38 N.H. 171 | N.H. | 1859
The authorities cited for the defendant fully sustain the position, that the general owner of personal property cannot maintain trespass against one who has wrongfully taken the property from the possession of a pledgee, because he is not entitled to the possession. This objection is fatal to the action in its present form.
It is not suggested that the Court of Common Pleas had not jurisdiction of the subject matter of the action in the case here in question, and no doubt can be made upon that point. If their jurisdiction was deficient in this respect, the judgment would be void, and it might be treated as such in any other proceeding. Kittredge v. Emerson, 15 N. H. 227; State v. Richmond, 26 N. H. (6 Fost.) 232.
Want of jurisdiction of the person of a defendant, renders a judgment invalid. The defect insisted upon in this case is, want of actual notice of the suit to the defendant. But this defect renders a judgment voidable, not a mere nullity. Morse v. Presby, 6 N. H. 363; Nichols v. Smith, 26 N. H. (6 Fost.) 300.
In the argument of the plaintiff, it is insisted that, without notice to the defendant, a judgment is simply void, and several eases in our Reports are cited to sustain the position, but they do not support so broad a statement.
In Horn v. Thompson, 31 N. H. (11 Fost.) 563, it was held that a judgment charging the maker of a promissory note as trustee of the payee, was invalid as against an indorsee, who was not a party to the suit nor notified of the proceeding, on the ground that he was a stranger, and that the provisions of the statute as to notice had not been complied with.
In Eaton v. Badger, 33 N. H. 228, it was shown that no service was made on the pi’incipal defendant in a trustee suit. He did not appear, had no actual notice, his property was not attached, and the trustee had nothing in his hands. The judgment was held merely void. It clearly was so at common law, and no statute upheld it.
In Carleton v. Washington Insurance Co., 35 N. H. 162, it was held that if the supposed trustee has nothing in his hands, no property is attached, no notice is given, and there is no appearance, the judgment is a nullity. But in this case it is held, that if the trustee has funds in his hands, so that property of the defendant is held by the process, the judgment is not to be treated as a nullity, though it may be liable to be reversed on error.
These eases all imply, that though no personal notice has in fact been given to the defendant, yet- if such notice has been given as our statutes prescribe, a judgment will
In the present ease there was property in the hands of the trustee upon which the judgment could operate, and the process was duly served by Reaving a copy at the defendant’s usual place of abode, according to the statute. The judgment consequently was not a nullity, nor liable to be avoided, except by proper legal proceedings.
The judgment having been reversed upon a writ of error, it is contended for the plaintiff that it is to be regarded as void from the first, for the sake of the remedy. But the rule is the reverse of this. An erroneous proceeding is valid till reversed on error, and notwithstanding such reversal, it is regarded as having been valid. It still remains a record, though reversed. It may be pleaded as such, and constitutes a justification for all things done under its authority until the reversal. Blanchard v. Goss, 2 N. H. 493; Gorrill v. Whittier, 3 N. H. 265; Smith v. Knowlton, 11 N. H. 191; Morse v. Presby, 25 N. H. (5 Fost.) 303. Considering the defect of the proceedings as an error only, the judgment is a complete justification, and the plaintiff’s action cannot be sustained.
Without doubt a judgment may be reversed on error, because of the want of jurisdiction of the court which assumed to render it, and it is not supposed that in such a case the reversal would give any legal effect to a judgment previously void. It still might be treated as a nullity. But even in that case a different -principle might interpose an
Upon a reversal of a judgment the plaintiff in error is by law to be restored to all things which he has lost by the judgment in the court below; Eames v. Stevens, 26 N. H. (6 Fost.) 124; Pangborn v. Ramsay, 11 Johns. 143; Trow v. Messer, 32 N. H. 363; Little v. Bunce, 7 N. H. 49; 2 Saund. 101, (y); Com. Big. 3 B. 20; 2 Tidd Prac. 1137; and with this principle agree all the forms — “that the said N. be restored to all things which he has lost by reason of the judgment aforesaid.” Lilly’s Entries 640, 650; Manning’s Case, 8 Co. 191, ; Anon, 2 Salk. 588. The plaintiff, therefore, by legal intendment, has already recovered all things that he has lost by the judgment, and he has in law no further claim.
The plaintiff has already recovered the amount for which his property was sold; he claims now the difference between that sum and the actual value of the property, which he alleges was much larger ; but many decisions show that the amount to be recovered in cases where the execution has been levied upon chattels real or personal, is the amount raised by the sale. If a man recovers damages, and has execution by fieri facias, and upon the fieri facias the sheriff sells to a stranger a term for years or any personal chattel, and afterward the judgment is reversed, the party shall be restored only to the money for which the term was sold or the goods, and not the term itself or the chat
The reason for which the law regards the amount for which personal property is sold on a fieri facias, as all that the party has lost by reason of the judgment, is stated in Yelv. 179. “But if the sale had been to a stranger, by the sheriff, of this term, for ¿6100, although the value was ¿61,00.0, yet, upon the reversal, he should not have the term again, but the money: viz., ¿6100, according to the opinion 20 Eliz., Dyer 362 for it is the party’s folly that he does not pay the judgment.”
That the party who has had restitution in error, cannot afterward maintain any suit for the property taken on the execution, is shown by the case of Doe v. Thorn, 1 M. & S. 427, where it was decided that if the sheriff sell a term under a writ of fieri facias, which is afterward set aside for irregularity, and the produce of the sale directed to be returned to the termor, the termor cannot maintain ejectment, to recover his term against the sheriff’s vendee.
These views seem to us entirely decisive against the present action, and there must be
Judgment for the defendant.