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without authority, and is void. The judgment must be consid. ered as rendered against Sherrard without service of process, without notice, and without appearance. The suit on it, therefore, as against him, is not sustainable; and the issues ought to be found in his favor. It has been recently decided by the supreme court of the United States, that a judgment debtor may show, to avoid the effect of the judgment, that the attorney who had entered an appearance for him had no authority to do so: Shelton v. Tiffin, 6 How. 163.
The judgment is reversed, with costs. Cause remanded for further proceedings. Costs here.
UNAUTHORIZED APPEARANCE OF ATTORNEY: See American Ins. Co. v. Oakley, 38 Am. Dec. 560, note 566; Keith v. Wilson, 35 Id. 443, note 448, where the other cases in this series are collected. The principal case is cited in Wiley v. Pratt, 23 Ind, 633, to the point that where a judgment is rendered against a defendant who was absent from the state at the time, without service of process, and on the unauthorized appearance of an attorney, the defend. ant will be relieved from the judgment.
JUDGMENT WITHOUT Notice, CONSTITUTIONALITY OF ACTS AUTHORIZING: See Flint River Steamboat Co. v. Foster, 48 Ain. Dec. 248, note 269, where this subject is discussed at length.
JUDGMENT WHERE RECORD DISCLOSES WANT OF NOTICE TO DEFENDANT: See Wood v. Atkinson, 44 Am. Dec. 562, note 574, where other cases are col. lected.
JUDGMENT OF SISTER STATE MAY BE IMPEACHED FOR WANT OF JURISDIO TION: Seo Davis v. Smith, 48 Am. Dec. 279, note 297, where other cases are collected.
DOE EX DEM. MACE v. DUTTON.
(2 INDIANA, 309.) Such LEVY UPON PROPERTY AS DOES NOT AMOUNT TO SATISFACTION is no bar
to a further execution on the judgment. LEVY ON PROPERTY NOT SHowy to BELONG TO EXECUTION DEFENDANT is not
a satisfaction of the judgment. ISSUE OF SUBSEQUENT EXECUTION BEFORE RETURN TO FORMER ONE is made,
or other proceedings to vacate the levy are had, is at most an error which
renders the execution voidable, but not void. BALE UNDER AN Execution Wucu is VOIDABLE only, but not void, is valid
even when made to a purchaser with notice of the fact, where there is no
fraud. EXECUTION MERELY VOIDABLE MAY BE Set Aside on Motion by the defend.
ant, but until set aside all acts done under it are valid, as well in relation to the execution plaintiff as to strangers. And if the execution debtor does not procure the process to be set aside, he will be presumed to have waived the errors.
APPEAL from the Tippecanoe court of common pleas. The opinion states the case.
D. Mace and R. Jones, for the appellants.
By Court, PERKINS, J. Ejectment. Judgment below for the defendant. The plaintiff claimed title to the lands in question in his lessor, Daniel Mace, by virtue of a judgment, sheriff's sale, and deed. Said Mace was the attorney of Browning & Co., the plaintiffs in the judgment. Burditt and Calvert were the defendants in said judgment. Dutton, the grantee of Calvert, one of those defendants, was the defendant in this ejectment, and he resisted the plaintiff's claim of title, on the ground that said sheriff's sale and deed were void; and to establish that proposition, he relied upon two assumptions claimed by him to be true, one being of fact, the other of law: of fact, that before the issuing of the execution by virtue of which the lands in question were sold, the judgment on which it issued bad been satisfied by the levy of a previous execution, issued upon the same judgment, on lands of the judgment debtors, other than those now in question, sufficient to satisfy the debt, and that that levy was undisposed of, as appeared by the return upon said execution; of law, that an execution upon a satisfied judgment is void. The record does not, we think, sustain the assumption of fact. It is true that a previous execution had been issued and levied on lands, other than those now in controversy, as the lands of the execution defendants, and returned no sale for want of bidders, and that that levy had not been disposed of; but it is not true that those other lands so levied on were, so far as appears by the record, the lands of the execution defendants. They were not in the possession of those men when levied on, nor does it appear that they were ever in their possession. No evidence of title in said defendants was produced, but, on the contrary, it was showp that said lands were, at a former period, conveyed by the United States to one Kisor, and there was no proof that he had ever parted with them, though the proper records of the county had been searched with the view of ascertaining the fact. In short, upon the whole evidence, without detailing it here, we may say that it is very certain the lands covered by the former levy do not appear to have been the lands of the execution defendants; nor is it shown that they were sufficient to pay the judgment, though, perhaps, had they been shown to have been the lands of the judgment debtors, their
sufficiency would have been presumed in the absence of evidence to the contrary.
This levy, then, not having been upon the lands of the execution defendants, was no satisfaction of the judgment: Sullivan v. Mc Kean, 1 N. H. 371; The Bank of Tennessee v. Turney, 7 Humph. 271
Whether, therefore, an execution upon a satisfied judgment is void, according to the second assumption, or whether it is not, we are not now called on to decide: See Mouchat v. Brown, 3 Rich. 117; Dean v. Connelly, 6 Pa. St. 239; Bank v. Evans, 10 Smed. & M. 35 (48 Am. Dec. 734); Neilson v. Neilson, 5 Barb. 565. But it is said that, admitting the former levy was not a satisfaction, still it was erroneous to issue a second fi. fa. before that levy had been disposed of, and as the attorney of the judgment plaintiff in this case was the purchaser for the benefit of said judgment plaintiff, the error renders the sale void as te either or both of them. It is well settled that such a levy upon property as does not amount to a satisfaction is no bar to fujther execution on the judgment: Peploe v. Galliers, 16 Eng. Com. L. 371; Green v. Burke, 23 Wend. 490; Dyke v. Mercer, 2 Show. 394; Duncan v. Harris, 17 Serg. & R. 436; Clark v. Bell, 8 Humph. 26; Spafford v. Beach, 2 Doug. 150; Taylor v. Ranney, 4 Hill (N. Y.), 619. This last case was a scire facias to revive and obtain execution upon a judgment. The defendants pleaded, secondly, a previous fieri facias and levy. “By the court, Bronson, J. The second plea does not show a satisfaction of the judgment. The allegation is, that by virtue of the fieri
, facias the damages were levied on the goods and chattels, lands and tenements, of the judgment debtors. It should have been that the damages were levied of the goods, etc. A mere lovy upon lands never amounts to satisfaction: Shepard v. Rowe, 14 Wend. 260. Nor does a levy upon goods, even where they are of sufficient value to pay the debt, necessarily amount to a satisfaction: Green v. Burke, 23 Id. 490. Here the levy was upon lands as well as goods, and there is no averment that either or both of them were of sufficient value to pay the debt, or that any sale or satisfaction has followed. The plea is clearly bad." We should add that it has been held in this state that a levy upon lands may amount to a satisfaction: Mliller v. Ashton, 7 Blackf. 29.
The prior levy in this case, then, not being such as to be regarded a satisfaction of the judgment, the issue of the subse quent execution before a return to the former, or other proceed.
ings to effect a vacation of the levy had been had, was at most but an error which rendered the execution voidable, but not void; and being such, the sale under it was valid; for a sale under a voidable, but not void, execution is valid, even to a purchaser with notice of the fact, where there is no fraud: See Ingram v. Belk, 2 Strobh. 207 [47 Am. Dec. 591).
We are aware that this point has been ruled otherwise. In the first American edition of Tidd's Practice, published in 1807, volume 2, page 936, it is said: “Upon an erroneous judgment,
2 if there be a regular writ, the party may justify under it till the judgment be reversed; for an erroneous judgment is the act of the court, and the party need not set forth in his plea that the writ has been returned. But if the judgment or execution be irregular, the party can not justify under it, for that is a matter in the privity of himself or his attorney." Upon this authority, the supreme court of Kentucky decided, in Hoskins v. Helm, 4 Litt. 309 [14 Am. Dec. 133], that a purchase of land by the execution plaintiff, upon an execution issued after a year and day from the rendition of the judgment, without revivor, was void; and in Waite v. Dolby, 8 Humph. 406, the supreme court of Tennessee followed the decision in Kentucky. But in a later - the ninth - edition of the above work, American edition, 1840, Mr. Tidd has changed the language of the above paragraph to the following: “Upon an erroneous judgment, if there be a regular writ, the party may justify under it till the judgment be reversed; for an erroneous judgment is the act of the court. But if the judgment on execution has been set aside for irregularity, the party can not justify under it; for that is a matter in privity of himself or his attorney:" 2 Tidd's Pr., 3 Am. ed., 1032. The word “ irregular," we may remark, does not appear to be limited by any one to an expression of what is void only, when used in reference to judicial proceedings. And we have been able to find no English case where a defendant has been permitted to object to proceedings, either upon a voidable, but not void, judgment or execution, in any other manner than by direct steps to set it aside. There is American authority, ulso, that accords with this view of the English: Reynolds v. Corp and Douglas, 3 Cai. 267, in an elaborate case, and we think, in point, in principle, to the one before us. Corp recovered a judgment against Reynolds
. in a suit in which Douglas was the attorney. Reynolds was, in exoneration of his bail, “surrendered to prison, from whence he was liberated by a regularly obtained supersedeas, for want
Ax, Dzo, VOL. LII-39
of being charged in execution in due time. After this, Douglas issued a ca. sa, upon the old judgment, on which Reynolds had been in custody, took him in execution, and kept him in confinement from," etc., " to," etc. Reynolds then brought his action of trespass against Corp and Douglas, and, in the circuit court, obtained judgment. In reviewing the cause in the supreme court,
, it was determined that the ca. sa. was erroneously issued, and was voidable, but not void; that it was, in this respect, like an execution issued after a year and a day, upon a dormant judgment, and that hence trespass would not lie. In his opinion, Kent, C. J., says: “But admitting that a trespass would lie, the plaintiff brings his suit prematurely, so long as the ca. sa. appears regularly upon the record. He ought first to have applied to the court, and had the writ set aside as irregular; and in the particular case of proceedings, except by certain inferior officers, beyond their powers, and whose proceedings are held to be coram non judice.
I believe no instance can be found in which trespass was brought, until application had been made to the court to determine upon the validity of the process, and to set it aside. Until that be done, the process will be a justification, and the court will not decide touching its validity in this collateral way. There may be circumstances existing which might limit the interference of the court, upon the direct application, and induce them to set aside the process upon terms, and those circumstances can not be examined into, nor the interference modified, in the present suit.” Thompson, J., said: “The merits of this case are, I think, comprised within a very narrow compass, and the right of the plaintiff to recover in this action will depend altogether upon the question whether the execution issued against him is, in judgment of law, to be deemed void, or only voidable. If the former, it was a nullity ab initio, and could afford no justification; if the latter, it would afford a good justification until set aside. I am inclined to think the execution must be considered voidable only.” “It appears regular upon the face of it; it is warranted by the judgment, and is to be avoided by some matter dehors the record, and which, I think, can not be taken advantage of in this collateral way.” “I think there are cases somewhat analogous to the present, when the process has been deemed voidable. Thus, if an execution be issued on a judgment that has lain dormant for A year and a day, it is deemed voidable only; and until reversed or set aside, is a good justification: Patrick v. Johnson, 3 Lev.