McKinney v. Adams

50 So. 474, 95 Miss. 832

• Court: Mississippi Supreme Court
• Decided: March 15, 1909
• Status: Published

Opinion

Whitfield, O. J.,

delivered the opinion of the court.

The facts in this case are as follows: On June 26, 1905, the appellants filed a bill of complaint in the chancery court of Sharkey county, Miss., against A. J. Adams, a citizen and resident of that county. The bill alleged: That on August 12, 1901, the appellant McKinney sued out an attachment writ in a justice court against J. A. Pfeifer as a nonresident, and that the writ was levied on all that part of the S. E. J of the S. E. of section 7, township 13, range 5, lying west of O'onner Bayou, containing 30 acres, more or less, and on all that part of the N. E. ^ of the N. E. \ of section 18, same township and range, lying west of said bayou, containing 16 acres, more or less. That the attachment Was regularly prosecuted to judgment, the proceedings all being regular, and that under a judgment by default rendered September 26, 1901, these lands were, sold; the appellant McKinney becoming purchaser. That at McKinney’s request the. sheriff executed a deed to him and to A. L. Brown, conveying the lands to them as tenants in common. That the deed of conveyance to them was not recorded, but was accidentally destroyed by fire January 20, 1904. That the defendant, Adams, had knowledge of the sale, and that his attorneys were present when it was made. That on June 28, 1904, they filed a petition in the said chancery court, praying for the restoration of the destroyed deed, and that on July 27, 1904, a decree was rendered accordingly. That Mrs. S. A. Adams, who was the wife of the appellee, A. J. Adajms, on January 3, 1898, sued out an attachment against the said Pfeifer as a nonresident of the state of Mississippi, which was on the same day levied on said lands. That on July 26, 1898, Mrs. Adams obtained an order from the circuit court of Sharkey county for publication against Pfeifer as a nonresident. That no further step, was taken until 1902, when in May and June of that year publication was made returnable to the July term, 1902, of the circuit court. That from said last-mentioned date no further action was taken until March term, 1905, when judgment by default was entered for the sum claimed in the suit in favor of appellee, A. J. xldams, who prosecuted the suit as the administrator of Si. A. Adams, his deceased wife, who had died in April, 1904; the said A. J. Adams having procured letters of administration upon her estate May 13, 1904.’ That under a writ of venditioni exponas the said lands were offered for sale at public outcry to satisfy said judgment, and that complainants were present and gave public notice to thp sheriff and all others present that they were the owners of said lands under their purchase, and that the judgment under which the sheriff was offered the lands for sale was invalid and ineffective to pass title. That notwithstanding this the sheriff made sale of the lands and struck them off to appellee, A. J. Adams, for $50j and made him a deed therefor. That the lands were sold March 4,1901, for the taxes of 1900, and purchased by J. W. Lyles, and that complainants, after having purchased the lands under the judgment in favor of the appellee, McKinney, redeemed the lands from this sale February 1, 1902, paying out for that purpose $13.90, and that from that time to the filing of the bill complainants had regularly paid all annual taxes accruing thereon. That the said lands had greatly increased in value since they were purchased by complainants in December, 1901. That the facts stated show that the attachment suit instituted by Mrs. S. A. Adams had been abandoned long prior to her death in April, 1904. That the attempt of the appellee, A. J. Adams, to revive and prosecute the same to judgment wasi contrary to equity. That, even if there was no intentional deliberate abandonment by Mrs. Adaims of her suit, her laches should prevent her or her heirs, from acquiring any right to the detriment of complainants. Complainants made as an exhibit to their bill the entire record of the attachment suit of S. A. Adams, and of its revival, and all proceedings thereunder. That the judgment in the Adams suit was utterly void, and that the sale thereunder passed no title to the appellee, Adams, for the reason that there was no affidavit made by plaintiff in said attachment suit, or by her agent or attorney, as required by section 143 of the Annotated Code of 1892, showing the postoffice of said Pfeifer, or that diligent inquiry had been made to ascertain it without success. That, aside from the question of laches, this failure to follow1 the statute rendered the whole judgment nugatory and void, and that the deed by the sheriff to appellee, Adams, should be canceled,, and that the appellee should be enjoined from claiming the lands.

On July 24, 1905, A. J. Adams filed a demurrer, which was sustained. An amended bill was duly, filed, which set out the matters in the original bill and alleged several matters in addition, not necessary to be stated in our view of the case. The amended bill averred, amongst other things, that Pfeifer, the de.fendant in the attachment, had no actual or constructive notice of the attachment suit of Adams for the reason that the plaintiff, Adams, did not make and file the affidavit required by section 143, Ann. Code 1892, showing defendant’s postoffice address, or that the plaintiff, after diligent inquiry, was unable to ascertain it; that the said Pfeifer was not represented by an attorney, or any one else; and that the court was without jurisdiction to render a judgment against him, which judgment was by default. A demurrer was filed to this amended bill, and it was sustained, and the complainant allowed to amend again by making A. J. Adams and his four chidren parties defendant; Mrs. S. A. Adams having died in 1904. A demurrer was again filed, and again sustained, and the bill dismissed. In the judgment in attachment in favor of Adams against Pfeifer, it was recited that “the defendant had been duly and legally summoned in this case by legal publication.” The prayer of this- bill was that this judgment should be declared nugatory and wholly void, on the ground that the plaintiff in the Adams attachment had not made the affidavit which was the basis of a j udgment by default on publication, as required by section 143, Ann. Code 1892, and for the cancellation, consequently, of the deed made by the sheriff to the defendant, and that the defendant should be forever enjoined from claiming the lands under said judgment and deed. It will thus be seen that the chief relief prayed for in this bill was the annulment of the judgment by default in favor of Adams in the attachment suit on the grounds stated, from which, of course, the rest of the relief prayed for would follow. This bill was filed, not by Pfeifer, the defendant in the attachment, but by McKinney, the junior attaching creditor and purchaser under the judgment and attachment in'favor of McKinney v. Pfeifer. The chief ground of assault on this judgment is that the affidavit required by section 143, Ann. Code,’ 1892, as the basis for a judgment on constructive service by publication, was not in truth and in fact made, and that the party had not, as that statute required, made it appear that such an affidavit had been made. It was distinctly held in Drysdale v. Biloxi Canning Co., 67 Miss. 539, 7 South. 541, that the failure to file this affidavit rendered the whole attachment proceeding absolutely null and void. That case was also the case of a judgment in attachment by default, without such affidavit having been made. It may be said, in short, that this case and that are on all fours, as to the facts, except in two particulars.: First, that bill was filed by Drysdale, the defendant in the attachment, and this is filed by McKinney, a purchaser of the land attached, at the sale under the attachment, he being a junior attaching creditor and the purchaser of the title of defendant at the said sale; and, second, it' ■does not appear in the statement of the case cited, that there was any recitation in the record that the defendant had been summoned by a publication duly and legally made as required by law.

The main ground of defense in this case is that the recitation in this judgment 'is conclusive against collateral attack, and that this bill is a collateral attack. It becomes very important, therefore, to determine whether this is a collateral or direct attack on the judgment. In Words and Phrases, vol. 2, at pages 1249 and 1250,'“collateral attack” is thus defined: “By a ‘collateral attack’ is meant every proceeding in which the integrity of the judgment is challenged, except those made in the action wherein the judgment is rendefed, or by appeals, and except suits brought to obtain decrees declaring judgment to be void ab initio. Burke v. Interstate Savings & Loan Ass’n, 25 Mont. 315, 64 Pac. 879, 881, 87 Am. St. Rep. 416. ... A collateral attack on a judgment is any proceeding to impeach a judgment which is not instituted for the express purpose of annulling, correcting, or modifying such judgment, or enjoining its execution. Morrill v. Morrill, 20 Or. 96, 25 Pac. 362, 364, 11 L. R. A. 155, 23 Am. St. Rep. 95; Meinert v. Harder, 39 Or. 609, 65 Pac. 1056, 1058; Smith v. Morrill, 12 Colo. App. 233, 55 Pac. 824, 826; Cochrane v. Parker, 12 Colo. App. 169, 54 Pac. 1027, 1029; Harter v. Shull, 17 Colo. App. 162, 67 Pac. 911, 912. Hence a proceeding to enjoin the enforcement of a judgment because of its invalidity or want of service of summons is noifc a collateral attack. Smith v. Morrill, 12 Colo. App. 233, 55 Pac. 824, 826. . . . When the validity of a record attacked is directly put in issue by the pleadings of the party attacking it by proper averment, the attack is direct, and not collateral; but when there are no proper averments attacking the record, although its validity is drawn in the issue of the case, the attack is collateral. Walker v. Goldsmith, 14 Or. 125, 12 Pac. 537, 553. A direct attack upon a judgment is an attempt to amend, correct, reform, vacate, or enjoin the execution of the same, in a proceeding instituted for that purpose, such as a motion for a rehearing, an appeal, some form of writ of error, a bill of re.view, an injunction to restrain its execution, etc.; while a eollat■eral attack is an attempt to avoid its binding force in a proceeding not instituted for one of the purposes aforesaid, etc. . « The prayer of a complaint asked that a guardian’s release of certain mortgages on property belonging to a ward should be set aside and the mortgage foreclosed, and for general relief. The allegations of the complaint attacked the probate proceedings .and acts of the guardian and a sale of the property made by him as fraudulent, which was denied by defendant. The defendant contended that, as the suit was for the foreclosure of the mort:gage, the validity of the probate proceedings and the acts of the .guardian could not be questioned, as it would be a collateral attack thereon; but it Was held that as the complaint attacked directly the probate proceedings and the guardian’s deeds thereunder, and prayed for general relief in addition to’ the fore■elosure of the mortgage, such attack was not a collateral attack. Dormitzer v. German Savings & Loan Soc., 23 Wash. 132, 62 Pac. 862, 881.” See, also, Morrill v. Morrill, 20 Or. 96, 26 Pac. 362, 11 L. R. A. 155, 23 Am. St. Rep. 95, and notes.

Under this definition, which we think is correct, this bill is not .a collateral, but a direct attack on the judgment in this case so far’ as the nature and character of the bill is concerned. But the cases in this court lay down the same doctrine precisely in the same character of case. In Crawford v. Redus, 54 Miss. 700, a final acount was filed by the executor, Redus, and a judgment rendered against Mrs. Crawford, one of the heirs and leg•atees. In the judgment it was recited that “all persons inter■ested in said estate have been, either by citation regularly served .and returned or by publication regularly made and proved, notified to appear.” At a subsequent term of the court, Mrs. •Grawford presented a petition assailing this judgment as void, because no service of process, either actual or constructive, had ■ever been made on her; and this court held, reversing the court below, that this was a direct proceeding, in which the recital «quoted was only grima facie true, and that the falsity of that recital could be shown by either the record or parol proof. The court observed that the effort to overthrow it by parol proof tvould be exceedingly difficult, but that that difficulty in no way affected “the right, by a direct proceeding, to show that in point of fact a decree had been rendered without jurisdiction of the person.”

In Sivley v. Summers, 57 Miss. 712, this Bedus case was assailed, and directly reaffirmed by the court in a masterly opinion by Justice Campbell. In this case a decree was rendered upon a petition by Sivley, who had been appointed administrator, declaring the estate insolvent and ordering it sold, etc.; there being no process for Robert D. Osborn and his wife, two of the deu fendants, as was apparent from the record. That decree was rendered November 18, 1872', reciting that due proof of publication and service of process had been made on all the parties. When the lands were sold, the widow’s dower was set apart to her, and when she died, in 1876, the purchasers at the sale under the insolvent decree demanded possession of the lands, in which they had purchased the reversion of the heirs of Summers, the decedent, who was still in possession. These heirs refused to surrender, and filed, in 1877, their original bill in the chancery court against Sivley and Drone, the purchasers, to vacate the decree and the administrator’s deed to Drone, who bought at the sale, and the deed from him to Sivley, upon the grounds, amongst others, that there was no service of process on R. D. Osborn and his wife. It will be observed that the prayer of this bill was exactly the prayer of the bill in this case. The court distinctly held that that bill constituted a direct attack, .and that consequently the recital that service had been had was •only prima facie true, and could be overthrown. The court said:

“The recitals in the decree for the sale of the land, as to •service of process and proof of publication, are prima facie true. In this proceeding they are not conclusive. In a collateral proceeding these recitals would be conclusive, because, in such case, they could not be shown to be untrue, except by the record. Not being liable to attack in a collateral proceeding, their prima, facie character would amount to conclusiveness; but in this proceeding the récitals of the decree may be contradicted, and, if shown to be untrue, the decree resting upon them for its validity should be opened. It is not to be tolerated that, because the record may show the concurrence of those facts essential to give the court jurisdiction of a party, he may not, in a proper proceeding in the same court and against the other parties, show its falsity. It is not to be assumed that a record is false, and yet it may be, and sometimes is, and, when shown to be so in a proper proceeding and between proper parties, the truth must prevail, though the record falls. If, in its fall, no one is harmed, except the one who procured a false record to be made, or those in his shoes with notice, no wrong is done, and right prevails. We acted on this doctrine in Crawford v. Redus, 54 Miss. 700, which is said by counsel to be at variance with all the previous decisions of this court on this subject. We do not agree with counsel as to former adjudications. As we understand them, they announce the correct doctrines, to which we steadfastly adhere, that every presumption is to be indulged in favor of the record of a court of general jurisdiction, and that it cannot be controverted in a collateral proceeding. Want of jurisdiction is as fatal to the proceedings of one court as to those of another. No court can' render a valid judgment without jurisdiction. It is said that ‘it is not to be assumed that a court of general jurisdiction has in any case proceeded to adjudge upon matters over which it had no authority; and its jurisdiction is to be presumed, whether there are recitals in its records to show it or not.' Cooley, Const. Lim. 406. It is a presumption founded on an assumption. But suppose, in a'direct proceeding for that purpose, the fact is demonstrated that this assumption is not cor rect; what becomes of the presumption? We say that every presumption is to be indulged in favor of the jurisdiction of courts of record, and that their recitals are prima facie, true. and they cannot be questioned in a collateral proceeding; but when directly questioned, in a proper proceeding for that purpose, the truth must prevail, whether the court be of the one grade or the other in the classification of courts. We adhere to Crawford v. Redus.”

In Duncan v. Gerdine, 59 Miss. 550, a judgment had been rendered in favor of the testator of the appellees against Duncan in the circuit court. Mrs. Duncan filed a bill in the chancery court, assailing this judgment on the ground that it had no jurisdiction to render the judgment, because summons was never served upon her, and ashing to enjoin the judgment. It will be observed that this bill is identical with the bill 'in this case, to wit, a bill seeking to annul and vacate the judgments at law, because of the want of proper service of process on one of the parties, and the court held that that was a direct attack, saying:

“First, is it permissible for Mrs. Duncan in this proceeding to attack the validity of the judgment against her,’ by showing that the return of the officer on the writ was false, and that in fact she never had been notified in any manner of the pendency of the suit ? And, if this question be determined in her favor, second, has she introduced sufficient evidence to overturn the presumption which exists in favor of the truth of the return as made by the officer ? We consider the first of these questions as already settled in this state by the former decisions in the cases of Crawford v. Redus, 54 Miss. 700, and Sivley v. Summers, 57 Miss. 712; but, if it be not, we have no hestitation or doubt in deciding it in the affirmative. The rule that a record is conclusive evidence of its own verity is not applicable in a direct proceeding instituted for the purpose of showing its falsity as to a matter which, if false, shows that the court pronouncing it as a judgment had no jurisdiction of the person of the defendant, and, consequently, that what purports to be a récord is in fact no record at all. No consideration of public policy requires that one guilty of no negligence should be concluded by ex parte proceedings, of which he had no notice, because of a declaration made by the court, at the instance of his adversary, that he had such notice. If in fact Mrs. Duncan was not served with the process of the court, by what rule of law or reason shall she be required to submit to have her property sold for the satisfaction of that which is only the pretense of a judgment? It is not sufficient to reply that the court which rendered the judgment has adjudicated the fact that she was served with the summons; for, if the summons was not served, the court had no power to adjudicate that or any other fact against her, and the whole fabric falls, unless she is forced, in the outset, to admit as true that which she avers to be false, and that, too, when upon its truth depends her liability to its burden, and upon its falsity her right to relief. We reiterate what was said in Sivley v. Summers, that, in direct proceedings instituted for the purpose of testing the validity of the judgment, 'the truth must prevail, though the record falls.’ Relief may be sought through the interposition of the chancery court. Freeman on Judgments, § 495.”

It is not possible for language to be more emphatic in the statement of the principle than the language of this court in the case of Gerdine v. Duncan and Sivley v. Summers. No room whatever is left for doubt that this court has held, expressly, that a bill of this character constitutes a direct, and not a collateral, attack. See, also, Am. Ency. of Law, vol. 117, p. 848; Cyc. vol. 23, p. 1062; Sadler v. Prairie Lodge, 59 Miss. 574, where ‘the court said: “Jurisdiction of the person is as essential as jurisdiction over the subject-matter, and no court can by any recital deprive a party of the right to show, in a direct proceeding undertaken for the purpose, that he is about to be deprived of his property without having had an opportunity to1 be heard.”

Learned counsel for appellee cite a number of cases as to- the binding force of the recital in the judgment, but a careful examination of each of these cases shows that they are all cases of collateral attack. The cases of Cocks v. Simmons, 57 Miss. 183, Cason v. Cason, 31 Miss. 578, Ames v. Williams, 72 Miss. 760, 17 South. 7 62, and all the other cases on this point cited by the learned counsel for appellee, are cases of collateral attack. So far, therefore, as the nature of attack as disclosed by the character of the bill is concerned, this is manifestly a direct attack.

But learned counsel for appellee say that this is not a direct attack for another reason, to wit, that this bill was not filed by the defendant in the attachment, as was true in the case of Drysdale v. Biloxi-Canning Co., but, as they say, by a stranger. It must be remembered that the judgment in the case of Adams v. Pfeifer is not a. personal judgment against Pfeifer, but a judgment condemning the land, vfhich has been attached, to sale to satisfy the debt adjudged to be due by Pfeifer to Adams. The appellants purchased this land so. condemned to be sold at an execution sale made under the judgment which McKinney had obtained against Pfeifer. By such purchase the appellants acquired all title to the land which Pfeifer himself had held, and must stand directly in his shoes as regards the title. We are clearly of the opinion that, under these circumstances the appellants, who acquired whatever title Pfeifer had to this land, thus condemned by this proceeding in rem, had the same right as to the filing of- this bill that Pfeifer himself would have had. They are not strangers in any proper sense. Since, therefore, this is a direct attack, the recitation in the judgment was only prima facie true, and it was perfectly competent to show its falsity by testimony to be introduced. * As well said in Swley v. Summers, supra, on collateral attack as a rule it is only the record which is assailed which is introduced, and, since there can be nothing but the record introduced on such an attack, the recital in the record is conclusive; but on direct attack, the falsity of the recital as to the service of process, in the judgment may be shown by any competent testimony.

The last proposition of learned counsel for appellee on this point is that there is a direct conflict between this recital in the exhibit and the allegation in the bill, and that consequently, under the cases of House v. Gumble, 78 Miss. 259, 29 South. 71, McNeill v. Lee, 79 Miss. 455, 30 South. 821, and Weir v. Jones, 84 Miss. 610, 37 South. 128, on demurrer, the recital in the exhibit must prevail, and for that reason alone the demurrer was properly sustained. The opinion in McNeill v. Lee, supra, is far too broad. The very purpose of appellant’s bill is to- have declared null and void this judgment and the conveyances under it, upon the express ground that the court had no jurisdiction over the person of the defendant. The rule 'invoked as to- exhibits controlling on demurrer, in' case of a conflict in the recital as to the existence of a fact between the exhibit and the bill, meant nothing more than that such exhibit should so control, where a complainant bases the relief which he seeks upon the written exhibit annexed to the bill. In other words, an allegation in a bill describing a writing and characterizing a writing as having a certain character or being a certain thing, would not control the court when, looking at the writing itself, it shows it is no-t the kind of writing so described ; or, when there is a fact stated in the bill, and a written exhibit annexed to the bill, which exhibit is the basis and foundation of the relief sought, states that fact to- be .otherwise, then, of course, the exhibit will control on demurrer under the statute. There is no- contradiction between this bill and this recital in this exhibit, when properly considered. All that section 528, Ann. Code 1892, meant was that exhibits should be considered on demurrer as if copied in bill, contrary to the forther practice. In the case o-f House v. Qurnble, supra, for instance, the assessment roll was the basis of relief claimed in the.bill, and that assessment roll showed the allegation and fact in the bill to be untrue. There was a clear case for the application of the rule, although, so far as the principle is concerned, it is true, as said by learned counsel for appellant, that in that case the rules should not have been referred to-, since fhe case was on final hearing. It was. a mistaken view in the case of McNeill v. Lee, supra, to apply this rule as appropriate there. In that case a bill was filed to vacate a sale made by a trustee, on the ground, as alleged, that no default had.been made, and hence the trustee had no power to sell. The deed of conveyance by the trustee was made an exhibit to the bill, and it recited that default had occurred. The court incorrectly held in that case that the recital in the deed was enough to overthrow the allegation in the bill. This is conclusively shown to be erroneous by the reflection that if the bill had contained the allegation that there had been no default, and the trustee’s deed had not been made an exhibit, the recitals contained in the trustee’s deed would have been offered in evidence with the deed, and, of course, if the complainant could show in the evidence that the recital was falset, the recital would fall, and the truth would prevail.

We say this much in explanation of the ease of McNeill v. Lee, to show that the rule of pleading under the statute as it now exists is only to be made in those cases where the exhibit is made the very basis of the relief prayed for, and there then arises a contradiction between the recital in the exhibit and the allegations of the bill as to some essential fact. This is not the case here. No relief is prayed for bottomed on this recital. On the contrary, the bill assails the recitals set out in the exhibit as false in a direct proceeding as shown. For the reason, therefore, that this bill is a direct attack, praying the annulment of this judgment as void for want of jurisdiction because of the failure to file the affidavit required, and is a direct proceeding, therefore, to that end, though not made by the defendant, but made by one who was a purchaser of the land, the title to which is involved under a judgment against the defendant in attachment, it is clear that the court erred in sustaining the demurrer.

The decree is reversed, demurrer overruled, and cause re1manded for answer within thirty days from filing of mandate in court below.

Reversed.