Opinion
No. 40154.
May 7, 1956.
1. Executions — trial — plaintiff in execution — burden of proof.
Plaintiff in execution must produce evidence including judgment on which execution was issued, together with writ of execution of his right to proceed against property before claimant can be put on her defense. Sec. 1025, Code 1942.
2. Executions — trial — plaintiff in execution — failure to introduce judgment whereon execution based — fatal.
Failure of plaintiff in execution to introduce in evidence judgment on which execution was issued and writ of execution was fatal even though clerk incorporated those papers in file.
3. Judgments — collateral attack — void judgment.
Unless a judgment is void, it is not subject to collateral attack.
4. Judgments — collateral attack — defective process.
A judgment cannot be impeached in a collateral proceeding on ground that return of service of process is defective, irregular, or informal, particularly where defect or irregularity is amendable.
5. Process — defective — judgment based on — not void.
Defect, if any, in return reciting that process had been executed by personal service, but failing to state facts on which officer based his conclusion that service was personal, was not such as would render judgment void.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Holmes County; ARTHUR JORDAN,
J.A. White, Durant, for appellant.
I. The writ of execution issued in this cause, if it may be denominated as such, is a proceeding to enforce a judgment. Rawlings v. American Oil Co., 173 Miss. 683, 161 So. 851.
II. A proceeding to enforce a judgment is collateral to the judgment, and, therefore, the judgment itself cannot be attacked in such a proceeding except for fraud in its procurement or voidness on its face. Cotton v. Harlan, 124 Miss. 691, 87 So. 152; McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731; 34 C.J., Sec. 828 p. 522.
III. The claimant's affidavit filed by the appellant challenged the validity of the judgment under which the purported writ of execution issued as being void, and the appellant moved at the very beginning of the hearing to quash the writ of execution for the defective return upon the original process issued for the defendant, Jimmie Reed, in the words, "Executed by personal service on the within named Jimmie Reed this the 24th day of February, 1955. Richard F. Byrd, Sheriff," being insufficient to support a default judgment. Dogan v. Barnes, 76 Miss. 566, 24 So. 965.
IV. A wife can assert the invalidity of a judgment and a writ of execution under which the property is seized. Reid v. Halpin, 185 Miss. 396, 188 So. 310; 25 C.J., Sec. 232 p. 191.
V. The writ of execution is void for failure to comply with Section 1600, Mississippi Code of 1942. Riley v. State, 175 Miss. 831, 168 So. 475; Wilkinson v. Hutto, 157 Miss. 358, 128 So. 93; Secs. 1600, 1601, Code 1942.
VI. The burden of proof was on the plaintiff in execution to prove the truck was subject to execution, and the theory that burden rested upon the claimant to establish title was erroneous. Blalack v. Stevens, 81 Miss. 711, 33 So. 508; Ross v. Gary, 8 Miss. (7 How.) 47; Thornhill v. Gilmer, 12 Miss. 153, 4 Sm. M. 153; Atwood v. Meredith, 37 Miss. 635; Butler v. Lee, 54 Miss. 476; Reid v. Halpin, supra; Sec. 1025, Code 1942.
VII. The evidence is insufficient to sustain the judgment, and the judgment is not supported by the evidence, but is contrary to the overwhelming weight thereof. Secs. 313, 454, Code 1942.
King King, Durant, for appellee.
I. Appellant's motion to quash writ of execution because insufficiency of return on process was properly overruled. Reeves Groc. Co. v. Thompson, 105 Miss. 729, 63 So. 187; Dogan v. Barnes, 76 Miss. 566, 24 So. 965; Sec. 1867, Code 1942.
II. Appellant's motion to quash writ of execution on grounds that itemized statement of court costs was not annexed thereto was properly overruled. Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773; Secs. 1600, 1601, Code 1942.
III. Appellant argues that the Court erroneously required her to put upon her evidence first, and assumes that this fact placed the burden of proof upon her as to the ownership of the vehicle in question. We urge that this is not factual, as the Court was also considering the motions of the appellant, and as movant she had the burden of proof in that respect; and it is certainly no indication that the Court required appellant to assume the burden of proof of the ownership of the vehicle in question, merely because she proceeded with her evidence first. The evidence itself will speak upon this issue as to whether or not the plaintiff in execution, appellee, met its burden of proving ownership of the vehicle in the defendant, Jimmie Reed, by a preponderance of the evidence. Sec. 8065, Code 1942.
IV. No error resulted because the judgment and writ of execution were not formally introduced into the evidence, as there was no jury, and as both of them were admitted by the appellant; and they were both before the Trial Judge for consideration in summing up the weight of evidence on the trial of the third party claimant's issue, which was tried concurrently with the motions in regard to the judgment and writ of execution by the appellant.
A writ of execution was issued on a judgment entered in favor of appellee, General Motors Acceptance Corporation, against Jimmie Reed, and under this writ the sheriff seized a pickup truck which was in possession of appellant, Magnolia Reed, the wife of Jimmie Reed. Appellant filed a claimant's affidavit, claiming that she was the owner of the seized truck.
Upon trial of the issue, the plaintiff in execution did not assume the burden and go forward with its proof as required by Section 1025, Mississippi Code of 1942. Instead, for reasons not appearing in the record, the claimant first put on her proof. The plaintiff in execution did not offer in evidence the judgment, writ of execution, or the officer's return. Its testimony only went to ownership of the truck, and on that issue, the evidence was conclusive that the seized truck was bought in the name of Jimmie Reed, who signed the conditional sales contract evidencing deferred payments; and the truck traded in as a part of the purchase price had likewise been bought in the name of Jimmie Reed. However, the proof was sufficient to show that appellant made all or most of the payments on the seized truck. There had been no transfer of title from Jimmie Reed to his wife, and as far as title to the truck was concerned, the trial judge, who heard the case without a jury, was justified in finding the title thereto was in Jimmie Reed.
(Hn 1) A part of the burden devolving upon the plaintiff in execution upon the trial of a claimant's issue is to produce evidence of his right to proceed against the property before claimant could be put on her defense. This includes the judgment on which the execution is issued, together with the writ of execution. Ross v. Garey, 8 Miss. 47; Reeson-Moore Motor Co., et al v. Catlett, 128 Miss. 865, 91 So. 564; Blalack v. Stevens, 81 Miss. 711, 33 So. 508. Cf. French v. Sale, 60 Miss. 516.
(Hn 2) The failure to introduce the judgment and writ of execution was fatal error. The clerk incorporated these papers in the file but they were not introduced in evidence, and under the authorities cited, could not be considered.
(Hn 3) The parties made an issue as to the sufficiency of the return of process on Jimmie Reed upon which the original judgment was rendered. The officer's return on the process was as follows: "Executed by personal service on the within named Jimmie Reed this 24th day of February, 1955," followed by the officer's signature. On this process, default judgment was rendered against Jimmie Reed.
While the judgment against Jimmie Reed was not introduced, it, along with the declaration, summons and return, was copied in the record. We notice the issue last stated since it will probably arise on remand of the case. The attack thus made on the original judgment is a collateral one. Unless the judgment is void, it is not subject to collateral attack. (Hn 4) A judgment cannot be impeached in a collateral proceeding on the ground that the return of service of process is defective, irregular, or informal, particularly where the defect or irregularity is amendable. Reeves Grocery Co. v. Thompson, 105 Miss. 729, 63 So. 187; Vicksburg Grocery Co. v. Brennan, 20 So. 845; Green v. Taylor, 111 Miss. 232, 71 So. 375; Jackson v. Redding, 162 Miss. 323, 138 So. 295; 49 C.J.S. Judgments, Sec. 422 (b), Sec. 423; Cockrell v. Wynn, 20 Miss. 117, Harrington v. Wofford, 46 Miss. 31; Martin v. Miller, 103 Miss. 754, 60 So. 772; Kelly v. Harrison, 69 Miss. 956, 12 So. 261; 31 Am. Jur., Sec. 598. (Hn 5) The return was amendable. Jimmie Reed had notice of the suit. The defect in the return is not such that the judgment is void, even if we concede that it is voidable and subject to direct attack. The case of Dogan v. Barnes, 76 Miss. 566, 24 So. 965, has been duly considered. If it can be said to be in point, it must be said that it stands alone against a mountain of authority. We decline to apply it under the present circumstances.
For the reasons stated, we reverse the judgment and remand the case.
Reversed and remanded.
McGehee, C.J., and Hall, Kyle and Holmes, JJ., concur.