REED v. GENERAL MOTORS ACCEPTANCE CORP

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Docket Number

No. 40154.

Attorney(S)

J.A. White, Durant, for appellant. I. The writ of execution issued in this cause, if it may be denominated as such, is a proceeding to enforce a judgment. Rawlings v. American Oil Co., 173 Miss. 683, 161 So. 851. II. A proceeding to enforce a judgment is collateral to the judgment, and, therefore, the judgment itself cannot be attacked in such a proceeding except for fraud in its procurement or voidness on its face. Cotton v. Harlan, 124 Miss. 691, 87 So. 152; McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731; 34 C.J., Sec. 828 p. 522. III. The claimant's affidavit filed by the appellant challenged the validity of the judgment under which the purported writ of execution issued as being void, and the appellant moved at the very beginning of the hearing to quash the writ of execution for the defective return upon the original process issued for the defendant, Jimmie Reed, in the words, "Executed by personal service on the within named Jimmie Reed this the 24th day of February, 1955. Richard F. Byrd, Sheriff," being insufficient to support a default judgment. Dogan v. Barnes, 76 Miss. 566, 24 So. 965. IV. A wife can assert the invalidity of a judgment and a writ of execution under which the property is seized. Reid v. Halpin, 185 Miss. 396, 188 So. 310; 25 C.J., Sec. 232 p. 191. V. The writ of execution is void for failure to comply with Section 1600, Mississippi Code of 1942. Riley v. State, 175 Miss. 831, 168 So. 475; Wilkinson v. Hutto, 157 Miss. 358, 128 So. 93; Secs. 1600, 1601, Code 1942. VI. The burden of proof was on the plaintiff in execution to prove the truck was subject to execution, and the theory that burden rested upon the claimant to establish title was erroneous. Blalack v. Stevens, 81 Miss. 711, 33 So. 508; Ross v. Gary, 8 Miss. (7 How.) 47; Thornhill v. Gilmer, 12 Miss. 153, 4 Sm. M. 153; Atwood v. Meredith, 37 Miss. 635; Butler v. Lee, 54 Miss. 476; Reid v. Halpin, supra; Sec. 1025, Code 1942. VII. The evidence is insufficient to sustain the judgment, and the judgment is not supported by the evidence, but is contrary to the overwhelming weight thereof. Secs. 313, 454, Code 1942. King King, Durant, for appellee. I. Appellant's motion to quash writ of execution because insufficiency of return on process was properly overruled. Reeves Groc. Co. v. Thompson, 105 Miss. 729, 63 So. 187; Dogan v. Barnes, 76 Miss. 566, 24 So. 965; Sec. 1867, Code 1942. II. Appellant's motion to quash writ of execution on grounds that itemized statement of court costs was not annexed thereto was properly overruled. Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773; Secs. 1600, 1601, Code 1942. III. Appellant argues that the Court erroneously required her to put upon her evidence first, and assumes that this fact placed the burden of proof upon her as to the ownership of the vehicle in question. We urge that this is not factual, as the Court was also considering the motions of the appellant, and as movant she had the burden of proof in that respect; and it is certainly no indication that the Court required appellant to assume the burden of proof of the ownership of the vehicle in question, merely because she proceeded with her evidence first. The evidence itself will speak upon this issue as to whether or not the plaintiff in execution, appellee, met its burden of proving ownership of the vehicle in the defendant, Jimmie Reed, by a preponderance of the evidence. Sec. 8065, Code 1942. IV. No error resulted because the judgment and writ of execution were not formally introduced into the evidence, as there was no jury, and as both of them were admitted by the appellant; and they were both before the Trial Judge for consideration in summing up the weight of evidence on the trial of the third party claimant's issue, which was tried concurrently with the motions in regard to the judgment and writ of execution by the appellant.

Judges

GILLESPIE, J.

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Smart Summary

Factual and Procedural Background

A writ of execution issued on a judgment in favor of appellee, General Motors Acceptance Corporation, against Jimmie Reed. Under that writ the sheriff seized a pickup truck that was in the possession of appellant, Magnolia Reed (the wife of Jimmie Reed). Magnolia Reed filed a claimant's affidavit asserting that she owned the seized truck. The claimant's issue was tried to the court without a jury.

At trial the plaintiff in execution did not present the judgment, the writ of execution, or the officer's return in evidence, and the claimant (appellant) was the first to present evidence. The evidence showed the truck had been purchased in the name of Jimmie Reed (who signed the conditional sales contract) and that there had been no transfer of title to Magnolia Reed, although she made most or all of the payments. The trial judge found title in Jimmie Reed. The trial court entered judgment, but on appeal the Supreme Court considered whether the plaintiff in execution had met its burden to put the claimant on her defense and whether the original judgment could be collaterally attacked for defects in the officer's return.

Legal Issues Presented

Whether the plaintiff in execution bears the burden at the claimant's hearing to produce the judgment and writ of execution (and thereby establish its right to proceed against the property) before the claimant may be required to put on a defense.
Whether the failure of the plaintiff in execution to introduce the judgment and writ of execution into evidence is fatal to the plaintiff's case.
Whether an original judgment may be collaterally attacked on the ground that the officer's return of service was defective, and whether such a defect renders the judgment void.

Arguments of the Parties

Appellant's Arguments

The writ of execution is a proceeding to enforce a judgment (citing Rawlings v. American Oil Co.).
A proceeding to enforce a judgment is collateral to the judgment; therefore, the underlying judgment cannot be attacked in that proceeding except for fraud in procurement or facial voidness (citing Cotton v. Harlan; McIntosh v. Munson Road Machinery Co.; 34 C.J.).
The claimant's affidavit (filed by appellant) challenged the validity of the judgment as void, and appellant moved to quash the writ of execution at the start of the hearing for a defective return on the original process — the return recited only "Executed by personal service ..." which appellant asserted was insufficient to support a default judgment (citing Dogan v. Barnes).
A wife may assert the invalidity of a judgment and a writ of execution under which property is seized (citing Reid v. Halpin; 25 C.J.).
The writ of execution is void for failure to comply with Sections 1600 and 1601, Code of 1942 (citing Riley v. State; Wilkinson v. Hutto).
The burden of proof was on the plaintiff in execution to prove the truck was subject to execution; it was erroneous to place the burden on the claimant to establish title (citing multiple authorities and Sec. 1025, Code 1942).
The evidence was insufficient to sustain the judgment and was contrary to the overwhelming weight of the evidence (citing Code sections).

Appellee's Arguments

The appellant's motion to quash the writ of execution for insufficiency of the return on process was properly overruled (citing Reeves Groc. Co. v. Thompson; Dogan v. Barnes; Sec. 1867, Code 1942).
The appellant's motion to quash for failure to annex an itemized statement of court costs was properly overruled (citing Mills v. Churchwell Motor Co.; Secs. 1600, 1601, Code 1942).
It was not erroneous for the court to permit the appellant to proceed first with evidence as to motions and defenses; proceeding first did not shift the burden of proof on ownership to the appellant, and whether the plaintiff met its burden should be determined from the evidence presented.
No error arose from the judgment and writ of execution not being formally introduced, because there was no jury, both were admitted by the appellant, and they were before the trial judge for consideration.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rawlings v. American Oil Co., 173 Miss. 683, 161 So. 851.	Cited by appellant to support that a writ of execution is a proceeding to enforce a judgment.	Cited by appellant; the court's opinion does not expressly rely on this case in its analysis.
Cotton v. Harlan, 124 Miss. 691, 87 So. 152.	Cited by appellant for the proposition that a proceeding to enforce a judgment is collateral to the judgment and the judgment cannot be attacked therein except for fraud or voidness.	Cited by appellant; the court's opinion articulates the collateral-attack principle but does not expressly rely on this specific citation in the opinion's reasoning.
McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731.	Cited by appellant to support the collateral nature of proceedings to enforce judgments.	Cited by appellant; the court's written opinion states the collateral-attack rule but does not specifically invoke this case in its core analysis.
Dogan v. Barnes, 76 Miss. 566, 24 So. 965.	Cited by appellant to argue the officer's return was insufficient to support a default judgment; also cited by appellee in opposition.	The court considered Dogan v. Barnes but declined to apply it, stating it "stands alone against a mountain of authority."
Reid v. Halpin, 185 Miss. 396, 188 So. 310.	Cited by appellant to support that a wife may assert invalidity of a judgment and writ under which property is seized.	Cited by appellant; the court's opinion references the claimant's wife assertion but does not expressly rely on this case in the disposition.
Riley v. State, 175 Miss. 831, 168 So. 475.	Cited by appellant in support of the proposition that a writ of execution is void for failure to comply with statutory provisions (Secs. 1600, 1601).	Cited by appellant; the court did not rest its decision on this authority.
Wilkinson v. Hutto, 157 Miss. 358, 128 So. 93.	Cited by appellant regarding compliance with statutory execution requirements.	Cited by appellant; the court did not rely on this case in reaching its holding.
Blalack v. Stevens, 81 Miss. 711, 33 So. 508.	Cited by appellant for the proposition that the burden of proof is on the plaintiff in execution to prove the property was subject to execution.	Cited among authorities on burden of proof; the court used the burden principle (and similar authorities) to find plaintiff's failure to introduce judgment/writ fatal.
Ross v. Gary, 8 Miss. (7 How.) 47;	Cited by appellant in support of the plaintiff-in-execution burden rule.	Cited by counsel; the court's opinion also cites the Ross authority in describing the burden on plaintiff in execution to produce judgment and writ.
Ross v. Garey, 8 Miss. 47;	Cited by the court (in its opinion) among authorities stating the plaintiff in execution must produce the judgment and writ before claimant is put to defense.	The court relied on this authority as part of the body of law establishing the plaintiff's duty to produce judgment and writ; failure to do so was held fatal.
Thornhill v. Gilmer, 12 Miss. 153, 4 Sm. M. 153;	Cited by appellant among authorities regarding burden or related procedural points.	Cited by appellant; the court's opinion did not explicitly apply this specific case beyond listing it among authorities.
Atwood v. Meredith, 37 Miss. 635;	Cited by appellant in support of burden/ownership propositions.	Cited by appellant; the court did not expressly rely on this case in its analysis.
Butler v. Lee, 54 Miss. 476;	Cited by appellant regarding ownership and burden matters.	Cited by appellant; the court did not expressly base its decision on this authority.
Reeson-Moore Motor Co., et al v. Catlett, 128 Miss. 865, 91 So. 564.	Cited by the court among authorities that a plaintiff in execution must produce evidence of right to proceed (judgment and writ) before claimant is put to defense.	The court relied on this authority (with others) to hold that failure to introduce the judgment and writ was fatal error.
French v. Sale, 60 Miss. 516.	Cited as a comparative authority in the discussion of plaintiff-in-execution duties.	Cited by the court in the list of authorities; the decision's holding on fatal failure is consistent with the cited authorities.
Mills v. Churchwell Motor Co., 154 Miss. 631, 122 So. 773.	Cited by appellee regarding the requirement of an itemized statement of court costs with a writ of execution.	Cited by appellee; the court's opinion does not expressly adopt or rely on this citation in its disposition.
Reeves Groc. Co. v. Thompson, 105 Miss. 729, 63 So. 187;	Cited by appellee on the sufficiency of an officer's return and on collateral-attack principles.	The court cited Reeves Grocery Co. v. Thompson (among others) for the rule that a judgment cannot be impeached collaterally for a defective, irregular, or informal return, particularly where amendable; the court applied this principle to hold the return was amendable and did not render the judgment void.
Vicksburg Grocery Co. v. Brennan, 20 So. 845;	Cited by the court among authorities supporting that judgments are not subject to collateral attack for defective returns.	The court applied the general principle from this and related authorities to conclude the return was amendable and the judgment was not void.
Green v. Taylor, 111 Miss. 232, 71 So. 375;	Cited by the court for the collateral-attack principle regarding defective returns.	The court relied on this authority as part of the body of precedent supporting refusal to permit collateral impeachment of the judgment for the alleged return defect.
Jackson v. Redding, 162 Miss. 323, 138 So. 295;	Cited by the court in discussing that judgments cannot be impeached collaterally for defective returns.	The court included this case among controlling authorities to support the conclusion that the return's defect did not render the judgment void.
Cockrell v. Wynn, 20 Miss. 117;	Cited by the court as part of the authority that supports the non-voidness of judgments despite defective returns.	Listed among the authorities the court relied upon to conclude the return was amendable and the judgment not void.
Harrington v. Wofford, 46 Miss. 31;	Cited by the court as supporting authority regarding returns and collateral attack limits.	Included as supporting precedent for the court's view that the return defect was amendable and insufficient to render the underlying judgment void.
Martin v. Miller, 103 Miss. 754, 60 So. 772;	Cited by the court among authorities on collateral attack and return sufficiency.	Used as part of the authority base in holding the return did not void the judgment.
Kelly v. Harrison, 69 Miss. 956, 12 So. 261;	Cited by the court in the group of authorities limiting collateral attack on judgments for return defects.	Included among the decisions supporting the court's conclusion that the return was amendable and the judgment not void.
Reeves Grocery Co. v. Thompson, 105 Miss. 729, 63 So. 187;	(Duplicate mention in opinion) Cited on return sufficiency and collateral-attack principle.	The court relied on this authority as part of the controlling precedent that a defective return does not necessarily render a judgment void.
Vicksburg Grocery Co. v. Brennan, 20 So. 845;	(Duplicate mention) Cited among authorities on non-voidness for defective returns.	Part of the authority the court cited in holding the return amendable.

Court's Reasoning and Analysis

The court's analysis proceeded in two principal strands: (1) the procedural burden of proof at a claimant's hearing in an execution proceeding, and (2) the effect of an alleged defect in the officer's return on the validity of the original judgment.

On the burden of proof, the court stated that a portion of the plaintiff-in-execution's burden at a claimant's hearing is to produce evidence of its right to proceed against the property before the claimant may be put to her defense. This proof necessarily includes the judgment on which the execution issued and the writ of execution. The court cited authorities (Ross v. Garey; Reeson-Moore Motor Co. v. Catlett; Blalack v. Stevens; cf. French v. Sale) to support that rule. Because the plaintiff in execution failed to introduce the judgment and writ into evidence (they were only incorporated in the clerk's file and not formally offered), the court held that failure to introduce those documents was fatal error.

Regarding the alleged defect in the officer's return (the return recited only "Executed by personal service on the within named Jimmie Reed this the 24th day of February, 1955" without further facts), the court treated any attack on the original judgment as collateral. The court reiterated the settled rule that unless a judgment is void it may not be collaterally attacked. The court then held that a judgment could not be impeached in a collateral proceeding on the ground that the return of service was defective, irregular, or informal — particularly where the defect is amendable. The court reviewed multiple authorities (including Reeves Grocery Co. v. Thompson; Vicksburg Grocery Co. v. Brennan; Green v. Taylor; Jackson v. Redding; and others) to support the proposition that the return in this case was amendable, that Jimmie Reed had notice of the suit, and that the defect in the return did not render the judgment void. The court expressly considered Dogan v. Barnes but declined to follow it in the present circumstances.

On balance, the court concluded that the plaintiff's procedural failure to introduce the judgment and writ was dispositive and required reversal, and that the collateral attack based on the return's alleged defect did not render the original judgment void.

Holding and Implications

Holding: The Supreme Court of Mississippi reversed the judgment below and remanded the case.

Implications:

The court held that the plaintiff in execution must introduce the judgment and writ of execution into evidence at the claimant's hearing before the claimant can be required to defend; failure to do so is fatal. The court reversed the trial court's judgment on that ground.
The court also held that the defective form of the officer's return in this case was amendable and did not render the original judgment void for purposes of a collateral attack; the court declined to apply Dogan v. Barnes under the present circumstances.
Direct effect: the judgment below was reversed and the case remanded for further proceedings consistent with the opinion (including allowance for the plaintiff in execution to present the required proof). The opinion does not purport to announce a new rule of law beyond applying existing authorities.

Disposition stated in the opinion: Reversed and remanded. McGehee, C.J., and Hall, Kyle and Holmes, JJ., concur.

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REED v. GENERAL MOTORS ACCEPTANCE CORPORATION

1. Executions — trial — plaintiff in execution — burden of proof.

Plaintiff in execution must produce evidence including judgment on which execution was issued, together with writ of execution of his right to proceed against property before claimant can be put on her defense. Sec. 1025, Code 1942.

2. Executions — trial — plaintiff in execution — failure to introduce judgment whereon execution based — fatal.

Failure of plaintiff in execution to introduce in evidence judgment on which execution was issued and writ of execution was fatal even though clerk incorporated those papers in file.

3. Judgments — collateral attack — void judgment.

Unless a judgment is void, it is not subject to collateral attack.

4. Judgments — collateral attack — defective process.

A judgment cannot be impeached in a collateral proceeding on ground that return of service of process is defective, irregular, or informal, particularly where defect or irregularity is amendable.

5. Process — defective — judgment based on — not void.

Defect, if any, in return reciting that process had been executed by personal service, but failing to state facts on which officer based his conclusion that service was personal, was not such as would render judgment void.

Headnotes as approved by Gillespie, J.

GILLESPIE, J.

A writ of execution was issued on a judgment entered in favor of appellee, General Motors Acceptance Corporation, against Jimmie Reed, and under this writ the sheriff seized a pickup truck which was in possession of appellant, Magnolia Reed, the wife of Jimmie Reed. Appellant filed a claimant's affidavit, claiming that she was the owner of the seized truck.

Upon trial of the issue, the plaintiff in execution did not assume the burden and go forward with its proof as required by Section 1025, Mississippi Code of 1942. Instead, for reasons not appearing in the record, the claimant first put on her proof. The plaintiff in execution did not offer in evidence the judgment, writ of execution, or the officer's return. Its testimony only went to ownership of the truck, and on that issue, the evidence was conclusive that the seized truck was bought in the name of Jimmie Reed, who signed the conditional sales contract evidencing deferred payments; and the truck traded in as a part of the purchase price had likewise been bought in the name of Jimmie Reed. However, the proof was sufficient to show that appellant made all or most of the payments on the seized truck. There had been no transfer of title from Jimmie Reed to his wife, and as far as title to the truck was concerned, the trial judge, who heard the case without a jury, was justified in finding the title thereto was in Jimmie Reed.

(Hn 1) A part of the burden devolving upon the plaintiff in execution upon the trial of a claimant's issue is to produce evidence of his right to proceed against the property before claimant could be put on her defense. This includes the judgment on which the execution is issued, together with the writ of execution. Ross v. Garey, 8 Miss. 47; Reeson-Moore Motor Co., et al v. Catlett, 128 Miss. 865, 91 So. 564; Blalack v. Stevens, 81 Miss. 711, 33 So. 508. Cf. French v. Sale, 60 Miss. 516.

(Hn 2) The failure to introduce the judgment and writ of execution was fatal error. The clerk incorporated these papers in the file but they were not introduced in evidence, and under the authorities cited, could not be considered.

(Hn 3) The parties made an issue as to the sufficiency of the return of process on Jimmie Reed upon which the original judgment was rendered. The officer's return on the process was as follows: "Executed by personal service on the within named Jimmie Reed this 24th day of February, 1955," followed by the officer's signature. On this process, default judgment was rendered against Jimmie Reed.

While the judgment against Jimmie Reed was not introduced, it, along with the declaration, summons and return, was copied in the record. We notice the issue last stated since it will probably arise on remand of the case. The attack thus made on the original judgment is a collateral one. Unless the judgment is void, it is not subject to collateral attack. (Hn 4) A judgment cannot be impeached in a collateral proceeding on the ground that the return of service of process is defective, irregular, or informal, particularly where the defect or irregularity is amendable. Reeves Grocery Co. v. Thompson, 105 Miss. 729, 63 So. 187; Vicksburg Grocery Co. v. Brennan, 20 So. 845; Green v. Taylor, 111 Miss. 232, 71 So. 375; Jackson v. Redding, 162 Miss. 323, 138 So. 295; 49 C.J.S. Judgments, Sec. 422 (b), Sec. 423; Cockrell v. Wynn, 20 Miss. 117, Harrington v. Wofford, 46 Miss. 31; Martin v. Miller, 103 Miss. 754, 60 So. 772; Kelly v. Harrison, 69 Miss. 956, 12 So. 261; 31 Am. Jur., Sec. 598. (Hn 5) The return was amendable. Jimmie Reed had notice of the suit. The defect in the return is not such that the judgment is void, even if we concede that it is voidable and subject to direct attack. The case of Dogan v. Barnes, 76 Miss. 566, 24 So. 965, has been duly considered. If it can be said to be in point, it must be said that it stands alone against a mountain of authority. We decline to apply it under the present circumstances.

For the reasons stated, we reverse the judgment and remand the case.

Reversed and remanded.

McGehee, C.J., and Hall, Kyle and Holmes, JJ., concur.