McShane Cotton Co. v. Smith

Cook, P. J., delivered the opinion of the court. Appellee was the complainant in a bill of complaint filed in the chancery court of Leflore county. The bill of complaint alleged that a certain judgment by default was rendered against him by the circuit court of [784] Leflore county at the November term, 1913, of said court, and prayed that same be canceled and held for naught. The guounds alleged for the cancellation of the judgment were: (a) 'That he had no notice of the suit at law, in that he had not been served with process; (b) that the judgment by default was void on the face of the record. A demurrer was interposed by the defendant, McShane Cotton Company, which was overruled by the court.- Whereupon the bill of complaint was answered, the answer specifically denying the allegations of the bill. As to the first ground for relief, that complainant had not been served with process in the suit at law, suffice it is to say this allegation was not sustained by the evidence; on the contrary, he admitted that he had been duly and legally served with process. So, as we understand the record, there was only one point left for decision: i. e., Was the judgment by default “absolutely void” on the face of the record? The declaration upon which the default judgment was entered by the circuit court averred that the plaintiff, McShane Cotton Company, was engaged in the business of cotton factors, domiciled at Greenwood, and that the defendants, J. D. Smith and W. H. Smith, in the fall of'the year 1910, obtained from the plaintiff, a,t various times, certain named sums of money, amounting in the aggregate to the sum of one thousand nine hundred and seventy dollars o and ninety-eight cents; that defendants had delivered to plaintiff at various times cotton of the aggregate value of one thousand four hundred and twenty-six dollars and seventy-eight cents, leaving a balance due of five hundred and fifty-four dollars and twenty cents, and demanded judgment for the balance, together with' six per cent, interest. The declaration further averred that plaintiff had rendered to defendants an account of sales of the cotton shipped [785] showing expense of handling same and commissions and filed with the declaration itemized statements of the amounts of money advanced and also of the credits allowed the defendants for cotton delivered, and asked judgment for the balance as stated. The statements referred to were: First, a statement showing the advancement of moneys, the date of each draft, on what bank drawn, and the amount thereof, and then a credit for the value of the cotton delivered; second, a separate statement of the compress number and weight of each bale of Cotton received and sold for the account of defendants, insurance, storage, and weighing, and commissions for selling same. But complainant insists that there was a fly in the ointment fatal to the default judgment rendered by the circuit court on the declaration and exhibits thereto. The first-mentioned exhibit is headed “Mr. J. D. Smith, Jr., Sidon, Miss., in Account with McShane Cotton Co.,” etc. That is the statement of money advances by McShane Cotton Company. It is pointed out that this statement purports to be a statement of advances to J. JD. Smith, Jr., alone, and that the complainant, W. TI. Smith, is not mentioned in the exhibit. From this premise it is argued that the averments of the declaration and the exhibit are in direct conflict, and that the exhibit must control; in other words, the court was without authority to render a judgment by default against the defendant upon this ambiguous pleading. As we get it, the chancellor was of opinion that, while the declaration itself made out a case against the complainant, the exhibit to the declaration muddied the waters, and the exhibit contradicted the averments of the declaration. It is true, if the declaration fails to state a cause of action, a judgment by default may be set aside, but in this case the declaration does state a cause of action, [786] but tbe exhibit must prevail, and if it does prevail the appellee must go scot-free. The statute does not extend to a case wherein the declaration, as a whole, does not state a cause of action against the defendant, and it is contended in this ease that the declaration and the exhibits thereto do not state a cause of action upon which a default judgment could be rendered. The declaration does aver a course of dealing between the defendant and plaintiff which resulted in defendant being indebted to plaintiff in a specifically named amount. With this declaration an exhibit was filed which showed the dates of the money advances, how the advances were made, and upon whose draft the payments were made. True, the memoranda, or statement filed with the declaration shows that the partner drew the drafts which were paid, presumably in his own name, but the declaration avers that the advances were thus made to the partnership. This declaration was entirely ignored by defendant, who is complainant here, until he filed this bill of complaint after the statute of limitations had run against the original debt. This court said, in Railroad Co. v. Schragg, 84 Miss. 152, 36 So. 198: “Counsel’s objection, in short, ‘has this extent, no more’: That she is simply not entitled to recover under this declaration; and, that being the extent of his objection, he was bound under sections 718 and 746 of of the Code of 1892 to interpose it seasonably in the court below, because it is at last nothing but an objection to the form of pleading.” Now, we construe the declaration in the original case to charge that the complainant and appellee in this suit, together with his brother, was engaged in a certain business, and that one of them, for both, drew certain drafts for the joint account which were paid by plaintiff, the McShane Cotton Company. [787] If defendant desired to be enlightened as to just what he was charged with, he should have appeared and made his defense, if any he had. If his brother was not authorized to draw the drafts for the account of the partnership, then was the time for him to speak. If he was not a partner, he should have seasonably so pleaded in response to the summons served on him. Reversed and remanded.