Koechlept v. Hook's Lessee
10 Md. 173
Md.
1856
Check Treatment
Mason J.,

delivered the opinion of this court.

It seems that a judgment had been rendered against one *178only, without specifying which, of two defendants, in a suit before a justice of the peace; that an execution was subsequently issued against both, and the real estate of one only, namely, the present appellee, was seized and sold. The constable returned the proceedings to the county court, under the act of 1831, ch. 290, and notice was duly served upon the appellee, to show cause why the sale should not be ratified. This he did not do, but suffered the sale to be ratified and confirmed, without objection.

Upon this state of facts, the appellant prayed the court, in substance, to instruct the jury, that if they should find that the proceedings upon the petition for the ratification of the sale, were had, and that R. V. Hook had notice of such proceedings, then he was concluded by the ratification, &c. This instruction was refused and hence the appeal.

' If the judgment in question was absolutely void, it could not of course bind the appellee; but if it was not void ab initio, it would certainly have been competent for the defendant against whom it was not rendered, to show that fact, by parol evidence, as the judgment discloses upon its face that it was rendered only against one. In either case it would appear, that there was no judgment in fact against the appellee. The question then which arises, is, whether the proceedings in the county court for the ratification of the sale, in which ratification the appellee is supposed to have acquiesced, could have the effect, not to make valid a defective or'voidable judgment, but to create a judgment where none existed before?

The act of 1831, rests throughout upon the-assumption, that there must be an actual judgment against the party, though it be even voidable for inherent or patent defects, in order to base a proceeding by which he is to be divested of his real estate. The second section says, “any judgment rendered by a justice of the peace” will authorise the sale of the real estate of the defendant, &c. Under the third section, which authorises the court to “examine into any allegations of fraud or surprise, as to the obtaining and rendering of the judgment, under which said sale shall have been made, and if said court shall deem the judgment aforesaid to have been obtained or had by *179fraud or surprise, it shall vacate and annul the same,” it is supposed that any objection to the sale was inquirable into by the court, and concluded by the ratification. This position is not correct. The alleged judgment never having had any existence, or being absolutely void as against the present appellee, all the proceedings under it were coram non, and therefore also void, and it was not necessary for the defendant, though he had notice, to appear and resist them. The basis of the whole proceeding being absent, namely, a judgment prima facie valid at least, it was not in the power of the court to supply this vital omission by any action it might have taken in the matter, without the positive assent of the defendant.

The only office of the court was to inquire, whether the judgment had been “obtained or had by fraud or surprise.” Surely, under this authority, it was not competent for the court, to create a judgment where none existed, or to make a good and valid judgment out of one, absolutely void upon its face.

It will be observed further, that the act of 1831 does not make the ratification conclusive, as to the question of fraud and surprise in rendering the judgment, but it simply declares “that said ratification and confirmation shall be deemed and taken as conclusive evidence of the sufficiency and regularity of the notice required as aforesaid, (of the sale,) and manner of making such sale.” Tito ratification, therefore, is only conclusive of the notice required to be given, and the manner of the sale.

Judgment affirmed.