entitled to recover without proceeding directly to annul the decree.”
In Christian v. O’Neal, 46 Miss. 669, in the second syllabus it is stated: “It is admissible to attack judicial proceedings for fraud, and parol evidence is admissible to prove it.”
At the bottom of page 672 of 46 Miss, the court said: “It is legitimate and admissible to attack judicial proceedings for fraud. Parol evidence may be received, to establish any fact, or series of facts, tending to show that judicial proceedings have been abused, and perverted to an improper use, to defeat the rights of the contestant.”
In Richardson v. Brooks, 52 Miss. 118, it is said at page 125: “Fraud vitiates everything, and may be collaterally attacked, and this applies to the judgments and decrees of all courts.”
We are therefore of the opinion that the court erred in sustaining the demurrer to the replication to the special plea of the defendant, and the judgment will be reversed, and the case remanded.
Reversed and remanded.