McLeod v. Harper

43 Miss. 42 | Miss. | 1870

Simrall, J:

Hugh A. McLeod sued out from the clerk of the circuit court of Covington county, a scire facias, suggesting that he had recovered a judgment on the 29th day of March, A. D. 1861, against Daniel McLaurin for $313 85; and that Mc-Lauriri. had since deceased; that Andrew Harper was his administrator; and commanding said Harper to appear and show cause why he should not have execution and satisfaction of his judgment out of the goods of his intestate.

Andrew Harper pleaded;

1. That the service on his intestate in the original suit, was made by the plaintiff', who was then acting as sheriff; and

2. Nul tiel record. McLeod demurred to both pleas. Demurrer overruled as to the second, but sustained as to the first.

3d. Harper, admr., under the respondant ouster, plead, that the original judgment against his intestate was taken by default, and not by confession, and no legal process was served on said McLaurin, because McLeod, the plaintiff, was then acting as sheriff, and served the writ himself, as the return purports, and the fact was, therefore, the service was illegal, and the judgment irregular and invalid, and should not be revived.

4th. To this plea the plaintiff demurred, which was overruled.

5th. Thereupon the plaintiff replied in effect that McLeod was not acting as sheriff, and did not serve the writ.

Plaintiff filed two other replications to this plea, to which a demurrer was sustained. The plea of nul tiel record was withdrawn, and the case was submitted to the jury on the issue taken on the first plea. The court instructed the jury in accordance with its ruling, on the demurrer to the first plea: that if McLeod, the plaintiff in the original judgment, was acting in the office of sheriff, and served the writ, such service was illegal, and they must find for the defendant. An instruction asked by the plaintiff affirming the converse of this was refused.

The testimony before the jury was ample to prove the issue in favor of the defendant, so that their verdict is a truthful response to the traverse referred to them.

The errors assigned are: the decisions of the court on the pleadings to the prejudice of plaintiff in error, the refusal of the court to grant the instruction asked by him, the giving the instruction at the request of defendant below, and overruling the motion for new trial, which assigns for cause, the several rulings of the court and the verdict is contrary to law and evidence.

It will be observed from this analysis of the case, that, voluminous as were the pleadings, copious as is the matter in the record, there is but a single point in it. "Was the service of the writ, by McLeod, he being both sheriff and plaintiff in the suit, null and void, so that 'there was no service at all upon the intestate of the plaintiff in error — none which he was called upon to notice ?

“ If good cause of exception shall exist against the sheriff by reason of his being party to or interested in the suit, the process may be directed to the coroner, or justice of the peace if there be no coroner who is disinterested, who shall be bound to execute the same.” Revised Code, p. 490, § 75.

If McLaurin, the intestate, had, in due time, applied to the circuit court to set aside the summons, because it was addressed to the sheriff, who was a party to the suit, it certainly would have been the duty of the court to have quashed it as irregular. But when objection was not made at the time', can the administrator be heard several years after judgment was rendered, to raise the exception for the first time in bar of the right to revive the suit? If the fact was but irregular and erroneous — ground for quashal and writ of error— the administrator comes too late, and not in proper form, to be relieved. If, however, the writ were a nullity, then the judgment is void and his plea is good. The statute does not, in terms, make the writ and service void if directed to, and executed by, the sheriff in a suit where he is a party. In numerous cases decided in New York, the service of the officer who was party to the suit, or otherwise interested, has been sustained when the application was made to set aside the return before judgment, and after judgment, whilst the court had power to open it. Tuttle v. Hunt, 2 Cowen, 436; Putnam v. Mann, 3 Wend., 202; Bennet v. Fuller, 4 John., 485. In one of the cases cited, the constable, who was also party to the suit, made a false return. That judgment coming in question afterwards, it was said that it was like all other returns of officers, conclusive in the particular suit as to its truth, and the only redress was by action for a false return.. By our statute the return may be put in by issue in abatement, or other proper mode.

At common law, if the sheriff was partial from interest, consanguinity or affinity to one of the parties, process should be directed.to the coroner. If, however, in such circumstances, the writ was directed to him, his acts might be set aside, they would be erroneous merely. 8 Bacon Abr., 690; Moor, 547. The principle of law is firmly settled, that however erroneous a judgment may be, it cannot for that cause, be impeached or called in question collaterally ; it stands with all the integrity of a judgment until reversed. Wall v. Wall, 28 Miss. R., 409. If the court has acquired jurisdiction over parties and the subject matter, its judgment is conclusive on the parties and privies, and is never impeachable in collateral proceedings for errors, which the court itself might have avoided or cured if attention had been called to them in time, or for which a court of review might reverse the case. A scire facias to revive a judgment is in the nature of original process, and also of a declaration. It is process to bring in a new party sought to be charged with the judgment. It is a plaint, in so far as it counts on the debt of record, and gives the administrator a day in court to show cause why he should not be so charged.

The matter to which the administrator may make defense, is why satisfaction should not be had. ’Tis true, he may deny the judgment; that is tried by the court by an inspection of the record. But issues of fact tendered, must be confined to defenses originating after the judgment. If the administrator were allowed to go back and open up objections to the original cause of action, there would be no virtue in the old maxim, a Interest reipubliece, ut sit litium finis.” And so are the authorities. To scire facias to revive a judgment, the only defense that can be made, is a denial of the original judgment altogether, or to show that it has been satisfied since its rendition. Cardesa v. Humes, 5 Serg. R. 68. Payment which might have been pleaded to the original scire facias, to revive the judgment, cannot be pleaded to a second scire facias. Penn v. Kline, 1 Pet. C. C. R., 446. No defense can be made, which might have been pleaded to the original suit. Cro. Eliz, 283; Allen v. Anaras, S; Truil v. Edwards, 6 Mod., 308; Erving v. Peters, 3 T. R., 685. If McLaurin had prosecuted a writ of error, he could not have reversed the judgment. The record does not show an identity of person between McLeod, plaintiff, and McLeod, sheriff. A defect in the writ, which can only be made to appear by averment and proof, alitende, must be taken to be waived after judgment. If so, a fortiori, it cannot be interposed in bar of the scire facias.

6. We are of opinion that McLeod the plaintiff below and here is entitled to judgment non obstante veredicto. Judgment is the conclusion of law upon the facts found, or admitted by the parties, or upon their default. If the plaintiff states no cause of action in his declaration, and the matter averred however it may be put, discovers no right to recover, judgment will be arrested. As the plaintiff’s action must have all the essentials to maintain it, so also must the defendant’s plea in bar. 2 Tidd. Pr., 920.

When the plea confesses the action, and does not sufficiently avoid it, judgment shall be given on the confession, without regard to the verdict for the defendant.

The issue in this case, left to the jury the single inquiry, was McLeod both plaintiff and sheriff. By implication, the plea confesses the judgment, and admits that the defendant offers no excuse or defense but this, and if this will not suffice, he has nothing further to say.

The verdict finding the averment true, imparts to the fact no additional legal value, except such as is given by the statute of jeofails. If we should remand the case for a repleader, there is no conceivable mode in which the fact could be presented by plea, that would make it a bar to the scire fieias.

A verdict cannot help an immaterial issue. The rule is thus stated in the books:

“ If it is apparent to the court upon the defendant’s own showing, that in any way of putting it, he can have no merits, and the issue joined thereon be found for him, there, as the awarding of a repleader, could not mend the case, the court for the sake of the plaintiff, will at once give judgment for the plaintiff notwithstanding the verdict.” 1 Chit. Pl., 656; 2 Tidd Pr., 921; Roberts v. Dame, 11 N. H., 229; Cro. Eliz, 248; Leroy v. Reynolds, 2 Lord Raymond, 124.

Let the judgment of the circuit court be reversed, and, rendering here such j udgment as said circuit court ought to have rendered, we give judgment here, that the plaintiff in error have satisfaction of said judgment out of the goods of intestate, McLaurin, in the hands of his administrator, etc.

Jxbdgment reversed.