#### S. B. Moore *v.*W. F. Love.

Suit on Note — Application of Payments — Code of 1871, sec. 2282.

Where suit is brought on a promissory note, which bears interest, a credit endorsed on it without explanation will be applied to the payment of the accrued interest as provided by section 2282 of the Code of 18711

Void Judgment — Collateral Attack.

While every presumption, not inconsistent with the record, should be indulged in favor of the validity of a judgment, it is void if the record affirmatively shows that' the court had no jurisdiction of the subject-matter, and it may be attacked collaterally.2

Appellant, Moore, sued out a writ of attachment in a justice of tbe peace court against one Everett, wbicb was levied on two bales of cotton as tbe property of Everett. W. F. Love claimed tbe cotton and filed claimant’s affidavit and bond.

*725On the trial of tlie claimant’s issue, plaintiff, Moore, offered in evidence the record and judgment in the attachment suit against Everett in the justice of the peace court, which showed that judgment was rendered in his favor. The claimant objected to the introduction of this record on the ground that the judgment was void because the record showed that the justice of the peace did not have jurisdiction of the cause. '

The record showed that the suit was brought on a promissory note given by Everett on August 14, 1874, for $157.40, payable one day after date, bearing 8 per cent interest from January 1, 1875. The suit was filed December 9, 1878. There was a credit of $12 on the note, und there was no evidence to show how this credit was applied, which was made November 29, 1878.

The court sustained the claimant’s objection and excluded this evidence, to which plaintiff excepted. Erom a verdict and judgment for the claimant, plaintiff appeals.

Appealed from Circuit Court, Amite county, J. B. Chrismae, Judge.

Affirmed,

May 15, 1882.

*726*Attorneys for*appellant, *T. B.*Stoclcdale, *and W. P. Oassedy.*

*Attorneys for*appellee, *C. P.*Neilson, *and B. F. Johns.*

Brief of T. B. Stoclcdale:

The defense relied on below and here is that the judgment of the justice of the peace court in Moore *v.*Everett was and is void, and the record was, therefore, properly excluded. The reason given is that the justice of the peace court undertook to deal with a sum that exceeded its jurisdiction. It is well settled in this State that a plaintiff cannot by any device avail himself of the power of the justice’s court to litigate about sums greater than its jurisdiction, intending to evade the proper jurisdiction. That is not now a question and will not be argued.

The question to be solved at this point is, did the appellant here, as plaintiff in the case of himself *versus*T. J. Everett, purposely reduce his demand to evade the legal limitations on the jurisdiction of the court and thereby perpetrate a fraud on 'the court ? Appellee maintains that he did. Appellant insists that he did not. The court below regarded the affirmative of this proposition established by the judgment of the justice of the peace court on its face. It is in these words: “The court decides that the attachment was rightfully sued out, and that the plaintiff do have judgment- for the full amount of the note and interest, also the sum o'f $12.70 costs about his suit expended.”

*727This was regarded as sufficient below, and is urged "here as conclusive to establish that plaintiff intentionally ended the jurisdictional limitations on the court.

In the decided cases on this question the point came up on appeal, and the whole doctrine has been so fully discussed in Fenn *v.*Harrington, 54 Miss. 737, and the rules there laid out so explicitly and fully, that it seems unnecessary to go behind that case. It is laid down there as a rule, “The rule must be similar in justice court, and in appeals therefrom to the Circuit Court; that is to say, if the *sum demanded*is within the jurisdiction, the suit will not be defeated because a greater sum is found due, unless there was a purpose, by a reduction of the demand, to perpetrate a fraud on the court.”

“The amount in controvery is the standard of the jurisdiction; and the sum demanded must be accepted as the amount in controversy, unless it has been purposely magnified or diminished.”

Again, on p. 739, the rule is formulated thus: “In every point of view our conclusion is that the test of the jurisdiction is the amount demanded by the pleadings, subject to the penalty of a non-suit when there has been, in the opinion of the court, an attempt to evade the constitutional limitations.”

In this case of Moore *v.*Everett the pleadings demanded $145, which clearly gave to the court jurisdiction and to the plaintiff a standing in the court. Then the inquiry is narrowed to the point, “Did the facts develop a purpose to evade the legal limitations on the jurisdiction” and “to perpetrate a fraud on the court?” This inquiry can only be made on appeal. In this case of Moore *v.*Everett the plaintiff made his demand under oath of $145, which was the truth, as we are bound to believe, until otherwise proved. He summoned his debtor to contest it with him; the defendant appeared December 21, 1878, and the case was continued by consent of parties until December 28, 1878. On the 28th of December both parties appeared and continued the case because the attorneys on both sides were absent. On the 11th day of January, 1879, the parties wrere present, and the cause was tried, resulting in the judgment that the attachment was rightfully sued out and judgment in favor of plaintiff on the debt. The plaintiff is presumed to have known what was due him; he made his demand under oath; he and the defendant had a contest‘over it, with at*728torneys on both sides, and the objection was not made that the court had not jurisdiction. No appeal was taken in the cases, although Everett must have known that he could have non-suited plaintiff in the Circuit Court had it been true that the real amount in controversy was over the jurisdiction of the court, and his cotton thereby go to Love, where he wanted it to go. These facts seem strong as circumstances can be in proof that some payment or arrangement had been made or entered into whereby the debt was reduced to $145. It cannot be said that he did not know it in time, for the time to take the case up by appeal had not expired when the claimant’s issue was appealed, and the time for taking it up by *certiorari*had not expired until after the March term of the Amite county Circuit Court, and this case was in said court and in the hands of attorneys on both sides. The conclusion seems inevitable that the demand was for the true amount, or all the litigation of the case would have developed the fact otherwise. It is submitted that the question of amount was then and there adjudicated and determined according to the'demand of the plaintiff, and the Circuit Court cannot open the inquiry in any proceeding except appeal or *certiorari.*

It is said that the debt cannot be reduced within the jurisdiction of the justice of the peace court without the consent of the defendant. Can anything prove consent stronger than the facts above related, and who but the defendant can complain of it ? But it is said that the judgment itself shows that the whole amount of the note and interest, except $12, was due, and judgment was rendered for that amount. We insist that, as the demand was made under oath that $145 was then due on that note, and as nothing appeared to the contrary, so far as the record discloses, the judgment may be understood, without straining, to mean for the amount due on the note as shown by the demand — to wit: $145 and interest on that sum.

But suppose the court should conclude to reject this view; it would still be sufficient to warrant the rejection of the record as evidence. The judgment itself is all that is relied on to show that the plaintiff “intended to evade jurisdictional limitations on the court, and to commit a fraud upon its jurisdiction.” In aid of this proposition, it is said that inferior courts must show their jurisdiction in each case. The Circuit Court is prohibited by the *729Constitution from jurisdiction over sums of $150 and less, and when the amount is alleged to be less than that the justice of the peace court jurisdiction is shown, and is original and exclusive now, and this court has held, in Eenn *v.*Harrington, that the demand determines the jurisdiction. In this case the jurisdiction was settled by the demand, and then all presumptions in favor of the correctness of the proceedings applied that apply to any other courts of record, and its judgment must remain valid until superseded by appeal. Even if the justice did undertake to render judgment for the whole amount of the note and interest, as the note appears on the record, it would not make the judgment void. The rule laid down in Eenn *v.*ILarington, 54 Miss. 7'38, on that point, is: “If the *sum demanded*is within the jurisdiction, the suit will not be defeated because a greater sum is found due, unless there was a purpose, by a reduction of the demand, to perpetrate a fraud on the court.” Of course, there could be no recovery iffor the surplus,” say the court.

Now, suppose there was a payment of some sort, or a valid agreement between these parties, that both parties considered reduced the debt to $145, or that they both honestly regarded as reducing the debt to that sum, and in that view plaintiff below made his demand, and the justice took it’ into his head that it was not a payment or not a valid agreement and entered judgment for the whole amount? By the doctrine in this case, the erroneous judgment of the justice, with which plaintiff had nothing to do, must be held to be conclusive evidence of an intentional fraud on the jurisdiction of the court. But suppose an appeal was taken and the Circuit Court would hold it a good payment or a valid agreement? Then there was no fraud, and this is not a farfetched comparison, but one that might occur any day.

By the rule invoked by defendant, any debtor might make an agreement to reduce his debt and then refuse to pay, and force his creditor to sue, and then fly from the agreement and claim that he owed more, and induce the justice to enter judgment for the whole sum, and not appeal, but claim that the judgment itself showed it was void, and never pay the debt. * * *

The court say, in Eenn *v.*Harrington, that the plaintiff cannot recover more than the $150, though more be found to be due; therefore the judgment of the justice court should be held to be *730for not more tban tbat amount, as no sum over tbat is mentioned; and this will dispose of tbe difficulty suggested by defendant — • that execution could not issue for less tban tbe note and interest.

Besides, it is not necessary tbat execution issue; tbe proceeding by attachment is to condemn tbe property to tbe debt. The judgment does not create tbe lien, but is simply to give vitality to tbe attachment lien, which is tbe real proceeding. Tbe judgment is but a formula, announcing that the debt is due, and through which tbe court reaches tbe property attached, to condemn and sell it to pay tbe debt. Were it otherwise, no *vendi*could issue in attachment suits when tbe defendant is brought in by publication, for then tbe judgment is void, when taken by itself, for all purposes, and no execution could issue upon it at all. And by tbe doctrine invoked here, on tbe trial of tbe claimant’s issue plaintiff must fail, because bis reward would be ruled out because his judgment is void.

Tbe only office tbat a judgment in attachment performs, so far as tbe attachment is concerned, is to furnish a vehicle to carry tbe process of tbe court to the property levied on. When you come to treat it as a personal judgment and issue execution on it, a different question arises.

Tbe genera] rule is, and has been adopted by this court in tbe case of Butler *v.*Benton, 46 Miss. 119: “If there be enough in tbe judgment to authorize tbe issuance of tbe process required by tbe statute, it is sufficient.”

Tbe process here required is a *vendi,*to sell the property, and a judgment on tbe claimant’s bond, which is but another form of *vendi.*An attachment suit may proceed to judgment and tbe property sold and applied to tbe plaintiff’s debt after tbe death of tbe defendant. * * *

Brief of W. P. Cassedy:

This case was twice before in tbe Supreme Court, but upon different questions from tbe one in it now, and it will not be necessary to refer to tbe opinion already expressed.

Tbe case comes up on a single question — whether tbe judgment rendered in justice court in tbe attachment suit against Everett is void or not. It is claimed tbat tbe judgment is void for not stating the amount for which tbe judgment was rendered. Tbe *731judgment is not void for this reason; at most it is merely voidable. We would have amended the judgment so as to insert the amount in it from the note. See Code of 1871, § 627; Code of 1880, § 2298; Graves *v.*Fulton, 7 How. 599; Shirley *v.*Conway, 44 Miss. 436.

A void judgment is a nullity and could not be amended. If it is voidable merely, it cannot be attacked collaterally. Erwin *v.*Heath, 50 Miss. 798-799; Atkinson *v.*Eoxworth, 53 Miss. 747.

It is objected that the justice of the peace did not have jurisdiction, the note being for $157, and bearing 10 per cent interest, and the credit on it of $12 would be appropriated to payment of the interest first, which would leave the principal in controversy more than $150, and the judgment is, therefore, void. The pleadings in the case must govern. The suit commenced by attachment, and the affidavit stated that there was $145 due — within the jurisdiction. Fenn *v.*Harrington, 54 Miss. 737; Jackson *v.*Whitfield, 51 Miss. 205.

The court then acquired jurisdiction by the face of the pleadings, and he was bound to retain the case until the limit to the jurisdiction was ousted by the proof. Whether the proof ousted the jurisdiction or not-the record does not show, nor is it necessary for it to show. The evidence upon which a court acts is not necessary to be of record. The justice’s court, within the limit of $150, is a court of general jurisdiction, and when it once acquires the jurisdiction, which is done by the face of the pleadings, every presumption would arise in its favor just the same as any other court. In a court of general jurisdiction, and on a collateral issue, every jurisdictional fact is- presumed. See Carson *v.*Carson, 31 Miss. 592-593; Cannon *v.*Cooper, 39 Miss. 789.

In the case of Martin *v.*Harden, 52 Miss. 694, the question of how to appropriate the payments on a debt, whether to the interest or principal, was raised directly by a plea in abatement, or on a motion to dismiss for the want of jurisdiction, and was not raised in a collateral issue. And in that case it made no difference how you appropriated it; if to the principal, the want of jurisdiction was more apparent; if to the interest, the Circuit Court was still without jurisdiction, for the amount was $147. The rule should be that if there is any. state of facts which would sustain the jurisdiction of the justice of the peace, and not neces*732sary to be of record, the presumption should be that they existed, for the presumption is that every officer does his duty. Suppose that the interest had been paid up regularly, and, in fact, no interest was due, then the credit would have g’one on the principal. It is not absolutely necessary that every credit should appear- on the face of the note, for a receipt on a separate piece of paper would be just as good. The presumption is that this is a fact, for a suit is commenced by an affidavit of the creditor demanding only $14-5, and, in support of this, a note is filed showing only this amount due, after deducting the credit; the debtor has personal service, and after a long litigation judgment is rendered and no objection made to the jurisdiction. The fair presumption is that every .question of this sort was litigated in that court and decided adversely to the debtor, and the presmnption of law is that he decided right, and the judgment cannot be attacked collaterally. Then, if this judgment is not void, the court erred in not permitting plaintiff to read the judgment in evidence, and the case should be reversed.

Brief of B. F. Johns:

Appellant, S. B. Moore, instituted suit in the justice court by attachment against one Everett. The writ was levied on two bales of cotton which were claimed by appellee, W. F. Love. On the trial of the claimant’s issue, on appeal in the Circuit Oourt, appellant offered in evidence the record of his judgment against Everett in the attachment suit, to the reading of which appellee objected, and his objection was sustained by the court. Was this a correct ruling? I answer in the affirmative, for the following reasons:

The judgment of Moore *v.*Everett is *void*for want of jurisdiction in the justice court. While it is true that the affidavit and writ of attachment claim “$145 or thereabouts,” yet the plaintiff’s own evidence — to wit: the promissory note sued on and filed as part of the record — shows that the amonnt of his real claim is a principal sum of $157. The credit of $12 is indorsed without qualification or explanation, and, not being sufficient to pay the interest then accrued, will not reduce the principal of the note. When, therefore, the court rendered judgment for the “full amount of the note and interest,” it assumed a jurisdiction which *733it could not exercise. Tbe record-not only fails to give any explanation of tbe fact that tbe note is for more than $150, but, on tbe contrary, it negatives tbe idea that there was an agreement between Moore and Everett that tbe interest should be applied to tbe principal. Moore did not so apply it when be indorsed tbe credit on tbe note, for, as tbe statute applies all credits first to tbe interest, a simple indorsement, as we have in this instance, must be read and understood as an application of tbe credit to tbe interest. Besides, Moore did not have authority to apply it otherwise for the purpose of giving jurisdiction without tbe consent of Everett. Askew *v.*Askew, 19 Miss. 307.

If there was any such agreement between tbe parties to tbe note, tbe record should disclose that fact, for tbe record of an inferior court must show affirmatively that it bad jurisdiction. * * *

Tbe principle announced in tbe case of Eenn *v.*Harrington, 51 Miss. 739, does not apply. Replevin for a buggy is an action for property of *uncertain*value, and tbe honest opinion of plaintiff on tbe subject fixes tbe jurisdiction, but this rule cannot be invoked here. Eor tbe claim being a promissory note, tbe amount in controversy is not a *matter of opinion,*but is made certain by tbe terms of tbe written contract filed. While tbe affidavit attempts to give jurisdiction, yet plaintiff so worded it as to allow him to demand judgment for tbe full amount that might be found to be actually due on tbe note. * * * Tbe plaintiff claimed judgment for tbe amount of bis note and interest, and tbe court rendered judgment, not for any ascertained sum, but for *“the full amount of the note and*interestWhat, then, is tbe judgment, and for what sum will execution issue? As tbe judgment does not itself state any sum, but refers in express terms to tbe note, and directs that tbe full amount thereof and interest be allowed, we must take tbe note, and from its face, without any help from any other part of tbe record, determine by tbe rules of law and arithmetic tbe real sum for which execution may issue.

As tbe statute applies tbe credit first to tbe interest, we find, at the rendition of tbe judgment, there was due tbe plaintiff $208, less tbe credit of $12, leaving tbe balance due, and for which tbe judgment is entered, $196; and, as this last sum includes a principal debt of $157, it is beyond tbe jurisdiction of tbe justice court. Tbe fact that tbe court rendered judgment for tbe “full *734amount of the note and interest” shows conclusively that' there was no evidence of any agreement between Moore and Everett that any part of the interest should be remitted, or that the credit of $12 should be applied otherwise than is directed by law. Moore could not remit without the consent of Everett.

The suit, therefore, being for a principal debt exceeding $150, was beyond the jurisdiction of the court, and the judgment was, therefore, void, and for that reason properly excluded by the Circuit Court.

After the rejection of the record in the case of Moore *v.*Everett, the appellant offered the affidavit and attachment writ in the same case, and these were, on motion of appellee, rejected. A party must offer the whole record, and not a part. This was sufficient cause for the exclusion of these papers. But there was this further reason: The affidavit, writ, and bond thus offered were part and parcel of the record in the case of Moore *v.*Everett, which, upon inspection, had been held void for want of jurisdiction. The attachment was, therefore, void *ah*initio, as shown by the whole record, although upon its face the writ was regular. It appearing from the whole record that the justice court had not jurisdiction of the subject-matter, the affidavit and w7rit could not be used as evidence of a pending suit. Plaintiff in attachment must first obtain judgment condemning the property before it can go to trial on the claimant’s issue. Dickman *v.*Williams, 50 Miss. 500.

The refusal of the court to allow appellant to show that the cotton was the property of Everett is not error to his prejudice. He had attempted, but failed to establish any *claim*of right to subject Everett’s property, and if he had shown that the cotton was Everett’s, that could not change the verdict. In the claimant’s issue the burden of proof is on the plaintiff in attachment, and he must show a right to subject the property of defendant in attachment before he can succeed. Besides, plaintiff did not propose to the court to follow up this evidence by other proof showing any right in himself. * * ‘x"

Brief of C. P. Neilson:

Appellant claims that he can amend the Everett judgment and make it certain. That is true, but how will he amend? By the *735record, and by that only. And how will the judgment then read ? “Judgment for a principal debt of $157, with about $48 interest, less a credit on said interest of $12.” For, in amending, there is nothing in the record which will authorize a departure from the rule of calculation prescribed by law.

We do not contend that the judgment is void for uncertainty, for it is not, but we do say that the *note*must be read to make certain the judgment; and, upon reference to that instrument, we find the real amount in controversy (that is, the debt due plaintiff; she cannot sue for less) is beyond the jurisdiction of the court, and for the amount really due the judgment is, in truth, rendered, and for that reason *is void.*That the affidavit claims only “$145 or thereabouts” does not give jurisdiction when the whole record shows that the real amount was a principal debt of $157, and that the court rendered judgment for “the full amount of note and interest,” without qualification or explanation. Askew *v.*Askew, 49 Miss. 306; Fenn *v.*Harrington, 54 Miss. 739.

The justice court is not one of general jurisdiction, but, on the contrary, is a court of limited jurisdiction, and, therefore, its record must show jurisdictional facts. Broom’s Legal Max., p. 756.

In this case there is not only want of such facts, but the record shows affirmatively a claim beyond the jurisdiction. When the principal debt is on its face more than $150, the record must show that the full amount wras not owing. Here there is nothing to warrant this conclusion, for the judgment itself precludes any such inference, as it says, in round terms, that the plaintiff is entitled to the full amount shown by the note to be owing. That the court assumed jurisdiction does not of itself so far contradict the record as to justify the conclusion that such proof did exist as warranted exercise of the power. If the justice had rendered judgment for an ascertained sum, and that sum was within his jurisdiction, then we might be authorized to assume the existence of those facts which confer jurisdiction. But the record shows a case beyond the authority of the court, without anything to explain or contradict the facts set forth.

We insist, therefore, that the judgment in the Everett attachment suit is *void for wank of jurisdiction*in the justice court, and *736that it was properly excluded by the Circuit Court when 'offered in the trial of the claimant’s issue.

1

“When partial payments are made on bonds, contracts or assurances that bear interest, the interest that has accrued up to the time of such payment shall be first credited, and the residue of such partial payment shall be placed to the payment of the principal, and the same.rule shall apply to all debts due by the judgment, sentence or decree of any court.” Code -of 1871, §2282; Code of 1880, §'1144, same as above except that it does not apply to bonds. '

“When partial payments are made, the interest that has accrued to the time of payment, if any, shall be first paid, and the residue of such partial payment shall be placed to the payment of the principal.” Code of 1892, § 2351; Code of 1906, § 2681.

Where a credit upon an open account is not applied by either party, the law *725appropriates it to the oldest items. Mortimer *v.*McKay, 1 Miss. Dec. 585, and cases cited in notes.

2

A judgment which is void for want of notice or jurisdiction over the person or thing, may be attacked collaterally. Campbell *v.*Brown, 6 How. 106; McComb *v.*Ellett, 8 S. & M. 505; Hemphill *v.*Hemphill, 34 Miss. 68.

And so a judgment void for fraud. Plummer *v.*Plummer, 37 Miss. 185.

And in this last case it was held that a decree of divorce, obtained through fraud by the wife against the husband, in which she also obtained a decree for certain slaves, was no obstacle to the husband recovering the slaves on a bill framed for that purpose alone, and which did not seek to annul the decree for a divorce. Plummer *v.*Plummer, 37 Miss. 185.

A judgment which is merely erroneous and voidable' cannot be impeached collaterally. Smith *v.*Bradley, 6 S. & M. 179; Work *v.*Harper, 2 Cush. 517; Wall *v.*Wall, 6 Cush. 409.

The judgment of a court having jurisdiction of the subject-matter and parties, is conclusive so long as not reversed, and cannot be attacked collaterally, however irregular and erroneous. This is true of a decree in favor of an administrator on final settlement. Moore *v.*Ware, 51 Miss. 206.

Judgment merely erroneous and not void cannot be attacked collaterally. Parisot *v.*Green, 46 Miss. 747.

A judgment by default, though based on a defective return of process, is *726good, until reversed, and a purchaser under execution thereon while in force will acquire a good title. Christian *v.*O’Neal, 46 Miss. 669.

Section 147, Constitution 1890, by forbidding reversal of judgments and decrees in civil causes for mistakes of jurisdiction as between equity and common law, necessarily exempts them from collateral attack on such ground. Whitney *v.*Bank, 71 Miss. 1009; 15 So. 33.

A bill will not lie to enjoin the enforcement of the judgment of a court having jurisdiction of both subject-matter and parties, though erroneous. A. B. Smith Co. *v.*Bank of Holmes County, 18 So. 847.

Under Code 1880, section 990 (Code 1892, section 2114,, which renders void a judgment on a wager, it is a good plea to an action on a judgment that it was rendered on a note made in settlement of a wager. Campbell *v.*Bank, 74 Miss. 526; 21 So. 400.

Any judgment may be attacked, on the grounds of fraud, collusion, or corruption, when seasonably set up. Hinton *v.*Board of Supervisors of Perry County, 36 So. 565.

Opinion.

Campbell, C. J.:

The case is determinable by the rule announced in Martin *v.*Harden, 52 Miss. 694.

The case of Fenn *v.*Harrington, 54 Miss. 733, furnishes tho rule applicable to cases in which it is uncertain what is the principal of the amount in controversy, and not to those in which the facts are not in dispute, and where computation will show exactly what is the principal of the amount sued for.

We agree with counsel for the appellant as to the duty to indulge every presumption not inconsistent with the record of the validity of the judgment, but the record plainly shows that the case was not within the jurisdiction of the justice of the peace, and that the judgment is, therefore, void.

*Affirmed.*