Childress v. Thomas Dry Goods Co.

McGowen, J., delivered the opinion of the court. This case arose in this wise: Attorneys, representing the Thomas Dry Goods Company, sent W. C. Heard, a justice of the peace of Yazoo county, a note for one hundred ten dollars, signed by Childress in favor of the Thomas Dry Goods Company, with instructions to the justice of the peace to bring suit thereon. The justice of the peace issued process, docketed the case, and notified the attorneys in Jackson that suit had been brought and of the return day. Upon receipt of this notice, the attorneys directed the justice of the peace on the return day to proceed to render judgment in favor of the plaintiff. On the return day, the justice of the peace made the following entries on his docket: *434 “Thomas Dry Goods Company of Jackson, Miss., v. E. G. Childress, cause No. 45, suit on note of one hundred thirty-one dollars and ninety-two cents, showing process issued March 2, 1922, and returnable March 25, 1922, and showing the officer’s return as follows: ‘I have this day executed the within writ personally by delivering to the within named defendant, E. G. Childress, a true copy of said writ, March 2, 1922. S. J. Túndale, Constable’ — and showing the judgment, reading as follows: ‘Sar-tatia, Miss., March 25, 1922. This cause came on to be heard with the defendant on hand with a check showing that the plaintiff was paid November 2,1921, in full, and it is adjudged by the court that the plaintiff recover of the defendant nothing by his suit, hut it is further adjudged that the plaintiff pay all costs of the court and that execution issue herein according to law. W. C. Heard, Justice of the Peace.’ ” Later, the same attorneys, by notifying opposing counsel, undertook to appeal, but the appeal bond did not reach the justice of the peace in time, and the suit was again brought before the justice of the peace on a note for one hundred ten dollars and twenty-eight cents in favor of the Thomas Dry Goods Company, signed by Childress, and O. K. Stampley, a justice of the peace, rendered judgment in favor of defendant, and Thomas Dry Goods Company appealed to the circuit court. In the circuit court, Childress interposed a plea of res adjudí-cala, pleading the judgment above set forth rendered by Heard, justice of the peace, and the circuit judge excluded all testimony on the plea res adjudicóla, including the above judgment, holding that the only judgment that could be rendered by a justice of the peace, in the absence of plaintiff on a return day, was a judgment of nonsuit. It is unnecessary to further state the facts. It is insisted by counsel for appellant that the court erred in excluding the judgment with the record accompanying same, and that the proof sustained his plea o£ res adjudicada. *435 Counsel for appellee say in tlieir brief: “We do not contend tliat the judgment in question was void, only that it was simply a judgment of nonsuit and nothing’ more.” Of course, if said judgment was simply one of nonsuit, and so appears to be on its face, then the plea of res ad-judicata would be invalid, otherwise our lower court was in error, and the plea of res adjudicada, should have been sustained, and a verdict directed in favor of the defendant thereon. It will be noted that this judgment recites that the defendant was on hand with a cheek, and that plaintiff had been paid on November 2, 1921, in full, and that a good and complete judgment was rendered against plaintiff, denying him the right which he claimed in his suit, so that on its face it is perfectly clear that judgment is not one of nonsuit, but is one final in its nature and against the plaintiff, and, unless the judgment is void, is a conclusive bar to any further action on the same debt. Appellee contends, however, that section 2240, Hemingway’s Code (section 2741, Code of 1906), made it imperative on the justice of the peace to enter a nonsuit if plaintiff failed to appear. This section applicable to the case is as follows: “On the return day of the summons- the justice shall hear and determine the cause if the parties appear; give judgment by default if the defendant fail to appear, . . ^. or judgment of nonsuit against the plaintiff if he fail to prosecute his claim.” As to whether or not plaintiff in the instant case failed to prosecute his claim was a question to be determined by the justice of the peace, and, even if it be conceded that an erroneous entry of the judgment final was made by him, when he should have entered a nonsuit, still that would not authorize another court to reverse or modify the judgment of the justice of the peace which had become final. Section 2245, Hemingway’s Code, is as follows: “When any suit brought before a justice of the peace shall be finally decided on its merits by the justice, it shall be a *436 bar to a recovery for tlie same cause of action or set-off in any other suit.” It is manifest that the judgment rendered by Heard and pleaded as res adjudicata by the defendant is not a void judgment, but is a final judgment on the merits that the defendant had paid the plaintiff, and the presumption is that the justice of the peace held that plaintiff was prosecuting his claim. If the judgment be erroneous which we do not here decide, it could be attacked only directly, and not in a collateral proceeding, as is here undertaken. . Where a court has jurisdiction of the parties and of the subject-matter, mere errors, irregularities, or infor-malities will not vitiate the judgment so as to render it absolutely void. 23 Cyc. 682, section D1; Moore v. Ware, 51 Miss. 206. We think the lower court erred in excluding the evidence on the plea of res adjudicata. Said plea was good. Th¿ court should have given a peremptory instruction for the defendant. Reversed, and judgment here for appellant. Reversed.