25 Tex. 132 | Tex. | 1860
—The judgment of the justice, which was offered in evidence to support the sheriff’s sale, is not such a judgment as the justice could legally render in the exercise of his ordinary jurisdiction. From the terms in which it is expressed, we suppose it to have been rendered in a proceeding by motion against the defendant, as sheriff, or other officer, for failing or refusing to pay over money collected under an execution, under the provision of sec. 10 of the execution law of 1842. (O. & W. Dig., Art. 865.)
It, however, does not appear, from the record of the justice, that a case was brought before him which brought into exercise his jurisdiction over such a subject-matter, or that the defendant had the notice which the statute prescribed, or, indeed, any notice of the proceeding, or that he made his appearance before the justice.
It is a plain and undeniable principle, that, to give any binding effect to the proceedings of a court,, it must have jurisdiction of the person of the defendant and of the cause or subject-matter. The want of jurisdiction makes the judgment utterly void and unavailable for any purpose.
The word “ motion,” in the transcript of the justice, is all that appears to indicate the nature of the case that was brought before the court, except the terms of the judgment itself, which was rendered by the justice. But, unless it was such as we have supposed, the court could have no authority to render such a judgment. It must be taken, we think, that it was a proceeding against an officer, under the statute to which we have referred, if any proceeding were in fact instituted to bring into exercise the jurisdiction of the justice. It was, then, a summary proceeding,
Affirmed.