Summary
In Road Material Equipment Co. v. McGowan, 229 Miss. 611, 91 So.2d 554 (1956) a default judgment was entered on March 8, 1951 in a replevin case awarding plaintiff possession of personal property and also awarded plaintiff a money judgment in the sum of $6,374.50.
Summary of this case from Burns v. Delta Loans, Inc.Opinion
No. 40301.
December 17, 1956.
1. Replevin — nature of action.
Although replevin is founded upon a tortious detention of property, it is not one to determine claims sounding in tort, and it is analogous to an action of trespass, but is in part a proceeding in rem, to regain possession, and in part a proceeding in personam, to recover damages for the detention. Secs. 2841-2869, Code 1942.
2. Replevin — possessory action.
Replevin is a possessory action, the gist of which is the right of possession in plaintiff and the primary relief sought is return of property in specie, and damages are merely incidental. Secs. 2841-2869, Code 1942.
3. Replevin — judgment — in the alternative.
Where plaintiff in replevin has a limited interest in the chattel sought to be recovered by way of security for payment of any balance due on the purchase price, judgment should be for return of the property or, in the alternative, for the value of plaintiff's interest therein measured by the balance due with interest and damages. Secs. 2841-2869, Code 1942.
4. Replevin — judgment — in alternative — not for debt — except by agreement.
Since gist of replevin action is possessory and damages are only incidental, in the absence of a consent judgment agreed upon by both parties, a judgment in replevin cannot be for debt, but must be in the alternative. Secs. 2841-2869, Code 1942.
5. Replevin — judgment — void on its face insofar as it purported to give plaintiff a personal judgment for debt — in absence of agreement.
Where plaintiff filed a declaration in replevin for recovery of a dragline machine sold under a conditional sales contract with installment notes on which defendant had defaulted, judgment for plaintiff was void on its face insofar as it purported to give plaintiff a personal judgment for the debt against the defendant in the absence of an agreement of the parties. Secs. 2841-2869, 2862, Code 1942.
6. Replevin — Circuit Courts — power at subsequent term to amend judgment so as to remove therefrom provisions awarding plaintiff money judgment against defendant.
Where replevin judgment of a Circuit Court was void on its face insofar as it purported to give plaintiff a personal judgment for debt against defendant for property sold under conditional sales contract, Circuit Court had power at a subsequent term to amend judgment so as to remove therefrom provisions awarding plaintiff a money judgment against defendant which power existed as a part of inherent power of court to correct invalid provisions in its judgment.
7. Judgments — Courts — power of to open or vacate its judgment — when power may be exercised.
Without reference to the term or time at which a judgment is rendered, the inherent power of a court to open or vacate its judgment may be exercised when the judgment is void, or when there has been a procedural or jurisdictional defect or where a question of fraud or other collateral issue is raised.
8. Judgments — invalidity of judgment rendering it void as distinguished from voidable — ground for vacating it.
Invalidity of a default judgment rendering it void, as distinguished from merely voidable or erroneous is ground for vacating it, as where the court is without jurisdiction to adjudicate the question determined or to give the particular relief granted; and the judgment must be according to established modes governing the class to which the case belongs, and not transcend, in the extent or character of its judgment, the law which is applicable to it.
9. Replevin — judgments — grounds for collateral attack.
Where Circuit Court was administering a specific remedy defined by statute, replevin, and rendered a judgment which did not accord with the established rules in such cases, and transcended in the extent of its judgment the law applicable to it, and to the court's powers, the absence of jurisdiction of the Court to render the particular judgment constituted sufficient cause for a collateral attack upon such judgment.
10. Judgments — valid in part — invalid in part — invalid divisible part treated as a nullity without affecting remainder.
A judgment may be good to the extent it is authorized by law and bad for the residue and the invalid, divisible part may be treated as a nullity and the invalidity of the separable portion of the judgment does not affect the remainder of it.
11. Judgments — Courts — power of to vacate judgment in part only.
A court having power to vacate a judgment entirely may grant less relief by vacating it in part only, where justice requires.
ON MOTION FOR ATTORNEYS' FEES AND TO CORRECT JUDGMENT.January 28, 1957 92 So.2d 245
12. Appeal — where issues in motion had not been submitted for Trial Court's consideration — Supreme Court lacked jurisdiction over motion as an original proposition.
Where appellants' motion to allow attorneys' fees, and in effect to correct judgment of Trial Court adjudicating disposition of funds held by State Highway Department among appellees, was made for first time in Supreme Court, and issues involved in motion had not been submitted for Trial Court's consideration, Supreme Court lacked jurisdiction over the motion as an original proposition.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
Harmon W. Broom, Jackson, for appellant, Road Material Equipment Company, Inc.
I. The Circuit Court is not vested with authority to resort to Section 1670, Code of 1942, in the case at bar. The Court did not correct the judgment of March 8, 1951, but entered an entirely new and different judgment, and the law does not give the Court inherent or statutory authority so to do. Wilson v. Handsboro, 99 Miss. 252, 54 So. 845; Jester v. Hewitt, 63 U.S. (22 Howard) 352, 16 L.Ed. 345; Shipman v. Lovelace, 215 Miss. 141, 60 So.2d 559; Rowell Co. v. Sandifer, 129 Miss. 167, 91 So. 899; Jackson v. Redding, 162 Miss. 323, 138 So. 295; Alabama V. RR. Co. v. Bolding, 69 Miss. 225, 13 So. 844, 846; McIntosh v. Road Machinery Co., 167 Miss. 546, 145 So. 731; Sargory v. Baylis, 31 Sm. M. 153; Barker v. Justice, 41 Miss. 240; Shirley v. Conway, 44 Miss. 434; Wiggle v. Owen, 45 Miss. 691; Lane v. Wheeless, 46 Miss. 666; Beard v. McLean, 117 Miss. 316, 78 So. 184; Evans v. King-Peoples Auto Co., 135 Miss. 194, 98 So. 758; Bates v. Strickland, 139 Miss. 633, 103 So. 433; Hinton v. Shedd, 115 Miss. 208, 76 So. 144; Huckby v. Junkin, 154 Miss. 378, 122 So. 487; Sec. 1670, Code 1942.
II. The Trial Court erred in ruling that a money judgment in a replevin action constitutes the judgment void and such ruling is violative of Section 156, Mississippi Constitution of 1890 (also, Section 1412 and Section 1464, Mississippi Code of 1942 and Chapter 230, Laws of 1948, as amended), and would deprive the appellant and plaintiff in the Court below of the due process of law clause under Section 14 of the Constitution of 1890, and would be against and would contravene the plaintiff's and appellant's rights under both the due process of law clauses and the equal protection clause of the Fourteenth Amendment of the United States Constitution. Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515; McCaskill v. Little, 214 Miss. 331, 58 So.2d 801; Love v. Cottonseed Products, 174 Miss. 607, 165 So. 446; McPherson v. Acme Lbr. Co., 70 Miss. 649, 12 So. 857; Bates v. Snider, 59 Miss. 497; North v. Delta Chevrolet Co., 188 Miss. 252, 194 So. 478; Grissom v. General Contract Purchasers Corp., 191 Miss. 742, 4 So.2d 303; Johnson v. Tabor, 101 Miss. 86, 57 So. 365; Amend. XIV, U.S. Constitution; Secs. 14, 156, Constitution 1890; Sec. 3097, Code 1930; Secs. 1412, 1464, 2859, 2860, Code 1942; Chap. 230, Laws 1948, as amended; Cobby on Replevin (2d ed.), Sec. 587; Griffith's Outlines of Law (Miss.), p. 612; Mississippi Law Journal (December, 1948 issue), p. 24, Article by Justice Virgil A. Griffith.
III. The judgment of March 8, 1951, is res adjudicata and not void and is protected under Section 1544 of the Mississippi Code of 1942, the statute of jeofails, and Section 1547, Mississippi Code of 1942, the final judgment statute, as amended. Irvin v. Williams, 1 Miss. 314; Spencer v. Marmon, 156 Miss. 729, 126 So. 824; Fisher v. Browning, 107 Miss. 729, 66 So. 132; McIntosh v. Munson, 167 Miss. 546, 145 So. 731; Wall v. Wall, 28 Miss. 409; Todd v. Todd, 197 Miss. 819, 20 So.2d 827; Strange v. Gayden, 197 Miss. 353, 20 So.2d 697; McKinney v. Willis, 64 Miss. 82, 1 So. 3; McKinney v. Adams, 95 Miss. 832, 50 So. 470; Stewart v. Stribling, 30 Miss. 66; Home Ins. Co. v. Tate Mercantile Co., 117 Miss. 760, 78 So. 709; Cotton v. Walker, 164 Miss. 208, 144 So. 45; Hayes v. Taylor, 213 Miss. 217, 56 So.2d 503; Hinton v. Shedd, supra; Secs. 1547, 1554, Code 1942; Cooley's Constitutional Limitations (8th ed.), p. 861; Freeman on Judgments (4th ed.), pp. 1393-94, 1538.
IV. The original judgment has now become a rule of property in this case — it is the law of the case, as no appeal was taken; and the judgment cannot now be annulled to divest appellant of his vested rights. Sec. 2783, et seq., Code 1942.
Butler, Snow, O'Mara, Stevens Cannada, Jackson, for appellant, Stribling Bros. Machinery Company.
I. In a replevin action where the property is seized by the Sheriff and no bond is given, any judgment rendered by the Court that exceeds the powers expressly stated in Section 2862 of the Mississippi Code of 1942 is void and a nullity to the extent that the judgment exceeds the powers expressly granted by said Section 2862; and there being no express power to render a money judgment in a replevin action of this nature where the plaintiff recovers the property, any money judgment for the debt secured by said property is void. Spencer v. Franks, 173 Md. 73, 195 A. 306, 114 A.L.R. 263; 31 Am. Jur., Sec. 405 p. 68.
II. There being no valid money judgment against defendant McGowan, it was proper that judgment issue against the garnishee to determine the third party claims as well as to release the property in the hands of the garnishee from the process of the Court. Assuming for argument the money judgment against the defendant McGowan was valid; however, it was proper to render a judgment in favor of Stribling Bros. Machinery Company for the reason that plaintiff failed to answer or take issue with the answer and claim of Stribling Bros. Machinery Company as provided in Section 2805, Code of 1942. Dodds v. Gregory, Stagg Co., 61 Miss. 351; Hunter v. Stanford, 198 Miss. 299, 22 So.2d 166; Kellogg v. Freeman, 50 Miss. 127; Pennsylvania RR. Co. v. Rogers, 52 W. Va. 450, 44 S.E. 300, 62 L.R.A. 178; Schoolfield v. Hirsh, 71 Miss. 55, 14 So. 528; Tucker v. Ferguson, 22 Wall (U.S.) 527, 22 L.Ed. 805; Secs. 1147, 2783, 2804-2805, Code 1942; 4 Am. Jur., Secs. 200-201 pp. 682-83; 31 Am. Jur., Sec. 462 p. 107; 38 C.J.S., Sec. 2(3) p. 205; Griffith's Miss. Chancery Practice, Sec. 424 (Note 14).
Crisler, Crisler Bowling, Jackson, for appellee, Arch McGowan.
I. The action of replevin is possessory only, and the Court had no authority or jurisdiction to enter the money judgment on the alleged indebtedness. Evans v. Junius Hart Piano House, 140 Miss. 467, 106 So. 9; Porter Hardware Co. v. Peacock, 129 Miss. 129, 91 So. 856; Horne v. Moorehead, 169 Miss. 362, 152 So. 495; Associates Discount Corp. v. Slayton, 226 Miss. 778, 86 So.2d 509; Johnson v. Ferguson, 144 Miss. 464, 110 So. 230; Federal Credit Corp. v. Boleware, 163 Miss. 830, 142 So. 1; McPherson v. Acme Lbr. Co., 70 Miss. 649, 12 So. 857; Hill v. Petty, 111 Miss. 665, 71 So. 910; Martin v. Coker, 204 Miss. 576, 37 So.2d 772; Roberts v. International Harvester Co., 181 Miss. 440, 180 So. 747; Fanning v. C.I.T. Corp., 187 Miss. 45, 192 So. 41; Associates Discount Corp. v. Ruddock, 224 Miss. 533, 81 So.2d 249; Grissom v. General Contract Purchase Corp., 191 Miss. 742, 4 So.2d 303; Frierson v. Miss. Road Supply Co., 221 Miss. 804, 75 So.2d 70; Price v. Price, 202 Miss. 268, 32 So.2d 124; Town of Hazlehurst v. Cumberland Tel. Tel. Co., 83 Miss. 303, 35 So. 951; Home Ins. Co. v. Tate Mercantile Co., 117 Miss. 760, 78 So. 708; Potomac Ins. Co. v. Wilkinson, 213 Miss. 520, 57 So.2d 158; Secs. 2841-69, 2860, 2862, Code 1942; 46 Am. Jur., Secs. 2, 3 p. 6; 77 C.J.S., Secs. 2, 4 p. 11; Mississippi Law Journal (December 1948 issue), Justice V.A. Griffith on The New Miss. Civil Practice Act.
II. The former judgment was void as violating the provisions of the due process of the United States and Mississippi Constitutions. Rice v. McMullen, 207 Miss. 706, 43 So.2d 195; Sec. 14, Constitution 1890; Griffith's Miss. Chancery Practice, Sec. 223 p. 210.
III. After reaching the opinion that the part of the judgment wherein plaintiff was granted a judgment for the original amount of the debt is void, it is clear that the Lower Court had full authority to correct the judgment under either Section 1670 of the Mississippi Code of 1942 or the inherent power of the Court. Humphreys v. Thompson (Miss.), 130 So. 152; Horne v. Morehead, 169 Miss. 362, 152 So. 668; Harnischfeger Sales Corp. v. Sternberg Dredging Co., 189 Miss. 73, 196 So. 504; Claughton v. Ford, 203 Miss. 361, 32 So.2d 751; Sample v. Romine, 193 Miss. 706, 10 So.2d 346; Wilson v. Town of Hansboro (Miss.), 54 So. 846; Shipman v. Loveless, 215 Miss. 141, 60 So.2d 559; Skipper v. Schumacher (Fla.), 160 So. 357; Nichols v. Gaddis McLaurin, 228 Miss. 1, 87 So.2d 673; 31 Am. Jur., Forms, Secs. 712, 718, 742; 49 C.J.S., Forms, Secs. 230, 236, 241, 266.
Byrd, Wise Smith, Jackson, for appellee, Mississippi Road Supply Company.
I. The judgment of the Lower Court entered in the original replevin suit awarding possession of the property, and a money judgment was void as to the money portion thereof. Frierson v. Mississippi Road Supply Co., 221 Miss. 804, 75 So.2d 70.
II. The Circuit Court should have entered a judgment on the garnishment proceedings even though it found the money part of the original judgment void and corrected the old judgment. Moody Williams v. Dye, 125 Miss. 770, 88 So. 332; Alexander v. Dulaney (Miss.), 16 So. 355; Willis v. Loeb, 59 Miss. 169; Copiah Hardware Co. v. Meteor Motor Car Co., 136 Miss. 274, 101 So. pp. 375, 579; Porter v. West, 64 Miss. 548, 8 So. 207; 28 C.J. 379.
III. Under any circumstance, this Court should award a judgment in favor of Mississippi Road Supply Company for the amount of the judgment rendered by the Lower Court, and the same should be rendered against the garnishee. Schoolfield v. Hersch, 71 Miss. 55, 14 So. 528; Faust v. Patrick, 11 Miss. 783; Thompson v. Shelby, 11 Miss. 296; Yarbrough v. Thompson, 11 Miss. 291; Switzer v. Fitch, 9 Miss. 541; Midsouth Paving Co. v. State Highway Comm., 197 Miss. 751, 22 So.2d 497; Reeves Groc. Co. v. Thompson, 105 Miss. 729, 63 So. 187; Schuler v. Murphy, 91 Miss. 518, 44 So. 810; 28 C.J. 104; 38 C.J.S. 404.
IV. Should this Court affirm the action of the Lower Court both in awarding judgment on the garnishment proceedings and entering the judgment, as entered, and in its action in correcting the judgment of 1951 by striking the money portion therefrom, the Mississippi State Highway Department should pay interest upon the judgments by the Lower Court from the date of the rendition thereof. Smith v. German Bank, 60 Miss. 69.
ON MOTION FOR ATTORNEYS' FEES AND TO CORRECT JUDGMENT.
Crisler, Crisler Bowling, Jackson, for appellees, Arch McGowan, et ux.
I. The attorneys for the appellees, Arch McGowan and Mrs. Maude McGowan, are entitled to a reasonable attorneys' fee in the cause herein. Said appellees agreed to pay a reasonable fee for representing them both in the Lower Court and in this Court. Said firms of attorneys have not received any fees to date, and a reasonable fee to said firms would be the total amount of $3,000.
II. The said attorneys' fees are a paramount lien on the proceeds of the funds involved in the cause herein. Collins v. Schneider, 187 Miss. 1, 192 So. 20.
APPELLANT, STRIBLING BROS. MACHINERY COMPANY, IN REPLY TO MOTION.
I. The services of the attorneys for Mr. and Mrs. McGowan in the instant matter were directed to a defensive or negative action rather than to a positive or affirmative action, and the attorneys actually failed to recover or obtain for their clients property to which a lien can attach. Collins v. Schneider, 187 Miss. 1, 192 So. 20; In re Beckett's Executors, 182 N.Y.S. 571; Bruce v. Calloway (Okla.), 46 P.2d 446; In re Darch, 147 Misc. 836, 265 N.Y.S. 86; Halsell v. Turner, 84 Miss. 432, 36 So. 531; Hatfield v. Rickmond (Ky.), 197 S.W. 654; Stewart v. Flowers, 44 Miss. 513, 7 Am. Rep. 707; Webster v. Sweat, 65 F.2d 109; Wessinger v. Sturkie, 77 F.2d 751; 5 Am. Jur., Sec. 224 p. 396; Anno. 93 A.L.R. 689; 7 C.J.S., Sec. 213 p. 1152.
II. The attorneys for Mr. and Mrs. McGowan waived any lien to which they were entitled and are now estopped to assert an attorneys' lien by virtue of the agreed or consent judgment of April 13, 1956, having been rendered. Elliott v. Orton, 171 P. 1110; Farmer v. Union Ins. Co. of Ind., 146 Miss. 600, 111 So. 584; Gray v. Hopkins-Carter Hardware Co., 32 F.2d 876; Harton v. Amason, 195 Ala. 594, 71 So. 180; Martin v. Hartley, 208 Miss. 112, 43 So.2d 875; Prichard v. Fulmer, 22 N.M. 134, 139 P. 39, 2 A.L.R. 474; 5 Am. Jur., Sec. 230 p. 400; 19 Am. Jur., Sec. 55 p. 661; 31 Am. Jur., Sec. 463 p. 107.
III. If we assume for argument it is proper to impress an attorney's lien, then simple mathematics will reveal that the suggested distribution is in error for the reason that the amount of money recovered was the amount of the money judgment in the old replevin action, to wit, $6,374.50, and not the $11,399.90 as alleged by the motion.
IV. The only authority cited by movants in support of their motion, Collins v. Schneider, supra, is to be distinguished from the facts in the instant matter in several material points.
V. The pending motion raises new issues before this Court, and we submit that if the Court is considering sustaining said motion, that Stribling Bros. Machinery Company be entitled by virtue of Section 1960, Mississippi Code of 1942, annotated, to elicit evidentiary facts from movants pertaining to said motion. McMinn v. McMinn, 228 Miss. 651, 89 So.2d 839.
This case involves questions of whether the circuit court has power in a replevin suit to render a money judgment for debt against the defendant, and, if not, whether such money judgment is later subject to collateral attack by the defendant in replevin.
In December 1950 appellant, Road Material and Equipment Company, Inc., filed an affidavit in replevin in the Circuit Court of the First Judicial District of Hinds County. The affidavit stated that defendant-appellee, Arch McGowan, was in possession of a dragline machine with certain accessories of the value of $5,000, was wrongfully detaining it, and plaintiff was entitled to its immediate possession. At the same time plaintiff filed a declaration in replevin which charged that it had sold the dragline machine to defendant under a conditional sales contract with installment notes, defendant had defaulted, and the debt was due. The declaration demanded judgment against McGowan for the balance of the debt with interest, and immediate possession for plaintiff. A writ of replevin was issued and served upon defendant to answer "the wrongful detaining of such property".
McGowan made no answer to the suit, so on March 8, 1951, the circuit court entered the default judgment against him which is the subject of attack in this case. This 1951 judgment was in two parts: (1) It adjudged that plaintiff recover from McGowan the sum of $6,374.50; (2) it adjudged that plaintiff should recover immediate possession of the dragline machine. In serving the writ of replevin the sheriff took possession of the dragline, but neither party gave bond for its interim possession. After the judgment of March 8, 1951, and in accord therewith, possession was delivered to plaintiff.
About four and one-half years after the judgment of March 8, 1951, appellant filed, on August 24, 1955, a suggestion for writ of garnishment, alleging that the Mississippi State Highway Department had certain funds in its hands belonging to appellee McGowan. A writ of garnishment was issued and served upon the Highway Department, and later other similar writs were issued and served. Intervention petitions were filed by appellees, Mississippi Road Supply Company, Stribling Brothers Company, and Mrs. Arch McGowan. The two companies claimed under assignments of the funds held by the Highway Department, and Mrs. McGowan contended that half of the funds in question were owned by her personally.
On January 3, 1956, appellee Arch McGowan filed in the circuit court a motion to correct the judgment of March 8, 1951. The motion alleged that the part of the earlier judgment which gave appellant a money recovery against appellee in the replevin suit was void, because the court had no jurisdiction and power to render a money decree in a replevin action. The circuit court sustained this motion, and in its judgment of April 12, 1956, it corrected the judgment of March 8, 1951, so as to strike therefrom that part in which a money judgment was given against appellee. The court retained the part in which appellant was granted possession of the dragline machine. In other words, the circuit court in its judgment of April 12, 1956, corrected and vacated in part the judgment of March 8, 1951, so as to remove therefrom the money judgment against defendant. From that action appellant has appealed. On April 13, 1956, the circuit court entered a judgment providing for distribution of the funds in the hands of the highway department among the several appellees. There is no complaint or cross appeal with reference to this distribution as between the appellees, but appellant contends it is invalid as to appellant.
The first question is whether the circuit court had any authority or power to decree on March 8, 1951, a money judgment against McGowan upon the alleged debt owed plaintiff, as well as a judgment in favor of plaintiff for possession of the property.
The effect of the Mississippi statutes is summarized in 46 Am. Jur., Replevin, Sec. 122: "Under modern statutes, however, it is usually held that the judgment in such case should be in the alternative for the possession of the property or the value thereof in case a delivery cannot be had, and damages for its detention. The purpose of such statutes is to settle in the one suit all questions that might arise out of the unlawful taking or detention of the property.
"In case the person entitled to possession has only a special interest or lien, the judgment should be for the return of the property or the value of his interest or lien."
(Hn 1) Replevin is one of the most ancient writs known to the common law, but the remedy of replevin is now regulated by statute. Code of 1942, Secs. 2841-2869. Although founded upon a tortious detention of property, it is not one to determine claims sounding in tort. It is analogous to an action of trespass, but is in part a proceeding in rem, to regain possession, and in part a proceeding in personam, to recover damages for the caption and detention. (Hn 2) It is a possessory action, the gist of which is the right of possession in plaintiff. The primary relief sought is the return of the property in specie; damages are merely incidental. 46 Am. Jur., Replevin, Secs. 4, 3.
Code Section 2862 provides the form of judgment where no bond is given, as here: "If bond be not given and the property remain in the hands of the sheriff or other officer, the value of the property and the damages sustained shall be assessed, and judgment shall be for the recovery of the property, and the damages assessed against the party liable, and the sheriff or other officer shall deliver the property to the successful party, and execution shall issue for damages and costs of suit."
(Hn 3) It is well established that where the plaintiff has a limited interest in the chattel, by way of security for payment of any balance due on the purchase price, the judgment should be for return of the property or, in the alternative, for the value of plaintiff's interest therein measured by the balance due with interest and damages. Martin v. Coker, 204 Miss. 576, 594-595, 37 So.2d 772 (1948); North v. Delta Chevrolet Co., Inc., 188 Miss. 252, 194 So. 478 (1940); Fanning v. C.I.T. Corporation, 187 Miss. 45, 192 So. 41 (1939).
(Hn 4) Because the gist of a replevin action is possessory and damages are only incidental, it is well established that, in the absence of a consent judgment agreed upon by both parties, a judgment in replevin cannot be for debt, but must be in the alternative. Starling v. Sorrell, 134 Miss. 782, 100 So. 10 (1924); Federal Credit Co. v. Rogers, 166 Miss. 559, 148 So. 353 (1933); Porter Hardware Co. v. Peacock, 129 Miss. 129, 91 So. 856 (1922); Evans v. Junius Hart Piano House, 140 Miss. 467, 106 So. 9 (1925); Johnson v. Ferguson, 144 Miss. 464, 110 So. 230 (1926); Horne v. Moorehead, 169 Miss. 362, 152 So. 495, 153 So. 668 (1932).
Frierson v. Miss. Road Supply Co., 221 Miss. 804, 75 So.2d 70 (1954) does not affect that rule. There it was held that an action of replevin was not maintainable, since the suit should have been brought by the trustee, but that the declaration sufficiently stated a cause of action in debt to support a personal judgment for the balance due plaintiff by defendants.
(Hn 5) In summary, the 1951 judgment of the circuit court is void on its face insofar as it purports to give appellant, plaintiff below, a personal judgment for debt against appellee. That part of the judgment was beyond the power of the circuit court to render in a replevin suit, in the absence of an agreement of the parties, which the 1951 judgment by default affirmatively shows did not exist.
(Hn 6) The circuit court had the power to later amend its 1951 judgment so as to remove therefrom the provisions awarding plaintiff a money judgment against defendant. This power exists as part of the inherent power of the court to correct invalid and void provisions in its judgments. (Hn 7) The general rule is stated in 49 C.J.S., Judgments, Sec. 266, page 479: "It has been held, without reference to the term or time at which the judgment was rendered, that the inherent power of a court to open or vacate its judgment may be exercised when the judgment is void, or when there has been a procedural or jurisdictional defect or where a question of fraud or other collateral issue is raised,". Harper v. Barnett, 16 So. 533 (Miss. 1895); Meyer Bros. v. Whitehead, 62 Miss. 387 (1884); Joiner v. Delta Bank, 71 Miss. 382, 14 So. 464 (1893); cf. Duvall v. Duvall, 80 So.2d 752, 81 So.2d 695 (Miss. 1955).
(Hn 8) 49 C.J.S., Judgments, Sec. 334b states: "Invalidity of a default judgment rendering it void, as distinguished from merely voidable or erroneous, is ground for vacating it, as where the judgment is invalid for want of jurisdiction of the person, or where the judgment is based on a defective affidavit for publication of summons, or where the court is without jurisdiction to adjudicate the question determined or to give the particular relief granted." The judgment must be "according to established modes governing the class to which the case belongs, and . . . not transcend, in the extent or character of its judgment, the law which is applicable to it." 31 Am. Jur., Judgments, Sec. 583.
(Hn 9) Here the circuit court was administering a specific remedy defined by statute, replevin. It rendered a judgment which did not accord with the established rules in replevin cases, and transcended in the extent of its judgment the law which is applicable to it, and to the court's powers. Hence, "the absence of jurisdiction of a court to render a particular judgment constitutes sufficient cause for a collateral attack upon the judgment". 31 Am. Jur., Judgments, Section 597; McHenry v. State, 91 Miss. 562, 44 So. 831 (1907); Doe, ex dem. Smith v. Roe, 4 S. M. 261 (Miss. 1845). In the instant case the want of power in the court to render the personal judgment in replevin appears upon the face of the record. 31 Am. Jur., Judgments, Sec. 604.
In Horne v. Moorehead, 169 Miss. 362, 152 So. 495, 153 So. 668 (1932) it was held that a money judgment could not be rendered in a replevin suit except by agreement of the parties. The court sustained a motion to quash a writ of execution. On suggestion of error it was held: "It is true that a motion to quash an execution and vacate the judgment upon which it was issued is a collateral attack on the judgment; nevertheless, such an attack can be made where the judgment is procured by fraud or is void on its face. The judgment here involved was void on its face, because no such judgment could be rendered except as the result of the consent of the parties, including the sureties on the replevin bond.
"Where a judgment is either void on its face or void for fraud in its rendition, it may be attacked collaterally in the court rendering it, and such collateral attack may be made at a subsequent term of the court by a proper proceeding. A motion to quash the execution is one such proceeding."
In McHenry v. State, 91 Miss. 562, 44 So. 831, (1907) McHenry and Barber were adjudged guilty of contempt of the circuit court. An election was held on whether to divide Harrison County into two court districts. The elections commissioners canvassed the returns and made a report thereof to the board of supervisors, which failed to take any steps declaring results of the election. Various citizens of the county petitioned the circuit court for a writ of mandamus to compel the board to meet and act upon the report of the election commissioners. The board of supervisors made a motion for a court order to direct McHenry, Chairman of the Election Commissioners, to appear and deposit with the court the ballot boxes, tally sheets and tickets, in order that the board of supervisors might inspect them and be enabled to answer the petition. The court so ordered, but McHenry, acting under the advice of his attorney Barber, declined to produce the ballot boxes and returns. They were thereupon adjudged in contempt of court.
On appeal the convictions were reversed and contempt proceedings dismissed. It was held that the law placed on the election commissioners the duty to determine the results of the election, and that the board of supervisors performed only a ministerial act in declaring the results of the election; that therefore the order to McHenry to produce the ballot boxes, etc. was invalid, since there was no power in the court to inquire into the election. The circuit court "undoubtedly has jurisdiction generally to try a mandamus proceeding", but it must be tried according to its inherent nature, limited in scope. The Court said: "A court may have jurisdiction, in a general sense, of the particular suit, as regards both its subject-matter and the parties to it, and yet the court may make, in the trial of that particular case, an order which, regard being had to the nature of the suit, the court has no power whatever to make. Such an order is an absolute nullity, not a mere irregularity; and both where general jurisdiction at all to entertain the particular cause is wanting, and also where, such general jurisdiction existing, the court, in the progress of the trial of the particular cause, makes an order wholly void, there is wanting utterly the predicate for any contempt process for disobedience to such order . . .
"`It is an axiom of the law that judgments entered without any jurisdiction are void, and will be so held in a collateral proceeding; and there is a strong and growing tendency in all the courts to hold that, although a court had jurisdiction over both the person and the subject-matter, but did not have the jurisdiction to enter the particular judgment entered in the case, such judgment is void, and may be collaterally impeached.' Perhaps the word `power' should be used in place of `jurisdiction' in the last clause of this sentence, to prevent confusion of thought." See also Sinquefield v. Valentine, 160 Miss. 61, 133 So. 210 (1931). (Hn 10) The circuit court therefore had the inherent power to vacate in part and to correct the 1951 judgment. Moreover, that part of the judgment awarding plaintiff a money judgment was separate and distinct from the replevin provision awarding plaintiff possession of the chattel, and the former may be considered independently in determining its validity. A judgment may be good to the extent it is authorized by law and bad for the residue. The invalid, divisible part may be treated in proper cases as a nullity. The invalidity of the separable portion of the judgment does not affect the remainder of it. 31 Am. Jur., Judgments, Sec. 405; Spencer v. Franks, 173 Md. 73, 195 A. 306, 114 A.L.R. 263 (1937). (Hn 11) Accordingly a court having power to vacate a judgment entirely may grant less relief by vacating it in part only, where justice so requires. 49 C.J.C., Judgments, Secs. 302, 301.
Affirmed.
All justices concur except Gillespie, J., who dissents.
ON MOTION FOR ATTORNEYS' FEES AND TO CORRECT JUDGMENT
(Hn 12) Appellees Arch McGowan and Mrs. Maude McGowan and their attorneys have filed a motion to allow attorneys' fees, and in effect to correct the judgment of April 13, 1956, adjudicating disposition of the funds held by the State Highway Department among the appellees. This issue was not submitted for consideration by the trial court, and motion is here made for the first time. We have carefully considered this motion, and have concluded that this Court has no jurisdiction of the same as an original proposition. Hence the motion is dismissed without prejudice.
Motion for attorneys' fees dismissed without prejudice.
All justices concur.
This case is a difficult one to resolve with assurance. With deference, I disagree. What we have, I think, is a voidable judgment; one entered through error and which would have been reversed or set aside on direct attack; but not void. Not being void, it is unassailable collaterally.
In the original suit resulting in the judgment under attack, plaintiff, in a suit denominated in a replevin action, joined in one suit his affidavit and declaration in replevin, conforming in all respects with the procedural law, with a suit for a money judgment based on the note evidencing the purchase price of the property, in all respects making an adequate pleading in that respect. These two actions were not inconsistent. Plaintiff could have brought one action on his notes for the recovery of the purchase price of the property, and in the same court at the same time another action in replevin to recover possession of the property to protect his lien. But he proceeded in the same suit, improperly joining the two causes of actions. It was simply a case of misjoiner, and defendant did not appear and object. Defendant could not have suffered an injustice without a remedy as a result of what was done. If plaintiff had failed to equitably deal with the property as security, defendant had his remedy.
A careful analysis of the cases cited do not reveal any authority of this jurisdiction authorizing a judgment debtor to wait until years have passed and collaterally attack such a judgment. Remedy for misjoinder is demurrer. 1 Am. Jur., Actions, Sec. 69; Potomac Ins. Co. v. Wilkerson, 213 Miss. 520, 57 So.2d 158.
The court had jurisdiction of the parties and the subject matter. Under these circumstances "it is immaterial how irregular the proceedings, or how erroneous the judgment, may have been," the judgment may not be impeached collaterally. 31 Am. Jur., Judgments, Sec. 583.
The repute of courts and the solemnity of judicial proceeding are heavily involved in such a case as this. The presumption of validity of a final adjudication of a court is one of the strongest known to the law, more especially where the court is one of general jurisdiction.
I refrain from burdening the reports with the wealth of authority bearing on the questions involved, and express the hope that my apprehensions that this case will plague us in the future are unfounded.