Bannon v. People of State
| Decision Date | 31 December 1877 |
| Citation | 1 Ill.App. 496,1 Bradw. 496 |
| Parties | EDWARD BANNON, Impl'd, etc.v.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.
Messrs. Haley & O'Donnell, for appellants; argued that where a judgment is entered by confession in open court, the note and power of attorney are not a part of the record, and cited Magher v. Howe, 12 Ill. 379; Starburg v. Eaton, 47 Me. 596; Storer v. White, 7 Mass. 448; Pierce v. Adams, 8 Mass. 383; Hodges v. Ashurst, 2 Ala. 301; Cory v. Russell, 3 Gilm. 367; Edwards et ux. v. Patterson, 5 Gilm. 126; McDonald v. Arnout, 14 Ill. 58; Smith v. Wilson, 26 Ill. 186; Freeman on Judgments, § 78.
That in a collateral proceeding, where the validity of a judgment is questioned, it must be by the record of the judgment itself, and evidence de hors the record is not admissible: Thompson v. Morris, 57 Ill. 333; Gassett v. Howard, 10 Q. B. 453; Withers v. Patterson, 27 Texas, 491; Holmes v. Campbell, 12 Minn. 221; Spaulding v. Baldwin, 31 Ind. 376; Evans v. Ashby, 22 Ind. 15; Butcher v. Bank of Brownsville, 2 Kan. 70; Reynolds v. Stausburg, 20 Conn. 344; Rigg v. Cook, 4 Gilm. 336; Voorhees v. Bank of U. S. 10 Pet. 449; Freeman on Judgments, § 124.
That all presumptions are in favor of the validity of judgments of courts of general and superior jurisdiction: Freeman on Judgments, § 124; Withers v. Patterson, 27 Texas, 491; Holmes v. Campbell, 12 Minn. 221; Osgood v. Blackmore, 59 Ill. 261; Bush v. Hanson, 70 Ill. 480; Martin v. Judd, 60 Ill. 78.
That where the appearance of the defendant is entered by an attorney, the Court will presume that the attorney had authority, and in a collateral proceeding such presumption is conclusive: Freeman on Judgments, § 128; Martin v. Judd, 60 Ill. 78; Harshy v. Blackmarr, 20 Iowa, 161; Jackson v. Stewart, 6 Johns. 34; Brown v. Nichols, 42 N. Y. 26; Hamilton v. Wright, 32 N. Y. 502; Proprietors v. Bishop, 2 Vt. 231; Post v. Haight, 1 How. 171; Hillsbury v. Dugan, 9 Ohio, 117; Hays v. Shattuck, 21 Cal. 151; Williams v. Butler, 35 Ill. 544; Osborn v. Bank of U. S. 9 Wheat, 738.
And in the absence of fraud or collusion, the Court will proceed, and leave the party who may be injured by an unauthorized appearance to his remedy by action: Tally v. Reynolds, 1 Ark. 99; State v. Carothers, 1 Greene (Iowa), 464; Beckley v. Newcomb, 24 N. H. 359; Bogardus v. Livingston, 2 Shilt. 236; Conray v. Brenham, 1 La. An. 397; Dobbins v. Dupree, 39 Ga. 394.
Messrs. Brown & Meers, Messrs. Hill & Dibell, Messrs. Hagar & Flanders, Mr. James R. Flanders and Mr. Geo. S. House, for several appellees; contended that a judgment entered when the court had not jurisdiction of the person, is void, and may be attacked in a collateral proceeding; and cited White v. Jones, 38 Ill. 160.
That where a judgment by confession refers to a note and warrant of attorney so that they can be identified, resort may be had to them to determine whether the Court had jurisdiction of the person at the time of rendering judgment: Blackmore v. Osgood, 59 Ill. 261; Chase v. Dana, 44 Ill. 262.
That a judgment prematurely confessed upon a warrant of attorney, is void: Waterman v. Jones, 28 Ill. 54; White v. Jones, 38 Ill. 160.
That the judgment in favor of the People against Michael E. Bannon, for keeping open tippling house, was a lien upon his property, and should be first satisfied: Rev. Stat. 1874, 413, § 453.
In support of cross-errors, that the goods of a tenant taken in execution cannot be distrained, because they are in the custody of the law: Taylor's Land. and Ten. § 594; Coke upon Litt. 47 b.; Rex v. Colton Park, 120; Eaton v. Southby, Willes, 136; Hamilton v. Reedy, 3 McCord, 40.
Appeal from Will Circuit Court by Edward Bannon from an order of said Court quashing an execution in his favor against Michael E. Bannon, and setting aside the judgment upon which such execution was issued. In the case of the people against said Michael E. Bannon, the State's attorney of Will county moved the court for a rule upon the sheriff to show cause why he did not apply moneys in his hands arising from the sale of personal property of the defendant to the payment of the execution in his hands in favor of the people. The rule was entered, and the sheriff, for return thereto, answered that he held several executions against the defendant, Michael E. Bannon, giving date when each was received by him; the second one of which, in point of time, received by him was for $1,837 in favor of appellant Edward Bannon; that from the sale of personal property of said defendant in executions he had realized the sum of $750.65 above costs and expenses, and asked the advice of the court as to the proper distribution thereof, as there were conflicting interests among the several execution creditors.
The several execution creditors were notified of the rule and answer, and they appeared in court and contested the validity of the judgment and execution of the appellant, upon the ground that the same were void, the court having no jurisdiction over the defendant, Michael E. Bannon, at time of rendering the judgment. The court quashed the execution, set aside the judgment as void, and ordered the sheriff to make distribution without regard to the execution of appellant. From this order Edward Bannon appealed. This judgment was entered September 12, 1877, in the Circuit Court of Will county, during the June term.
The proceedings herein were had at the October term of said court. On the hearing, the contesting creditors gave in evidence against the objection of appellant the note and warrant of attorney, declaration, cognovit and judgment in case of Edward Bannon v. Michael E. Bannon. The note bears date September 10, 1877, and due one day after date. The warrant of attorney is of the same date, and empowers James R. Flanders, or any attorney of any court of record, to enter the appearance of defendant, and waive service of process, either in term time or vacation, and confess a judgment in favor of Edward Bannon for the sum named in said note, or for so much as may appear to be due according to the tenor and effect of said note, with interest, costs, and attorney's fees, and to file cognovit for the amount, with agreement waiving errors, etc. The general principles of the law relative to the validity of judgments depending upon the question of jurisdiction in the court rendering them, are undoubtedly well understood.
Where the court has jurisdiction of the subject matter and of the person, the judgment is binding and conclusive, and cannot be questioned in any collateral proceeding, however erroneous it may be.
On the contrary, if such jurisdiction in either particular be wanting, the judgment is a nullity, and can be attacked by any one affected by it in any and all proceedings, either direct or collateral.
The application of this doctrine of jurisdiction to cases as they arise, is not always as easy as the enunciation of the doctrine itself; indeed an examination of the authorities will show that frequently it becomes a very difficult question to determine whether the court had or had not jurisdiction in a given case.
It results therefrom that the authorities are not harmonious as to how and when the jurisdiction can be overthrown in a collateral proceeding, yet we think that the doctrine is fully admitted, in our State, at least, that the question of jurisdiction is open to inquiry, collaterally, by any one against whom such judgment is used. Thornton, Justice, speaking for the court, in Haywood v. Collins, 60 Ill. 328, upon this point, says: “That the validity of a judgment may be questioned in a collateral proceeding, has often been decided by this court.”
In Goudy v. Hall, 30 Ill. 109, it was decided that the decree of a county court authorizing the sale of land was absolutely void, if the notice required by the statute had not been given, and that its validity might be inquired into when the record was offered in an ejectment suit.
In Miller v. Handy, 40 Ill. 449, the court said: “If there was not jurisdiction to render the judgment offered in evidence in defense, then all the proceedings were coram non judice, and they may be attacked collaterally in an action of ejectment.”
In Campbell v. McCahan, 41 Ill. 45, it is said that “there must be jurisdiction of both the subject matter and of the person to give validity to judgments, and if jurisdiction is not acquired the judgment is void, and may be resisted successfully, either in direct or collateral proceeding.” To the same effect is the case of White v. Jones, 38 Ill. 160.
In Clark v. Thompson, 47 Ills. 25, it was held that the presumption in favor of the jurisdiction, even of a court of general jurisdiction, may be rebutted in all collateral proceedings; and when there is no finding of the court, the presumption will be that it acted upon the summons and return which do appear in the record.
In Huls v. Buntin, 47 Ill. 396, the suit was ejectment, and the defendant claimed title by virtue of a sale by an administratrix under a decree of court. It was held that “if the Court did not have jurisdiction, the decree was not binding, and could be attacked collaterally.”
I have quoted at some length from these cases, to show what construction the Supreme Court placed upon its former opinions, in view of the reliance placed upon the case of Searle v. Galbraith, 73 Ill. 269, by appellant.
A suit in ejectment by Searle, to recover land sold by his conservator under decree of court, had been prosecuted to judgment in favor of Searle. The judgment was set aside under the statute, and pending a second trial Galbraith filed a bill enjoining the ejectment suit, and asking that Sampson, the conservator of Searle, should make and deliver a deed in conformity with the decree and sale. The decree upon which the sale was made recited that ...
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