148 So. 794 | Miss. | 1933
The appellants, Schwartz Bros. Co., were plaintiffs in *403 the court below, and brought suit upon a judgment rendered against the appellee, J.H. Stafford, in 1925, at the July term of the circuit court, filing therewith a copy of the judgment, and a former declaration upon which the judgment was rendered, as exhibits to said declaration.
The defendant pleaded the general issue, nul tiel record, and gave notice thereunder that he would introduce evidence to show that no summons or process was served upon him in the suit in 1925; and, for that reason, there was no judgment and the court had no jurisdiction over the person of said defendant, J.H. Stafford, since he did not appear in said cause.
The cause went to trial upon issue as to whether or not there had been a service of process in 1925; and, under appropriate instructions, the jury returned a verdict in favor of the defendant, J.H. Stafford, upon which verdict the court rendered a judgment in favor of the defendant, Stafford, in the present suit, but directed the defendant to appear at the next term of court and plead to the original suit, filed in 1925. From this judgment, the appellant, Schwartz Bros. Co., appeals.
In a suit upon a judgment, it is not necessary to set out the former declaration, etc. Jones v. McCormick,
When a valid judgment is rendered, all rights of parties are merged therein. In Pigford Gro. Co. v. Wilder,
The action in the case at bar being upon a judgment, the setting out, as exhibits to the declaration, the former declaration, etc., was surplusage.
In a suit on a judgment, the general issue, and the only general issue, is nul tiel record, and, if any other defense is to be made to it, it must be done by special pleas. 34 C.J. p. 1098, sec. 1557; Stephens v. Roby,
In the case of Stephens v. Roby, supra, it was held that, on an issue nul tiel record in a suit on a judgment, evidence of the satisfaction could not be received.
In Paepcke-Leicht Lumber Co. v. Savage,
In Reichman-Crosby Co. v. Horton,
It is equally true that the conflict in the evidence is for the jury's decision. In the case before us, there was a direct conflict in the evidence, but the deputy sheriff's evidence, which was relied upon to sustain a service of process, was not from his personal recollection, but was from the fact that the return was signed by him, coupled with his general recollection that he served some kind of paper upon J.H. Stafford. In other words, the evidence is very much like the evidence in the case of Reichman-Crosby Co. v. Horton, supra.
In Kaufman Sons v. Foster,
These authorities seem to be conclusive as to the correctness of the decision of the court below on the law of the case as far as affects this appeal.
In American Cotton Oil Co. v. La Valle House,
In this case it is not necessary to decide whether two counts in the declaration, one upon a demand, and the *406 other upon the original cause of action, could be joined in the same suit. Where a suit is upon a judgment, if valid, the defenses existing at the time the judgment was rendered are cut off.
We are not here called upon to decide whether the court below had authority in this case to direct the parties to appear at the next term and plead in the original cause of action; nor are we called upon now to consider what defense could be availed of, or whether the cause of action would be barred, because of the failure to serve process and take judgment within seven years.
We find no error in the trial of this case, and the judgment will be affirmed.
Affirmed.