Clem v. Meserole
44 Fla. 234
Fla.
1902
Check Treatment

Lead Opinion

Per Curiam.

This cause was referred by the court to its commissioners for investigation, and a majority of them report that the judgment ought to be reversed.

The action was ejectment in the Circuit Court of Orange county brought by defendant in error against plaintiffs in error. The plea was not guilty. The abstract state® that plaintiff to рrove his title to> the land in controversy, offered in evidence a judgment recovered in the Circuit Court of Orange county, January 2nd, 1894, in a suit wherein the Sanford Loan and Trust Company was plaintiff, and the defendant David R. Clem and J. F. Fitzsimmons, formerly copartners trading as J. F. Fitzsimmons & Co., were defendants. The judgment was declared to be a lien on certain lands therein described being in part the lands in controversy and which were the individual property of defendant, Clem. The document so offered in evidence was as follows: “And now ¡on this 2nd day of January, A. D. 1894, comes the plaintiff in the above entitled cause, by A. M. Thrasher and Arthur F. Odlin, its attorney, and produces the original notes mentioned in the declaration filed by plaintiff in this action and it appearing to the court that this action was commenced by the attachment of certain real estate in Orange county, Florida, as the property of David R. Clem, one of the defendants in this action, and that notice of said attachment has been duly published a® required by láw and that a default was duly entered on the rule day in January, A. D. 1894, against the said defendant David R. Clem for want of appearance herein, it is therefore considered and adjudged that the plaintiff, the Sanford Loan & Trust Company, a corporation, do have *236and recover оf and from the said defendant David R. Clem the sum of two hundred and twenty-eight dollars as principal, two hundred and four dollars as interest, and forty-dollars as attorneys’ fees, and the costs of this action which are taxed at twenty-six dollars and twenty-five cents. But this judgment is a lien on no other property, and said real estate is described as follows, to-wit.” Here follows a description of real estate which it is not necessary to set out, and the document concludes as follows : “Done and ordered at chambers at DeLand, Florida, (Volusia county), this 2nd day of January, A. D. 1894.

JOHN D. BROOME,

Judge 7th Judicial Circuit of Florida.”

Defendants objected to the admission of said judgment in evidеnce on the grounds that said judgment must be shown to be a valid judgment, and that where it emanates from a court of limited or statutory jurisdiction it is not a valid judgment unless it affirmatively apears on its face that the court, had jurisdiction of the person or subject-matter of the suit in which such judgment was rendered. The objection was overruled and the document admitted, to which ruling defendants excepted. Plaintiff then offered in evidence the execution issued upon said judgment, under which the lands in controversy were sold. This document was objected to upon tbe grounds • that before such execution- could be admitted in evidence a valid judgment must be shown and that where execution isi based upon a judgment rendered by a court exercising statutory powers, there is no presumption of regularity of the proceedings, but it muist affirmatively appear by the record that the court had jurisdiction, but the court overruled the objections and admitted *237-the document in evidence, to which ruling defendants excepted. Plaintiff then offered in evidence the sheriff’» deed based on said judgment and execution, conveying the lands in controversy to him. Defendants objected to its being admitted on the ground that plaintiff’s deed was not admissible without previously ¡showing his power to make such deed, and that before a sheriff’s deed can be admitted for the purpose of proving title thereunder a valid judgment must be shown, ‍​‌​​​‌​‌​​​​‌‌​​‌‌​​‌‌​‌‌‌‌​​‌​‌​​​​‌​​‌​‌​‌​‌‌‌‍and that where judgment is rendered by a court exercising ¡statutory jurisdiction, there is no presumption of regularity of the proceedings, but it muist affirmatively appear frоm the record that the court had jurisdiction of the person or subject-matter, but the court overruled the objection and .admitted the document, to which ruling defendants excepted. The trial resulted in a verdict and judgment for plaintiff, from which judgment this writ of error was taken.

The court iisi of opinion that the objeсtions urged to the admission in evidence of the documents mentioned are ¡sufficiently broad to raise the question whether it was necessary to introduce the record of the suit which culminated in the judgment offeree} in evidence, along with such judgment, or whether the judgment entry alone (tliat being all that was offered or admitted) was properly admissible. Under the decisions in this State, it is clear that a jdgment entry alone, unaccompanied by any ¡other part of the record of such judgment or any sufficient-explanation of its absence, when offered in evidence for. a purpose other than to show the fact of its rendition, is inadmissible if seasonably objected to. Unless there is something in this case to take it out of the rule, the court below was in error in the ruling admitting *238the judgment entry alone. It is suggested that the Circuit Court is a court of general jurisdiction; that its judgments import verity, and in their support the law presumes that the court rendеring them had jurisdiction of the person and the subject-matter, and to render the judgment, and also that the judgment here offered in evidence contained recitals showing jurisdiction, and therefore the rule prevailing in this State, as held inv Watson v. Jones, 41 Fla. 241, 25 South. Rep. 678, and other Florida cases cited therein, should not apply tо the present case. The court is of opinion that the rule is a rule of evidence and that it isi not qualified by the fact that the judgment offered is from a court of general jurisdiction, nor by the fact that it may contain general recitals of jurisdiction. A party is entitled to have the whole record so far as it concerns the formal stages, produced, because such record is a material part of the judgment, and because he has a right to insist that the presumptions applicable to judgments of courts of general jurisdiction shall be applied only when it is ascertained from an inspection of the whole record that it does not affirmatively appear therefrom' that the court did not have jurisdiction to render the judgment. General1 recitals of jurisdiction are as to many matters merely conclusions drawn by the court from inspecting other parts of the record proper, and as to which, in сase of conflict between the matter*: of record proper and the recitals, the former will control. The record proper and the judgmlent constitute together one entire document, every part of which is relevant to the question whether the judgment is a valid one, and the party has а right to insist that every part of that relevant document be submitted, when the judgment is offered in evidence to prove a title under sheriff’s sale against him. *239Harges v. Morse, 7 Kan. 415; State v. Hawkins, 81 Ind. 486; Brown v. Eaton, 98 Ind. 591; 1 Whart. Ev. Sec. 824. A party may unquestionably waive the production of the entire record if he chooses by not objecting to the introduction of the'judgment entry (Simmons v. Spratt, 20 Fla. 495), but in this case the objections are broad enough to cover the point. The trial of this case was prior to the enactment of Chap. 4723, acts of 1899, and the question just considered can not, therefore, be affected by the provisions of that act.

It is also suggested that in Hartley v. Ferrill, 9 Fla. 374, as limited and explained in Davis v. Shuler, 14 Fla. 438, it was held that a plaintiff in ejectmlent who сlaims under a sheriff’s sale under an execution against the defendant in ejectment has ‍​‌​​​‌​‌​​​​‌‌​​‌‌​​‌‌​‌‌‌‌​​‌​‌​​​​‌​​‌​‌​‌​‌‌‌‍only to show his deed, and execution, and to prove possession by defendant since rendition of the judgment, in order to cast the. onus probadi on the opposite party, and that as Clem the defendant in the judgment was one of thе defendants in the ejectment suit, it was unnecessary for plaintiff to introduce his judgment in evidence, and therefore error in admitting it should not result in a reversal of the judgment. In McGehee v. Wilkins, 31 Fla. 83, 12 South. Rep. 228, it is held that before a sheriff’® deed is admissible in evidence for the purpose of proving title thereunder a valid judgment and exeсution must be shown. In that case the defendant in possession of the property was claiming title under a sheriff’® sale under execution against plaintiff. In the latter case, Hartley v. Ferrell is not referred to, but it can not be denied that it asserts, contrary to the rule laid down in the third head-note, in that case, that а valid judgment must be shown as the basis for a sheriff’s deed. The rule laid down in Hartley v. Ferrell *240was also' doubted iu Kendrick v. Latham, 25 Fla. 819, 6 South. Rep. 871, and L’Engle v. Reed, 27 Fla. 345, text 360, 9 South. Rep. 213. While Hartley v. Ferrell has never been formally overruled upon the point now being •considered, the principle announced there has not been followed and is entirely inconsistent with that laid down in McGiehee v. Wilkins. The rule stated in the latter case is in the judgment of the court the correct one (3 Freeman, on Executions', section 350), and to the extent that Hartley v. Ferrell conflicts with the rule there laid down, it is overruled.

For the error found the judgment is reversed knd a ■new trial granted.





Dissenting Opinion

Mabry, J.,

dissenting:

In Hartley v. Ferrell, 9 Fla. 374, it was broadly announced that a purchaser "at a sheriff’s sale has only to show hhsi deed, the execution under, which the land was sold, and prove title in the defendant in execution, or possession since the rendition of the judgment, and the onus prohandÁ is cast on the opposite party. The facts of the case' were that the sale was under proceedings had in a cоurt of general jurisdiction. In Davis v. Shuler, 14 Fla. 438, it was held that to establish a title under an execution sale there must be shown, ais against a stranger to the proceedings, a valid judgment and execution binding the estate of defendant ‍​‌​​​‌​‌​​​​‌‌​​‌‌​​‌‌​‌‌‌‌​​‌​‌​​​​‌​​‌​‌​‌​‌‌‌‍in the judgment, and that the defendant had some title or interest in the property sold. In this case it is said: “We do not understand that the court in the caise of Hartley v. Ferrell, 9 Fla. 374, decided that the title of the plaintiff in ejectment is shown- by proof *of the execution and the deed, without also showing the *241judgment, when the defendant in ejectment is a stranger to the judgment and was not in possession at the-time of the sale. Thе headnote to the case: referred to applies appropriately to the circumstances of the case there decided.” It was decided in Donald v. McKinnon, 17 Fla. 746, that a simple transcript of a judgment entry does not prove a judgment in a collateral proceeding. Enough should a.pear to show jurisdiction. This was said ih reference to a judgment of a court of limited jurisdiction: -It was said “the court ruled correctly that there must be proof of the judgment in order to derive title from a sale thereunder; but what we have in the record is a simple transcript from the docket, or book of entries' of the magistrate of the entry of jdgment. This is not sufficient. * * * It is essential that in all cases where a judgment is sought to be proved, that so much of the proceeding® as show jurisdiction should appear. As to the general subject, see 2 Phillips on Ev. (4 Am. ed. bv'Cowen & Hill), note 406.” The authority mentioned has special reference to courts of limited jurisdiction. This last case, dealing with a judgment of a court of limited jurisdiction, has become the basis of several subsequent decisions in this court, to some of which . reference will be briefly made. Prominent among them is the case of McGehee v. Wilkins, 31 Fla. 83, 12 South. Rep. 228, where it was again broadly announced that before a sheriff’s deed is admissible in evidence for the prpose of proving title thereunder, ?. valid judgment and execution must be shown. It was said in the opinion, “conceding for the purposes of this case, and without deciding that where a judgment is rendered bv a court of general jurisdiction, the presumptiоn' is in the absence of proof to the con*242trary, that the court had jurisdiction. Where a judgment is rendered by a court of limited powers and jurisdiction, there is no such presumption, but it must affirmatively appear from the record that the court had jurisdiction of the person and subject-matter.” Among the cases cited to support this view is Donald v. McKinnon, supra. The cases of Ashmead v. Wilson, 22 Fla. 255, and Watson v. Jones, 41 Fla. 241, 25 South. Rep. 678, announce correctly, I think, under their facts, then when it became necessary toi prove a valid judgment under which rights are acquired or lost, the record, so far as it concern® the formal stages, must be produced, or its absence properly accounted for. These two cases were decided in reference to judgments entered by circuit clerks as to which, certainly prior to the act of 1899, Chapter 4723, no: presumptions could be indulged beyond the entry itself. In no case decided ‍​‌​​​‌​‌​​​​‌‌​​‌‌​​‌‌​‌‌‌‌​​‌​‌​​​​‌​​‌​‌​‌​‌‌‌‍by thiiis court, iso far as I can find, has it been decided that in proving titlе in ejectment under a sale by virtue of execution emanating from a court of general jurisdiction it was necessary for the party claiming thereunder to' introduce the record of the proceedings back of the judgment. All of the cases holding this view have been decided on facts ¡showing that the judgments were entered by courts of limited jurisdiction or circuit clerks. In Kendrick v. Latham, 25 Fla. 819, 6 South. Rep. 871, the court was dealing with the question of privity as shown by a sheriff’s deed, and it was said: “A sheriff’s deed is not of itself evidence of that officer’s authority to levy and sell. In England it has been held that proof of the writ of execution is Sufficient. Doe v. Murlеss, 6 M. & S. 113; Doe v. Thorn, 1 M. & S. 425; and so in Georgia in Whatley v. Newson, 10 Ga. 74, and I am not satisfied that his was not the view of this court *243in Hartley v. Ferrell, 9 Fla. 374; yet .subsequent authorities hold that a valid judgment must also be shown (Davis v. Shuler, 14 Fla. 438, text 447; Donald v. McKinnon, 17 Fla. 847, text 748) and this is said to be the rule in several states.” In the later case of L’Engle v. Reed, 27 Fla. 345, 9 South. Rep. 213, where another principle in ejectment law wais applied, it wais said that in doing so it was not intended to approve the holding there made that a sheriff’s deed can be introduced in evidence without showing the judgment and execution upon which it is based. The intimation in the two last mentioned 'Cases would seem to1 indicate that the rule as to proving title under a sheriffs sale, announced in Hartley v. Ferrell, was questionеd, still there, was nothing in the language of those decisions or the facts upon which they were based to afford any ground for holding that Hartley v. Ferrell, in the particular mentioned, was overruled. If the broad statements in McGehee v. Wilkins, a.nd other decisions following Donald v. McKinnon, must be applied to judgments of courts of general jurisdiction, then it must be conceded that they have the effect to overrule, though they do not do so in terms, the decision in Hartley v. Ferrell. As there is no decision directly overruling this case, it seems to me that it can be reconciled with the others on the theory that it has reference to judgmiеnts of courts of general jurisdiction, and the others to judgments of courts of limited powers. There has been no question in our previous decision as to the correctness of the rule on common law grounds stated in Hartley v. Ferrell cases at common law being cited in its support in Kendrick v. Latham—and if it has nоt been overruled it ¡seems to me that it should be followed. I do not believe it has been overruled, and after due reflection I am con*244vinoed that the rule in reference tc judgments of courts of limited jurisdiction should not be extended to those posessing general powers such as our Circuit Courts.

In the prеsent case the judgment recites the jurisdictional facts and ‍​‌​​​‌​‌​​​​‌‌​​‌‌​​‌‌​‌‌‌‌​​‌​‌​​​​‌​​‌​‌​‌​‌‌‌‍in view of the court rendering it there should be attached to it a primo facie- showing of validity. There was no' error, in my judgment, in the ruling of the court, admitting the judgment is evidence, and if it was properly admitted, it follow® that there wras no error in admitting the execution and sheriff’s deed. Under the ruling in Hartley v. Ferrell, it was sufficient to introduce the execution and deed.