Newburg v. Munshower

White, J. We find no error in excluding from the jury the record of the judgment as found in the docket of the justice. The rule that an officer is justified by his process, not void upon its face, is one of protection only; and although the officer may execute such process, yet if it is in fact void for want of jurisdiction in the court or officer issuing it, he may refuse to execute it, and no action will lie against him for such refusal. Crocker on Sheriffs, secs. 284, 286; Earl and Camp v. Stone, 16 Wend. 562; Cornell v. Barnes, 7 Hill, 35; Gwynne on Sheriffs, 573. Hence where an execution regular on its face is issued without a judgment to support it, the officer to whom it is directed, may disregard its command without incurring any liability. In the present case, the plaintiffs, to maintain their action, alleged the recovery of a joint judgment against two defendants, and the issuing of an execution thereon. The existence of such judgment was denied by the defendant; and it appeared that only one of the parties against whom the judgment was rendered was served with process. There are authorities holding that a judgment thus rendered is wholly void. Buffum v. Ramsdell, 55 Maine, 252 ; Holbrook v. Murray, 5 Wend. 161; Freeman on Judgments, sec. 136. In this state the judgment is not wholly void. Douglass v. Massie, 16 Ohio, 271; Ash v. McCabe, 21 Ohio St. 181. The justice had no jurisdiction over Lee for want of [620] service of process, and the j udgment against him was void. Wood and Pond v. Stanberry, 21 Ohio St. 186; Penobscot Railroad Co. v. Weeks, 52 Maine, 456. But the judgment against O’Tool, who was served with process, was voidable only. The legal effect of the record of the justice was to prove a judgment against O’Tool alone. This was not the judgment described in the petition upon which it was alleged the execution was issued. It was substantially a different judgment, and as the pleadings stood was properly excluded. The other questions raised in the case, we deem it unnecessary here to notice. Leave refused.