
    Brock et al v. Jones.
    [83 South. 244,
    In Banc.
    No. 20871.]
    Justice op Peace. Circuit court cannot on appeal order execution on prior judgment introduced in evidence.
    
    Where on an appeal from a justice of the peace court to the circuit court the defendant introduced in evidence an older judgment in-the justice of the peace court; in-order to sustain his plea of res adjudicata, the- circuit court cannot, on sustaining such plea, further adjudge that under the older judgment thus introduced in evidence the plaintiff was entitled to a lien oh a building and order execution to issue 'in favor of plaintiff for the sale of the building, since such older judgment in the justice court was not before the circuit court for review.
    Appeal from the circuit court of Perry county.
    HoN. Paul B. JohNsoN, Judge.
    Suit in a justice court by C. K. Jones against J. H. Brock and another. From a part of the judgment of the circuit court where the case was on appeal, defendants appeal.
    The facts are fully stated in the opinion of the court.
    
      E. G. Fishel, for appellant. -
    Where it is agreed, as in the instant case, that it is the same parties, the same subject-matter and the same indentical cause of action. In both cases, then I assume that it would be unnecessary for me to waste the time of the court in arguing that the subject of the second action is res adjudicata, when this court has repeatedly so held.
    This court will also observe from the judgment entered in this cause, that the trial court held that the matter was res adjudicata and that the plea to that effect was a complete defense to the action, but in entering the judgment gave the plaintiff a lien on the property as asked for hy'him.
    Let us suppose the judgment pleaded as a bar herein had been rendered by a court of-another state, I respectfully submit that in that instance the court would have had as much right to refer to that judgment and attempt to give a lien under it. Suppose the subject of the plea in bar had been a written contract between the parties that had never been' adjudicated. In that case could the court have given a lien under a contract that was not being1 litigated? I respectfully submit that it could not..
    Let us take one other observation of this case and what- is the result. ' The plaintiff in his first suit made Mrs. E. C. Brock, the owner of the property, a defendant. and from his judgment against her, she appealed to the circuit court, where the appellee could have litigated the matter with her, had he been disposed to do so. But where he chooses to dismiss the case against her and now is trying to condemn her property for sale in an action to which she is not a party and in which she has no voice, and of which she has no notice. I respectfully submit that it would be an unusual proceeding to- allow one person to condemn the property of another by any such route.
    I respectfully urge that the judgment rendered in the justice court on the 22nd day of November, 1916, was in the circuit court only as an exhibit to the pleading and to the agreed statement of facts, and was only evidence, and that the trial court had no authority or power to give- or to attempt to give any lien, under said judgment any more than it would have had, had it been a judgment of the court of another state.
    The judgment entered in this cause would raise the query “when is a plea in bar, not a bar?” If adjudged to be a bar to the action, it must be a complete bar and no remedy could be given the plaintiff 'under a judgment sustaining the plea.
    Wherefore I respectfully submit that this honorable court should reverse the judgment entered herein and enter the proper judgment in this court, sustaining, the plea in bar.
    
      D. K. McDonald, for appellee.
    This suit was brought under section 3060 of the Code of 1906. There was a former suit which included Mrs. E. C. Brock, the owner of the land upon which the honse stands. A default judgment was rendered against all the defendants in this suit in the justice court and from that judgment Mrs. E. C. Brock, appealed to the circuit court. Appellee appeared in the1 circuit court and took a nonsuit which he had a right to do. Appellee went back to the justce court- and started anew except as to Mrs. E. C. Brock and recovered judgment against the appellants for the amount admitted to be due with a lien upon the building.
    The farmer judgment of the justice court which was pleaded in bar to the second suit in my opinion was void and could not have been enforced over the protest of the defendants and appellants herein for the reason that it was an entirety judgment and void as to Mrs. E. C. Brock, therefor, void as to all. For reference see the case of Coments v. Bank of Commerce, 38 So. p. 35. However, since appellants contend that it is a good and valid judgment, we shall not complain. In view of this fact the court took the right course in the matter and followed the law. A judgment that is voidable is good if no objections are raised when its validity comes in question. The law of estoppel ■ applies thereafter and closes the mouth of ■ the party against the validity of it when its validity is questioned. For reference, see 16 Cyc., page 785. We cannot agree with counsel for appellant in his views with reference to the jurisdiction of the court below. The court' had jurisdiction of the parties and the subject matter. Appellants were in court with their own appeal and the court rendered judgment which it had a right to do. Appellants admitted that the judgment was a good and valid judgment and that appellee had a lien upon the building and that the judgment had never been paid when they appeared and plead it as a bar to this action. I submit, if the court please, that the appellants, cannot come into court and blpw hot and cold. The law of the laud is too well settled upon this one point to admit contradiction. We feel that we are entitled to the relief granted by the court below, and ask- that it be affirmed.
   HoldeN, J.,

delivered the opinion of the court.

The question presented on this appeal is whether or not the judgment rendered by the lower court is erroneous in that part of it which we shall hereinafter set out.

The lower court tried the case on the following agreed statement of facts:

“It is agreed between the plaintiff and the defendants that the plaintiff, C. J. Jones, on the 23d day of October, 1916, filed suit in the .justice court of W. D. Mills against both these defendants, J. H. Brock and E. E. Kittrell, also against Mrs. ,E. 0. Brock; that process issued on said suit on the day of filing returnable on the 6th day' of November, 1916; that said process was personally served on each of said defendants on the 26th day of October, 1916, more than five days before the return day; and that on said return day judgment by default was taken against all of said defendants, and the transcript of the record of said judgment which is attached hereto and made a part of this agreed statement of facts, and marked Exhibit A, it being agreed that said transcript is a true copy of the judgment entered.
“It is further agreed that the said justice court had full jurisdiction to try said cause, which was No. 37 on said justice docket.
“It is further agreed that from said judgment, on the 22d day of November, 1916, the said Mrs. E. C. Brock filed her appeal bond in said cause, and appealed same as to her to the circuit court of Perry county; that neither of the defendants J. H. Brock or E. E. Kittrell prosecuted any appeal from said judgment, but as to them same stands apparently in full force and effect; that these defendants' have done nothing nor taken any steps to avoid or vacate said judgment.
“That on the appeal of said cause by Mrs. E. 0. Brock, it was numbered 366 in the circuit court.of Perry county, and that same was by the plaintiff, 0. J. Jones, non-suited, the costs paid, and said cause dismissed without prejudice, in. vacation, on the 5th day • of May, 1917.
“That afterwards and to wit, on the 3d day of July, 1917, the- said C. J. Jones, the same person who was plaintiff in the aforesaid action, filed this suit, which is now before the court, against said J- H. Brock and E. E._ Kittrell,. the defendants herein, and that these defendants are the same J. H. Brock and E. E. Kittrell who were two of the defendants in the former proceeding, and that the said suit filed on the 3d day of July, 1917, was for the same items and the same identical cause of action as the one filed October 23, 1916; that the said defendants appeared and contested said action, and pleaded the said former judgment as a bar to the recovery in this action.
“That Mrs. E. 0. Brock was. then the owner of lot 4 in block' 11 of the Richton Lumber Company’s Second addition to the town of Richton, Miss., and still owns same, and that she was not a party to the contract on which this suit was brought.
“That the last suit above referred to was ’No. 71 on the justice docket, and is now No. 399 in the circuit court.”

Upon this statement of facts the trial judge rendered a judgment sustaining the plea of res adjudicata, holding that the prior - judgment rendered in the justice court was a bar to the present suit, and that the last judgment in 'the justice court now in question was void on account of the former recovery as between the same parties in the same cause of action, and dismissing the present suit and taxing the plaintiff with the costs. To this part of the judgment the appellant here- makes no complaint, but contends that the court erred in further adjudging, ás follows:

“The court further finds that under the justice judgment entered in the first cause, filed against these defendants in justice court, and which was No. 37 thereon, that the plaintiff was entitled to have a lien thereunder on said building to the amount of one hundred and twenty-five dollars and eighty-two cents and interest theron at the rate of six per cent, per annum from November 1, 1916. It is therefore ordered that execution may issue in favor of said plaintiff against said defendants for the sale of the said building, to wit, one blacksmith shop situated on lof 4, block 11, of the Richton Lumber Company, Second addition to the town of Rich-ton, same being the building in which said lumber was used.”

It is too plain for debate that the lower court had no authority in law to render the latter part of the judgment complained of. The former judgment against the appellants in the justice court was not before the circuit judge for review. This jprior judgment in the justice court was against appellants (not against Mrs. E. C. Brock, who was afterwards dismissed), and had not been appealed from, was still unsatisfied, and could he enforced against appellants, if at all, only by process originating in the justice court. The circuit court had no jurisdiction over it, nor of the person or property of Mrs. E. C. Brock. The copy of the prior judgment was brought to the notice of the circuit judge only as evidence to support the plea of res adjudicata, and could he considered for no other purpose.

The judgment of the lower court is reversed, and judgment entered here.

Reversed, and judgment here.  