Opinion
No. 31257.
November 5, 1934.
1. JUSTICES OF THE PEACE. In attachment proceeding before justice of peace, judgment not disposing of all matters but retaining jurisdiction for further proceedings until attachment bond was signed by resident sureties held not "final judgment" from which appeal lay, and justice did not lose jurisdiction.
Judgment was in favor of defendant on ground that he was a minor when debt was contracted, and that there was no written agreement, after reaching maturity, to pay indebtedness, and also that claim was barred by limitation, but judgment further recited that attachment bond contained only nonresident sureties and ordered plaintiff to file supplemental bond with resident property owners as sureties.
2. JUSTICES OF THE PEACE.
On appeal from justice of peace in attachment proceeding, sureties on appeal bond held liable for judgment rendered in circuit court, where there was failure to urge contention that justice of peace had lost jurisdiction to render judgment appealed from because of appeal from prior judgment.
3. JUSTICES OF THE PEACE.
In attachment proceeding, judgment of circuit court on appeal from justice of peace, after trial de novo, held valid against sureties on appeal bond.
4. APPEAL AND ERROR.
Corporation's officer signing corporate name by himself as surety on appeal bond and individual signing firm name by himself became liable on appeal bond personally.
5. ATTACHMENT.
In attachment proceeding, effect of judgment finding defendant not indebted to plaintiff was that plaintiff and sureties became bound for damages for wrongful suing out of attachment.
6. JUSTICES OF THE PEACE.
On appeal to circuit court in attachment proceeding, sureties on appeal bond became liable for judgment rendered therein rather than sureties on attachment bond.
APPEAL from the Circuit Court of Marshall County.
Smith Smith, of Holly Springs, for appellants.
The recital in judgment by default that the court found that the defendant had been duly served will not support the judgment, where the record shows how the service was made, and that it was insufficient.
Globe Rutgers Fire Ins. Co. v. Sayle, 65 So. 125, 107 Miss. 169.
We think that the judgment sought to be amended in the circuit court was void because it was a judgment for damages pursuant to a wrongful attachment, the writ in which attachment was never levied so far as the record in this case shows, against any property of appellee, for an attachment procedure being in rem does not confer jurisdiction upon the court, unless there is a rem seized or levied upon.
Sections 128 and 130, Code of 1930; Wharton v. Conger, 9 S. M. 510.
The actual levy of an attachment on personalty is necessary to give the court jurisdiction to the property, must be actually taken into possession by the officer or his agent, and if pretended levy be made without taking such possession, the judgment will be void as to that property.
Gates v. Flint, 39 Miss. 365; Section 134, Code of 1930; Criser v. Gorren, 41 Miss. 563; Cole v. Dugges, 41 Miss. 557.
We do not believe the court has the power after the term of the officer has expired to permit him in the guise of a witness to make a return then by his testimony, because in effect, even if witness Morton had testified that he seized this Chevrolet Roadster, it would have been to substitute for the missing return a present return after the expiration of the term of office of Mr. Morton and Mr. Dancy.
Howard v. Priestly, 58 Miss. 21.
If there was no valid return of the writ of attachment, then the judgment is void, and will not support a petition to amend.
Tebo v. Betancourt, 73 Miss. 869; Heath v. Lent, 1 Cal. 210.
The claim for the damages was for the wrongful suing out of the attachment, and not for the wrongful appeal.
Section 124, Code of 1930.
Neither of the appellants in this cause, C.C. Cox nor W.W. Hutton, were in any way connected with the attachment bond.
Ford v. Hurd, 4 S. M. 683; House v. Byrne, 5 S. M. 622.
We do not believe that the giving of an appeal bond supersedeas and discharges the sureties on the attachment bond, so that the sureties on the appeal bond became primarily liable instead of the sureties on the attachment bond. It is our contention that the sureties on the attachment bond still continue primarily liable.
Marqueze v. Sontheiner, 59 Miss. 430; Buckley v. Van Diver, 70 Miss. 622, 12 So. 905; Atkinson v. Foxworth, 53 Miss. 733.
The remedy of the defendant for the wrongful suing out of the attachment is by action on the bond.
Smith v. Herring, 10 S. M. 578; 4 C.J., secs. 3370, 3107 and 3403.
Of course we realize that, technically speaking, the appeal bond in the justice of the peace court is what is known as a supersedeas bond, but the statute provides that this is a supersedeas of execution.
Section 64, Code of 1930.
A bond on second appeal conditioned to abide the judgment of the second appellate court does not relate to the original judgment so as to be security for its payment.
Bauer v. Debanne, 105 Mo. 110, 16 S.W. 521; Lucedale Commercial Co. v. Strength, 141 So. 769.
The court was in error in overruling our objection to the introduction of the notes in this cause, because the judge's notes are no evidence after the term during which the judgment was rendered has expired by which the judgment can be amended.
Dickson v. Hoff, 3 H. 165; Rhodes v. Sherrod, 8 S. M. 97; Boone v. Boone, 8 S. M. 318; Barber v. City of Biloxi, 25 So. 298, 76 Miss. 578; 4 C.J., sec. 3381.
We cannot find any expression in line from our own court on the subject of parol evidence to aid the absence of a proper return, but we do find two or three cases from the courts of other states holding that parol evidence under such circumstances is not proper.
Battlieb v. Barton, 13 Colo. App. 147, 57 P. 754; Sanford v. Pond, 37 Conn. 588; Poert v. Bryne, 10 Ind. 146, 71 A. Md. 305; Murphy v. Ogill, 23 So. 305; Tucker v. Byars, 46 Miss. 549.
Dean Belk, of Holly Springs, for appellee.
All matters ante the rendition of this judgment amended are res judicata.
A judgment of a court having jurisdiction of the subject-matter and the parties is res judicata of all questions which were necessarily involved, and which could have been presented, and not merely questions actually presented by the pleadings.
Dean et al. v. Board of Supervisors of DeSoto County, 99 So. 563.
Collateral attack against a judgment will not lie in the defense of a motion to amend judgment.
Cotton v. Harlan, 124 Miss. 691; Federal Reserve Bank of St. Louis v. Wall, 138 Miss. 204; Wall v. Wall, 28 Miss. 407.
The judgment sought to be impeached is a valid judgment despite the fact of the irregularity and informality of the return on the process, all intendment being in favor of the judgment.
Martin v. Wall, 103 Miss. 754; Kelly v. Harrison, 69 Miss. 856; Sweetman v. Dean, 86 Miss. 641.
A collateral attack cannot be had against a judgment against defendant who had the right of appeal and failed to exercise it.
Ex parte Grubb, 79 Miss. 358.
A judgment entered by default against a party who has not been served with process and who has not appeared in the action is irregular and void.
32 Cyc. 737; Dunkin v. Jurdine, 59 Miss. 550; Prentiss v. Mellin, 1 S. M. 521; Globe Rutger Fire Ins. Co. v. Sayle, 107 Miss. 169.
F.E. Rutledge sued out an attachment against B.G. Salmon in a justice of the peace court in Marshall county, and certain property was seized under said writ. The sureties on the attachment bond were nonresidents of this state, as was the complainant.
On January 28, 1929, the justice of the peace rendered judgment in favor of B.G. Salmon on the ground that he was a minor when the debt was contracted, and that there was no written agreement, after reaching maturity, to pay said indebtedness, and also that same was barred by the statute of limitations, and taxed the costs against the plaintiff. The judgment further recited: "And it further appearing to the satisfaction of the court that the attachment bond given in said cause contains only nonresidents sureties thereon upon motion made by the defendant counsel doth hereby order and direct said plaintiff to file a supplemental bond in said cause with resident property owners thereon as sureties to be approved by the court for all of which let execution issue."
On February 6, 1929, an appeal bond was filed, attempting to appeal from this judgment, said bond being signed by F.E. Rutledge, as principal, R.L. Cox and J.R. Cox Son, and approved on February 7, 1929.
On February 11, 1929, another judgment was rendered in said cause reciting: "Be it remembered that this cause this day came on to be heard before the court on this day same having been especially set by counsel for plaintiff and defendant with the permission of the court for the hearing of the motion of defendant to quash the attachment dismiss the same and award him damages sustained by the wrongful suing out of same and the defendant appearing and the court being advised by counsel for plaintiff that they would not appear and the court after hearing proof as to the damage sustained by the defendant and being satisfied that said attachment was wrongfully sued out it is the judgment of the court that said writ of attachment is hereby quashed and dismissed and the defendant is hereby awarded as a further judgment of the court the sum of one hundred and ninety dollars ($190) to have and recover of the plaintiff and sureties on said attachment bond filed in said cause and further that all costs are adjudged against the plaintiff for all of which let execution issue."
From this judgment an appeal was prosecuted on February 21, 1929.
When the case came on for trial in the circuit court, traverse of the grounds of the attachment was filed by B.G. Salmon, and judgment was rendered in his favor for two hundred forty dollars and fifty cents in the circuit court, against F.E. Rutledge and his bondsmen, J.L. Cox Sons, and Hinton and Hutton Company, M.H. Hinton, and R.L. Cox. Thereafter a petition to correct this judgment was filed on the ground that the clerk misread the initials, and that they should have been "J.R. Cox Son, Hinton Hutton," M.H. Hutton, which should have been "W.W. Hutton and R.L. Cox." After hearing, the circuit court corrected the judgment so as to bind F.E. Rutledge, W.W. Hutton, and C.C. Cox jointly, but held that the corporation and partnership were not bound as such, and the partner who did not sign the bond was not bound.
It was contended in the motion to correct the judgment that there was no valid judgment rendered against the sureties on the second appeal bond above mentioned, on the ground that the former appeal from the judgment first rendered by the justice of the peace was appealed from and the justice of the peace court lost jurisdiction of the entire cause, and that judgment should have been rendered in the circuit court against the sureties on the attachment bond, and also that there was no traverse of the grounds of the attachment in the justice of the peace court.
It will be seen from reading the judgment of the justice of the peace set out above that he retained jurisdiction in order to have additional sureties on the attachment bond given, and that in the first judgment he did not proceed to award damages for the wrongful suing out of the attachment.
In our opinion, the first judgment was not a final judgment from which appeal lay, because the judgment did not dispose of all matters involved in the attachment suit, but retained jurisdiction for further proceedings until the attachment bond was signed by the resident sureties. When the next term arrived, the justice of the peace proceeded to hear the question of damages, and the second judgment rendered shows that the parties agreed for the court to hear the matter at that time, but the plaintiff failed to appear, and no attachment bond was given.
If the plaintiff conceived that the first appeal removed jurisdiction from the justice of the peace court, he could have applied for a writ prohibiting the justice court from proceeding and assuming further jurisdiction, and, same not having been done, and having permitted the cause to be tried, and an appeal having been prosecuted from that judgment, we are of the opinion that the sureties on the appeal bond became liable for whatever proper judgment should be rendered in the circuit court.
Inasmuch as the trial in the circuit court was de novo, and judgment was rendered therein on the traverse filed by leave of the court, we think the judgment rendered was valid, and that the circuit court had jurisdiction to render it against the sureties on the second appeal bond.
On the motion to correct a judgment, it appeared that C.C. Cox had signed the firm name by himself, and that one of the officers of the corporation had signed the corporate name by himself, and that they became liable on its appeal bond personally, and that the judge was correct in correcting the judgment as he did.
The effect of the judgment, finding that the defendant was not indebted to the plaintiff, was that the plaintiff and the sureties became bound for the payment of damages for the wrongful suing out of the attachment. Buckley v. Van Diver, 70 Miss. 622, 12 So. 905; Dean v. Stephenson, 61 Miss. 175, and Feld v. Portwood (Miss.), 7 So. 492.
On appeal to the circuit court, the sureties on the appeal bond became liable for the judgment rendered therein, and the judgment was properly rendered against the sureties on the appeal bond rather than the sureties on the attachment bond.
We find no error in the proceedings, and the suggestion of error is overruled.
Suggestion of error overruled.