44 Fla. 234 | Fla. | 1902
Lead Opinion
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 prove 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
JOHN D. BROOME,
Judge 7th Judicial Circuit of Florida.”
Defendants objected to the admission of said judgment in evidence 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
The court iisi of opinion that the objections 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
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 claims 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 the 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 execution 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 a valid judgment must be shown as the basis for a sheriff’s deed. The rule laid down in Hartley v. Ferrell
For the error found the judgment is reversed knd a ■new trial granted.
Dissenting Opinion
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 court 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
In the present 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.