Wheeler v. Strickland

| Ala. | Nov 28, 1912

MAYFIELD, J.

-This is an action of statutory ejectment. It was tried by the court, without a jury, upon an agreed statement of facts. Of this statement the reporter will set out parts sufficient to show the merits of the controversy.

One Coombs was the common source of title. Appellant claimed title through two sheriff’s deeds, one of date February 17, 1905, and the other of June 25, 1906. Both sales were under venditioni exponas, based upon the same attachment proceeding against Coombs, the common source of title, and in favor of the Far West Lumber Company. The attachment proceeding was instituted January 28, 1904, against Coombs, as a non-resident, and levy was made on the same date. Judgment was rendered, condemning the land, on May 26, 1904. This judgment was set aside, by the court rendering it, on November 24, 1904, and another judgment rendered of same date. On December 26, 1904, another venditioni exponas issued, under which the first sale was made of January 13, 1905, and deed was made of February 17, 1905. On May 17, 1905, the second judgment was vacated and set aside by the court rendering it. This was at the instance of the defendant in judgment. On May 27, 1905, plaintiff in judgment made a motion to set aside the order of vacation of May 17, 1905, and to reinstate and restore the judgment of November 24, 1904, which was vacated. This motion was denied, and no appeal, mandamus, or other direct proceeding was had or applied for; so there was on the face of the record, no judgment against Coombs to support a sale. Notwithstanding this condition of the records, another venditioni exponas issued, and the second sale and deed followed. This was upon the theory that the first judgment was valid, and that the order of the court, made on plaintiff’s motion, setting it aside and rendering another judgment (that of No-' vember 24, 1904), was void. This is the chief contention of the appellant. We cannot inquire as to this, in a collateral proceeding of ejectment, nor could the trial court so inquire or decide — especially in this suit of ejectment, between parties who were not parties to the attachment proceedings.

The appellant claimed through a sheriff’s deed; and, to support it, it was incumbent upon him to show a valid judgment — which he failed to do, unless some of the orders or judgments of this court, setting aside previous judgments, were void. The parties to the attachment proceedings were present, and contested the granting of these orders vacating and annulling former orders and judgments; and no appeal was taken from such orders, nor were they attempted to be reviewed or corrected by any direct or extraordinary appropriate proceeding before a superior and revisory court. The parties to that proceeding having failed to take such action to correct or set aside the judgments and orders of the trial court, it cannot, be done in a collateral proceeding between other parties, though the suit involves the title to property the subject-matter of the attachment proceedings.

Of course the original judgment — that of May 26, 1904 — was not a valid personal judgment against the defendant; he being a- nonresident and not appearing. —So. Timber & Inv. Co. v. Creagh, 154 Ala. 283" court="Ala." date_filed="1908-02-04" href="https://app.midpage.ai/document/southern-timber--investment-co-v-creagh-7363232?utm_source=webapp" opinion_id="7363232">154 Ala. 283, 45 So. 666" court="Ala." date_filed="1908-02-06" href="https://app.midpage.ai/document/osborn-v-state-7363194?utm_source=webapp" opinion_id="7363194">45 South. 666; De Arman v. Massey, 151 Ala. 639, 44 South. 688. It shows on its face that it was ex parte, and in rem only, at best. The party interested in the judgment, the plaintiff, appeared in court, and on his motion it was set aside and annulled, and this long before the rights of the appellant attached. The plaintiff would not be heard to question the act of the court in doing that which he asked and sought; and certainly this appellant, who then had no rights or interest in the matter, existing or prospective, could not complain.

Whether the court properly rendered another judgment, after setting aside the first, we need not now inquire because it is agreed that before the rendition of the second judgment, and before the appellant acquired any interest in and to the property, the common source of title had mortgaged it to one Alexander Scott, through whom appellee claims title, and, further, because the second judgment was subsequently, set aside, when both the plaintiff and the defendant tvere in court, and had been heard, and the court subsequently declined to reinstate the judgment, on the motion of plaintiff, and no appeal or other appropriate action was taken to have any of these orders or judgments revised, corrected, or annulled, hut all were allowed to stand upon the record of the court, and are now standing there, as proper and valid judgments of a court of competent jurisdiction, and neither the trial court, nor this court on appeal, in a collateral proceeding, will attempt to revise or annul such proceedings.

We find no error in the record, and the judgment is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.