Pardon v. Dwire

Caton, C. J. The appellant introduced a deed from Potter to Catharine Dwire, and afterwards objected to its being considered or treated as evidence in the cause, because the acknowledgment was not properly certified. By introducing the deed in evidence, he vouched to the court that it was genuine and properly executed by- the grantors, and was proper evidence to prove what it purported to prove, it having been introduced without reservation, explanation or qualification. He could not afterwards object that it was not properly executed. The next question is, as to the effect of the judicial sale under which the appellant claims title. That sale was made upon an execution issued by the clerk of the Circuit Court, upon a transcript of a judgment rendered by a justice of the peace, and filed in the Circuit Court, under our statute. That transcript shows that a summons was duly issued, and “ returned duly served by reading to the defendant.” Upon the production of the original summons, the return indorsed upon it by the constable is in these words—“ Duly served by reading, June 16th, 1848.” Admitting that the transcript of the justice was sufficient prima facie to show a proper return of service, it was certainly not conclusive of that fact, and it was competent to contradict the statement in the transcript, by producing the original summons and the return upon it. When that was done, it did contradict the statement of the transcript, and showed what we have often held to be an insufficient return to give the justice jurisdiction of the person of the defendant. It did not show that the summons was served upon or read to her. It did not show to whom it was read, if to any one. For want of jurisdiction of the person of the defendant, the judgment was utterly void, and as such, could be objected to at any time and in any proceeding, whether direct or collateral. No title could be divested or transferred under it. This supersedes the necessity of inquiring into the form of the sheriff’s deed, for admitting it was strictly formal, it could not convey the title of Catharine Dwire, because the judgment against her, upon which it was founded, was void. This action of ejectment was against the appellant and one Milum, the latter of whom was not served with process, and the judgment in the court below was against the defendants, and for this reason, the appellant asks us to reverse the judgment rendered against him. As against the appellant, the judgment was proper, and as to the other defendant it was simply void. It can have no more effect upon the rights of the latter than as if it had not been written. Its legal effect is the same as if it had been rendered against the defendant in the singular number, when it would have been held as applicable to the defendant who was served and who was making defense. The action was in form trespass, and several against the defendants, and the plaintiff had a right to recover against either who was proved to be guilty. The judgment must be affirmed. Judgment affirmed.