Bethune v. Newberry

60 So. 478 | Ala. Ct. App. | 1912

WALKER, P. J.

The objection to the introduction in evidence of the order of the court of county commissioners for the establishment of a district in which stock were not to be permitted to run at large was based, not upon the ground that there was a failure of that order to show by its recitals the existence of the facts upon which the jurisdiction of the court in that matter was made dependent by the statute under which the proceeding was instituted (Acts of Ala. 1880-81, p. 163; Stanfill v. Court of County Revenue, 80 Ala. 287), but upon grounds involving the proposition that the existence of such jurisdictional facts must be shown otherwise than by the recitals contained in the court’s order. In the argument of counsel in support of this contention, much reliance is placed upon the following statement found in the opinion of the court in the case of McLendon v. American Freehold Land Mortgage Co., 119 Ala. 518, 24 South. 721: “The mere recitation of a jurisdictional fact in the judgment by a court of limited jurisdiction, as distinguished from courts of general jurisdiction, is not sufficient to show that the court iu fact had jurisdiction.” That was an action upon the official bond of a justice of the peace. The breach of the bond complained of was that the justice of the peace certified, in the form required in the case of a conveyance of a homestead, that the wife of a grantor in a mortgage to the plaintiff appeared before him and acknowledged her signature, though the fact was that she never appeared before the justice of the peace, and neither signed the mortgage nor made any acknowledgment. The expression above quoted was used by the court in overruling the contention that the certificate of the justice of the peace, being an act done in his judicial capacity, imported absolute verity, and that the facts certified to could not be assailed by parol. The ruling made Avas that the recital Avas not conclusive, and that its falsity could be shown by parol.

There is nothing in the report of the case to indicate that any question Avas raised as to the certificate being prima facie evidence of the existence of the facts stated in it. An expression used by the court in disposing of the question presented to. it cannot be given the effect of making the decision one upon another question Avhich was not raised or involved in the case. We are not of opinion that the ruling referred to is an authority supporting the proposition contended for by the counsel for the appellant. The rule Avhich generally, if not universally, prevails, that the recitals of jurisdictional facts in the judgments of domestic courts may be looked to as prima facie evidence of the existence of such facts (23 Cyc. 1084), has been recognized and applied in this state as well in cases involving judgments of courts of inferior and limited jurisdiction as in cases involving judgments of courts of general jurisdiction. — Commissioners’ Court of Lowndes County v. Bowie, 34 Ala, 461; Wyatt’s Adm’r v. Rambo, 29 Ala. 510, 68 Am. Dec. 89; Owings v. Binford, 80 Ala. 421. In the first mentioned of these cases it was plainly held that the recital of jurisdictional facts in a judgment of a court of limited statutory jurisdiction was sufficient to show the existence of such facts. In the last-cited case it was ruled that the recital in a judgment of a court of general jurisdiction could he looked to as evidence of one’s being a party to the cause — of jurisdiction of the person having attached — though the record did not show the service of process upon him; other parts of the record not negativing -the truth of such recitals. The statute under which the proceedings offered in evidence in this case were had is the same statute which was considered by the court in the case of Stanfill v. Court of County Revenue, supra. In the light of what was said in the opinion in that case, it is apparent that the order offered in evidence in the present case showed by its recitals the existence of the facts upon which the jurisdiction •of the tribunal which made that order was by the statute made dependent, and we are not of opinion that other or further evidence of the existence of such facts was required'.

The conclusion follows that the trial court was not in error in overruling the objections to the admission in evidence of that order.

Affirmed.