Ellis v. White

25 Ala. 540 | Ala. | 1854

CHILTON, C. J.

The declaration is upon a judgment rendered by a justice of the peace, in Polk county, in the State of Tennessee, an execution on which was levied on land, and returned to the Circuit Court, where an order for the sale of the land was made ; and a balance remaining due after such sale, this suit is to recover that balance. A demurrer to it was sustained, and we think very properly. The proceedings had in the Circuit Court, did not make it a judgment of that court; but a venditioni exponas, or order of sale, was merely granted as a means of satisfying the justice’s judgment.

Considered as an action upon the judgment rendered by a justice of the peace in. a sister State, the declaration is fatally defective. We must presume, in the -absence of averments to the contrary, that the common law obtains in our sister States of the Union. By that law, a justice of the peace had no civil jurisdiction.- — Marshall v. Betner, 17 Ala. 836 ; Crabb’s His. Eng. Law 278. Whenever, therefore, they exercise civil jurisdiction, it must be by virtue of local statutes, or without authority of law.

In Sheldon v. Hopkins, 7 Wend. 435, plaintiff declared in debt on justice’s judgment rendered in Termont, and averred “ that it was recovered in the county of Bennington, in that State, before J. P. Esquire, one of the justices of the peace in and for said county, then and still being such justice, and having full power and competent jurisdiction in said cause, by the confession of the defendant; and that by the consideration and judgment of the said justice, the plaintiff recovered judgment against the defendant, for the sum of $171 debt,” &c. On demurrer, the court (Nelson, J.,) said : “ The declaration is, no doubt, defective, in not setting forth facts sufficient to give jurisdiction to the justice. The statute giving jurisdiction to the justice ought to have been pleaded. It is well settled, that the general averment of jurisdiction is not enough. — 3 Wend. 267 ; 6 ib. 438 and judgment was given for defendant, with leave to amend. ^

The declaration in the case before us is more defective than in that; for it is not even averred here that the justice had jurisdiction. It is said the judgment will appear by the record, but, as was said in McGee & Richardson v. Sheffield, 3 S. & P. 353, “We are not authorized to presume that such courts are made courts of record by the laws of Tennessee.”

The judgment sustaining the demurrer was right, and it is consequently affirmed.