Childs & Childs v. Shannon's Administrator

Scott, Judge,, delivered the opinion of the court. 1. This was a proceeding, begun in the Probate Court of St. Louis county, by the defendants in error, against the plaintiff in error, as administrator of A. Shannon, deceased, for the purpose of obtaining satisfaction of a judgment rendered in the Circuit Court of St. Louis county, against the plaintiff in error. The demand being recognized by the Probate Court, on the appeal to the Circuit Court, the judgment of the Probate Court was sustained, on which this writ of error was sued out. The defendants in error commenced suit in the Circuit Court of St. Louis county, against the steamboat Alphonso de Lamar-tine, which being seized, she was bonded by the intestate, A. Shannon, being one of the owners, as principal, and two others, as sureties. A judgment was rendered against the boat. Previous, however, to the rendition of the said judgment, the intestate, who had appeared and made defence for the boat, [335] died, and bis death was suggested on the record. Afterwards, on motion, a judgment was rendered against the plaintiff in error, as the administrator of A. Shannon, deceased, and his two sureties. The administrator was not made a party to the proceeding, nor does it appear from the face of the record that he had any notice of the suit. This judgment is the foundation of the proceedings in the Probate Court, and the question is, whether it is a nullity, or whether it is voidable merely. If the judgment is void, it is clear that it may be regarded as a nullity, in a collateral proceeding, and the objection may be taken whenever it is produced in evidence for any purpose. Rut if it is voidable only, it will stand good until it is reversed or set aside by a direct proceeding for that object, instituted on the judgment itself, in the court in which it was rendered. In the case of Merrick & Webster v. Greeley & Gale, 10 Mo. Rep. 106, it was decided by this court, that the sureties in ajmnd, given to release a boat seized under a complaint, were required by law to take notice of the proceedings against her, and that it was not necessary to give them notice of any step taken in the cause. Now an owner of a boat, who appears and makes defence for her, is no party to the suit. His office is like that of an attorney of a court of record. Had Shannon been alive, it would not have been necessary to have served him with notice of the motion for judgment on the bond. It will not be contended, that the death of Shannon discharged the bond. Now, if the merits of the judgment against the boat cannot be re-opened, in a proceeding on the bond, is it not .a matter of perfect indifference whether the judgment is entered on a motion or in a suit on the bond? Is there not as much warrant in the boat law for the one course, as for the other? Had this question been propounded to the general assembly, is there any doubt but that they would have declared, that the judgment should be rendered against the administrator, on motion? Can we suppose, that the legislature would take from the hands of a creditor the boat which he had seized in [336] satisfaction of bis demand, and substitute a bond therefor* and require him, after be bad obtained judgment for bis claim-, to coüimence suit on tbe bond, in order to obtain satisfaction ? Here is a proceeding in tbe highest court of original jurisdiction known to our constitution and laws ; it is pending for years ; a judgment is pronounced, and now we are called upon to pronounce that proceeding an utter nullity, and regard it as though it bad never taken place. Interest reipublicss ut sit finis litium. Tbe court unquestionably bad jurisdiction of tbe subject matter of tbe suit. Whether notice should have been given, was-a question of law ; tbe court may have committed an error or irregularity in not requiring it, but it does not therefore follow that its proceedings are a nullity. It would be a strange state of things, if tbe judgments of tbe Courts of tbe highest jurisdiction should be regarded as nullities for any error or irregularity in their proceedings. Tbe party to whose prejudice an error has been committed, is not without redress. He may have tbe proceedings set aside, on motion, or he may sue Out bis writ of error. If these remedies are neglected, be cannot expect that tbe courts will treat as nullities, tbe judgments of tbe tribunals of tbe highest original jurisdiction known to tbe law. Tbe case of tbe Perpetual Insurance Company v. Rogers, 11 Mo. Rep. 295, grew out of an irregular judgment of tbe Circuit Court of St. Louis, in a proceeding under tbe statute concerning boats. In that case, a judgment of condemnation, it appeared, bad been pronounced against a boat without authority of law, and she was sold, notwithstanding she bad been regularly bonded; yet, in an action of trespass against tbe party, this court held, that tbe procedure was not a nullity ; that tbe judgment was tbe act of a court of general authority, having jurisdiction of tbe subject matter, and, as such, was a sufficient warrant for tbe execution under which tbe boat was sold. Tbe judgment being rendered against tbe administrator [337] within twelve months from the date of the letters, was properly placed in the fifth class. The alleged errors in the proceedings in the case against the boat, cannot be reviewed on this writ of error. The other Judges concurring, the judgment will be affirmed.