Weems v. Vowell, 84 So. 240

84 So. 240 | Miss. | 1920

Ethridge, J.,

delivered the opinion of the court.

The appellant, Mrs. Weems, filed a bill in the chancery] court to enjoin the sheriff from executing an execution upon her property. She alleged in her bill that she had not authorized the use of her name as plaintiff in the suit upon which the judgment was rendered and the execution was issued, and that she ' was made a complainant therein without her knowledge or consent; that her first knowledge of such fact of being 'a party to the said cause, or that there was a judgment rendered against her, was when 'the sheriff appeared at her place with an execution. She further alleged that S.- C. Weems, her husband, had filed a bill of injunction in the chancery court against J. W. Vowell, beneficiary, and H. F. Jones, trustee, restraining and enjoining them from selling certain propierty described in the said bill for an injunction; that, after said bill for an injunction had been filed and the bond executed and approved, counsel representing S. C. Wleems joined the complainant in the present bill as a party in said cause without the knowledge, consent, or approval of the complainant, and that judgment was entered in the said cause against her and S. C. Weems'and the sureties on his injunction bond; that she had never at any time authorized said counsel for S'. C. Weems', or any person whatsoever, to use or include her as a party in said cause, and that1 said judgment as to her is void and of no effect; that said sheriff had levied upon two hundred and fifty bushels of corn belonging to the complainant under the said void judgment, and had advertised the same to bet sold; and that the sale would be made unless the sheriff was restrained. It further alleged that she was the head of a family, that said corn was grown upon her property, and that said corn was all the corn that said complainant now has or owns, and was exempt from taxation, and prayed for a writ of injunction restraining the sheriff from proceeding with the sale, and that on final hearing the injunction be made perpetual, and that the 'court would grant an order setting aside the judgment and decree against complainant.

The defendants filed an answer denying the allegations of the bill, and J. W. Vowell filed a motion to intervene as a party defendant, which motion was granted. The defendants filed notice of damage for the wrongful suing out of the 'injunction. On the trial it was agreed that Mrs. Weems was sick and* unable to attend court, and if present, would testify that the first knowledge she had of the judgment entered against her husband, S. 0. Weems, or herself,'as principal and sureties on the injunction bond, was when the sheriff appeared at her home to execute the execution issued upon the ‘judgment, arid that at no time did she authorize counsel, or any one else, to 'sign her name to the bill of complaint filed by S. C. W|eems against J. W. Vowell and H. F. Jones, trustee, or to join her in any'way as complainant in the said bill, and, further, that she would testify that the com levied upon was grown upon her individual land, and that she at no time saw any advertisement of any property in the Winston County Journal, or any other paper, affecting her property or the property of her husband.

The complainant in the original bill upon which the judgment was entered, S. C. Weems, testified that he had never authorized his attorney to join Mrs. Weems as a complainant; that he had filed the suit in his own name; that he had never discussed it with Mrs. Weems; that the first knowledge that he had that Mrs. Weems was a party defendant in the original bill filed by him was just after the execution on the judgment; that he did not know that she was connected with the suit; and that he did not, as agent or otherwise, authorize his attorney to make her a party complainant. The attorney was: introduced as a witness for the complainant and testified to the same effect. He said that he filed a bill in the name of S. C. Weems, and that no one authorized him to join Mrs. Weems as a piarty complainant, but that on the hearing’1 he thought it would protect Mrs. Weems’ rights to make her a party complainant, and that he made her a party of his own volition, intending to get an order of the court making her a party but failed to have an order entered; that he had no authority either from Mr. Weems or Mrs. Weems¡ to join her as a complainant in the suit.

It appears from the original bill filed by S. C. Weems that he had taken a deed of trust upon certain lands from one Breazeale, and that he had assigned this deed of trust as collateral security for a promissory note executed by him to Vowell for five hundred dollars. It further alleged that he had paid off the said note to Vowell, and was not indebted to him in any amount whatever, and that he had tried to get a settlement with Vowell, and that, if he owed him anything at all, he stood ready and willing .to pay the same, and was ready and anxious to establish the fact that the note and deed of trust transferred as collateral is fully paid. He further alleged that he had executed a deed of conveyance to the land embraced in the deed of trust to one Daniel, and that Breazeale had conveyed to him (Weems) the land in payment of the amount due on the deed of trust, and that Daniels had conveyed to Carter, and Carter had conveyed by deed of trust on said land to M. E. Weems, the wife of the complainant.

It appears in the testimony that, subsequent to the filing of this bill for injunction by S. C. Weems, Mrs. Weems had her deed of trust foreclosed, and had bought in the property at a trustee’s sale. The defendants in the present suit sought to establish that S. C. Y^eems, the husband of M. E. Weems, acted as her agent in buying in the property at the trustee’s sale, and that at such sale the attorneys for Yowell had given notice at the time of the sale, and in the presence of S. 0. Weems, that the land was in litigation, and contend that this notice to S. C. Weems of the claim of Yowell was notice to Mrs. Weems, and that by reason thereof she is estopped to maintain the present suit.

The chancellor dissolved the injunction in the present case and awarded damages thereon, finding for the defendants in said cause, and entered a judgment against the appellant and the sureties on her injunction bond, from which this appeal is prosecuted.

It clearly appears from the evidence in the case that the attorney for S. 0. Weems in the first injunction suit had no authority from any one to join appellant as a party to said cause. It further appears to the satisfaction of the court that Mrs. Weems, the appellant, was not a surety up'on the injunction bond in said cause.

We think the law is well settled that no person can be made a party complainant to a suit without their knowledge or consent, no matter what motive may have influenced the attorney or what good may have, in his opinion resulted to the complainant by making her a party, and that his action in so doing was unwarranted, fraudulent, and void. The joining of a party complainant in a suit without authority so to do is necessarily a fraud in law, without regard to the motive actuating the attorney in taking such action, and it is clearly settled that equity will relieve by injunction, and by other appropriate relief, against a judgment rendered against a party where there was no authority for joining such party in the suit.

In Webster v. Skipwith, 26 Miss. 341, the doctrine is laid down that in all cases where, by accident, mistake, or fraud, or otherwise, a party has an unfair advantage in proceeding in a court, which must necessarily make that court an instrument of injustice, and is therefore against conscience that he should use that advantage, a court of equity will interfere and restrain him from using that advantage; that any fact that proves it to be against conscience to execute such judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law', but was prevented by fraud or accident unmixed, with any fraud or negligence of himself, or of his agents, will authorize a court of equity to interfere. In that case, as the pleadings stood at the trial term of the suit, the defendant was in attendance and prepared with the proof necessary to a successful defense of it; but, on the assurance of his counsel that, as the pleadings stood, the burden of proof was upon the plaintiff, and that as plaintiff’s counsel had no proof to sustain the action, it would be decided for the defendant, the defendant gave no further attention to the case, but left the court. The attorney for the plaintiff was of opinion that he could not recover a final judgment for want of proof, and so stated to the- adverse counsel, and proposed to him that the case should be continued, expressing a willingness to dismiss it upon the payment of costs and his fee, which was declined. He then determined to obtain an amendment of the declaration, so as to dispense with proof, and accordingly made such an amendment, acting, as he thought, under the consent of the attorney for the defendant. But there seems to have been a misunderstanding .between the attorneys; the one believing the consent to have been given, and the other not intending to give it, and being, as he contends, ignorant of the fact that the amendment was made. Under these circumstances, the case proceeded to trial, the declaration as amended was read, and the defendant’s original plea. The defendant contended that the burden of proof was upon the plaintiff, and, as no proof was introduced, that a verdict should be rendered for the defendant. The court was of a different opinion, and judgment was rendered for the plaintiff, and on appeal the decision of the court below was affirmed, and a bill was sued out to enjoin the execution, alleging the'above facts and charging fraud. The bill was dismissed in the court below, and from that decree an appeal was taken. This court reversed the judgment of the lower court.

In Plummer v. Plummer, 37 Miss. 185, in the first syllabus of that case, the rule is. stated as follows: “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 establishim'o; 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 said: “It is admissible to attack judicial proceedings for fraud, and parol evidence is admissible to prove it.”

In Richardson v. Brooks, 52 Miss. 118, this court held that equity had jurisdiction to set aside a judgment procured by fraud; that, while equity will not undertake to review probate proceedings in a probate court with a view of correcting them, it will act to investigate the act of a trustee, with a view of declaring him or his privies to be clothed with the legal title to property for the benefit of the cestui que trust, and it will not stop the piursuit because it leads into a court of probate; that one court may look into the r ecords of another of concurrent jurisdiction, or even of exclusive jurisdiction, not with a view of revising1 or amending them, but for the purpose of seeing whether rights claimed to have- been obtained there were ' obtained through fraud — -saying: “Fraud vitiates everything, and may be collaterally attacked,' and this applies to the judgments and decrees of all courts.”

In Herring v. Sutton, 86 Miss. 283, 38 So. 235, in the second syllabus the principle is stated:

“A court of equity in the exercise of a broad discretion should see that wrong an'd oppression are not inflicted under the guise of legal procedure, but that justice is done as the very right of each case may demand. ’ ’

That a judgment entered against a party in a suit in which such party was joined by an attorney without authority to do so may be set aside, vacated, or enjoined, see the following authorities: Aldrich v. Kinney, 4 Conn. 380, 10 Am. Dec. 151; Sherrard v. Nevius, 2 Ind. 241, 52 Am. Dec. 508, and case note; Horton v. Howard, 79 Mich. 642, 44 N. W. 1112, 19 Am. St. Rep. 198; American Ins. Co. v. Oakley, 91 Paige (N. Y.) 496, 38 Am. Dec. 561, and case note; Keith v. Wilson, 6 Mo. 435, 35 Am. Dec. 443, and case note at page 448; Wiley v. Pratt, 23 Ind. 633; Shelton v. Tiffin, 6 How. 163, 12 L. Ed. 387; First Dec. Dig. Judgment, section 492.

We fail to find any evidence in the record warranting an estoppel against the appellant. This suit is for injunction and cancellation as to a judgment rendered against the appellant without authority of law, and is not a suit concerning title to real estate involved in the injunction suit filed by S. C. Weems against Yowell and Jones. There is certainly nothing' in the record showing any act by the appellant after knowledge of judgment rendered against her that would preclude her from asserting her rights. The chancellor should have made the injunction perpetual and canceled the judgment. As the facts are all one way, the case will bo reversed, and judgment rendered here in favor of appellant.

Reversed, and judgment for appellant.

Reversed.