Marks, Rothenberg & Co. v. McElroy

67 Miss. 545

• Court: Mississippi Supreme Court
• Decided: April 15, 1890
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

Appellant sued Mrs. McElroy to recover on an account for goods sold to her before her marriage. She pleaded infancy, to which the plaintiff replied, that before the purchase by her of the goods, for the price of which suit was brought, her disabilities, infancy, had been removed by a decree of the chancery court of Hinds county. To this the defendant rejoined by a general denial.

On the trial the plaintiffs offered in evidence the decree alone of the chancery court, to which the defendant objected, because it was not shown by said decree or otherwise that the chancery court of Hinds county had acquired jurisdiction of defendant to make said decree. The objection was sustained, and the decree excluded. The assignment of error raises no other question than the action of the court in this ruling. .

The evidence was properly excluded. The rules of presumption which are applied in reference to judgments or decrees of courts brought collaterally into review are: 1. Where a court of general jurisdiction (a court of record), acting within the scope of its ordinary power, renders judgments or decrees, such judgments or decrees will be presumed to be in accordance with its jurisdiction. 2. Courts of limited jurisdiction (courts not of record) are presumed to have no jurisdiction other than that shown to exist. 3. Courts of record, exercising special powers conferred by statute in derogation of the common law, and proceeding according to the statute, and not according to the course of the common law, are, as to their judgments or decrees in such matters, upon the footing of courts not of record. Freeman on Judgments, §§ 122, 123, 124, 132, 517, 521, 525; Williamson v. Berry, 8 How. (U. S.) 495; Thatcher v. Powell, 6 Wheat. 119; Pulaski County v. Stuart & Buchanan, 28 Grat. 872; Skinner v. Moore, 2 Dev. & Bat. Law, 138; Byrd v. The State, 1 How (Miss.), 163; Starke v. Gildart, 4 Id. 267; Carson v. Huntington, 6 S. & M. 111; Cockerell v. Wynn, 12 Id. 117; Boot v. McFerrin, 37 Miss. 17.

The power conferred by our code upon the chancery court to remove the disabilities of minors is not judicial in its character; it may be exercised by the legislature without the intervention of other authority, or committed to any officer or commission having no judicial authority. The relief sought is private in its character, affecting no right of others; the privilege and the method of availing of it are created and defined by the statute, and the proceedings are valid only when in conformity to its regulations.

Under such circumstances the court but exercises a statutory power, and it is incumbent upon ■ one relying upon ,the decree to show that the court had acquired jurisdiction under the law; no presumption of jurisdiction arises from the mere fact of its exercise. Lawrence's Case, 10 Abbott’s Prac. Reports, 346.

The judgment is affirmed.