Briggs v. Tye

The opinion of the court was delivered by Valentine, J.: [289] 1.Error, when immaterial. [288] This was an action on a promissory note. Charles E. Briggs was the maker thereof, and James Faulkner was the payee. Faulkner assigned the note to D. S. Tye, and Tye commenced this action against Briggs to recover the amount thereof. Briggs answered, setting up three defenses. The plaintiff Tye demurred to the third defense, and the [289] court below sustained the demurrer. This is the first ruling of the court below assigned for error. Whether such ruling was erroneous or not, it is now wholly unnecessary to determine; for after said ruling was made the defendant amended his answer, setting forth therein all that he had previously set forth in the defense demurred to, and much more, and then went to trial upon the facts as alleged in his amended answer. Under this amended answer he could prove all that he had a right to prove under his original answer, and more too. Therefore any error that the court may have committed by sustaining said demurrer was rendered wholly immaterial by these subsequent proceedings. [290] 2. Sheriff's deed, when prima facie void. [289] The defendant set forth in his answer and amended answer substantially the following as the facts: Sarah L. Larimer owned a certain piece of land, but James L. Gilbreath and Mary Ann Gilbreath pretended to own the same. Said Tye and Faulkner acted as the agents of said Gilbreaths in procuring a sale of said land. And although they knew that Gilbreaths had no title to said land, still they induced the defendant Briggs to purchase the same. Briggs, in consideration for said land and another piece of land, paid to said agents $700 in cash, and gave to them said promissory note. Faulkner then, in consideration for said cash and note, and as attorney-in-fact for said Gilbreaths, executed to' Briggs a general warranty deed for said land — said deed containing all the usual covenants. Said agents however transcended their authority by inserting said covenants. Afterward said Larimer evicted the defendant from said land. Said agents still retain the money paid to them by the defendant, not having paid any portion thereof to their principals. The said Gilbreaths are non-residents of the state of Kansas, and are wholly insolvent. The defendant has been damaged to the amount of $1,000 by said transactions, for which amount he asks judgment. He also asks to have said note canceled, etc. The plaintiff replied to this answer by filing a general denial. The action was then tried before the court and a jury. Under the pleadings the burden of proof rested upon [290] the defendant. He offered first to introduce a sheriff’s deed for the purpose of showing that the title to said land had been transferred by said sheriff’s deed from said Gilbreaths to said Sarah L. Larimer prior to the time when he purchased said land from Gilbreaths’ agents. The plaintiff objected, and the court sustained the objection. This is the second ruling of the court below assigned for error. Said sheriff’s deed reads as follows: “Know all men by these presents that, whereas, Horace Hull recovered a judgment before Lyman E. Rhoades, a. justice of the peace within and for the county of Allen, on the 10th of July 1860, against J. L. Gilbreath for the sum of $30.19 debt, and $3.60 costs of suit, and whereas the,said Horace Hu,ll afterward on the 14th of April 1863 sued out of the clerk’s office of the 4th judicial district an execution on the said judgment bearing date the 14th of April 1863 and directed to the sheriff of said Allen county commanding him,” etc., etc. Presumptions. Evidence to sustain deed. This deed is defective in not showing that a transcript of the judgment rendered by justice Rhoades was ever filed in the office of the cleric of the district court in and for Allen county, and in not showing that the execution was issued by the cleric of the district court in and for Allen county. At the time said execution was issued there were about eight clerks of the district court of the “4th judicial district.” There was one for each county. The first-mentioned . , _ _ defect is more material, as we think, than the second. It is possible that presumptions might aid the second, but we can hardly think they could sufficiently aid the first. We do not wish however to decide that said first-mentioned defect necessarily renders the deed void. But we do think that it destroys the prima facie validity of the deed. That is, it renders the deed apparently void. Such a deed is not prima fade evidence of title in the grantee. And if in any case such a deed should be held to be valid, or any evidence of title in the grantee, other evidence than the deed itself must first be introduced to show that the proceedings upon which the deed is founded, and which the deed itself fails to show, were in fact regular and [291] valid. The plaintiff in error claims that said deed contains all that the law requires that it should contain. We think differently however. The statute among other things requires that the deed “shall recite the execution or executions, or the 'substance thereof.” (Comp. Laws, 200, § 450.) And we think that the execution should contain all the above-mentioned things which this deed omits. The execution should show upon its face that it was regularly issued, that it was issued by the proper officer, that it was issued by an officer having authority to issue it; and therefore we think it should show in this case, upon its face, that the transcript of the justice’s judgment was duly filed in the office of the clerk of the district court before the execution was issued. The statute-does not pretend to designate everything that shall-be inserted in an execution, or in a sheriff’s deed; and therefore, in the absence of statutory provisions we should think upon general principles enough should be stated in the execution or in the sheriff’s deed to show prima facie that all the necessary proceedings to make such instrument valid were in fact had. It will hardly be presumed in the absence of all evidence that something was done which the instrument itself does not even intimate was done. The filing of the transcript of a justice’s judgment is purely the act of the judgment-creditor himself. The issuing of an execution on the same is purely a ministerial act of the clerk. The clerk does not judicially determine that the transcript was filed. No judicial determination is held upon the subject. Even a decision of the court upon a confirmation of a sheriff’s sale is no judicial determination of that question. (Koehler v. Ball, 2 Kas. 160, 172; Challiss v.Wise, 2 Kas. 194; White-Crow v.White-Wing, 3 Kas. 276.) The fact of the filing of the transcript of the justice’s judgment is left to be proved prima facie by the sheriff’s deed. But if the sheriff’s deed does not show it, then it must be proved by other evidence. And until it is proved it cannot be presumed that any proceeding depending thereon is valid. Until such fact is proved it would be proper [292] to exclude the deed as evidence. For if such transcript had never been filed, of course the deed would be void. 3. Jurisdiction; proceedings before justice; judgment. Afterward the defendant offered to introduce the justice’s judgment, with all the proceedings connected therewith; the execution, and all the proceedings connected therewith, and evidence tending to show that a transcript of the justice’s judgment had been duly filed with the clerk of the district court of Allen county before said execution was issued; but the plaintiff objected, and the court below susV ' tained the objection. This ruling is also covered ^ secon(j assignment of error. The execution is about as defective as the sheriff’s deed. It does not show that any transcript of the justice’s judgment was ever filed in the office of the clerk of the district court. But even if the execution were perfectly formal, still the judgment itself is defective, and apparently void. The transcript thereof shows that the action was commenced on July 9th 1860; that the summons was issued on that day, made Teturnable July 14th, and requiring the defendant J. L. Gilbreath to appear and answer on July 14th, at 1 o’clock p.m. The summons was received by the constable on July 10th, was served by leaving a copy thereof at the defendant’s residence on the same day, and was returned on July 14th. The transcript also shows that the judgment was rendered on July 10th. Whether this was before or after the justice handed the summons to the constable, is not shown. Whether it was before or after the summons was served on the defendant by leaving a copy thereof at his residence, is not shown. But it was, in any case, just four days before the justice had any jurisdiction to render any judgment against the defendant. (Sagendorph v. Shult, 41 Barb. 102.) The execution also shows that the judgment was rendered on July 10th 1860, and so does the sheriff’s deed, and there is nothing in the record tending to show that the judgment was rendered at any other time. It does not appear that the defendant ever made any appearance in the case, either on July 10th, or July 14th, or on any [293] other day. But it does appear affirmatively, that he did not make any appearance on July 10th, or at the time when the •judgment was rendered. If this judgment was rendered on July 10th, (and the evidence unquestionably shows that it was,) it is of course void, and the court below did not err in refusing to receive it in evidence. Eor the reasons, if any are thought to be necessary, showing that such a judgment is void, we would refer to the case of Sagendorph v. Shult, supra. The judgment of the court below is affirmed. All the'Justices concurring.