McDonald v. Simcox

Mr. Justice Mercur delivered the opinion of the court [623] This was an action of trover to recover for chattels for- ' merly the property of the plaintiffs, sold by a constable on an execution. It issued on a judgment recovered against them or some of them in favor of one King. He bought the property, and afterwards sold it to the defendants. The plaintiffs now question the effect of that judgment, and attack its validity. It is settled law that the regularity of a judgment of a court having jurisdiction of the subject matter cannot be questioned in a collateral proceeding. Although a judgment recovered before a justice of the peace be irregular, yet if he has jurisdiction of the subject matter, the only redress of the defendants therein is by certiorari. If they acquiesce therein by taking .no steps to reverse it they thereby make it as good and valid as if all the prerequisites of the law had been observed. A title to property acquired under judgment and execution cannot be defeated by proving some defect in the original process. The judgment of every court pronounced on. a subject within its jurisdiction is conclusive and binding on all other courts, except' those only before which it comes by appeal, certiorari or writ of error: Tarbox v. Hays, 6 Watts 398; Hauer’s Appeal, 5 W. & S. 473; Sloan v. McKinstry, 6 Harris 120; Billings & May v. Russell, 11 Id. 189. The judgment in question was obtained on proceedings commenced by attachment under the 26th section of the Act of July 12th 1842, P. L. 345, against H. Stewart & Cb. as nonresidents of the county, having personal property therein. This section provides in case no. capias can issue under section 24 of the act, ‘‘and the defendant shall reside out of the county he shall be proceeded against by summons or attachment, returnable not less than two nor more than four days from the date thereof, which shall be served at least two days before the time of appearance mentioned therein.” Thus this section authorizes either form of writ to issue, at the option of the plaintiff. The day of return and time of service is the same for each— whichever writ is issued that constitutes the original process. If it be summons, no valid judgment can be rendered without service or appearance by defendant. If it be by attachment, a valid judgment in rem may be obtained. King made the necessary affidavit, and executed the required bond. The claim was for goods sold and delivered. No fact was shown which authorized a capias to issue. The justice had undoubted jurisdiction of the cause of action. The 'attachment was made returnable and served according to the requirement of the statute. The property in question was attached, and due return thereof was made on the writ. Summons then issued, which was returned defendant not found in the county. On the return day, d .'fondants not appearing, after hearing the evidence of the plaintiff, [624] the justice rendered judgment in his favor against defendants. The writ of summons was made returnable on the third day after the date thereof, and, as the Act of 1810 requires a summons to be made returnable not less than five days after its date, it is contended that this judgment is therefore void. We have, however, shown that jurisdiction over the property was acquired by virtue of the attachment and proceedings thereon. If then there was error in the subsequent proceedings by making the summons returnable prematurely, it was an irregularity wliich could be corrected by certiorari only, and not in a collateral proceeding. It is further urged, inasmuch as the individual names of all the persons composing the firm were not set forth in the attachment suit, that the rights of those whose names were omitted are not affected by the judgment. If the question was, whether an execution on that judgment would authorize a sale of their individual property, there would be force in this position. Such, however, is not this case. The sale was of the property attached only. That was the property of the firm. So the question is, whether, on a judgment against the firm, the property of the firm can be sold ? One partner may confess a judgment in the name of the firm of which he is a member, which will authorize a sale of the interest of all the partners in partnership property : Ross v. Howell, 3 Norris 129. We cannot expect, and must not require, an observance of strict rules of pleading before a justice. In many cases judgments have been held good, when against copartners in the firm name, without stating the names of the persons composing the firm. Objections of this kind, after verdict or judgment, are not to be favored: Porter v. Cresson, 10 S. & R. 259; Morse v. Chase & Co., 1 Watts 156; Seitz & Co. v. Buffum & Co., 2 Harris 69. It must be conceded the judgment was against Stewart, one of the firm, and now one of the plaintiffs. It therefore follows, as to him, at least, his interest in the property was sold. His right in the property having been divested the other partners could not unite his name with theirs and recover in an action of trover. A joint action in tort cannot be maintained when some of the plaintiffs are shown to have no right to recover. It is elementary law in actions ex delicto, that if too many persons are made co-plaintiffs, the objection, if it appear on the record, may be taken advantage of either by demurrer, in arrest of judgment, or by writ of error; or if the objection do not appear on the face of the pleadings, it will be ground of nonsuit on the trial: 1 Ohitty Plead. 76. It follows the learned judge correctly held the plaintiffs could not recover. Judgment affirmed.