Hardin v. Lee
| Decision Date | 31 January 1873 |
| Citation | 51 Mo. 241 |
| Parties | JAS. F. HARDIN, Respondent, v. JAMES LEE, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Greene County Court.
McAfee & Phelps, for Appellant.
The judgment could have been set aside for irregularity upon motion, at any time within three years, but was not void. And unless the judgment was absolutely void a title passed under the proceedings. (Perryman vs. Relfe, 8 Mo., 208; McNair vs. Biddle, 8 Mo., 257; Massey vs. Scott, 49 Mo., 278; Groner vs. Smith, 49 Mo., 318; Higgins vs. Peltzer, 49 Mo., 152; Martin vs. Barron, 37 Mo., 305; Vories vs. Bank, 10 Pet., 472, and cases cited; Cooper vs. Reynolds, 10 Wall., 308, and cases cited.)
Bray & Hardin, for respondent.
The case on which the Sheriff's deed is based, was brought whilst the statute of 1855 was in force. Under that statute no suit could be brought for injuries to the person, by attachment. (§ 1, ch. 12, 1 R. C., 1855, 238.)
That the court had jurisdiction over a case for damages for false imprisonment by an action of attachment, will not be claimed; and it would be a ridiculous stretch of the refining process to say that the plaintiff might sue an absent defendant for five thousand dollars for false imprisonment, and by tagging on to his petition a claim for one hundred dollars for the value of a horse, thereby make a case whereon a valid writ of attachment might issue.
That the plaintiff might have taken a writ of attachment for the matter contained in the second count we admit, but when “he combined it in the suit with the matter in the first count, he barred his right to attachment process.
It ought not to be permitted a plaintiff to bring suit by attachment. * * (unauthorized by law) merely because he may have made an affidavit in pursuance of the statute, so as to entitle him to the writ. * * This would be perpetrating a fraud upon the law.” (Elliott vs. Jackson, 3 Wis., 649.)
Courts can only acquire jurisdiction by the proper legal process and cannot take jurisdiction by wrongful means, and if they do so all their proceedings are void and everything based upon such proceeding is void. (19 Johns., 39; 1 Hill, 130; 9 Johns., 239; 1 Den., 141-158; 5 Blackf., 462.)
Action of ejectment brought by James F. Hardin in the Greene Circuit Court against James Lee. Petition in usual form. Answer, a general denial. Both parties claim title through one W. W. Blackman. At the trial, plaintiff testified as to a deed made to him in February, 1868, by Blackman, which deed was lost and appears to have been defectively acknowledged, by reason of the seal of the notary who took the acknowledgment, not having been affixed thereto. The plaintiff then introduced the record of said deed which also showed a defective authentication of the acknowledgment. The court excluded the record of said deed, but permitted plaintiff to establish its contents against objections of defendant. Defendant then offered and read in evidence a sheriff's deed to Ingram for the property in controversy, made long prior to the one made by Blackman to plaintiff, and reciting the issuance and levy of a writ of attachment on the property in controversy, in a suit of Watts against said Blackman and others, judgment, and sale upon execution of said property to Ingram. Defendant also read in evidence a deed from Ingram to him for said property and rested. Plaintiff then, against the objections of defendant, read in evidence the record, proceedings and files in said cause of Watts against Blackman and others, from which it appeared that said suit was founded on wrongs for personal injuries, and for taking personal property. The proceedings were by attachment and appear to be sufficiently regular, with the exception above stated. The petition contained two counts, the first claimed damages for injuries to the person, to the amount of $5,000, and the second for $125 for taking personal property. The judgment was for $1,500 in gross, and ordered a special execution to issue. The court then without any further evidence, excluded the sheriff's deed to Ingram, and the deed of the latter to defendant, and he excepted. The court then gave a declaration of law sustaining its own action in permitting plaintiff to prove the contents of the deed to him from Blackman, after the rejection of the record of said deed, and another declaration to the effect that all the proceedings in the suit of Watts vs. Blackman and others, were absolutely void, and that Ingram derived no title thereunder, to which defendant excepted. Counter declarations were refused defendant, and he again excepted, and judgment being given for plaintiff, after an unsuccessful motion for a new trial, defendant brings this case here by...
To continue reading
Request your trial
-
Flinn v. Gillen
...contract to the contractor and issuing the tax bills are public acts and cannot be attacked collaterally as between third parties. Hardin v. Lee, 51 Mo. 241; Heman v. Schulte, 166 Mo. 417; Dennison v. City of Kansas, 95 Mo. 416; Heman Const. Co. v. Lyon, 277 Mo. 628; Heman v. Allen, 156 Mo.......
-
State v. Wood
...make the amendment shows ex vi termini the proceedings are merely erroneous, or irregular, and that the court has jurisdiction." Hardin v. Lee, 51 Mo. 241; Hunt v. Loucks, 38 Cal. 372; Parmelee v. Hitchcock, 12 Wend. 96; Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931. The same rule is anno......
-
Bostwick v. Freeman, 37593.
...l.c. 697. (10) Vacating a judgment collaterally can never be preferred or brought by a stranger under any circumstances. Harding v. Lee, 51 Mo. 241. (11) The filing of a petition in the probate court by an administrator for the sale of real estate to pay debts gives the court jurisdiction o......
-
State v. Wear
...that, when a court once acquires jurisdiction of a subject-matter, any subsequent error or irregularity will not devest it." Hardin v. Lee, 51 Mo. 241. Every intendment will be presumed in favor of the action of the Dunklin court; and, if necessary to sustain the judgment, it will be presum......