Preston v. Clark, No. 47

No. 47 | Ga. | Jan 15, 1851

By the Court.

Warner, J.

delivering the opinion.

[1.] The main question in this cause is, whether the judgment rendered against James W. Preston, in Camden Inferior Court, was a valid or a void judgment at the time the note sued on was executed. If it was a void judgment, then there was a total failure of the consideration for which the note was given; but if it was a valid subsisting judgment against James W. Preston, then the consideration for -which the note was given has not failed.

The original suit was instituted by Clark against John H. Dilworth, as the drawer of a bill of exchange, and James W. Preston, as the acceptor, according to the provisions of the Act of 1826. On the trial of the cause, there was a discontinuance, as to Dilworth, by the plaintiff, and a verdict was found against Preston, on which judgment was entered. The argument for the plaintiff in error is, that the discontinuance of the suit, as to Dilworth, was also a discontinuance as to Preston — they being sued jointly under the Statute; that the entering up of the judgment on the verdict found against J. W. Preston alone, necessarily makes the judgment void, and many authorities have been cited to show that the judgment was irregularly rendered by the Court. Whether we should have felt it to have been our duty to have reversed that judgment for irregularity, had it been before us on a writ of error, is not now the question — that judgment was rendered by a Court of competent jurisdiction, having jurisdiction of the party and the subject matter of the suit. In Boswick vs. Perkins, Hopkins & Write, this Court held, that where the Court, in which the judgment is rendered, has no jurisdiction either of the person or the subject matter of the suit, then the whole proceeding is void and a nullity; but where the Court has jurisdiction, both of the person and the subject matter of the suit, although it may err in its opinion of the law, yet, such judgment is conclusive upon the parties to it when there is no appeal. 4 Georgia Rep. 49.

The Inferior Court of Camden County had jurisdiction of the subject matter of the suit, and also had jurisdiction of the person of James W. Preston, and notwithstanding that Court may have erred in its judgment as to the law in rendering a judgment against him, after a discontinuance by the plaintiff, as to Dilworth, still there was no appeal horn that judgment, and it must be declared a valid judgment against James W. Preston, and, therefore, the consideration for which the note was given has not failed.

Let the judgment of the Court below be affirmed.