76 Tenn. 754 | Tenn. | 1882
Lead Opinion
delivered the opinion of the court.
Certiorari to supersede and quash a justice’s execution, upon the ground that the judgment was void because rendered by a justice related to one of the parties, the judgment creditor, within the prohibited ■degrees. The circuit judge dismissed the petition on motion, and the plaintiff appealed.
The judgment was rendered, October 12, 1877, by default, the defendant failing, as he states in his petition, to appear and defend. The petition was filed January 5, 1882. It does not state that the petitioner had any defense to the cause of action, or that
The State Constitutions of 1834 and 1870 both provide that no judge shall preside on the trial of any cause when related to either of the parties, by consanguinity or affinity, within such degree as may be prescribed by law, “except by consent of all the parties.” Previously to the Code, the act of 1835, ch. ■68, fixed the prohibition within the sixth degree, computing by the civil law, without prescribing the mode in which the incompetency might be waived. By the Code, sec. 4098, it was provided that no judge or justice should sit in any cause where he was related to either party, by consanguinity or affinity, within the sixth degree, computing by the civil law, “except by consent of the parties entered of record, or put in writing if the court is not a court of record.” By -the same section a judge or justice is prohibited to sit in any cause in which he was of counsel or interested, except by consent of parties given in like manner.
Under the act of 1835, in a case originating before a justice of the peace and carried to the circuit court by appeal, the defendant filed a plea in abatement in the circuit court, alleging that the justice who issued the writ, and sat with the other justices on the trial, (the action being unlawful detainer to recover the possession of a house), was related to the defend-ant’s wife within the prohibited degree. The court
. The ruling in that case was followed, under the provisions of the Code, in Crozier v. Goodwin, 1 Lea, 125, where there was a contest over the person entitled to administer an estate, and an appeal taken from the judgment to the circuit court for a trial de novo. The objection was made for the first time in the circuit court that the chairman of the county court, who presided in the court below, was related to. one of the litigant parties within the prohibited degree. A party, it was said, could not be allowed to-acquiesce in' the action of the lower court without making the objection, and then on appeal show the relationship as a ground of reversal. It has also been held that, although the statute requires the waiver to be of record or in writing, the waiver need not be by express words, but may be by necessary implication, as. by a confession of judgment in writing, signed by .the party, before, the incompetent justice: Hilton v.
Thus far, the decisions are in substantial accord. They treat the constitutional and statutory provision as matter in abatement of the suit, which should be made before a trial on the merits. For otherwise the parties would be allowed to experiment with the court by tacit acquiescence, and raise the objection when the result of the trial proved to be unfavorable. The only expression of opinion in conflict with this view is found in the assertion in the last of the cases cited, that the judgment rendered by an incompetent judge would be void, but this, in view of the facts of the case, was a mere dictum in regard to such judgments generally.
Influenced, however, by this dictum, several decisions have been made in conflict with the theory of the cases cited. In Smith v. Pearce, 6 Baxt., 72, a bill was filed to have the judgment of a justice declared void upon the ground that the justice was related to one of the parties. It was admitted that the justice was related to the judgment debtor, the
If it be that a judgment is absolutely void which has been rendered by an incompetent judge, and that any party may have it so declared at any time after-wards upon proof of the fact,, it would present an anomaly in the law bearing upon judgments and decrees, and lead to some curious results. The statute, it will be remembered, prohibits a judge or justice from sitting when he is related to either of the parties, and if the judgment be void it' will be void although rendered against the party to whom the judge is related, and so it was held in Smith v. Pearce, 6 Baxt., 72. That case is the more remarkable as the complainant had waived the incompetency of the judge, although not in writing, and was y. t allowed to an-. nal the judgment upon his own application to a court of equity, without assigning any 'other ground for relief. It is scarcely possible that the constitutional convention or the Legislature could have contemplated such a result. The constitution and the statute were unquestionably intended to secure' to parties litigant the right of trial by an impartial judge, but they do not provide that every judgment rendered by an incompetent judge shall he void. The constitution and the statutes provide that every judge shall be of a certain age, but the acts of a judge under the prescribed age would be valid, not void: Blackburn v. State, 3 Head, 690. And so of the acts of a judge whose title might be successfully contested: Turney v. Dibrell,
A void judgment is in legal effect no judgment. It neither binds nor bars any one. All acts performed under it, and all claims derived from it are void. Parties attemping to enforce it are trespassers. No action upon the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, can invest it with any of the elements of vitality: Sherrell v. Goodrum, 3 Hum., 430; Freeman on Judgments, sec. 117. “No action is required to revoke it; it is null in itself”: Andrews v. State, 2 Sneed, 550. The nullity ought, therefore, to appear on its face. If it be necessary to resort to evidence aliunde to impeach it, the judgment may more properly be said to be voidable, not void. And, consequently, the weight of adjudged cases, it is said, is that the judgment of a domestic court of general jurisdiction is not void, except when the court has no jurisdiction over the subject matter of the suit, or when, having such jurisdiction, it is shown by the record to have had no jurisdiction over the judgment defendant: Freeman on Judgments, sec. 116.
At common law, it was well settled that, although no judge ought to act where, from interest or from any other cause, he is supposed to be pártial to one of the suitors, yet his action in such case was regarded
The judgment not being void in this case, it can only be impeached by a direct proceeding for the purpose. It cannot be done upon a certiorari to quash the execution : Witt v. Hussey, 10 Hum., 208.
Affirm the judgment.
Rehearing
PETITION TO REIIEAU.
The only point argued when this case was heard, and considered by the court, was whether the justice’s judgment, asked to be superseded and quashed, was void or voidable because rendered by a justice who was related to one of the parties within the. prohibited degrees. Upon that point no new argument is made, and no new authority adduced. It was scarcely worth while to go to the trouble of making the application, under these circumstances, upon that point.
The petition does state the issuance of the two writs, that the officer was proceeding under the ven-ditioni exponas by advertising the property for sale, and had in his hands the alias execution also, and would “levy it on any property of your petitioner he can find unless restrained.” The prayer of the petition is that the order of sale, alias execution, and any other process in the officer’s hands be quashed! The petition is not directed to the alias execution, but to all process upon the ground that the judgment was void because of the relationship of the justice. Moreover, it does not appear that the personal property levied on was sufficient to satisfy the judgment, and it does appear that the officer had as yet done nothing with the alias execution. And, although the writs of certiorari and supersedeas may issue before a levy in a proper case under the act of 1877, ch. 132, yet it cannot be said to be a proper case where there is no averment that the property levied upon is sufficient
Petition refused.