Olmsted v. Hoyt

Trumbut.l, J. This is an action of trover brought by jYat/ian Olmsted against Stephen Hoyt and Joseph Lockwood, for taking sundry cattle and other articles, the property of the plaintiff, and converting them to their own use. Upon issue before the superior court, on the plea of not guilty, the verdict and judgment was in fa-vour of the defendants. It comes before us on a motion, for a new trial. As the defendants acknowledged the taking of said articles as the property of one Ebenezer Lockwood, and contested the point only, whether the conveyance by him to the plaintiff was a legal and sufficient transfer, or only colourable and fraudulent, it was necessary for them to show that they had acquired a right so to take and carry them away; because such a conveyance would bo good, as between the parties and against a mere stranger. To prove this right, they offered in evidence the record copy of a writ of attachment in favour of said Hoyt (a bona fide creditor of said Ebenezer, who was in failing circumstances) against said Ebenezer; and the return thereon by said Joseph, a legal officer, that he had attached the cattle and other articles thereon, as the property of Ebenezer, and held them in safe custody. The record also shows that the writ was returned to court. [442] judgment rendered in favour of said Hoyt, and by virtue of an execution thereon said property was sold acbwd-ing to law, and the avails applied to satisfy it. The judgment of a court of record having jurisdiction» is not void, but stands in force till avoided by reversal ; however erroneous it may be, or contrary even to the provisions of a statute. The same is the rule as to the decisions of courts not of record. The decisions of courts of chancery, and admiralty, of ecclesiastical courts, orders of session, and every judicial act, in matters within their respective jurisdictions, are valid till properly quashed, set aside, or reversed. A stranger may contest the validity of such judgment or decision, by showing a want of jurisdiction in the court, or a fatal- omission in the process, such as want of due service of the writ ; or on the ground, that the judgment or decision was obtained and kept on foot by fraud, covin and collusion between the parties ; as in the present case Olmsted might contend that Hoyt was not a bona fide creditor. The objection to the admissibility of this writ of attachment and record was, that the date of the writ was the 19th of September, 1807, that it was returnable to April court, 1808, and that there had been two intervening stated terms of said court; in consequence of which, the plaintiff claims that the writ, process and judgment thereon were void. The return showed that the writ was served on the 18th day of February, 1808, after the last day of service to the second intervening court had passed; and the record showed, that the writ was duly-returned to said April court, and judgment rendered on it in due form of law. To show that said early date was a fault, which could only have been taken advantage of in a plea of abatement, and that it was not occasioned by any fraud of Hoyt, the plaintiff, or covin between the parties in that suit; the present defendants offered parol testimony to [443] show that said writ of attachment was first made returnable to the November term of said court, and after the last day of service to the second intervening court, was altered by the justice who signed it, and made returnable to said April court, the bond to prosecute retaken, and a new date omitted by the mere mistake of the justice, and that the writ, after said alteration made, was duly served, as was stated in the return. This testimony was admitted by the court below, and the objections of the plaintiff against it overruled. After a full hearing of the cause, the court charged the jury, that said writ of attachment, process and judgment were not absolutely void. I am of opinion that the testimony was admissible. The date of a deed may be false, or impossible, yet the mistake may be aided by showing the time of its actual delivery by the grantor. In the same manner the mistake in the date of this writ, may be aided by showing the time when it was actually issued and served. I am also of opinion, for the reasons already stated, that the writ, process and judgment were not absolutely void; that the charge to the jury was right; and that no new trial be advised by this court. In this opinion the other judges severally concurred. New trial not to be granted.