Ulrich v. Voneida

The opinion of the-court was delivered by Smith, J. -His honour, after having fully stated the case, said — ■ The errors assigned, impeach the several decisions of the court of Common Pleas, and present as the principal question for our consideration, this point, whether it is competent for the terre-tenant, in this sciref acias, to object to the original judgment, by showing that it was entered without authority, or fraudulently ? With regard to 'the parties to that judgment, it is conceded, that nothing which would have been a defence in an action upon the bond, could be pleaded or given in evidence upon -the scire facias. But the terre-tenant, who is neither party nor privy, is he concluded? Henry Newman purchased the land of the defendant, for a valuable consideration, after the judgment was entered in Lebanon county. Until the scire facias, with notice to him, was issued, he had, however, no opportunity of questioning its validity. By that writ, he was made a party in interest, and called upon to defend his property, against the operation of the original judgment. The e ffect of the notice was not merely that he should show cause why execution should not issue, but why it should not issue against the land in his" possession, charged with the lien of the judgment. To deny him the right of impeaching the judgment, would be to take away his only remedy, and .make the call upon him for a defence, by the notice of this scire facias, a mockery. In 2 Salk. 600, Chief Justice Holt, says, “upon the scire facias, the terfe-tenants will have notice, and they, being strangers to the judgment, may falsify it.” See, also, 4 Cowen’s Rep. 457. This we consider to be the rule of law, which must govern the present case, and therefore decide; that it was competent for Henry, Newman, 'to shew that the judgment, on which the scire facias issued, was entered without authority, or fraudulently entered. It has been repeatedly determined, that a bond with ¿'warrant of attorney to, confess judgment, authorises the entry of but one judgment; and accordingly that when judgment is once entered, the warrant becomesfunctus oficio. A second or subsequent judgment by. virtue of the same warrant, is therefore, wholly irregular. Add. Rep. 267. 3 Wash. C. C. Rep-558. Martin v. Rex, 6 Serg. & Rawle, 296. 14 Serg. & Rawle, 170. The court of Common Pleas erred, in denying to the terre-tenant all opportunity of showing, by pleading it specially, or by evidence, [251] under the plea of payment, with leave, &c. that the powers of the warrant of attorney by which this judgment was entered in Leba- - nón county, had been satisfied by a previous judgment, entered on the same bond and warrant in Berks county. We do not think that the decision of the issue upon the plea of nul tiel record,- precluded the terre-tenant from subsequently pleading or showing by evidence, the fact of a prior judgment, entered upon the same Warrant in Berks county. The’question on that issue was this, is there such a judgment in Lebanon county as’ is set forth in the scire facias. This was to be determined upon inspection,- and the judgment was shown. But although the record was fair to the eye; and although th’fc was sufficient to justify the decision, yet- the terre-tenant might, without inconsistency, have been permitted to prove that it was irregular for the reasons before mentioned, and ought not in good conscience, to be- executed upon his land. In’ addition to this, as a judgment has the efiTect of merging the bond in it, it may fairly be eriquired, on another trial, whether a second judgment could afterwards be had thereon- in another county. See Clement v. Bursh, 3 Johns. Cases, 180. We are of opinion, therefore, that the judgment should be reversed. Gibson, C. J. Except for excess of jurisdiction, the judgment of a court of record is never void, 3 Inst. 321. Letters óf administration can be vacated only by a judicial sentence, Cro. Eliz. 315; and an order of justices of the peace likewise, -being a judicial act, is not ipsofacto void, but good till it is quashed, 2 Salk. 674. So the judgment of a superior court is voidable only on error, {id.) even in the case of an outlawry, which is expressly declared to be void by a statute, 1 Rol. Rep. 159; and a judgment on warrant of attorney is, in contemplation of law, a judgment rendered by the court. On the plea of mil tiel record, then,- how could the court below en-quire whether the authority on which the judgment was entered, had been exhausted by entering a previous judgment in another • county 1 The defendant had no remedy, but an application to have the judgment set aside, and to that he had-had recourse without success, and probably for a good reason. No one will pretend that-a second recovery for the same cause is merely void, or, where the previous recovery has not been pleaded, even erroneous. The court below, then, had before it a judgment irregular, if you will, ’ but unreversed, which in a collateral proceeding between the same parties, it was proposed to destroy. In Share v. Becker, 8 Serg. & Rawle, 241, the defendant in a scire facias on a judgment upon a report of arbitrators, was not permitted to gainsay the judgment by evidence of irregularity in -the proceedings, which is the very case at bar; and in the lessee of Hiester v. Fortney, 2 Bin. 40, it was held that a judgment on a scire fa-das, after one nihil, which of course might [252] have been set aside or reversed on error, can not be questioned collaterally in another suit, and the same doctrine was asserted in King v. King, ante, 19. There is an endless list of authorities for this familiar elementary principle, which is the foundation of even the English practice in setting aside judgments surreptitiously obtained on warrant of attorney, without which, it is-said, the party would be without remedy* — in other words,, he would not be able to take advantage of the irregularity on a scire facias, by evidence or.- pleading. On the plea of mil tiel record therefore, it seems to me the court did right to give judgment for the plaintiiL Rogers J. concurred with Gibson, C. J. Judgment- reversed, and a venire de novo awarded. Footnotes [*] See Cook v. Jones,, Cowp. 727-8, — Reporters.