McGehee v. Wilkins

Young, Circuit Judge : In all cases where a deed is executed under a power, it is necessary to prove the power before the deed is admissible in evidence. Where a sheriff sells and makes a deed under a fieri facias, he is acting under a power. “He acts in fact as the attorney of ¿the defendant appointed by law for that purpose. ’ ’ Davis vs. Shuler, 14 Fla., 447. Before sheriff’s deed is admissible in evidence, for the purpose of proving title thereunder, a valid judgment and execution must be shown. Donald vs. McKinnon, 17 Fla., 746; Kendrick [86] vs. Latham, 25 Fla., 819, 6 South. Rep., 871. Where a court has jurisdiction of the person and the subject-matter, it has a right to decide every question which occurs in the cause; and, whether its decision be correct or not, it is valid and binding till reversed. ‘ ‘The line which separates error in judgment from the usurpation of power, is very definite, and is precisely that which denotes the cases where a judgment is reversible only by an appellate court, or may be declared a nullity collaterally. In the one case it is a record importing absolute verity; in the other, mere waste paper.” Voorhees vs. Bank of U. S., 10 Peters, 449; Elliott vs. Piersol, 1 Peters, 328; Thompson vs. Tolmie, 2 Peters, 157. “To authorize the assertion that a judgment is void, it must have emanated from a court of limited jurisdiction not acting within its legitimate prerogative, or a court of general jurisdiction where the parties are not, actually or by legal construction, before the court and subject to its jurisdiction.” Ponder vs. Moseley, 2 Fla., 207. Conceding for the purposes of this case, and without deciding that where a judgment is rendered by a court of general jurisdiction, the presumption is, in the absence of proof to the contrary, that the court had jurisdiction. Where a judgment is rendered by a court of limited powers and jurisdiction, there is no such presumption; but it must affirmatively appear from the record that the court had jurisdiction of the person and the subject-matter. Hays vs. McNealy, 16 Fla., 409; Donald vs. McKinnon, 17 Fla., [87] 740; City of Jacksonville vs. L’Engle, 20 Fla., 344; Epping, Bellas & Co. vs. Robinson, 21 Fla., 36, and authorities there cited. It is true, as contended by counsel for appellee, that ft was only necessary for appellee, to show a judgment against appellant, execution thereon and sheriff s deed, but the judgment must be a valid judgment, and, where it emanates from a court of limited jurisdiction, it is not a valid judgment unless it affirmatively appears that the court had jurisdiction of the person and the subject-matter. These views are not in conflict with the authorities cited by counsel for appellee. It follows from what has been said that the third assignment of error is well taken, and that “the court erred in overruling the plaintiff’s objection to the admission of the sheriff’s deed, without the justice’-s judgment and so much of the proceedings before the justice of the peace as would affirmatively show jurisdiction, being first proved.” As the entire record of the proceedings in the justice’s court were subsequently introduced in evidence by the defendant, this error was cured, if the said record showed that the justice had jurisdiction. It is well settled that the proceedings by attachment are statutory and must be strictly pursueI. Roberts vs. Landecker, 9 Cal., 262, and authorities there cited. The act of 1875 (Chapter 2040 of Laws) is entitled ‘ ‘an act relating to proceedings before justices of the peace, and judgments of justices’ [88] courts.” It provides fully and particularly for all proceedings before justices, and requires tlie Attorney-General to prepare forms for use in the justices’ courts. Being full and complete legislation on the subject-matter, it repealed all former legislation on the same subject-matter, either in express terms or by necessary implication. Section 70 of the act was in force when the proceedings before the justice took place, and it directs the manner in which the writ of attachment shall be executed. It requires the officer to execute the writ ‘ ‘by summoning the defenda lit, as in case of a summons, if to be found in the county, and by attaching the goods and, chattels, ononegs arul credits of the defendant not exempt by law.” Section 75 provides for publication when the ivrit has been executed by attaching the property of the defendant and he can not be summoned and does not appear. Section 78 provides that when the defendant shall be notified in the manner directed by the statute, and does not appear, the j ustice may enter his default and proceed to render judgment. The statute does not authorize the levy of an attachment issued from a justice’s court on lands and tenements, nor does it authorize a service by publication in any case except where the goods and chattels, money and credits of the defendant are attached. The record of the justice’s court introduced in evidence in the Circuit Court shows that the suit was commenced by attachment, that the defendant was not summoned, and did not appear, and that the writ was not executed by attaching any of the goods [89] and chattels, money and credits of the defendant, it follows that the defendant was not actually orb y legal construction before the justice's court, and it acquired no jurisdiction to render a -judgment against him. “The court erred in overruling the plaintiff’s objection to the admission of the sheriff’s deed.” Section 4¡5 of Chapter 2040 of laws was repealed by-an act approved May 27, 1889. The record does not show whether or not the docket, books and papers of the justice were filed in the clerk’s office prior to the repeal of Section 40. If they were so filed, in pursuance of said section, and prior to its repeal, then Section 48 of the act prescribes the method of proving their contents. The judgment is set aside, and the cause remanded to the Circuit Court for a new trial and further proceedings not inconsistent- with this opinion.