Winkler v. Baxter

Smith, J., (after stating the facts). Sections 4631-4633, of Kirby’s Digest, provide that every justice of the peace, on the demand of any person, in whose favor he had rendered judgment for more than $10, exclusive of costs, shall give to such person, upon payment of costs, a certified copy of such judgment, and that the clerk of the circuit court of the -county in which the judgment was rendered shall, upon the production of any such transcript, file the same in his office, and forthwith enter such judgment in the docket of the -circuit court for judgments -and decrees, and shall note thereon the time of filing such transcript. But that no such transcript shall be filed and no execution shall be sued out of- the circuit court on such judgment until an execution shall have been issued by the justice of the peace and a return made showing that the defendant has no goods or chattels whereon to levy the same, and that when this has been done, every such judgment, from the time of filing the transcript thereof, shall be a lien on the real estate of the defendant in the county to the same extent -as a judgment of the circuit court of the same county, and shall be carried into execution in the same maimer and with, like effect as the judgments of such circuit courts. • Section 4438, of Kirby’s Digest, provides that the judgments of the Supreme, chancery and circuit courts of this State shall be a lien on the real estate owned by the defendant in the county in which the judgment was rendered from the date of its rendition, but that such judgment shall not be a lien on the lands of the defendant in any other county than that in which it is rendered until a certified copy of the judgment is filed in the office of the clerk of the circuit court of the county in which the land lies. ' (1) These statutes have not been complied with, and the judgment of the justice of the peace never became a lien upon the land in controversy, ■ and there was never, any authority for the action of the circuit clerk of Arkansas County to issue the execution under which the sale was made, and, consequently, there was no authority for the action of the sheriff in making the sale and in executing his deed to appellant. This is true, because the proof does not show that this transcript was filed in the office of the circuit clerk of Jefferson County, and this was, of course, the first step, and an indispensable one, to make a judgment of a justice of the peace a lien upon land in any county. It is not contended that the clerk of the circuit court of Jefferson County prepared a certified copy of the judgment for filing in the office of the clerk of the circuit court of Arkansas County, and there was no authority under the law for the filing of the transcript of the justice of the peace of Jefferson County with the clerk of the circuit court of Arkansas County. The whole proceeding appears to be invalid. (2) It is insisted that the record does not show how this case was transferred to the chancery court. But no such question was raised in the court below, and no motion was made in the chancery court to remand the cause. Besides, the record recites that the parties appeared by their counsel and by agreement of both parties, the court proceeded to hear this cause. Moreover, the sheriff’s deed above-mentioned is a cloud upon appellee’s title and upon motion it would have been proper to transfer this case to the chancery court for the purpose of cancelling and removing this cloud, and the decree of that court cancelling it is affirmed.