Federal Reserve Bank v. Wall , 138 Miss. 204 ( 1924 )

^* Headnotes 1. Husband and Wife, 30 C.J., Section 779; 2. Judgments, 34 C.J., Section 841; 3. Husband and Wife, 30 C.J., Section 495. The appellant sued out an attachment for debt against W.F. Wall, and included in the property levied on by the sheriff under the writ is a victrola and a Packard automobile. The appellee, who is the wife of W.F. Wall, filed an affidavit, claiming to be the owner of the victrola and automobile. In due course a judgment was rendered against W.F. Wall, adjudging that the attachment was rightfully sued out, and awarding the appellant a personal judgment against him in the sum of five thousand two hundred ninety dollars. An issue was then made up for the trial of the appellee's claim to the car, on the trial of which, the appellant offered in evidence the writ of attachment, together with the sheriff's return thereon on, and the judgment rendered on the attachment issue, which judgment recites that:

"This day this cause came on to be tried; came the plaintiff, the defendant being called came not, but wholly made default, though personally served with process of summons more than thirty days before the first day of this term of this court. It is therefore ordered and adjudged" that the attachment was rightfully sued out, and that the plaintiff have and recover a judgment of and from the defendant for the amount hereinbefore referred to.

The sheriff's return on the attachment writ discloses a levy by him on the victrola and automobile "as the property of W.F. Wall," but fails to disclose any service of the writ, either personal or constructive, on Wall.

The appellee, the claimant in the court below, objected to the introduction of this judgment, on the ground "that the writ of attachment does not show that any personal service has been had upon the defendant," which objection was sustained, and the judgment excluded. The appellant then introduced evidence to the effect that W.F. Wall had been driving the automobile on several occasions; that he was assessed with and paid taxes on one automobile and one victrola; that he paid the sheriff a privilege tax on one Packard automobile, and that he carried insurance on an automobile of the same make. The appellant also offered to introduce parol evidence of a canceled check, alleged to have been lost, given by Wall to a business firm in Memphis, which was engaged in selling Packard automobiles. The consideration for which the check was given does not appear. This evidence was objected to, and excluded on the ground that the loss of the check had not been proven.

On the cross-examination of the witness, by whom W.F. Wall was shown to have been in possession of the automobile, it was also shown that the appellee had, on several occasions, been seen driving the automobile alone, and that it was kept in a garage on the premises on which Mrs. Wall lived. While no witness stated that Mr. and Mrs. Wall were living together, that fact, in the absence of evidence to the contrary, will be presumed because of their being husband and wife. It does not appear whether the home in which they lived was owned by Mr. or Mrs. Wall, assuming, but merely for the argument, that that fact would be here relevant and material. The appellant then rested its case, and on the motion of the appellee the evidence was excluded, and the jury instructed to return a verdict for her, and there was a judgment accordingly.

The attack here made on the judgment in the attachment issue is a collateral one, and in such an attack all jurisdictional facts necessary to support the judgment in the absence of evidence to the contrary "are conclusively presumed to have existed, whether there are recitals in the record to show them or not." Cotton v. Harlan, 124 Miss. 696, 87 So. 152. Moreover, the judgment expressly adjudicates that it appeared to the court, which rendered it, that the defendant had been personally served with process, and that adjudication is conclusive in a collateral attack; for in such an attack, whether the court had the proper evidence before it on which to base an adjudication that the defendant had been served with process cannot be inquired into.Cocks v. Simmons, 57 Miss. 183. The judgment should have been admitted in evidence.

Leaving out of view the evidence as to the payment by W.F. Wall of privilege and ad valorem taxes on an automobile, and the carrying by him of insurance thereon, the evidence discloses, viewing it most strongly for the appellee, that the automobile was in the joint possession of herself and her husband, and — "The general rule is that, where husband and wife are living together, the husband is presumptively the owner of personal property on the premises, and that this presumption continues until the wife shows that she acquired it as her separate property. The presumption of the husband's ownership applies especially to articles such as furniture and household goods adapted to the use of and used by the family generally; but as to articles specially fitted for and adapted to the wife's personal and separate use, and used by her, the presumption is that they belong to her separate estate." 30 C.J. 836.

A prima-facie case of ownership of the automobile in the husband was therefore made by the evidence. The objections to the admission of the evidence of the contents of the check alleged to have been given by W.F. Wall to the Memphis concern may be obviated on another trial, and we will therefore pretermit any discussion thereof.

Reversed and remanded.