McLendon v. American Freehold Land Mortgage Co.

| Ala. | Jul 1, 1898

COLEMAN, J.

The American Freehold Land Mortgage Company sued the defendant for a breach of his official bond as a justice of the peace. The complaint shows that one Grider, desiring to borrow money from the plaintiff, executed a mortgage to plaintiff to secure the loan upon lands which embraced the homestead. That the defendant, as justice of the peace, certified in legal form for conveying the homestead, that the wife of Grider appeared before him and acknowledged her signature, that, in fact, the said wife of Grider never appeared before or in the presence of the said justice of the peace, and neither signed nor made any acknowledgment. The facts were admitted to be true, and there ivas verdict and judgment for plaintiff. The rulings of the court, upon the motions and pleas of the defendant as to whether such facts constitute a breach of official bond of the justice of the peace, forms the matter of the assignments of error.

The appellant’s contention is that the justice of the peace, in making the certificate, acted judicially, and therefore cannot be held liable for a judicial act, and that the certificate imports absolute verity, and that the facts certified to cannot be assailed by parol. If it appeared that the justice of the peace had jurisdiction of Mrs. Grider, all that appellant contends for would be true, as held in many decisions of this court. The mere recitation of a jurisdictional fact in the judgment by court of limited jurisdiction, as distinguished from courts of general jurisdiction, is not sufficient to show that the court in fact had jurisdiction. — Pollard v. Mortgage Company, 103 Ala. 289" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/pollard-v-american-freehold-land-mortgage-co-6515700?utm_source=webapp" opinion_id="6515700">103 Ala. 289, 295. As was said in Goodman v. 'Winter, 64 Ala. 430, “That a judgment or decree of any court of superior or inferior jurisdiction is void, if it has not jurisdiction of the subject, or if it operates in personam, if it has not jurisdiction of the parties, is a proposition everywhere asserted and cannot be doubted.”

The condition of the bond of justice of the peace is to “faithfully discharge the duties of such office during the time he continues therein, or discharges any of the duties thereof.” — 3070 Code of 1896. Section 2663 of the Code confers upon justices of the peace authority “to take acknowledgments of all deeds, or conveyances required to be recorded and certify the same for registration.”

Section 3087 of the Code of 1896 reads as follows: .“Every official bond is obligatory on the principal and sureties thereon'—

1. For any breach of the condition during the time the officer continues in office, or discharges any of the duties thereof.

3. For the use and benefit of every person who is injtired, as well by any wrongful act- committed under color of liis office, as by liis failure to perform, or tlie improper or neglectful performance of those duties imposed by law.”

We adhere to the well established law of this State, that a judge or justice cannot be held liable, for errors of judgment committed while acting judicially upon any subject matter of which he has jurisdiction, or where it operates in, personam, if he has jurisdiction of the person; but a justice of the peace, whose duty it is to take acknowledgments and certify the same for registration, and officially certifies that A. B., known to him to be the wife of C. I), appeared before him, and being examined separate and apart from the husband, touching her signature to the foregoing instrument, acknowledges that she signed the same, etc., when, in truth, the facts stated are wholly false, both as to the appearance before him and the examination, is guilty of a gross usurpation of jurisdiction and wrong, and cannot be said to have acted in a judicial capacity. This conclusion finds support in the construction given to the statute in the case of Kelly v. Moore, 51 Ala. 364" court="Ala." date_filed="1874-06-15" href="https://app.midpage.ai/document/kelly-v-moore-6508850?utm_source=webapp" opinion_id="6508850">51 Ala. 364, and McElhaney v. Gilleland, 30 Ala. 183" court="Ala." date_filed="1857-01-15" href="https://app.midpage.ai/document/mcelhaney-v-gilleland-6505963?utm_source=webapp" opinion_id="6505963">30 Ala. 183. To place any other construction upon the statute would render its provisions nugatory. We find no error in the record and the case must be affirmed.

Affirmed.