Smith v. Frank Gardner Hardware Co.

83 Miss. 654 | Miss. | 1903

Truly, J.,

delivered the opinion of the court.

The judgment by default, taken in the court of the justice of the peace against N. B. Smith, even if regularly taken, was absolutely void. The petition filed by appellee in that court, assuming it to be fully sustained by proof, shows no legal ground for recovery against Smith. There is no definite averment that •Smith personally, was legally or morally obligated to pay for any of the goods bought by Ingram, and the petition does not charge that he, at the date of the notice to him by appellee, was indebted in any sum to Ingram. There wa.s no sufficient showing in this petition to put in motion the machinery granted to materialmen by chapter 71 of the code of 1892, nor to authorize the rendering of a judgment under § 2714-. Bradstreet Co. v, Jackson, 81 Miss., 233, 32 So. Rep., 999. As the judgment against Smith was absolutely void, it follows that a consideration of the circumstances under which that judgment was taken, and as to when it was entered upon the docket, is unnecessary. It also follows that the chancellor should have perpetually enjoined the attempted enforcement of this void judgment. The decree is reversed, and the injunction against appellee restraining any attempt to enforce the collection of its judgment against N. B. Smith is made perpetual.

Reversed.