| Mo. | Jul 15, 1847
delivered the opinion of the Court.
Sanders brought an action of ejectment against the defendants in error to recover possession of a tract of land in Polk count}’. On the trial!, he offered in evidence to show title a deed from the sheriff of the county, formally executed and. acknowledged, reciting two judgments against Rains before a justice of the peace, with the executions and returns thereon, and the subsequent issuance of executions from the office of the clerk of the circuit court upon transcripts of these judgments properly filed in that office, and a levy and sale under these executions. The plaintiff also offered in evidence the execution atnd.the transcript of one of these judgments before the justice. This testimony, it seems from the bill of exceptions, was offered en masse, and objections being made, the execution and transcript were excluded, upon what grounds the bill of exceptions does not show. The transcript from the justice’s decket stated that in a suit by Caleb Jones & Co. vs. Lawrence Rains, on a promissory note, drawn payable to plaintiffs, for $32 05, due one day after date, dated December 25th, 1841, with ten per cent, interest from date, a summons was issued on tbe 4th April, 1842, returnable the 9th inst.; that constable returned the summons endorsed “served by reading to defendant on the 4th April, 1842.” Thereupon, the defendant not appearing, it is considered that judgment be rendered against the defendant by default for $36 16, debt and interest, &c.
The plaintiff took a nonsuit in consequence of the rejection of his testimony, and afterwards made an unsuccessful motion to have it set aside.
Where objections are made to the introduction of deeds or records, the objections should be stated specifically. In this case, the Circuit Court excluded all the plaintiff’s title papers — the sheriff’s deeds — the executions and the transcript, — but whether objections were made to all
The statute which establishes justices’ courts and prescribes their powers and duties, requires the process by which defendants are to be notified of a suit to summons the defendant to appear at a time specified, not less than six days from the date of the writ. The summons issued by the justice against Rains, as appears from the transcript of the justice, was dated on the 4th and made returnable on the 9th of the month. It was therefore erroneous. Whether this error shall make the writ a nullity, is the only question involved in this case.
There is no doubt that a most decided inclination has been manifested by courts of justice to sustain the validity of judicial proceedings whenever they are questioned collaterally. Where titles have been acquired under judgments, or where the conduct of the officers concerned in the administration of justice has been called in question, great liberality has been evinced in order to sustain such judgments and to protect such officers. There are, however, limits which no court has ventured to overstep. Whilst a just and liberal protection should be extended to the officers of the law in the execution of their duties, and the rights of purchasers be favorably received, the rights of suitors must not be wholly overlooked. -Where there is original or acquired jurisdiction in the course of the proceedings, the general rule is, that all errors must be corrected by the same court or by some superior tribunal, and the validity of the judgment will not be permitted to be questioned in a collateral way. Voorhees vs. Bank U. S., 10 Peters, 449. But it is equally reasonable, and just as well settled by repeated adjudications, that where there is no jurisdiction, the judgment is a nullity, and may be disputed collaterally or directly. Whether the officer who executes a writ founded on such judgment woujd be responsible or not, depends upon another principle, which it is not now material to consider. The officer looks to his writ, and if a want of jurisdiction does not appear on its face, he is not liable. Saracool vs. Boughton, 5 Wend., 170" court="N.Y. Sup. Ct." date_filed="1830-07-15" href="https://app.midpage.ai/document/savacool-v-boughton-5513501?utm_source=webapp" opinion_id="5513501">5 Wend., 170; Warner vs. Shed, 10 J. R., 238; Beach vs. Forman, 9 J. R., 229. But if a court of limited jurisdiction issues a process which is illegal and not merely erroneous, or
When we speak of void judgments, in contradistinction from voidable ones, it will be understood, that by the former, we mean such judgments whose validity may be questioned in a collateral way, and by the latter, such judgments as are valid until reversed. The term “void” is perhaps too strong to apply to any formal judgment, for there is no judgment^ if it be in the form of a judgment, but may be reversed upon writ of error, whether the error be such as would permit its validity to be questioned collaterally or only such as could be taken advantage of in a direct proceeding. Neither class of judgments is, therefore, strictly ^peaking, void. They are not such nullities as would prevent a writ from being sued out to have them formally pronounced void. This distinction is practically unimportant and seldom noticed, and I only alliide to it now to prevent misapprehension.
As the transcript from the docket of the justice shows that there was no appearance of the defendant in the action brought by Jones & Co. against him, the court could only have acquired jurisdiction on his person by the service of legal process. Had the defendant appeared, there is no doubt that such appearance would have given the court jurisdiction over his person, wliether there was any writ or not. Here there was no appearance, the judgment was by default, and the only way jurisdiction could have been obtained, was by the service of the summons. If the
There is no hardship in this doctrine. The purchaser at a sheriff’s or constable’s sale looks to the judgment, the levy and the sale. He does not concern himself about the regularity of the proceedings, except so far as to see that there is a valid judgment, and for this purpose, the face of the record will show whether the court had jurisdiction or not. If there is no valid judgment, he can of course acquire no ti le under the sale. This much is due to the rights of suitors, to see that the court acquired jurisdiction.