Rood v. Eslava

CHILTON, J. This was -an action .of unlawful detainer [433] brought by the defendants in error against the plaintiff in error, in December 1845, to recover possession of an eighty acre tract of land described in the complaint made before the justice of the peace before whom it was tried. A recovery of the land was had before the justice-on the 22d Dec. 1845. On the 6th January 1S46, a certiorari was awarded by the county judge and the proceedings had before the justice were removed to the County Court of Mobile, which court at the February term 1847, reversed the judgment of the justice of the peace. The judgment of the County Court was taken to this court and reversed at the June term 1S47, for want of jurisdiction of the County Court,, and the County Court afterwards, to-wit, at the February term 1848, dismissed the cause for want of jurisdiction. The plaintiff in error in the mean time, to-wit, on the 5th July 1847, obtained another certiorari returnable to the Circuit Court of Mobile. Upon these facts the Circuit Court dismissed the certiorari, and this writ of error is sued out to reverse this latter judgment. The County Court has no jurisdiction of cases of unlawful detainer. The statute authorises a certiorari after a judgment is rendered by the justice to the Circuit Court of the county in which the proceedings took place. — Clay’s Dig. 253, 18; Dunham v. Carter & Carroll, 2 Stew. Rep. 496. This is one of that class of cases where consent cannot confer jurisdiction. Now it is well settled that the judgment of a court having no jurisdiction .iswoid. Such judgment where its validity is collaterally called -in question may be treated as a nullity, and all .its proceedings in the cause are coram non judice and of no validity. — Duckworth v. Johnson, 7 Ala. 581, and the cases there cited; McComb v. Elliott, 8 Smeed & Mar. 505; 10 Peters’ Rep. 449, and cases on the plaintiff’s brief. The justice of the peace would -have been compelled notwithstanding the judgment of reversal pronounced by the County Court, to have proceeded and awarded the writ of restitution, as the County Court for want of jurisdiction could have made no order obligatory upon him. So that to deprive the plaintiff in error of the benefit of his certiorari in the Circuit Court because at the time of its issuance proceedings upon the case were being had in the County Court, would be to repudiate a rightful jurisdiction in deference to a court which could not legally take the first [434] step in the cause. The pendency of such proceedings in a court having no jurisdiction over the subject matter is no cause for abatement of the proceeding on the same case in a court which has, and furnishes no ground for dismissing it from the latter court. This point was well considered in Newell v. Newton, 10 Pick. Rep. 470 — and decided in accordance with the view here taken. Our conclusion is that the Circuit Court improperly dismissed the certiorari upon the state of facts set out in the bill of exceptions. The judgment must therefore be reversed and the cause remanded. Dargan, C. J., not sitting.