Brock v. Jones , 120 Miss. 816 ( 1919 )

HoldeN, J.,

delivered the opinion of the court.

The question presented on this appeal is whether or not the judgment rendered by the lower court is erroneous in that part of it which we shall hereinafter set out.

The lower court tried the case on the following agreed statement of facts:

“It is agreed between the plaintiff and the defendants that the plaintiff, C. J. Jones, on the 23d day of October, 1916, filed suit in the .justice court of W. D. Mills against both these defendants, J. H. Brock and E. E. Kittrell, also against Mrs. ,E. 0. Brock; that process issued on said suit on the day of filing returnable on the 6th day' of November, 1916; that said process was personally served on each of said defendants on the 26th day of October, 1916, more than five days before the return day; and that on said return day judgment by default was taken against all of said defendants, and the transcript of the record of said judgment which is attached hereto and made a part of this agreed statement of facts, and marked Exhibit A, it being agreed that said transcript is a true copy of the judgment entered.

“It is further agreed that the said justice court had full jurisdiction to try said cause, which was No. 37 on said justice docket.

“It is further agreed that from said judgment, on the 22d day of November, 1916, the said Mrs. E. C. Brock filed her appeal bond in said cause, and appealed same as to her to the circuit court of Perry county; that neither of the defendants J. H. Brock or E. E. Kittrell prosecuted any appeal from said judgment, but as to them same stands apparently in full force and effect; that these defendants' have done nothing nor taken any steps to avoid or vacate said judgment.

“That on the appeal of said cause by Mrs. E. 0. Brock, it was numbered 366 in the circuit court.of Perry county, and that same was by the plaintiff, 0. J. Jones, non-suited, the costs paid, and said cause dismissed without prejudice, in. vacation, on the 5th day • of May, 1917.

“That afterwards and to wit, on the 3d day of July, 1917, the- said C. J. Jones, the same person who was plaintiff in the aforesaid action, filed this suit, which is now before the court, against said J- H. Brock and E. E._ Kittrell,. the defendants herein, and that these defendants are the same J. H. Brock and E. E. Kittrell who were two of the defendants in the former proceeding, and that the said suit filed on the 3d day of July, 1917, was for the same items and the same identical cause of action as the one filed October 23, 1916; that the said defendants appeared and contested said action, and pleaded the said former judgment as a bar to the recovery in this action.

“That Mrs. E. 0. Brock was. then the owner of lot 4 in block' 11 of the Richton Lumber Company’s Second addition to the town of Richton, Miss., and still owns same, and that she was not a party to the contract on which this suit was brought.

“That the last suit above referred to was ’No. 71 on the justice docket, and is now No. 399 in the circuit court.”

Upon this statement of facts the trial judge rendered a judgment sustaining the plea of res adjudicata, holding that the prior - judgment rendered in the justice court was a bar to the present suit, and that the last judgment in 'the justice court now in question was void on account of the former recovery as between the same parties in the same cause of action, and dismissing the present suit and taxing the plaintiff with the costs. To this part of the judgment the appellant here- makes no complaint, but contends that the court erred in further adjudging, ás follows:

“The court further finds that under the justice judgment entered in the first cause, filed against these defendants in justice court, and which was No. 37 thereon, that the plaintiff was entitled to have a lien thereunder on said building to the amount of one hundred and twenty-five dollars and eighty-two cents and interest theron at the rate of six per cent, per annum from November 1, 1916. It is therefore ordered that execution may issue in favor of said plaintiff against said defendants for the sale of the said building, to wit, one blacksmith shop situated on lof 4, block 11, of the Richton Lumber Company, Second addition to the town of Rich-ton, same being the building in which said lumber was used.”

It is too plain for debate that the lower court had no authority in law to render the latter part of the judgment complained of. The former judgment against the appellants in the justice court was not before the circuit judge for review. This jprior judgment in the justice court was against appellants (not against Mrs. E. C. Brock, who was afterwards dismissed), and had not been appealed from, was still unsatisfied, and could he enforced against appellants, if at all, only by process originating in the justice court. The circuit court had no jurisdiction over it, nor of the person or property of Mrs. E. C. Brock. The copy of the prior judgment was brought to the notice of the circuit judge only as evidence to support the plea of res adjudicata, and could he considered for no other purpose.

The judgment of the lower court is reversed, and judgment entered here.

Reversed, and judgment here.