71 So. 16 | Miss. | 1916
delivered the opinion of the court.
Appellant here (complainant below) filed an ' original bill in the chancery court of Lauderdale county against the appellee (defendant), seeking to enjoin the sale of ■certain lands therein described under an execution issued ■upon a judgment obtained in a justice of the peace court in Meridian against the son of complainant. The bill alleges, in substance, that the appellant purchased the lands for a valuable consideration from her son after the above .judgment was enrolled against him, but before the execution thereon was issued. She alleges that the judgment was void because the suit was filed in district N. 1 of Lau•derdale county, when the defendant (her son) was a resident citizen of district No. 5, and was a freeholder and householder of said district, and that the debt was contracted and all the liability incurred in said district No. •:5; also that at the time her son was sued in district No. 1 there was a justice of the peace acting and duly qualified to try the suit in said district No. 5. The bill of •complaint followed section 2724 of the Code of 1906 as to these allegations, and shows that the justice of the peace of district No. 1 had no jurisdiction to try said ■cause. A judgment was taken by default in said suit. A demurrer was sustained to the bill upon two grounds. 'The first is that the justice of the peace had jurisdiction, .-and that the judgment sought to be enjoined is therefore
As to the first proposition, this court has held underpractieally a similar statement, of facts that a judgment, obtained as this was, is a void judgment and may be perpetually enjoined. The court in part says:
“As the justice of the peace of district No. 4 did not. acquire jurisdiction of the cause of action between the parties, the judgment againts Chew was void, and the-decree giving him a perpetual injunction against it is. approved.” Hilliard v. Chew, 76 Miss. 765, 25 So. 489.
Defendant relies upon the cases of Stewart v. Brooks, 62 Miss. 493, and Walker-Durr Co. v. Mitchell, 97 Miss. 231, 52 So. 583, to maintain the proposition that it devolved upon complainant to state facts in her-bill showing-a valid defense to the claim on which the judgment was-obtained. The case of Stewart v. Brooks, in 62 Miss., was where Brooks filed the bill for an injunction against, the execution of a judgment recovered against him. He failed to allege that the notes upon which he was sued had been paid, or that he had a good defense to them. In the-case of Walker-Durr & Co. v. Mitchell, in 52 So. a bill to enjoin the issuing of an execution on a judgment, was filed by the "Walker-Durr Company against Mrs. Mitchell and others. The material facts in that case were-that Mrs. Mitchell had rented some land to one Hugh. Bass, and the two Bales of cotton raised on this land,, upon which Mrs. Mitchell had a landlord’s lien, were sold, to the Walker-Durr Company. An attachment was sued out by Mrs. Mitchell, and these two bales of cotton were-levied upon. Thereupon the Walker-Durr Company signed the replevin bond of the tenant sued. Judgment was duly rendered in favor of the landlord and-against the defendant and Walker-Durr Company as surety for-
“It was incumbent on Walker-Durr Company to allege in their bill and prove that they had a valid defense to the demand on which the judgment was founded.”
In the present case, however, the complainant was not a party to the suit in the justice of the peace court against her son. At that time she was simply a creditor of her son just as was the defendant in this case. Her son had a perfect right to sell his property to her for a valuable consideration. By purchasing same she in no way became responsible to this defendant or to any other creditor for any debts due them by her son. Since the judgment in this case is absolutely void, there was no .lien whatever on the property bought by complainant from .her son. In the two cases relied upon by the defendant there was a claim of a debt against each of the parties who filed his bill for an injunction; consequently it was necessary for them to allege in said bill facts showing that the debt was not a valid one against them before they could have any standing in a court of •equity. In this case, however, the complainant' was neither directly nor indirectly responsible for any debt due by her son to the defendant in this case.
Reversed and remanded.
