31 Fla. 83 | Fla. | 1893
In all cases where a deed is executed under a power, it is necessary to prove the power before the deed is admissible in evidence. Where a sheriff sells and makes a deed under a fieri facias, he is acting under a power. “He acts in fact as the attorney of ¿the defendant appointed by law for that purpose. ’ ’ Davis vs. Shuler, 14 Fla., 447. Before sheriff’s deed is admissible in evidence, for the purpose of proving title thereunder, a valid judgment and execution must be shown. Donald vs. McKinnon, 17 Fla., 746; Kendrick
It is true, as contended by counsel for appellee, that ft was only necessary for appellee, to show a judgment against appellant, execution thereon and sheriff s deed, but the judgment must be a valid judgment, and, where it emanates from a court of limited jurisdiction, it is not a valid judgment unless it affirmatively appears that the court had jurisdiction of the person and the subject-matter. These views are not in conflict with the authorities cited by counsel for appellee.
It follows from what has been said that the third assignment of error is well taken, and that “the court erred in overruling the plaintiff’s objection to the admission of the sheriff’s deed, without the justice’-s judgment and so much of the proceedings before the justice of the peace as would affirmatively show jurisdiction, being first proved.” As the entire record of the proceedings in the justice’s court were subsequently introduced in evidence by the defendant, this error was cured, if the said record showed that the justice had jurisdiction. It is well settled that the proceedings by attachment are statutory and must be strictly pursueI. Roberts vs. Landecker, 9 Cal., 262, and authorities there cited. The act of 1875 (Chapter 2040 of Laws) is entitled ‘ ‘an act relating to proceedings before justices of the peace, and judgments of justices’
The judgment is set aside, and the cause remanded to the Circuit Court for a new trial and further proceedings not inconsistent- with this opinion.