Nimocks v. McGehee

Anderson, J., after stating the facts as above, delivered the •opinion of the court. Where a judgment on which execution is issued is void, the-defendant in execution may maintain replevin, for tire goods-seized thereunder. The judgment being void, the levy of the-execution thereunder is void, and the defendant may treat the-whole as a nullity, and pursue replevin for his property seized [325] under such judgment and execution. Breckenridge v. Johnson, 57 Miss. 371; 34 Cyc. 1369. 'Section 165 of the Constitution of 1890 provides: “No judge of any court shall preside on the trial of any cause where the parties or either of them shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.” Is the judgment void? The justice of the peace who rendered it was disqualified under this constitutional provision.- As stockholder in, and director and president of, the corporation, Smith was for all practical purposes a party to the suit. Besides his pecuniary interest as stockholder, he was the managing head of the corporation. If objection had been made on this ground, at the proper time, during the pendency of the suit, he should not have tried the case. This proceeding, however, is a collateral attack of that judgment, by which it is sought to treat it as a nullity. Appellant, not having made objection to the justice of the peace, on account of his disqualification during the pendency of the suit on which the judgment was rendered, is deemed to have waived such disqualification, even though unknown to him at the time. At his peril he was required to exercise the necessary diligence to ascertain such disqualification, and, not having done so, he is precluded from attacking the judgment collaterally on that ground. Under the Constitution the disqualification may be waived, and such waiver may be express or implied, and under the facts of this case it is implied. If judgments were open to collateral attack on this ground, the evil results would be at once apparent. The authorities on this subject are in conflict, they will be found collated in 23 Cyc. pp. 596, 597, 598, and 599. Affirmed.