Neale v. Utz

Staples, J., delivered the opinion of the court. The appellant Neale is the purchaser of a tract of land subject, to the lien of the appellee’s judgment. The object of the bill is to vacate that judgment upon the ground that it was recovered whilst the debtor was under confinement in the penitentiary upon a conviction of felony. The appellant admits that he purchased the land with notice of the judgment. It may be that if, as he claims, the judgment is utterly void, he, as such a purchaser, has the right to have it so declared, and thus have removed out of his way a cloud upon the title. For it is well settled a void judgment may be assailed in any collateral proceeding. It neither binds nor bars any one, and all proceedings under it are ineffectual to confer title, or afford protection to any one. In the case before us the process upon which the judgment was founded was served upon the debtor whilst he was upon trial in a prosecution for a felony, and before his conviction. The judgment was, however, recovered by default afterwards, and whilst he was under imprisonment in the penitentiary. It is probable, although it is not certain, that the service of process took place on the same day the defendant was convicted of the felony, and it is insisted that the conviction relates back to the beginning of the day, and overrides and renders void the process. This is carrying the doctrine of relation further than is warranted by any adjudged case. As a general rule the law does not regard fractions of a day, but this rule is departed from in many cases where the purposes of justice require it. Certainly the courts would be very slow to decide that a man by a — 485 — fiction of law is to be considered a felon before his conviction lias actually taken place. The suit being brought and the process served before the conviction, the court fairly acquired jurisdiction of the cause and the parties, and that jurisdiction continues notwithstanding the subsequent disability of the defendant. Under such circumstances the utmost that could have been exacted of the plaintiff was a suspension of all proceedings until the disability was removed, or the appointment of a committee to defend the suit for the convict. The plaintiff, however, did not pursue this course, but prosecuted the suit to a judgment. If it be conceded that this was error, it is not an error that invalidates the judgment. And the reason is, that jurisdiction having been once properly acquired over the person and the subject matter of controversy, no error in its exercise, no irregularity in the proceedings can make the judgment void. The authority to decide being once shown, it can never be divested by being improperly or erroneously employed. Freeman on Judgments, § 135; Cox v. Thomas’ Adm’x, 9 Gratt. 312. If, for example, a suit be commenced against a feme sole, it does not abate by her subsequent marriage, but it may proceed against husband and wife jointly. If the plaintiffs, however, without noticing the marriage, take judgment against the feme, the judgment is not thereby rendered void, but is regarded as valid and binding until and unless reversed by some direct proceeding in that court. In a number of cases this doctrine has been carried to the extent of holding that when process is served in the lifetime of the defendant and he afterwards dies, a judgment against him subsequent to his death is not absolutely void, but simply voidable. The court having obtained jurisdiction over the defendant whilst living, is thereby empowered to proceed with the case to judgment;'and although the court ought to cease to exercise jurisdiction over a party — 486 — when he dies, its failure to do so is an error to be corrected on appeal, or writ of error coram nobis, as the case may be. Freeman, § 40, 153. Whether this reasoning be or be not correct to the extent claimed, it shows how far the doctrine is carried, that where the court has obtained cognizance of the cause, advantage cannot be taken collaterally of its judgments, however erroneous they may be. It has been decided in England if the court of common pleas holds plea in debt without original it is not void, for they are judges of those pleas, and it cannot be said the proceeding is coram non judice. The case of Prigg v. Adams, 2 Salk. R. 674, is a very strong illustration of this doctrine. An act of parliament-creating a court in Bristol, declared that if any person brought an action in any court at Westminster, and it appeared in the trial to be under 40 shillings, no judgment should be entered therein, and if entered it should be void; and yet a judgment of the court of common pleas upon a verdict of five shillings, upon a cause of action arising in Bristol, was held merely voidable and not void. Peters v. League, 43 Maryd. R. 58. The same rule more strictly applies where the defendant-relies upon a mere privilege as exempting him from the process and jurisdiction of the court. It has been almost-universally held he must plead his privilege, otherwise he will be considered as having waived it. It was so decided by the general court in Prentis v. Commonwealth, 5 Rand. 697. It was there said the judicial history of this question did not furnish an example of the allowance of the privilege,, but upon plea filed, or upon motion tendered, or made at the period proper for the consideration thereof by the court whose proceedings are sought to be abolished or suspended. In Turnbull v. Thompson, 27 Gratt. 306, the defendant-having been sued and judgment recovered against him whilst he was in the military service of the Confederate — 487 — States, it was lield by this court that the court in which the action was brought could not know, unless the matter is brought to its attention, that the defendant is in such service, or that he may not prefer to waive his exemption. If he is so situated he cannot plead the exemption, he ought to do so within a reasonable time after his disability is removed. What is there said, is applicable to the case of a convict in the penitentiary against whom judgment is recovered as in the present case, after his conviction. He may know that the judgment is just, and may be willing to submit to the recovery. If he is not, it is incumbent upon him in proper time to take such steps, by motion or other proper proceedings, as may be necessary to review the judgment in question. Any other rule would inevitably lead to great inconvenience and mischief. As was said by Judge Christian in delivering the opinion of this court in Lancaster v. Wilson, 27 Gratt. 627, “ A judgment, though unreversed and irreversible, could no longer be a final adjudication of the rights of the parties, but a starting point from which new litigation would spring up; acts of limitation would become useless and nugatory, and purchasers upon the faith of judicial process would find no protection; any right established by a judgment would be insecure and uncertain, and a cloud rest upon every title.” In the case before us the judgment against Lipscomb was recovered in April, 1874. His term of imprisonment in the penitentiary expired in November, 1874. It does not appear that he is dissatisfied with the judgment, or that he has ever made an effort to reverse or assail it. It was not till October, 1876, that the appellants filed their bill in equity, asking that it might be declared void upon the grounds already mentioned. The principles which uphold the jurisdiction of the courts in all this class of cases is not at all affected by the — 488 — fact that the judgment is by default. For whether the judgment be the act of the court, or be entered up by the clerk under the statute, the effect is the same. In either case it is the act of the law, and until reversed by the court which rendered it or by a superior tribunal, it imports absolute verity, and is as effectual and binding as if pronounced upon a trial upon the merits. Freeman, §§ 330-1, 487-541. For the reasons already stated, we are of opinion that their claim cannot be sustained, that the judgment cannot be collaterally assailed in a court of equity or elsewhere. Whether Lipscomb, the debtor, might by a proceeding in the court in which the judgment was recovered demand its reversal without having some valid defense on the merits, is a question we are not called upon to decide. Nor have we felt it necessary to express any opinion upon the construction of the various statutes cited by counsel relating to the appointment of committees for penitentiary convicts. Ruffin’s Case, 21 Gratt. 790, has been cited by appellants’ counsel. The most cursory examination of the case will show that there is nothing in the decision itself, or in the reasoning of the judge who delivered the opinion, in conflict with the views here expressed. Another objection assigned in the petition for an appeal is that the appellant William T. Neale, to whom the land was conveyed by Lipscomb, was not made a party to the suit brought by Utz against Lipscomb to subject the land to the lien of the judgment. If this objection be tenable it is not available in this case. The appellant’s remedy, if any he had, was by motion, or petition, to be made a party defendant in the suit of Utz v. Lipscomb, in which the decree for the sale of the land was rendered. Both the appellants were apprized of the existence of that suit before the decree of sale, for they were served with notice of the taking of the account by the commissioner. They were — 489 — certainly apprized of it when their bill was filed in this case, and it was as easy to have presented their petition in "that suit as to bring the present suit. It was clearly not competent for the appellants to file an independent bill and ash the court to set aside a decree in another cause upon the ground that the appellants ought to have been made parties before the decree was entered in that cause. It has been suggested here that the present bill might, under the liberal practice pursued in this State, be treated as a petition, and proceeded with as such, in the case of Utz v. Lipscomb. It does not appear that the appellants ashed it in the court below, nor have they suggested it in the petition for an appeal. The gravamen of their bill is that the judgment against Lipscomb is void, because he was at the time a penitentiary convict, and they, as purchasers of the land, are entitled to have it vacated. No specific complaint is made that the appellant Neale was not made a party, nor is there any prayer that he should be, or that anything should be done in that suit to protect his interests. It is an independent bill, framed with a view to vacate the appellee’s judgment and decree of sale entered in another cause, and cannot be considered a petition in that cause without a violation of every rule of practice and pleading. But if we are so to consider it, it appears that one of the appellees was made a party defendant to the bill of Utz v. Lipscomb, and made no defence. Indeed, the appellants do not at all controvert the justice of the debt, or the validity of the judgment except upon the single ground already considered. That judgment was duly docketed, and whether it was or not, they had notice of it at the time of the purchase, and are therefore bound by it. The appellant Neale, it seems, has a judgment also against Lipscomb which was duly reported and — 490 — allowed in the suit of Utz v. Lipscomb, so that there is not-even a possibility of injustice being done him. Winston, the trustee, in whom the legal title to the land is vested, was made a party, and there is no difficulty arising from that source. In every view that may be taken, the decree of the circuit-court is manifestly right, and must be affirmed. Decree affirmed.