Duncan v. Gerdine

1. Judgment. Injunction. Jurisdiction. A judgment by default without service of process is void and may be enjoined. 2. Same. Interested witness. Deceased person. The complainant cannot testify to want of service after the plaintiff answers the bill and dies. 3. Same. Return of service. Officer cannot impeach. An officer cannot contradict his return on which the judgment was rendered. 4. Same. Presumption. Sufficiency of evidence. The presumption that the return is true can be rebutted only by clear proof.

Appeal from the Chancery Court of Clay County. Hon. E. A. Ceitz, Chancellor, did not preside in this case, but counsellor Geoege A. Evans acted as chancellor pro hac vice. After the appellant’s husband failed to sustain his attack on the judgment which the appellees’ testator had obtained against her in the Circuit Court, Duncan v. Robertson, 57 Miss. 820, she filed a bill assailing this judgment under the married woman’s law, and when that position was lost (Duncan v. Robertson, 58 Miss. 890) she obtained leave to file an amended bill, which alleged that the law court had no jurisdiction, because summons was never served upon her, and the injunction against the judgment was reinstated. After B. F. Bobertson answered the amended bill and denied the averment of want of a summons, he died, and the case was revived against the appellees, who, at the final hearing, on the evidence stated in the opinion, obtained a decree dissolving the injunction and dismissing the bill. filed a brief, and the former argued orally. Judgments without notice are void and can be inquired into collaterally. Lane v. Wheless, 46 Miss. 666 ; Brown v. Levee Commissioners, 50 Miss. 468; Wade on Notice, §§ 1137, 1138. They may be set aside by a direct proceeding for that purpose, and the return contradicted by the record. Wade on Notice, §§ 1176, 1373, 1378; Jenlcs v. Payne, 15 John. 399; Mastín v. Gray, 19 Kansas, 458; Bogan v. Brown, 44 Miss. 235. The return may be impeached to perpetually enjoin the judgment founded on a false return because of its falsity. Earle v. Me Veigh, 91 U. S. 503. Equity will grant relief against an execution in such cases. Ridgeway v. Bank of Tennessee, 11 Humph. 523; Rape v. Heaton, 9 Wis. 328. Judgments by default on insufficient return are void. Wade on Notice, §§ 1371, 1385; Betts v. Baxter, 58 Miss. 329. Where a judgment is void for want of jurisdiction, an execution on it will be perpetually enjoined. Herman on Executions, § 399; Mc-Faddin v. Spencer, 18 Texas, 440 ; Cunningham v. Taylor, 20 Texas, 126; Crawford v. Redus, 54 Miss. 700; Joyner v. Miller, 55 Miss. 208; Sivley v. Summers, 57 Miss. 712. The testimony of B. A. Duncan and the appellant and R. W. Miller are conclusive as to the manner of the service and no one has contradicted Miller’s statements, or even attempted to do so, but it seems to have been admitted that Miller did not serve the summons. argued orally and in writing. 1. It is competent by bill in equity to attack a judgment at law and show that it is Aroid for want of notice. Crawford v. Redus, 54 Miss. 700; Sivley v. Summers, 57 Miss. 712. This is the object of the amended bill, and constitutes its sole equity. The defendants appealed from the order allowing the amended bill filed and reinstating the injunction. The action of the Chancellor was affirmed. The complainant’s right to relief upon proof of the facts charged in the amended bill is, therefore, res judicata. 2. If the judgment was taken by default at the return term without personal service, it was void. Betts v. Baxter, 58 Miss. 329. This is not a bill filed for a new trial at law. In such case it would be necessary for the complainant to show that she had a good defence. The judgment here is not merely irregular; it is a nullity. Being void, the complainant’s land cannot be sold under it. To prevent the execution of the Amid judgment, whereby a cloud would be cast upon the complainant’s title, she has the right to enjoin it, without regard to the justice of the debt. Ridgeway v. Bank of Tennessee, 11 Humph. 523; Blaheslee v. Murphy, 44 Conn. 188. To hold otherwise would be to give a plaintiff recovering a judgment without notice an advantage he would not possess where summons is duly served on the defendant. 3. The statute which provides that the suing out of an injunction shall operate as a release of errors has no application to this case if the facts alleged in the bill are true. (1.) Because the judgment is not merely erroneous or irregular, but is void. Bass v. Nelms, 56 Miss. 502. (2.) Because the injunction was sued out while the Code of 1871 was in force by Mrs. Duncan, a married woman. Davis v. Boy, 7 S. & M. 64. But all this was discussed and decided on the last appeal to this court, when it was held that the complainant was entitled to file the amended bill and have the injunction reinstated. 4. The question then is this, Has the appellant shown that the summons was not served ? It is clear from all the facts in evidence that Mrs. Duncan was not personally served with process. If she was not, then the allegations of the bill are sustained. The Chancellor did not decide that the summons was in fact served. On the contrary, it is evident that he believed that it was not served personally upon Mrs. Duncan. Instead of deciding upon this question of fact, he concluded that the record had at one time shown that she was served, and thereupon held that it was incompetent to show that she was not served. filed a brief, and argued orally. 1. Conceding the power of a chancery court to enjoin a judgment at law, which is void for want of notice, the fact that no service was had must be proved. The officer’s return supported by the subsequent judgment presents a prima facie case which can only be met by a preponderance of competent and satisfactory evidence. In this case the testimony, which is that alone of the complainant, her husband and the officer who made the return, is both incompetent and -insufficient. C. A. Duncan is incompetent, for she will not be permitted to testify against tlie estate of a deceased person to establish or defeat a claim which originated during his lifetime. Griffin v. Lower, 37 Miss. 458; Lamar v. Williams, 39 Miss. 342; Otey v. McAfee, 38 Miss. 348; Boylan v. iZoii, 45 Miss. 277; Buckingham v. JFai/rer, 48 Miss. 609; Wood v. Stafford, 50 Miss. 370; Jac/cs v. Bridewell, 51 Miss. 881. The officer serving process shall not be permitted to question the truth of his return. Code 1871, § 707 ; Code 1880, § 1533. A lost writ must be proved in the same manner as other records, by office copies, certified copies under seal or exemplifications. 2 Phill. Evid. 377, note 6; Pigot v. Davis, 3 Hawks, 25 ; Gardner v. Hosmer, 6 Mass. 325; Welsh v. Joy, 13 Pick. 477; Niehol v. Ridley, 5 Yeager, 63, 65 ; Dogan v. Brown, 44 Miss. 235. And when the record books were burnt and mutilated or lost, the clerk’s docket and the journals of the judges have been deemed the next best evidence of the contents of the record. 1 Greenl. Evid. § 848; Freeman on Judgments, § 407; Eakin v. Vance, 10 S. & M. 549; Bowman v. McLaughlin, 45 Miss. 461; McQueen v. Fletcher, 4 Rich. Eq. 152; Cook v. Wood, 1 McCord, 139; Lyons v. Gregory, 3 Hen. & Munf. 237; Walker v. Greenlee, 3 Hawks, 281; Lowry v. Cady, 4 Vt. 504; Harvey v. Thorpe, 28 Ala. 250 ; Den v. McAllister, 2 Halst. 46; Jackson v. Waldron, 13 Wend. 178; Hilts v. Colvin, 14 John. 182 ; Renner v. Bank of Columbia, 9 Wheat. 581, 597; Clarke v. Courtney, 5 Peters, 318, 344; 2 Phill. Evid. 357. Where the law requires an entry or memorandum of a particular transactioaa to be made in a court of justice, the official entry or memorandum excludes all independent evidence of the same. 1 Phill. Evid. 581. If the records be lost the docket entries become primary evidence. 1 Wharton Evid. § 826. Under no circumstances is the officer competent to contradict his return. 2. There is certainly nothing in the evidence to justify a reversal of the Chancellor’s decision upon this question of fact. Davis v. Richardson, 45 Miss. 499; Apple v. Ganong, 47 Miss. 189; Partee v. Bedford, 51 Miss. 84, 90. At most the evidence is conflicting. Equity will not lightly interfere with a judgment at law. Some strong reason must be clearly proved. Fowler v. Lee, 10 Gill & J. 358; Gardner v. Jenkins, 14 Md. 58; Tomkins v. Tomkins, 11 N. J. Eq. 512; Stokes v. Knarr, 11 Wis. 889; Grafts v. Dexter, 8 Ala. 767; Bradley v. Richardson, 23 Yt. 720 ; Lee v. Insurance Bank, 2 Ala. 21; Walker v. Gilbert, Freem. Oh. 85; Owens v. Ranstead, 22 111. 161. It must be alleged and shown that injustice was done by the judgment. Jeffery v. Fitch, 46 Conn. 601; Nason v. Smalley, 8 Yt. 118; Coon y. Jones, 10 Iowa, 131. The effect of vacating the judgment now would be to release the defendant from the debt, as the Statute of Limitations has intervened. Fowler v. Lee, 10 Gill & J. 358; Gregory v. Ford, 14 Cal. 138. argued orally and filed a brief. C. A. Duncan’s remedy was by a writ of error coram nobis. 1 Rolle Abr. 746 ; 1 Arch. Prac. 234. Upon a judgment in the King’s Bench, if there be error in the process or through the default of the clerk, it may be reversed in the same court by a writ of error coram nobis. Orawford v. Williams, 1 Swan, 341; Robb v. Halsey, 11 S. & M. 140 ; Kramer v. Holster, 55 Miss. 243; Tidd’s Prac. 1137. Her remedy being clear and complete in the common-law court, she has no remedy in a court of equity. Boone v. Poindexter, 12 S. & M. 640; Boyd v. Swing, 38 Miss. 182.' And where a party has been impleaded in any jurisdiction having cognizance of the subject-matter he must use diligence to avail himself of every defence proper to his case and admissible in that forum. Nevitt v. Gillespie, 1 How. 108; Yeizer v. Burke, 3 S. & M. 439; Wellons v. New-ell, 7 S. & M. 399; Smith v. Walker, 8 S. & M. 131. It is always a delicate matter for one court to interfere with the judgments or decrees of another court possessing independent jurisdiction, and it will never be done, except as an absolute necessity. There was no necessity for the Chancery Court to interfere in this case; for, if the judgment is void as claimed, then no sale under it would pass any title or confer any rights. Besides, the defendant could easily procure an order vacating said judgment from the Circuit Court in which it was rendered. Kramer v. Holster, 55 Miss. 243. When this case was before this court two years ago, it was clearly intimated that Duncan’s remedy was in a court of law. Duncan v. Robertson, 57 Miss. 820.