Dyer v. Russell

Counsel

Bridgeforth Love, for appellant. The decision of the learned chancellor overrules, in effect, the long established case of Eastman-Gardner Co. v. Leverett, now an established rule of property in this State. In the case of Eastman-Gardner Co. v. Leverett, 141 Miss. 96 , 106 So. 106 (1925), Leverett brought suit to recover damages for personal injuries growing out of a sawmill accident. The defendant Eastman-Gardner Company offered to show, under the plea of accord and satisfaction, that defendant had fully satisfied the plaintiff by substantial payments, in consideration of which plaintiff had released the company. The plaintiff objected on the ground that plaintiff was a minor at the time of the injury and settlement. The defendant then offered in evidence the full proceedings pursuant to which plaintiff's disabilities of minority had been removed prior to the execution of the release for the particular purpose of empowering the minor to execute the release. When the ex parte petition and decree making up the proceedings removing plaintiff's disabilities of minority were offered in evidence, the plaintiff objected and the court sustained the objection, on the ground that the attempted removal of disability was void upon the face of the proceedings, and for that reason was inadmissible. The defendant appealed from the decision of the trial court. Counsel for the plaintiff appellee, in attempting to maintain the ruling of the lower court that the proceedings emancipating plaintiff Leverett were void on their face, said: (Quoting now from brief of counsel for appellee Leverett as set out in the official reporter's summary of briefs, Eastman-Gardner Co. v. Leverett, 141 Miss. 96 , at page 99, lower third of page) "The decree shows none of the jurisdictional facts. The decree does not show the age, residence or relationship of any of the parties. This, we submit, is fatal to the validity of the decree. Steen v. Steen, 25 Miss. 513 ; Marks, Rothenberg Co. v. McElroy, 56 Miss. 545 ; Lake v. Perry, 95 Miss. 550 , 49 So. 569; Jackson v. Jackson, 105 Miss. 868 , 63 So. 275; Boykins v. Collins, 37 So. 248; Banks v. Hoy Bros., 74 Miss. 221 ." On appeal the supreme court rejected the arguments advanced by counsel for appellee and found the proceedings removing the disabilities of Leverett to be valid. The court said: "As to whether the statutes (sections 301 and 302, Hemingway's Code, as amended by Chapter 123, Laws 1918, with reference to the removal of the disability of minors, was complied with in the filing of the petition herein, and the granting of the decree was in accord with the law on the subject, may be judged by reading the petition and the decree, which we have set out herein, and the statutes named." The court in its opinion in Eastman-Gardner Co. v. Leverett, supra, included a full verbatim transcript of the ex parte petition and decree partially emancipating Leverett. The sufficiency of the petition in the Russell emancipation is nowhere questioned in the record and is expressly approved in the chancellor's opinion. No defects are observed on its face. All defects in the Russell emancipation, found by the court below, exist in the decree. We respectfully request that the court compare that decree in the Leverett emancipation with the decree in the Russell emancipation set out in the Statement of the Facts. Indeed the two decrees are so similar that the attorney responsible for emancipating Russell might well have had before him the forms of the Leverett petition and decree, which have been for years set out in full in an opinion of the Supreme Court of the State of Mississippi and found therein to be absolutely valid. Certainly the court in Eastman-Gardner Co. v. Leverett had forcefully brought to its attention, by the brief of counsel for appellee quoted, supra, the exact same ground upon which the learned chancellor in the court below struck down as void on its face the proceedings emancipating appellee Russell. In Eastman-Gardner Co. v. Leverett, the court continued: "The appellee contends that the decree is void because the decree and petition fail to show the jurisdiction of the court, and that . .. "After a careful consideration of the question, we are unable to see wherein there was a failure to comply with the statute with reference to the petition and decree, which are records in the case to be considered together. . . . Therefore we think the proceedings which resulted in the decree partially removing the disability of minority of the appellee, Leverett, were valid, . . ." In the case of Wilkerson v. Swayze, 147 Miss. 141 , 150, 113 So. 327 , 328 (1927), this honorable court, in rendering a decision maintaining the validity of an emancipation proceedings, set out in full in its opinion the decree, which was approved as validly removing disabilities. The court is requested to compare the language of this decree with that of the decree emancipating appellee Russell but stricken down as void by the learned chancellor in the court below. We submit that the decrees vary in no material aspect. We respectfully submit to this honorable court that the result reached in the instant case by the lower court must be modified in the light of Eastman-Gardner Co. v. Leverett, or the cases of Eastman-Gardner Co. v. Leverett and Wilkerson v. Swayze be overruled. We believe that Eastman-Gardner Co. v. Leverett and Wilkerson v. Swayze were correctly decided. However, whether correctly decided or not, we respectfully urge to this honorable court that the doctrine of stare decisis should protect Eastman-Gardner Co. v. Leverett and Wilkerson v. Swayze from this attack, especially in view of the great weight the precedent, clearly set out in Eastman-Gardner Co. v. Leverett, has had in all matters of contract and conveyance involving minors since that opinion of the court was announced in the year 1925. When a principle has been settled by judicial decisions for many years, and has become a rule of property, and titles have been vested on the strength of it, only the most palpable error would justify a court in overruling previous decisions: New York Life Ins. Co. v. Boling, 177 Miss. 172 , 169 So. 882 (1936); Magee v. Morehead, 154 Miss. 828 , 123 So. 881 (1936); K.C. Lbr. Co. v. Moss, 119 Miss. 185 , 80 So. 638 (1919); Becker et al. v. Columbus Bank, 112 Miss. 819 , 73 So. 798 (1917); Robertson v. Puffer Mfg. Co., 112 Miss. 890 , 73 So. 804 (1917); Forest Product Mfg. Co. v. Buckley, 107 Miss. 897 , 66 So. 279 (1914); Webb v. Mobile O.R. Co., 105 Miss. 175 , 62 So. 168 (1913); Lombard v. Lombard, 57 Miss. 171 (1879). We respectfully submit to the court that the petition requesting the emancipation of Frank Russell is as much a part of the record of that cause as is the petition filed in other proceedings had in the chancery court. In Griffith, Chancery Practice, Sec. 572, page 631, in considering whether pleadings are judicially noticed, it was said: "The pleadings, summons, all motions and all orders theretofore made in the case are parts of the record, prove themselves and it is not necessary to formally introduce them at the hearing." And see Griffith, Chancery Practice, Sec. 633, page 730, where it is said: "The record proves itself and is conclusive upon the parties and their privies, if the entire record shows that the court had jurisdiction of the parties and the subject, —" citing the case of Dogan v. Brown, 44 Miss. 235 (1870), holding that the record of a case is not limited to decrees enrolled on the minutes but includes even process, whether by service or publication, and a false recital of process in a decree may be overturned by production of the process showing the recital false. In Corpus Juris Secundum the following note is found, where the effect of recitations on the face of the record showing want of jurisdiction in the court is considered: "What record includes: (1) The term `record' or `record proper' or `complete record,' as variously used within this rule, generally includes the pleading, process, verdict, and judgment." 49 C.J.S. (Judgments, Sec. 421), page 823, note 31, lower half, third column. See also 21 C.J.S. (Courts, Secs. 225, 226), pp. 417-422. The case of Eastman-Gardner Co. v. Leverett, supra, squarely holds that both the petition and decree may be considered together as part of the record. There the court said: ". . . we are unable to see wherein there was a failure to comply with the statute with reference to the petition and decree, which are records in the case to be considered together." In the case of Thatcher v. Powell, 5 L.Ed. 221, 223 (1821), where the validity of a tax sale of land in Tennessee was assailed on the ground that it was made pursuant to an order of court, issued under the terms of a special statute prescribing a limited jurisdiction, the requirements of the special statute not having been met, the great Justice Marshall said: "This being an important fact on which the jurisdiction of the court depends, it ought, we think, to appear on record, either in the judgment itself, or in the previous proceedings." The cases of Aden v. Board of Supervisors of Issequena County, 142 Miss. 696 , 107 So. 753 (1926); Bolivar County v. Coleman et al., 71 Miss. 832 , 15 So. 107; Lester v. Miller, 76 Miss. 309 , 24 So. 193; Craft v. Board of Supervisors of DeSoto County, 79 Miss. 618 , 31 So. 204; Hinton v. Board of Supervisors of Perry County, 84 Miss. 536 , 36 So. 565; Henry et al. v. Board of Supervisors of Sunflower County, 111 Miss. 434 , 71 So. 742; Board of Supervisors of Lowndes County v. Ottley, 146 Miss. 118 , 112 So. 466 ; Ferguson v. Board of Supervisors of Wilkinson County, 149 Miss. 623 , 115 So. 779 , and Green et al. v. Board of Supervisors of Adams County, 172 Miss. 573 , 161 So. 139 , we respectfully submit, are not in point. A clear distinction may be drawn between a Board of Supervisors acting in the nature of a court of limited jurisdiction, and the chancery court of Yazoo County acting as a court of limited jurisdiction, so far as the "record" is concerned. It is provided by Section 2886, Code of 1942, that the clerk shall keep in the minutes of the Board of Supervisors a complete and correct record of all the proceedings and orders of the Board; and this statute has been always construed to mean that the minutes are the exclusive evidence of any action of the Board. See Martin v. Newell et al., 198 Miss. 809 , 23 So.2d 796 ; State Highway Dept. v. Duckworth et ux., 178 Miss. 35 , 172 So. 148 ; Pearl Realty Co. v. State Highway Commission,. These minutes constituting, as they do, the exclusive record of the Board, all jurisdictional facts must appear therein. However, a court of general jurisdiction — chancery court — when acting as a court of limited jurisdiction by virtue of powers conferred by statute, a very different situation is presented; for, as the authorities heretofore cited demonstrate, the writs, process and pleadings as well as the decree constitute the record of a court proceedings, and all that is required is that the proper jurisdictional facts appear in the record, not necessarily in the decree alone. Butler Snow, amici curiae. Under Section 159, Mississippi Constitution of 1890, the chancery court, when removing disabilities of minority, is a court of general constitutional jurisdiction and not a court of special or limited jurisdiction. Section 159 of the Constitution of 1890 provides as follows: "Section 159. The chancery court shall have full jurisdiction in the following matters and cases, viz.: (f) All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation." When the Constitution of 1890 became operative, there was then in force and effect the Mississippi Code of 1880. In Chapter 49 thereof, Sections 1838-1842, there was contained a complete statutory scheme relating to the removal of disabilities of minority. The present statutes relating to the removal of disabilities are virtually the same as Sections 1839, 1840, 1841 and 1842, Mississippi Code of 1880. It is thus clear that at the time of the adoption of the Constitution of 1890, the chancery court definitely had statutory jurisdiction relating to the removal of disabilities of minority. And we submit that since such jurisdiction existed in the chancery court at the time of the adoption of the Constitution of 1890, the adoption of that Constitution operated to vest full jurisdiction in the chancery court in regard to the removal of disabilities of minority. The principle invoked is illustrated by McBride v. State Revenue Agent, 70 Miss. 716 , 12 So. 699. In that case it was contended that the chancery court had no jurisdiction of the particular cause. The court held that Section 159 of the Constitution of 1890, by conferring on the chancery court jurisdiction in all cases of which it had jurisdiction under the laws in force when the Constitution was put in operation, conferred on that court the jurisdiction which it had theretofore possessed under Section 1843, Code 1880. The court said: "But, by the constitution of 1890, this jurisdiction was expressly conferred upon our court of chancery. Section 159 declares: `The chancery court shall have full jurisdiction in the following matters and cases: (a) all matters in equity; (b) divorce and alimony; (c) matters testamentary and of administration; (d) minors' business; (e) cases of idiocy, lunacy and persons of unsound mind; (f) all cases of which the said court had jurisdiction under the laws in force when this constitution is put in operation.' "The code of 1880 was in force when the constitution became operative, and, by Sec. 1843 thereof, it was provided that `the said (chancery) courts shall have jurisdiction of bills exhibited by creditors who have not obtained judgments at law, or having judgments, have not had executions returned unsatisfied to set aside fraudulent conveyances of property, or other devices resorted to for the purpose of hindering, delaying or defrauding creditors, and may subject the property to the satisfaction of the demands of such creditors, as if complainant had a judgment and execution thereon returned no property found.'" In Woods v. Riley, 72 Miss. 73 , 18 So. 384, the court said: "But in this state the jurisdiction in equity in this class of cases by our constitution is lifted far above the region of doubt by Section 159 of that instrument, the general jurisdiction of chancery is conferred, and, by paragraph `f' thereof, is made to extend to `all cases of which the said court had jurisdiction under the laws in force when this constitution is put in operation.' Now, by force of the statute, when the constitution became operative, courts of chancery had jurisdiction to cancel clouds upon the title to land whether the complainant was in or out of possession, and whether the instrument assailed was in form a legal or equitable title. Code of 1880, Section 1833. . . ." ". . . The constitution not only destroys the obstacle which had formerly existed to the exercise of this auxiliary relief, but, as to the cases falling within paragraph `f' of Section 159, Section 160 confers jurisdiction upon courts of equity to try legal as well as equitable titles." This principle is decisive in the present case. Analysis makes this clear. Under the Code of 1880, the chancery court had jurisdiction to remove the disabilities of minority. Section 159, Constitution of 1890, conferred upon the chancery court "full jurisdiction" of all cases of which the court had jurisdiction under the statutes in force when the Constitution was put in operation. Even though the jurisdiction conferred by statute might have been special and limited, nevertheless, the jurisdiction conferred by the Constitution is full jurisdiction. The chancery court did have jurisdiction proceedings to remove disabilities of minority under the laws in force when the Constitution became operative, and Section 159 expressly declared that the court should have full jurisdiction of such matters. The word "full" means that nothing is reserved. The point we make here has never been presented to this court in any case. It was not passed upon by the learned chancellor in the present case. We think that Section 159 of the Constitution operated to confer upon the chancery court the jurisdiction of proceedings for the removal of disabilities of minority which prior thereto was conferred by statute. The jurisdiction conferred by Section 159 is full jurisdiction and is not a special or limited jurisdiction. It is respectfully submitted that this court should hold that in exercising its jurisdiction to remove the disabilities of minority, the chancery court is a court of general constitutional jurisdiction, and it is not essential that the record affirmatively show the existence of the necessary jurisdictional facts in the particular cause. Louis J. Wise, for appellees. In the case of Dulion v. Fowlkes (1928), 153 Miss. 91 , 120 So. 437 , the court held: "There is no presumption raised in favor of the jurisdiction of the chancery court in such cases, the statute being the sole source of power vesting said jurisdiction, the allegations of the petition must be the basis of jurisdiction . . . no presumption is indulged in favor of a court of special and limited jurisdiction, and where the jurisdictional facts do not appear of record, the judgment is void." Therefore no finding of fact vesting the jurisdiction appeared in the record, just as in the instant case. Also the chancery court, when removing disabilities of minority, is one of limited jurisdiction, no presumption arising, it is incumbent upon one relying upon the decree, to show that the court acquired jurisdiction. Marks v. McElroy, 67 Miss. 545 , 7 So. 408; Wilson v. McCorkle, 135 Miss. 525 , 99 So. 366; Howard v. McMurchy, 175 Miss. 328 , 166 So. 917 . It is the settled rule in Mississippi that Boards of Supervisors exercise only special or limited jurisdiction, and in the exercise of such authority, all necessary jurisdictional facts must appear on record in the proceedings. A Board order which does not show facts necessary to give jurisdiction are void. The same is true in minority removals by the chancery court. Bolivar County v. Coleman, 71 Miss. 832 , 15 So. 107; Lester v. Miller, 76 Miss. 309 , 24 So. 193; Craft v. Board of Supervisors, 79 Miss. 618 , 31 So. 204; Hinton v. Board of Supervisors, 111 Miss. 434 , 71 So. 742. Aden v. Board of Supervisors, 142 Miss. 696 , 107 So. 753 ; Board of Supervisors v. Ottley, 146 Miss. 118 , 112 So. 466 ; Ferguson v. Board of Supervisors, 149 Miss. 623 , 115 So. 799; Green v. Board of Supervisors, 172 Miss. 573 , 161 So. 139 . The statute (Section 1265) requires that the petition be in writing. Hayes v. Federal Land Bank, 162 Miss. 877 , 140 So. 340 . The petition or application must be by the minor by his next friend. Jackson v. Jackson, 105 Miss. 868 , 63 So. 275. That the next friend is an adult. Prudential Life Ins. Co. v. Gleason, 187 So. 229 . The petition must state the name, age and residence of the minor. The defendants must be his parents, if living, if not living, two of his adult kin within the third degree. Lake v. Perry, 95 Miss. 550 , 49 So. 569. The reasons for which the removal is sought must be shown therein. The residence of the minor must be clearly shown. Dulion v. Fowlkes, supra. Each element as stated above is jurisdictional and is essential to the validity of the proceedings. Appellants beg the question by quoting at length from Eastman-Gardner Lbr. Co. v. Leverett, 141 Miss. 96 , 106 So. 106 . Which involved a special removal of disabilities empowering the minor to do a specific act only, and that was what he actually did — there was no attempt to remove his entire disabilities of minority. For a general removal to be good the decree must set forth all acts the minor is empowered to perform, to-wit: to do all acts in reference to his property, and making contracts, and suing and be sued, and engaging in any profession or avocation, which he could do if he were twenty-one years of age. The petition may, by implication, and presumption be held sufficient, which appellee denies; the decree is meaningless and void. Measuring the decree by the judicial yardstick, we have no finding that the petition contained any of the averments to bestow jurisdiction, nor is there a finding that the averments of the petition are true, nor does it determine the extent of the disability removal or the character of acts he is to perform, notwithstanding his minority. The decree failing therefore to find the existence of each jurisdictional fact, and failing to bestow any powers in applicant, notwithstanding his minority, is fatally defective and utterly void. The appellee presents his reply to appellant's point that: Under subsection (f) section 159, that the conferring on chancery court of full jurisdiction in — "All cases of which the said court had jurisdiction under the laws in force when this Constitution is put in operation." Subsection (f) Constitution 1890, vests merely in chancery court those statutory causes enacted by virtue of sub-paragraphs (a) to (e) inclusive of Constitution of 1869, which were all constitutional under the powers then granted; while the addition of subsection (f) Constitution of 1890 granted jurisdiction to chancery courts to try legal as well as equitable titles. Woods v. Riley, 72 Miss. 73 , 18 So. 384; Keystone Lbr. Co. v. Y. M.V.R.R. Co., 96 Miss. 116 , 50 So. 445. The subsection (f) section 159 merely extends auxiliary aid to chancery courts allowing them to completely adjudicate the cause, and trying both legal and equitable issues. Bomer Bros. v. Warren County (1913), 103 Miss. 343 , 60 So. 328; Woods v. Riley, supra. Suppose we assume for sake of argument, as alleged by appellant that Section 159, Constitution 1890 vested full jurisdiction in chancery court. This court has held that "full jurisdiction" merely means that where a court takes hold of a subject it ought to dispose of it fully and finally. Bank v. Duncan, 52 Miss. 740 ; Georgia R.R. Co. v. Brooks, 66 Miss. 583 , 6 So. 467; Eyrich v. Capital State Bank, 67 Miss. 60 , 6 So. 615; Barber v. Barber, 106 Miss. 128 , 63 So. 343.