Opinion
No. 31734.
May 20, 1935.
1. APPEAL AND ERROR.
Where court had jurisdiction of subject-matter and parties in attachment proceeding in chancery against nonresidents, judgment entered against defendants could not be reviewed on appeal from judgment rendered more than one year later against third party, claiming proprty levied on under writ of execution issued upon such judgment, and its sureties.
2. EXECUTION.
Where claimant of property levied on under writ of execution failed to join issue for trial of right to property, judgment striking out claimant's affidavit and awarding writ of inquiry to find value of property held proper.
3. EXECUTION.
Where affidavit of claimant of property levied on under writ of execution had been stricken out and writ of inquiry to find value of property had been awarded, and, after complainant had introduced shereiff's return as to value of property levied on and rested, defendants moved to strike out the evidence and for decree for insufficiency of proof to sustain the judgment, refusal to permit defendants to thereafter introduce evidence held proper, since motion was equivalent to setting of cause for final hearing on complainant's evidence.
4. EXECUTION.
Where affidavit of claimant of property levied on under writ of execution issued on judgment against nonresidents in attachment proceedings in chancery had been stricken out, and writ of inquiry to find value of property had been awarded, and complainant introduced sheriff's return showing that property levied on was worth more than penalty of bond, and defendants challenged sufficiency of complainant's evidence and moved for decree, rendition of personal judgment against claimant and sureties held not harmful error, in view of absence of evidence as to whereabouts of the property or its then value.
APPEAL from the chancery court of Lauderdale county.
HON. A.B. AMIS, SR., Chancellor.
Attachment in chancery by F.M. McWhorter against Ralph Miller and others, wherein a judgment was entered for plaintiff and execution was issued thereon, and Louisians Show Company, Inc., claimed property levied upon. From a judgment, Ralph Miller and others appeal. Affirmed.
Ross R. Barnett and P.Z. Jones, Jr., of Jackson, for appellants.
The trial court exceeded its discretion in awarding the default judgment for failure of the defendant and/or defendants in answering the interrogatories filed under section 1551 of the Mississippi 1930 Code.
McLean v. Letchford, 60 Miss. 169; Southern Exp. Co. v. Givens, 106 Miss. 834, 64 So. 737; Merchants Gro. Co. v. Merchants Trust Co., 119 Miss. 99, 80 So. 494.
The bill recited the defendants to be nonresidents, and the answers of the defendants and each of them denied their nonresidency, and, in addition, the defendant garnishees denied any indebtedness owing by them to the defendant, Miller. Therefore, there was no res to vest jurisdiction in the chancery court for the action brought.
Louis Werner Sawmill Co. v. Sheffield, 42 So. 876; Section 536, Code of 1906; Section 149, Constitution of 1890.
The decree is erroneous in that it makes no provision for the sale of the property, for the forthcoming of which the bond was given.
The decree is further erroneous in that it does not separately assess the value of each individual article and piece of property seized under the execution.
Weil v. Shedd, 8 So. 329; Hendon v. McCoy, 133 So. 295.
The evidence was insufficient to support a decree on the motion to dismiss and strike the claimant's affidavit and to award the writ of inquiry.
The filing of the acceptance of the issue by the claimant was in substance a general issue plea, putting in issue all matters, and the court in proceeding to hear and dispose of the motion to strike the claimant's affidavit while the acceptance of the issue was on file and undisposed of, committed error.
Sections 3427 and 3428, Code of 1930; Wineman v. Clover Farms Dairy, 151 So. 749.
The judgment on which the writ of execution issued was void as to Tom Hamilton and his wife, Mrs. Tom Hamilton, and being void as to them, was likewise void as to Ralph Miller.
Boutwell v. Grayson, 79 So. 61; Carrollton Hardware Impl. Co. v. Marshall, 78 So. 7; Comenitz v. Bank, 38 So. 35.
Graham Graham, of Meridian, for appellees.
With the decree deciding that the interrogatories were propounded according to law and notice thereof on defendant, if counsel desire to take advantage of the interrogatories not appearing on record an appeal, they will first have to get out certiorari to complete their record on appeal, if they undertook the appeal, and must complete the record before they can take advantage of its incompleteness.
Ralph Miller filed an unsworn answer. Mr. and Mrs. Tom Hamilton filed a sworn answer but before the court met at which same could have been contested, these interrogatories were propounded to secure a basis for a contest, at the proper time, of the answer of Mr. and Mrs. Tom Hamilton, their failure to answer which, subjected them to have their plea stricken and decree taken as confessed under section 1551, Mississippi Code of 1930, which is constitutional and applies to both law and equity.
Illinois Railroad Co. v. Sanford, 75 Miss. 862; Cedar Rapids National Bank v. Murray, 98 Miss. 123; Cumberland Telephone Telegraph Co. v. State, 98 Miss. 159; Givens v. Southern Express Co., 106 Miss. 834; Hibernia Bank Co. v. Beech, 117 Miss. 668.
The motion to strike the claimant's affidavit and grant a writ of inquiry to assess the damage was based upon the status of the record as to the pleading which is disclosed in the transcript and required no evidence to support the motion.
Section 3427, Code of 1930; Bedford Co. v. Adams Machine Co., 93 Miss. 537; White v. Roach, 98 Miss. 309.
All of the defendants were not only served with personal process according to law, but all voluntarily appeared in this court by pleadings without raising any objection to the process and after being summoned according to law to come into court and voluntarily coming into court with motions for time to plead and then pleading without objection to the process, and after judgment rendered therein and thereafter according to law as provided in section 1551, Mississippi Code of 1930 and section 3427 in Mississippi Code of 1930, it is too late now to talk about any of these judgments being invalid, and if none of them are void, they are all valid, under contention made in assignment No. 6 by appellant.
Bank of Philadelphia et al. v. Posey, 92 So. 840, 130 Miss. 530; Hattiesburg Hardware Co. v. Pittsburg Steel Co., 115 Miss. 663.
F.M. McWhorter filed an attachment in chancery in Lauderdale county, Mississippi, against Ralph Miller, principal defendant, and Tom Hamilton and wife, all nonresidents temporarily sojourning in Mississippi, for personal injuries and damages to a car belonging to plaintiffs occasioned by a collision between said car and a truck being driven by Miller on the streets of Meridian. There was personal service upon all the defendants within the state of Mississippi, the defendants filed answers to the bill, and the matter was at issue when, on September 5, 1933, interrogatories were filed in the office of the chancery clerk of Lauderdale county and served upon said appellants in accordance with the statute. These interrogatories not having been answered by the appellants, at the next term of the chancery court in November, 1933, motion was made to strike the pleadings of the appellants from the files and for a decree pro confesso for failure to answer the interrogatories. This motion was not acted upon until December, 1933, when it was sustained, and the court was asked to award a writ of inquiry to assess the damages of the plaintiffs, appellees here, which the court did. The result of this writ of inquiry was a verdict and judgment for five hundred dollars in personam against the defendants.
On June 18, 1934, execution was issued upon the judgment against Miller and the Hamiltons, and certain trucks were levied upon under said writ of execution as follows: One V8 one and one-half ton truck, 1933 model; one International two and one-half ton truck, H.S. Alscott, 1928 model; one International two and one-half ton truck, H.S. Alscott, 1928 model; and one homemade four-wheel box trailer — and, the plaintiff having given an indemnifying bond, the sheriff advertised said trucks and trailer for sale. Thereupon the Louisians Show Company, Inc., filed a claimant's affidavit, and gave bond for said property in the sum of one thousand dollars, twice the amount of the original judgment against appellants.
On July 16, 1934, the plaintiff in execution moved the court to direct an issue to be made up for a trial to the right of the property. Issue not having been joined by the claimant at the next term of court, McWhorter made a motion to strike the claimant's affidavit and to award a writ of inquiry for failure to so join issue, which motion was by the court sustained, and a writ of inquiry awarded to find the value of the property. The sheriff's return showed that the value of the property was in excess of the amount of the bond, which was twice the amount of the judgment. This return of the sheriff was introduced in evidence, and personal judgment was rendered against the bondsmen and sureties, from which this appeal is prosecuted.
The appeal was not taken until February 2, 1935, more than one year after the judgment was rendered against Miller and the Hamiltons.
We cannot review the action of the court in rendering such judgment. The record shows that the court had jurisdiction of the subject-matter and of the parties, and its action was authorized by law, if supported by the facts, and we must hold that its judgment was supported by the facts.
We think the court was warranted in rendering judgment against the claimant's bondsmen for failure to join issue as required by law. When the complainant rested after introducing the sheriff's return as to the value of the property levied upon, the defendants moved to strike the evidence, and for a decree for insufficiency of proof to sustain the judgment. This was equivalent to setting the cause for final hearing upon the complainant's proof, and the court's action in so treating it, and refusing the defendants the right to introduce other evidence, is sustained.
It is also argued that the judgment should have condemned the property to be sold, and that personal judgment should not have been rendered against the claimant and its bondsmen. The record shows that the property was worth more than the penalty of the bond. Therefore there was no harmful error, if error at all, in rendering a personal judgment against the sureties on the bond. There is no showing in the record as to whether the property was within the state or what its condition or value was at the time of the rendition of the judgment. Therefore the judgment of the court below will be affirmed.
Affirmed.