Opinion
No. 35009.
May 25, 1942.
1. PROCESS.
In suit by attachment at law on ground of nonresidence to collect an indebtedness, where process by publication was had by notice published in local newspaper on February 20 and 27 and March 6 and 13, 1941, returnable to circuit court which convened on Monday, March 17, 1941, the publication of notice was sufficient to require appearance of the nonresident defendant at the March term, notwithstanding the publication of notice was not completed at least five days before the March term (Code 1930, secs. 137, 1398, 2968, 2972).
2. STATUTES.
The procedural statute regarding process by publication against nonresident defendant in attachment at law and statute regarding return of summons should be construed so as to harmonize one with the other wherever the same can be done (Code 1930, secs. 137, 1398, 2968, 2972).
3. JUDGMENT.
In suit by attachment at law to collect indebtedness which had accrued by reason of plaintiff's indorsement and payment of note executed by one defendant acting for himself and his partners, where declaration showed that the nonresidents were merely engaged as partners in an adventure so that there was no implied authority on the part of one partner to execute note for borrowed money and no express authority therefor was alleged in the declaration, default judgment against the nonresidents was required to be reversed.
4. JUDGMENT.
A default judgment must be predicated upon a pleading which states the essential elements necessary to constitute a cause of action.
5. JUDGMENT.
In suit by attachment at law on ground of nonresidence of defendants, the plaintiff in attachment and claimant were without authority to cause entry of judgment by agreement whereby plaintiffs were to receive satisfaction of their demands from proceeds of sale of attached property and pay over excess to the claimant without regard to rights of the nonresident defendants.
6. ATTACHMENT.
In suit by attachment at law on ground of nonresidence to collect an indebtedness wherein a third party filed claim to attached property, the nonresident defendants had a right to assume that the judgment would be limited, as against them to a proper determination of the issues raised by the pleading.
APPEAL from the circuit court of Kemper county, HON. JOHN C. STENNIS, Judge.
Lotterhos, Travis Dunn, of Jackson, for appellants.
Process by publication was executed within five days of the March, 1941, term of the circuit court, thus making the same returnable to the November, 1941, term. Therefore, the judgment entered "by default" at the November term is null and void by reason of express statutory provision.
Miss. Cent. R. Co. v. Aultman, 173 Miss. 622, 160 So. 737; Fernwood Lumber Co. v. Meehan-Rounds Lumber Co., 85 Miss. 54, 37 So. 502; Vansant v. Dodds, 164 Miss. 787, 144 So. 688; McSwain v. Young, 111 Miss. 686, 72 So. 129; Sellers v. Powell, 168 Miss. 682, 152 So. 492; Commercial Credit Co., Inc., v. Cook, 164 Miss. 725, 143 So. 863; Copiah Hardware Co. v. Meteor Motor Car Co., 136 Miss. 274, 101 So. 375; Alexander v. Porter, 88 Miss. 585, 41 So. 6; J.B. Colt Co. v. Ward, 135 Miss. 202, 99 So. 676; The Century Dictionary and Cyclopedia; Mississippi Code of 1930, Secs. 137, 575, 1397, 1398, 2968, 2972, 2976, 3036, 3037.
The agreed judgment by the plaintiffs in attachment and the claimant Otho Gilbert, is void because no process on the claimant's issue was served upon appellants, and no notice thereof conveyed to appellants.
Jackson v. Lemler, 83 Miss. 37, 35 So. 306; Mississippi Code of 1930, Sec. 153; Mississippi Code of 1930, Chap. 67; 31 Am. Jur. 131, Sec. 515.
The declaration states no cause of action against appellants, from which it follows that the judgment based thereon is a nullity and must be set aside.
Goodman v. White, 25 Miss. 163; Toof, Phillips Cirode v. Duncan, 45 Miss. 48; Heirn v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588; Davis v. Richardson May, 45 Miss. 499, 7 Am. Rep. 732; Prince v. Crawford Gaither, 50 Miss. 344; Cooper v. Frierson, 48 Miss. 300; State to Use of Stanton v. Junkin, 172 Miss. 225, 159 So. 107; Wray v. McMahon, 182 Miss. 592, 182 So. 99; Penn. Mutual Life Ins. Co. v. Keeton, 95 Miss. 708, 49 So. 736; Odom v. Gulf S.I.R. Co., 101 Miss. 642, 57 So. 626; 20 R.C.L. 900, Sec. 111; Mississippi Digest, Key 34, Title "Pleadings." L.P. Spinks, of DeKalb, for appellees.
The process by publication against the nonresident defendants was published for the required time before the March, 1941, term, and proper proof thereof made, and proper default judgment was entered at the succeeding November, 1941, term of the court.
Rankin v. Dulaney, 43 Miss. 197; Dogan v. Cole, 63 Miss. 153; Ringold v. Goyer Co., 164 Miss. 261, 144 So. 706; Knowles v. Summey et al., 52 Miss. 377; Griffing v. Mills, 40 Miss. 611; Copiah Hardware Co. v. Meteor Motor Car Co., 136 Miss. 274, 101 So. 375; Mississippi Code of 1930, Chap. 7; Mississippi Code of 1930, Secs. 131, 137-139, 575, 1398, 2968, 2972.
The agreed judgment by the plaintiffs in attachment and the claimant, Otho Gilbert, was by authority of law, no process on the claimant's issue being required to be served on the plaintiffs or defendants.
Mississippi Code of 1930, Sec. 3426; 7 C.J.S. 560, and note.
The declaration is sufficient and shows a good cause of action against the appellants and the judgment of default rendered on the same is valid.
Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515; McShane Cotton Co. v. Smith, 116 Miss. 779, 77 So. 793; Mississippi Code of 1930, Sec. 521.
This is a suit by attachment at law on the ground of nonresidence, to collect an indebtedness which had accrued in favor of the appellees by reason of their endorsement and payment of a promissory note executed by R.J. Dean in favor of a bank at Yazoo City for a loan of money. The note was executed on December 5, 1940, by Dean in his own name, but the declaration in attachment alleges that the three nonresident defendants, A.L. Stevens, Walter Trout and R.J. Dean, were operating a certain drilling enterprise as partners during that month in the name of R.J. Dean, and it is therefore stated as a conclusion that they were all jointly and severally liable for the contracts and undertakings conducted in his name. The declaration further alleges that R.J. Dean "acting for himself and his co-defendants herein" procured the plaintiffs to endorse the note in question which he had executed "for himself and co-defendants in the sum of $200.00 . . .," but failed to allege that its execution was authorized by the said A.L. Stevens and Walter Trout or that it was done with their knowledge and consent. Nor is it alleged that the money was borrowed for use in connection with the partnership business.
The writ of attachment was levied on one steel derrick located in Kemper County "as the property of R.J. Dean" according to the sheriff's return thereon. Thereafter, process by publication was had on all of the nonresident defendants by notice published in a local newspaper on February 20th and 27th, and March 6th and 13th, 1941, returnable to the circuit court which convened on Monday, March 17, 1941. The defendants failing to appear and defend the suit, a default judgment in rem was taken on November 4, 1941, at the next succeeding term of the court, condemning the derrick to be sold to pay the indebtedness sued for and all costs, but ordered a stay of the sale until a claimant's issue interposed by Otho Gilbert, as administrator of the estate of W.D. Mitchell, deceased, could be tried, the said administrator having claimed that the property levied on belonged to the W.D. Mitchell estate. Three days later, the appellees, as plaintiffs in attachment, instead of requiring the claimant to establish his title and ownership of the property in a trial of the claimant's issue, consented that the property be sold by the sheriff for the benefit of themselves and the claimant, and that the latter should receive all of the proceeds of the sale above the sum of $200 and costs; also that in the event the plaintiffs in attachment should become the successful purchaser at the sale, they would try to resell the property at the best price obtainable at a private sale and pay the balance of the proceeds, in excess of their own claim, to the estate, represented by said claimant.
A judgment was accordingly rendered by the court by consent of the plaintiffs in attachment and the claimant, notwithstanding that the nonresident defendants, whose ownership of the property the plaintiffs in attachment had alleged, would have been entitled to the proceeds of such sale over and above the demand of the plaintiffs in attachment, if the latter had prevailed on the trial of the claimant's issue, and also notwithstanding that there could have been no sale had the claimant prevailed in establishing his title and ownership of the property on a trial of that issue. The appellants challenge the validity of this judgment on the ground that the success of either of the parties to the claimant's issue would clearly preclude the right of the other, and that therefore the plaintiffs in attachment were without authority to consent on behalf of the nonresident defendants that the claimant should receive the excess of the proceeds of the sale; that since the court would have been without authority to render such a judgment as a result of a trial of the claimant's issue, it was without jurisdiction to do so by consent of the parties where no notice had been given to the nonresident defendants as to what was being done, since a defendant who fails to appear has a right to assume that the issues raised by the pleadings will be disposed of in accordance therewith and under the applicable principles of law.
It is also insisted that the default judgment rendered on November 4, 1941, on the attachment issue was void as having been rendered at the return term without personal service of process on the nonresident defendants; that the publication of the notice not having been completed for at least five days before the March term, it was not sufficient to require the appearance of these defendants until the next succeeding term, thereby constituting such term the return term. We are of the opinion that the contentions cannot be sustained for the reason that Section 137, Code of 1930, provides that the notice in attachments at law against nonresidents shall be published "once a week for three weeks in some newspaper published within the county," and Section 1398, Code of 1930, provides that when publication shall be required to be made in some newspaper "for three weeks," it shall be sufficient to publish once each week for three weeks, even though there be not three weeks between the first and last publication; that if there is three weeks between the first publication and the day for the appearance of the party, this will be sufficient. It is true that Section 2968 requires that "The summons, in actions in circuit court, shall be made returnable on the first day of the term, and shall be executed five days before the return-day thereof; and if executed within five days before the return-day it shall be good to require the appearance of the party at the term next after that to which it is returnable." But, when this statute is construed in connection with the legislative declaration contained in Section 2972, Code of 1930, to the effect that when publication is required to be made once in each week during three successive weeks, it shall be deemed completed at the end of twenty-one days from the date of the first publication, we think that the publication of the notice in the case at bar was sufficient to require the appearance of the nonresident defendants at the March term, and this is especially true in view of the further provision to the effect that "the defendant may be thereupon proceeded against as if he had been served personally for five days, previously to the date of the completion of said publication, with a summons in the case in this state." We are not unmindful that said Section 2972 relates to a publication in a chancery proceeding, but it has been held that these procedural statutes should be construed so as to harmonize one with the other whenever the same can be done.
We are also of the opinion however that the judgment must be reversed and remanded for two reasons: First, the declaration shows on its face that the nonresident defendants were merely engaged as partners in an adventure not constituting a general trading or commercial partnership, and wherein there was no implied authority on the part of one of the partners to execute a promissory note for borrowed money, and no express authority therefor is alleged in the declaration, Toof, Phillips Cirode v. Duncan, 45 Miss. 48; Davis v. Richardson et al., 45 Miss. 499, 7 Am. Rep. 732; Prince v. Crawford Gaither, 50 Miss. 344; 20 R.C.L. 900, Sec. 111; and it is required that a default judgment shall be predicated upon a pleading which states the essential elements necessary to constitute a cause of action; Penn Mutual Life Ins. Company v. Keeton, 95 Miss. 708, 49 So. 736; Odom v. Gulf S.I.R. Co., 101 Miss. 642, 57 So. 626. And, second, the plaintiffs in attachment and the claimant were without authority to cause the entry of the judgment by agreement whereby the former were to receive satisfaction of their demand from the proceeds of the sale of the attached property and pay over the excess to the latter, without regard to the rights of the nonresident defendants who had a right to assume that the judgment would be limited, as against them, to a proper determination of the issues raised by the pleadings. 31 Am. Jur. 130, Sec. 515.
In view of the conclusion reached, it is unnecessary to consider the other errors assigned.
Reversed and remanded.