45 Miss. 430 | Miss. | 1871
It appears from the record, that on the 15th day of November, 1858, a summons was issued by the clerk of the circuit court of that county, at the suit of William L. Cox, against Thomas Coopwood, David Clark and A. J. Gillespie, the two latter being sued as partners, under the name of Clark & Gillespie, composing a firm doing business under such designation. Upon the summons is this indorsement:
“We acknowledge service of the within summons and agree that the same may be docketed, and judgment rendered against us at the next term of the circuit court, for $1,241 51, with stay of execution six months.
“T. Coopwood.
“Clark & Gillespie.”
“$1,235 36. Abebdeen, Miss., July % 1858.
On the first day of November next, pay to the order of W. L. Cox, twelve hundred and thirty-five dollars and thirty-six cents, payable at the office of the Mississippi Mutual Insurance Company in Aberdeen, Miss., value received and charge the same to account of “ To Messrs. Clark & Gillespie, } T. Coopwood.”
Aberdeen, Miss.” f
At the then next term of tlie circuit court of Monroe county, without filing any declaration in said suit, judgment was taken in favor of Cox, against Coopwood,- and Clark & Gillespie, upon the summons, indorsement and bill of exchange attached, these embracing the only papers in the cause. Upon this judgment, after the expiration of the stay provided for, an execution was issued and. returned with the following indorsements :
“ Received of Thomas Coopwood, twenty-five dollars and fifty-nine cents, the costs and commissions on this fieri facias, November 9, 1859. J. II. A., Sheriff.”
“ This execution is returned by order of plaintiff, November 9, 1859.» J. H. A., Sheriff.”
“The sheriff will return this execution to the next term of the circuit court of Monroe county, without making the money, and weight until further orders, November 9, 1859.
“W. I. Cox.”
On the 19th day of February, 1861, another execution issued on said judgment, and was returned by the sheriff, May 4, 1861, “superseded;” Coopwood having removed the cause to the high court of errors and appeals. ' No step was taken in the case in the latter court until the April term, 1866, when the death of the plaintiff in error was suggested by defendant in error, on whose motion the case was reversed in the name of Wm. C. Coopwood, adminis
Scire facias was not issued to bring in the administrator, nor did he voluntarily, or otherwise, become a party to said suit; but the case was revived, docketed and dismissed on the suggestion and motion of defendant in error, without the administrator being made a party thereto. At the November term, 1866, of the circuit court-of Monroe county, the judgment was reversed against the heirs of Thomas Coopwood, deceased, and execution was issued on said judgment in January, 1867, when the sheriff levied the same upon lands hereinafter more particularly mentioned.
On the 4th day of May, 1860, Thoihas Coopwood, by deed of trust, conveyed to Amzi Bobbitt, trustee, certain slaves and parcels of land described in the deed, the lands being the same levied upon by the sheriff in virtue of the execution upon the judgment against Clark & Gillespie, and against the heirs of Coopwood, deceased, just referred to as revived, etc.
The deed of trust was executed to secure and protect Tarleton, Whiting & Co., commission merchants of Mobile, on account of money loaned by that firm to Coopwood, and paid out for him on his drafts. The deed contained the usual authority to sell, on failure to pay the indebtedness described therein, and the conveyance was recorded in the proper office on the day of its date.
On the 16th day of July, 1866, George W. Tarleton became the purchaser of the lands, described in the deed, of trust, the same having been sold on that day by the trustee after the notice required by the conveyance. Upon, the sale, the trustee conveyed to Tarleton the lands so purchased by him, which conveyance was then recorded in the proper office.
On the 27th day of February, 1867, Tarleton filed his bill of complaint, in the chancery court of Monroe county, against the said W. L. Cox and the sheriff, setting forth the
The defendants demurred to the bill upon several grounds. The first cause alleged asserts the validity or lien of the judgment specified; the second claims the judgment to be, at most, only irregular; the third insists that the complainant, being a stranger to the judgment, cannot attack it, or claim any advantage from the alleged irregularities ; the fourth claims that Cox had a right to stay his execution without impairing his lien; the fifth is on the ground of the want of privity or relationship between defendant and complainant, and Coopwood, Clark and Gillespie, and the defendant was not bound to know or guard the interest of complainant; the sixth alleges that, even if defendant had been the creditor of Coopwood and others, and complainant had been their security upon the debt merged in the judg
The demurrer was sustained, the injunction dissolved, and the bill dismissed, from which decree the complainant appealed, and assigns for error that “the court below erred in sustaining the demurrer of appellees to the bill of complaint of appellant, and in dismissing said bill, and in dissolving the injunction.”
Upon this record the appellant propounds for our consideration four questions, all of which are of practical importance, while some of them are intricate and interesting, viz. : 1st. Is the judgment against Coopwood void; Sd. Is the judgment of the high court of errors and appeals, in dismissing the appeal of Coopwood, void; 3d. Did the judgment lien of Cox become dormant during the period in which he agreed to suspend execution; 4th. Has Cox the right to enforce satisfaction of his judgment out of the drawer of the bill, Coopwood, to the injury of Tarleton, before he has exhausted the acceptors,Clark and Gillespie.”
Having reached the conclusion that the second of these queries must be answered in the affirmative, an adjudication of the other questions is thus rendered unnecessary until they shall be presented to us in the further progress of this litigation.
We, therefore, proceed to the investigation of the dismissal of the case of Coopwood against Cox by the high court of errors and appeals. The facts have been stated,
The bill avers that the representative of Coopwood did not “come voluntarily” and “make” himself a party, but neglecting to do so, the cause was revived in his name upon the suggestion and motion of defendant in error, without a scire facias, whereupon the cause was dismissed for want of prosecution; and the bill adds, that ‘£ the cause was docketed, revived and dismissed without the administrator of Thomas Coopwood being made a party thereto.”
The case of Borden v. Fitch, 15 Johns. 121, was very elaborately argued, and the court held that “to give any binding effect to a judgment, it is essential that the court should have jurisdiction of the person and of the subject-matter, and the want of jurisdiction is a matter that may always be set up against a judgment when sought to be enforced, or where any benefit is claimed under it. The want of jurisdiction makes it utterly void, and unavailable for any purpose.” Numerous cases are referred to by counsel, and reviewed .by the court. To the same effect is the case of Bissel v. Briggs, 9 Mass. 433; Harris v. Hardeman et al., 14 How. (U. S.) 334, originating in Mississippi. The court say it has been settled in a variety of decisions, “ that a judgment depending upon proceedings in personam can have no force as to one on whom there has been no
In Enos v. Smith et al., 7 Smedes & Marsh. 85, the court said; “A judgment without notice, and without appearance of the party, is a nullity. It may be shown to be so, even when it comes collaterally in question.” A similar declaration was made by the court in Neal v. Wellons, 12 Smedes & Marsh. 649 : “A decree of any court affecting and determining the rights of parties, without notice to those parties, or without the notice required by law in such cases, is null and void as to them.” The doctrine of these cases is recognized in Hardy v. G-holson, 26 Miss. 70; Cason v. Cason, 31 ib. 578, 597, and, in fact, is coeval with the common law itself. Borden v. Pitch was decided in 1812; Bissel v. Briggs in 1818; Enos v. Smith in
In Byrd v. The State, the court observe that “A special, as well as a limited jurisdiction is confined not to classes, but to individuals and special cases ; such, for instance, as a court martial, which has power to hear and determine on the particular inquiry, and upon the particular cases, with a view to which they are organized. 19 Johns. 32. But even jurisdictions of this character are sustained, and their judgments incapable of collateral investigation, although.: erroneous, so long as they confine themselves within the line of their jurisdiction. 2 W. Black. 1145. It may be regarded as well settled that the judgment of any court, of however limited or special jurisdiction, when it appears that it had jurisdiction of the person and the subject-matter, cannot be disputed collaterally. Nor will the judgment of any court of general jurisdiction be regarded as proof of any fact, unless it appears from the record that the court had
Tested by these rules, what is the attitude of the case at bar ? In the first place it must be determined by the record it has made, and this leads us to refer more particularly to the j urisdictional facts presented. This is best done by quoting entire, from the bill, the reference of this branch of the case, viz.: “ That no step was taken in §aid cause until the April term, 1866, of the high court of errors and appeals when on the fifteenth day of May, 1856, the following order was made:
“Thomas Coopwood ) v. William L. Cox. ) This day came on to be heard the motion of defendant in error to docket this cause and revive the same in the name of Wm. C. Coopwood, administrator of Thomas Coopwood, the plaintiff in error, whose death is suggested by counsel for defendant in error, and dismiss the same for want of prosecution. And defendant in error in support of said motion filed a certificate of the clerk of the circuit court of Monroe county, showing that judgment was rendered in said court against Thomas Coopwood and Clark and Gillespie for the sum of twelve hundred and forty-one dollars and fifty-one cents, besides costs of suit, and that the said Thomas Coopwood, on the first day of May, 1861, prayed and obtained a writ of error to this court from said judgment, and this court having fully considered said motion doth order that the same be and is hereby sustained; that said certificate be filed and said cause docketed, and*440 that the same be revived in the name of W. C. Coopwood, administrator of Thomas Coopwood, deceased, and that the same be and is hereby dismissed for want of prosecution; and that said plaintiff in error pay the costs of this cause in this behalf expended and to be taxed ; that no scire facias was ever issued by the clerk of said high court of errors and appeals to revive said cause in the name of W. C. Coop-wood, nor did said administrator come in voluntarily and by proper suggestion make himself a party to said suit, but that the cause was docketed, revived and dismissed without the administrator of Thomas Coopwood being made a party thereto.”
What does this record prove ? Noes the recoi'd of judgment, that the court had fully considered the motion, and therefore ordered that it be sustained, import absolute verity, including the presumption that the court had passed upon the question of jurisdiction, or do the previous recitals show affirmatively that the couz't did not obtain jurisdiction of the person of the repz'esentative of the deceased ? We are of the opinion that this record not only does not show jurisdiction, but that it appears thereby, that jurisdiction of the person of the administrator was not obtained, which is proved by the recital that the motiozz and suggestiozz were, made by defendant in error. It is not shown that the administrator was, in fact, in court, o'r that he had counsel there, nor that notice of the motiozi was served upon him, personally or constructively, nor cazz presumptions of .these facts be indulged izz frozn the record, much less, that scire facias issued to bring him in. The result is, that the representative of the deceased was not znade a party, and the judgment was against a dead znan. These fatal facts are not met by the argument of counsel, that the qzzestion presented involves only the practice of the high court of errors and appeals. It is not conceived that the znode of proceeding of any court can cure a pateizt want of jurisdiction. The questions of practice hez-ein will azise whezz steps shall be taken to reinstate the case of
The decree of the court below is reversed and the cause remanded.