Hardin v. Lee

Sherwood, Judge, delivered the opinion of the court. Action of ejectment brought by James F. Hardin in the Greene Circuit Court against James Lee. Petition in usual form. Answer, a general denial. Both parties claim title through one W. W. Blackman. At the trial, plaintiff testified as to a deed made to him in February, 1868, by Black-man, which deed was lost and appears to have been defectively acknowledged, by reason of the seal of the notary who took the acknowledgment, not having been affixed thereto. The plaintiff then introduced the record of said deed which also showed a defective authentication of the acknowledgment. The court excluded the record of said deed, but permitted plaintiff to establish its contents against objections of defendant. Defendant then offered and read in evidence a sheriff’s deed to Ingram for the property in controversy, made long prior to the one made by Blackman to plaintiff, and reciting the issuance and levy of a writ of attachment on the property in controversy, in a suit of Watts against said Blackman and others, judgment, and sale upon execution of said property to Ingram. Defendant also read in evidence a deed from Ingram to him for said property and rested. Plaintiff then, against the objections of defendant, read in evidence the record, proceedings and files in said cause of Watts against Blackman and others, from which it appeared that said suit was founded on wrongs for personal injuries, and for taking personal property. The proceedings were by attachment and appear to be sufficiently regular, with the exception above stated. The petition contained two counts, the first claimed damages for injuries to the person, to the amount of $5,000, and the second for $125 for taking personal property. The judgment was for $1,500 in gross, and ordered a special execution to issue. The court then without any further evidence, [244] excluded the sheriff’s deed to Ingrain, and the deed of the latter to defendant, and he excepted. The court then gave a declaration of law sustaining its own action in permitting plaintiff to prove the contents of the deed to him from Black-man, after the rejection of the record of said deed, and another declaration to the effect that all the proceedings in the suit of Watts vs. Blackman and others, were absolutely void, and that Ingram derived no title thereunder, to which defendant excepted. ■ Counter declarations were refused defendant, and he again excepted, and judgment being given for plaintiff, after an unsuccessful motion for a new trial, defendant brings this case here by appeal. It was a strange ruling indeed, which permitted the plaintiff to prove the contents of his lost deed after the rejection of the record of that deed for lack of proper authentication of the certificate of acknowledgment, and without otherwise proving its execution. (Patterson vs. Fagan, 38 Mo., 84; W S., p. 277-8, §§ 29, 30.) But the main question in this case1 is, whether the proceedings in the case of Watts against Blackman and others were valid. It is a rule universal in its acceptation, that when a court once acquires jurisdiction of a subject matter, any subsequent error or irregularity will not divest it. In attachment causes, the jurisdiction over any given subject matter is obtained by the levy thereon of a writ properly issued — and no matter what, nor how great errors or irregularities may subsequently occur, the res remains still in the grasp of the court, and its judgment in regard thereto will be valid and binding until reversed- on error or by appeal, or set aside in a direct and appropriate proceeding for that purpose. Yaca ting a judgment can not be d5ne collaterally, and never by a stranger under any circumstances. And yet this is the very attitude that this plaintiff occupies toward the Watts judgment and proceedings against Blackman. That this judgment could have been amended no one can for a moment doubt; our statutes respecting amendments are almost illimitable in their scope. [245] Proceedings which are amendable are not void. The very fact that the court can make the amendment • shows ex vi termini, that the proceedings are merely erroneous, or irregular, and that the court has jurisdiction. (Hunt vs. Loucks, 38 Cal., 372; Parmelee vs. Hitchcock, 12 Wend., 96; Cooper vs. Reynolds, 10 Wall., 308.) In Durham vs. Heaton, 28 Ill., 264, it is said: “A void writ has no vitality and nothing exists by, which it can be. amended — the breath of life cannot be infused into it, and it is a nullity. Not so with a writ voidable only, * * and all acts done under it, are valid and binding until,set aside.” In Hunt vs. Loucks, supra, the court says: “ Like an erro. neous judgment, an erroneous execution is valid until set aside upon a direct proceeding brought for that purpose, and until set aside, all acts which have been done under it are also valid. In a collateral action it cannot be brought in question, even by a party to it, much less, as in this case, by a stranger to it. Even directly it can not be attacked by a stranger, for it does not lie in the mouth of A. to say, by it B. has been made to pay too much money, and therefore all proceedings under it are null and void.” Tested by the rules above laid down, which are sustained, as I am fully satisfied, by the authorities cited, the judgment of. Watts against Blackman and others was although grossly erroneous, yet not void — and the plaintiff in the present ae tion is not in a condition to assail that judgment, either directly or indirectly, even if his deed from Blackman were unexceptionable in every particular. With the concurrence of the other judges, the judgment will be reversed and the cause remanded.