Gray v. Bowles

Norton, J. This was an action of ejectment to recover the possession of lots 9 and 10, in block 5, in Peery Place, an addition to the City of Kansas. The answer was -a general denial, and by agreement, the cause was tried by the court without the intervention of a jury. Judgment was rendered for plaintiff, from which the defendant has appealed. The evidence at the trial developed the following case : The appellant was in possession of the premises sued for at the commencement of the suit, and had been living upon and occupying the same for several years immediately prior thereto, his dwelling house being situated partly on each of said lots. The respondent claimed title through a deed from C. B. L. Boothe, as sheriff' of Jackson county, to the said respondent, made in pursuance of a sale of said lots under and by virtue of a special execution, issued from the circuit court of Jackson county, in favor of one John Mc-Kenna, and Robert Cray, the respondent, and against Bryson Bowles, the appellant. Said special execution was issued upon a transcript of a special judgment against said lots for $24.20 and costs rendered by one Abram Ellenberger, a justice of the peace, in a suit by said John McKenna and Robert Cray against said Bryson Bowles. The record of said' suit before the said justice of the peace (which was in evidence) showed that said suit was instituted to foreclose the liens of four special tax bills for grading Charlotte street, two of which described said lot 9 and the other two of which described said lot 10 ; that upon the trial day of [422] said, suit the appellant duly appeared and defended it; and that the said justice rendered a solid judgment for said $24.20, being the aggregate amount of said special tax bills, and made the whole of said judgment a lien on both of said lots. At the sheriff’s sale the respondent became the purchaser of said lots at $16.35 each. The charter of' the City of Kansas contains the following provisions respecting the issue and enforcement of special tax bills for grading streets: “After a contract has. been made for the grading of any street, * * the common council shall, by ordinance, cause an assessment to be made of the value of all the property to be charged with the cost thereof, exclusive of improvements thereon, by the city assessor, which assessment shall be delivered to the city engineer; and, when such grading shall be completed, the city engineer shall compute the cost thereof, and apportion such cost among the several lots or parcels of property to be charged therewith, according to the values thereof fixed by the city assessor, as aforesaid, and charge each lot or parcel of property with its proper share of such cost. * * The city engineer shall, after so apportioning and charging the cost of any work, make out and certify special tax bills, according to such apportionment nnd charge, in favor of the contractor to be paid, against the several lots or parcels of land charged. * * Each tax bill shall contain a description of the lot or parcel of land against which it is issued, full and correct enough to identify the same. “ Every such tax bill shall be a lien on the property therein described. * * In suit on any tax bill the judgment shall be special, and that .plaintiff recover the amount found due, including interest, to be levied of the land described in the bill, and a special execution shall issue to sell the land to pay such judgment, interest and costs, and the judgment shall bear interest at the same rate as the tax bill. When the amount due on any tax bill does not exceed $300, suit may be brought thereon before the recorder of the city, or any [423] justice of the peace in said city, as in other civil eases, and such recorder or justice of the peace may render a special judgment as aforesaid, but to enforce the same a transcript of such judgment shall be filed in the office of the clerk of the circuit court of Jackson county, in said city, and be recorded, docketed and indexed as a judgment of that court, whereupon an execution may be issued out of that court, the same as if the judgment had been rendered in that court.” Laws of Mo. 1875, pp. 251, 253, §§ 3, 4. The chief error assigned is the action of the court in refusing, on defendant’s motion, to declare that the judgment of the justice of the peace, read in evidence, under which plaintiff, through an execution sale, claimed title, was void for want of jurisdiction. The sole question for our determination, therefore, is whether said judgment is void. An affirmative answer reverses the judgment, and a negative answer affirms it; for it is well settled that a purchaser at sheriff’s sale made under an execution which issued on a void judgment will not be protected in his purchase, and that a title thus acquired may be assailed collaterally, and it is equally well settled that when the judgment is not void but simply erroneous or irregular, and, therefore, voidable, a title acquired by a purchaser in virtue of a sale under an execution issuing on such judgment cannot be assailed on that ground collaterally. When a court has jurisdiction of the subject matter of the action and the parties to it, a judgment rendered by it, although it may be an erroneous, irregular or wrong judgment, cannot be said to be void, but remains valid and binding until reversed or set aside on the ground of such error or irregularity. If, therefore, the justice of the peace who rendered the judgment under which plaintiff claims had such jurisdiction, the question involved in this case is determined by the above rule in his favor. What, then, is jurisdiction? “Jurisdiction is defined to he the power to hear and determine the particular case involved.” Rorer on Jud. Sales, § 59, p. 31. It is coram [424] judice whenever a case is presented which brings the power to hear and determine a cause into action; if the petitioner states such a case in his petition that on demurrer the court would render a judgment in his favor, it is an undoubted case of jurisdiction. “ Before this power can be affirrm d to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected ; that such complaint has been preferred, and that such person or thing has been properly brought before the court or tribunal to answer the charge therein contained. There can be no doubt that the filing of a petition or complaint, such as not to be deemed sufficient on demurrer, may confer jurisdiction. The power to decide upon the sufficiency of a cause of action as presented in the pleadings, like the power to decide any other legal proposition, though erroneously applied, is binding until corrected by some superior authority.” Freeman on Judg., § 118. When there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction, and an erroneous decision of any of these other questions could not impair the validity and binding force of the judgment when brought in collaterally. “ It is not the particular decision given which makes up jurisdiction, but it is the authority to decide the question at all. Otherwise all distinction between erroneous exercise of jurisdiction on the one hand and the total want of it on the other must be obliterated.” Chase v. Christianson, 41 Cal. 258. The same principle has been enunciated by this court in the cases of Ellis v. Jones, 51 Mo. 180; Jeffries v. Wright, 51 Mo. 215; Hardin v. Lee, 51 Mo. 241; Canon v. Sheldon, 51 Mo. 436. In the case of Freeman v. Thompson, 53 Mo. 183, the following is approvingly quoted from 15 Ohio 435, Paine v. Mooreland: “The court once by its process having acquired the power to adjudicate upon a person or thing, it has what is called jurisdiction. * ■ * The distinction is between a lack of power [425] or want of jurisdiction in the court and a wrongful or defective execution of the power. In the first instance all acts of a court not having jurisdiction or power are void, in the latter only voidable. A court may then act, first, without power or jurisdiction; second, having power or jurisdiction may exercise it wrongfully, or third, irregularly. In the first instance the act or judgment is void, and is as though it had not been done. The second is wrong and must be reversed upon error. The third is irregular and must be corrected on error.” Applying the above principles to the case in hand, and it is, we think, clear that the justice of the peace had jurisdiction of the parties to the suit, the defendant therein having been duly summoned and having appeared to the .action, and also of the subject matter of the suit, whi. h was to foreclose the lien of four special tax bills on the lots in question. Had such a suit been brought in the circuit court and a demurrer been filed to the petition, would not the court have been compelled to overrule it and hold the petition to authorize a judgment? We think it would. And if on such petition the court, instead of rendering a special judgment against each lot for the amount of taxes charged against it, had rendered a judgment in solido against both lots, while such a judgment would be an erroneous or wrong one, subject to be reversed or corrected on appeal or error, it would not be void. Kritzer v. Smith, 21 Mo. 297. We are, therefore, of the opinion that the court did not err in refusing to instruct the jury that the judgment under which plaintiff bought the lots was void, and that under the evidence he was not entitled io recover. •Judgment affirmed, all the judges concurring.