Johnson v. Johnson's Adm'r, 40 Ala. 247

Johnson v. Johnson's Adm'r

40 Ala. 247 | Ala. | 1866

BYRD, J.

Upon legal principle and decisions of this court, a court which has made a final order or decree, which, on the face of the proceedings, is absolutely void, should vacate it whenever its attention is called thereto by an appropriate application for that purpose. — Stickney v. *252Davis, 17 Pick. 160; Mobley v. Mobley, 9 Geo. 247; Acre v. Ross, 3 Stew. 288; Ex parte Sanford, 5 Ala. 562; Hood et al. v. Br. Bank Mobile, 9 Ala. 336; Moore v. Easley, 18 Ala. 620; Thomas v. Dumas, 30 Ala. 84.

1. We are satisfied that, in this case, the order of sale, on the face of. the proceedings, and the sale thereunder, were void. — Pamphlet Acts, 1853-4, p. 55; 9 Ala. 529; 21 Ala. 776; 29 Ala. 510; 30 Ala. 88; 19 Ala. 810.

2. It is eminently appropriate for every-court to exercise the power of vacating its judgment or decrees, which are absolutely void on the face of the proceedings; and this, at any time after the rendition. In this case, at least, it is certainly appropriate to do so. The order and sale being wholly void, the court could have proceeded, upon application made as required by law, to order a sale of the land; but, without vacating the previous order and sale, such a cloud would be cast over the title by the first sale, as would tend greatly to diminish the price at the second sale.

If a circuit court has the power, at common law, to vacate at a subsequent term a judgment rendered in favor of a plaintiff, or against a defendant, .who was dead at its rendition, or any other void judgment, we can conceive no sound reason why the probate court, though one of limited jurisdiction, could not vacate a decree rendered in favor of, or against, a party dead at the time of its rendition, or any other void decree or final order. ' This power is one which pertains to all courts, as well to a justice of the peace, as to the supreme court of the United States. — Ex parte Crenshaw, 15 Peters’ U. S. Rep. 119; Huntington v. Finch, 3 Ohio, (N. S.) 445; Dicks v. Hatch, 10 Iowa, 380; and other authorities cited supra; Pratt et al. v. Keils et al., 28 Ala. 396.

Such a rule is not applicable to decrees and judgments which are voidable; and whenever it is asserted that a court of law has no authority to vacate a judgment, after the expiration of the term at which it was rendered, (as in the case of Kidd v. McMillan, 21 Ala. 325,) it evidently refers to judgments which are voidable only, and not such as are wholly void. The true rule seems to be, that any court should, on a proper application, vacate any final *253order, decree, or judgment, at any time subsequent to its rendition, if the same is void on the face of the proceedings and record; but not where it appears to be void from facts dehors the record, except in the case of the death of either party to the suit or proceeding, at the time the judgment or decree is rendered, and in such other cases as may be authorized by long practice, or by statute.

The order of the court below, overruling appellant’s motion, and refusing to grant his petition, is reversed, and the cause remanded for further proceedings in conformity to this opinion.