Clem v. Meserole

Per Curiam. This cause was referred by the court to its commissioners for investigation, and a majority of them report that the judgment ought to be reversed. The action was ejectment in the Circuit Court of Orange county brought by defendant in error against plaintiffs in error. The plea was not guilty. The abstract state® that plaintiff to prove his title to> the land in controversy, offered in evidence a judgment recovered in the Circuit Court of Orange county, January 2nd, 1894, in a suit wherein the Sanford Loan and Trust Company was plaintiff, and the defendant David R. Clem and J. F. Fitzsimmons, formerly copartners trading as J. F. Fitzsimmons & Co., were defendants. The judgment was declared to be a lien on certain lands therein described being in part the lands in controversy and which were the individual property of defendant, Clem. The document so offered in evidence was as follows: “And now ¡on this 2nd day of January, A. D. 1894, comes the plaintiff in the above entitled cause, by A. M. Thrasher and Arthur F. Odlin, its attorney, and produces the original notes mentioned in the declaration filed by plaintiff in this action and it appearing to the court that this action was commenced by the attachment of certain real estate in Orange county, Florida, as the property of David R. Clem, one of the defendants in this action, and that notice of said attachment has been duly published a® required by láw and that a default was duly entered on the rule day in January, A. D. 1894, against the said defendant David R. Clem for want of appearance herein, it is therefore considered and adjudged that the plaintiff, the Sanford Loan & Trust Company, a corporation, do have — 236 — and recover of and from the said defendant David R. Clem the sum of two hundred and twenty-eight dollars as principal, two hundred and four dollars as interest, and forty-dollars as attorneys’ fees, and the costs of this action which are taxed at twenty-six dollars and twenty-five cents. But this judgment is a lien on no other property, and said real estate is described as follows, to-wit.” Here follows a description of real estate which it is not necessary to set out, and the document concludes as follows : “Done and ordered at chambers at DeLand, Florida, (Volusia county), this 2nd day of January, A. D. 1894. JOHN D. BROOME, Judge 7th Judicial Circuit of Florida.” Defendants objected to the admission of said judgment in evidence on the grounds that said judgment must be shown to be a valid judgment, and that where it emanates from a court of limited or statutory jurisdiction it is not a valid judgment unless it affirmatively apears on its face that the court, had jurisdiction of the person or subject-matter of the suit in which such judgment was rendered. The objection was overruled and the document admitted, to which ruling defendants excepted. Plaintiff then offered in evidence the execution issued upon said judgment, under which the lands in controversy were sold. This document was objected to upon tbe grounds • that before such execution- could be admitted in evidence a valid judgment must be shown and that where execution isi based upon a judgment rendered by a court exercising statutory powers, there is no presumption of regularity of the proceedings, but it muist affirmatively appear by the record that the court had jurisdiction, but the court overruled the objections and admitted — 237 — -the document in evidence, to which ruling defendants excepted. Plaintiff then offered in evidence the sheriff’» deed based on said judgment and execution, conveying the lands in controversy to him. Defendants objected to its being admitted on the ground that plaintiff’s deed was not admissible without previously ¡showing his power to make such deed, and that before a sheriff’s deed can be admitted for the purpose of proving title thereunder a valid judgment must be shown, and that where judgment is rendered by a court exercising ¡statutory jurisdiction, there is no presumption of regularity of the proceedings, but it muist affirmatively appear from the record that the court had jurisdiction of the person or subject-matter, but the court overruled the objection and .admitted the document, to which ruling defendants excepted. The trial resulted in a verdict and judgment for plaintiff, from which judgment this writ of error was taken. The court iisi of opinion that the objections urged to the admission in evidence of the documents mentioned are ¡sufficiently broad to raise the question whether it was necessary to introduce the record of the suit which culminated in the judgment offeree} in evidence, along with such judgment, or whether the judgment entry alone (tliat being all that was offered or admitted) was properly admissible. Under the decisions in this State, it is clear that a jdgment entry alone, unaccompanied by any ¡other part of the record of such judgment or any sufficient-explanation of its absence, when offered in evidence for. a purpose other than to show the fact of its rendition, is inadmissible if seasonably objected to. Unless there is something in this case to take it out of the rule, the court below was in error in the ruling admitting — 238 — the judgment entry alone. It is suggested that the Circuit Court is a court of general jurisdiction; that its judgments import verity, and in their support the law presumes that the court rendering them had jurisdiction of the person and the subject-matter, and to render the judgment, and also that the judgment here offered in evidence contained recitals showing jurisdiction, and therefore the rule prevailing in this State, as held inv Watson v. Jones, 41 Fla. 241, 25 South. Rep. 678, and other Florida cases cited therein, should not apply to the present case. The court is of opinion that the rule is a rule of evidence and that it isi not qualified by the fact that the judgment offered is from a court of general jurisdiction, nor by the fact that it may contain general recitals of jurisdiction. A party is entitled to have the whole record so far as it concerns the formal stages, produced, because such record is a material part of the judgment, and because he has a right to insist that the presumptions applicable to judgments of courts of general jurisdiction shall be applied only when it is ascertained from an inspection of the whole record that it does not affirmatively appear therefrom' that the court did not have jurisdiction to render the judgment. General1 recitals of jurisdiction are as to many matters merely conclusions drawn by the court from inspecting other parts of the record proper, and as to which, in case of conflict between the matter*: of record proper and the recitals, the former will control. The record proper and the judgmlent constitute together one entire document, every part of which is relevant to the question whether the judgment is a valid one, and the party has a right to insist that every part of that relevant document be submitted, when the judgment is offered in evidence to prove a title under sheriff’s sale against him. — 239 — Harges v. Morse, 7 Kan. 415; State v. Hawkins, 81 Ind. 486; Brown v. Eaton, 98 Ind. 591; 1 Whart. Ev. Sec. 824. A party may unquestionably waive the production of the entire record if he chooses by not objecting to the introduction of the'judgment entry (Simmons v. Spratt, 20 Fla. 495), but in this case the objections are broad enough to cover the point. The trial of this case was prior to the enactment of Chap. 4723, acts of 1899, and the question just considered can not, therefore, be affected by the provisions of that act. It is also suggested that in Hartley v. Ferrill, 9 Fla. 374, as limited and explained in Davis v. Shuler, 14 Fla. 438, it was held that a plaintiff in ejectmlent who claims under a sheriff’s sale under an execution against the defendant in ejectment has only to show his deed, and execution, and to prove possession by defendant since rendition of the judgment, in order to cast the. onus probadi on the opposite party, and that as Clem the defendant in the judgment was one of the defendants in the ejectment suit, it was unnecessary for plaintiff to introduce his judgment in evidence, and therefore error in admitting it should not result in a reversal of the judgment. In McGehee v. Wilkins, 31 Fla. 83, 12 South. Rep. 228, it is held that before a sheriff’® deed is admissible in evidence for the purpose of proving title thereunder a valid judgment and execution must be shown. In that case the defendant in possession of the property was claiming title under a sheriff’® sale under execution against plaintiff. In the latter case, Hartley v. Ferrell is not referred to, but it can not be denied that it asserts, contrary to the rule laid down in the third head-note, in that case, that a valid judgment must be shown as the basis for a sheriff’s deed. The rule laid down in Hartley v. Ferrell — 240 — was also' doubted iu Kendrick v. Latham, 25 Fla. 819, 6 South. Rep. 871, and L’Engle v. Reed, 27 Fla. 345, text 360, 9 South. Rep. 213. While Hartley v. Ferrell has never been formally overruled upon the point now being •considered, the principle announced there has not been followed and is entirely inconsistent with that laid down in McGiehee v. Wilkins. The rule stated in the latter case is in the judgment of the court the correct one (3 Freeman, on Executions', section 350), and to the extent that Hartley v. Ferrell conflicts with the rule there laid down, it is overruled. For the error found the judgment is reversed knd a ■new trial granted.