Ex parte Griffith

• Citation: 95 So. 551,209 Ala. 158
• Decision Date: 26 June 1920
• Docket Number: 6 Div. 87.
• Parties: EX PARTE GRIFFITH.
• Court: Alabama Supreme Court

95 So. 551

209 Ala. 158

EX PARTE GRIFFITH.

6 Div. 87.

Supreme Court of Alabama

June 26, 1920

Rehearing Granted Feb. 19, 1921.

Certiorari to Court of Appeals.

Petition of Dee Griffith for certiorari to Court of Appeals to review and revise the judgment and decision of said court in the case of Helm v. Griffith, 95 So. 548. Writ denied.

See also, 95 So. 546.

Thomas and McClellan, JJ., dissenting in part.

Harsh Harsh & Harsh, of Birmingham, for petitioner.

J. B Helm, of Birmingham, pro se.

SOMERVILLE J.

On the original hearing of this case by the Court of Appeals ( Helm v. Griffith, 17 Ala. App. 122, 82 So. 570), it was held that the decree of the chancery court ordering a sale of the lot in question for delinquent taxes assessed against it for 1909 by the city of Birmingham was a valid decree, and showed the existence of a valid lien which was an outstanding incumbrance upon the lot at the time of its purchase by the plaintiff from the defendant. It resulted that the register's sale made pursuant to that decree was in all respects valid, and the amount recoverable by plaintiff for the breach of defendant's covenant against incumbrances was measured by the minimum amount which plaintiff was required to pay the holder of the tax title in order to procure its release, not exceeding the amount of his own purchase money with interest. Clark v. Zeigler, 79 Ala. 346, 351.

On appeal by certiorari to this court, we mistakenly treated the affidavit of the city treasurer and tax collector for publication against an owner unknown, as the certified delinquent list required to be filed by the city clerk, and, on that erroneous assumption, we held that the record showed an absence of jurisdiction in the chancery court to make a valid sale. Our present examination of the record informs us that the certified delinquent tax list referred to in the decree was not introduced in evidence, and there was nothing to show that such a list was not filed with the register, in all respects as required by the statute (Code, § 1319), and before the court in the tax proceeding, as recited by the chancery decree, unless it be the order of publication, hereafter referred to.

The recitals of the chancery decree, which are set out in the first report of the case (17 Ala. App. 122, 82 So. 570), show the existence of every jurisdictional requirement as specified by sections 1319, 1320, of the Code; and the question now presented is whether the Court of Appeals properly treated those recitals as sufficient evidence, prima facie, of the jurisdictional facts recited; the fact of the filing of a certified tax delinquent list not appearing in this record other than by virtue of the recital thereof in the decree.

Let it be understood at the outset that we have clearly in mind the settled rule of law which demands that the judgment of a court of special, or limited, or inferior, jurisdiction must show upon the face of the record of the proceeding every fact necessary to the exercise of its jurisdiction in the premises. Many cases affirming and applying that rule are cited in the dissenting opinion of Mr. Justice THOMAS, and we shall not discuss them here. That is a rule of substantive law, however, and is wholly apart from the question in hand-a question of evidence pure and simple.

We have investigated the decisions of this court with the most painstaking care, and we do not find a single instance in which it has ever been denied that the recitals of jurisdictional facts in the decree of a court of record of special or inferior jurisdiction are sufficient to show jurisdiction, at least prima facie, when offered as evidence in a collateral proceeding. The only question in such cases-as to which there is perhaps some confusion-has been whether such recitals are of conclusive, or of only prima facie, effect.

On this subject the following statement under the title "Jurisdiction," in 17 Am. & Eng. Ency. Law (2d Ed.) pp. 1084, 1085, is well supported by the numerous authorities cited, and offers a sufficiently accurate rule for differentiation:

"(a) Where the jurisdiction depends on some collateral fact which can be decided without going into the case on its merits, then the jurisdiction may be questioned collaterally and disproved, even though the jurisdictional fact be averred of record, and was actually found on evidence by the court rendering the judgment. (b) But on the other hand, where the question of jurisdiction is involved in the question which is the gist of the suit, so that it cannot be decided without going into the merits of the case, then the judgment is collaterally conclusive, because the question of jurisdiction cannot be retried without partly, at least, retrying the case on its merits, which is not permissible in a collateral proceeding unless other parts of the record show affirmatively that the finding cannot be true."

As illustrative of the first branch of the rule, the following cases are in point: Com. Court v. Bowie, 34 Ala. 461; Driggers v. Cassady, 71 Ala. 529; McGee v. Fleming, 82 Ala. 276, 3 So. 1; Riddle v. Messer, 84 Ala. 236, 242, 4 So. 185; Cox v. Johnson, 80 Ala. 22, 24; Gilliland v. Armstrong, 196 Ala. 513, 515, 71 So. 700; Mayfield v. Com. Ct. 148 Ala. 548, 553, 41 So. 932.

As illustrative of the second branch of the rule, the following cases are in point: Hamner v. Mason, 24 Ala. 480, 483; Gunn v. Howell, 27 Ala. 663, 676, 62 Am. Dec. 785; Wyatt's Adm'r v. Rambo, 29 Ala. 510, 68 Am. Dec. 89; Wilson v. Wilson, 36 Ala. 655, 663; Pettus v. McClannahan, 52 Ala. 55; Bland v. Bowie, 53 Ala. 152; Massey v. Smith. 73 Ala. 174; Goodwin v. Sims, 86 Ala. 102, 5 So. 587, 11 Am. St. Rep. 21; Bishop's Heirs v. Hampton, 15 Ala. 761, 769.

In several other cases there seems to have been either express or implied recognition of the evidential value of recitals of jurisdictional facts: Commissioners, etc., v. Thompson, 15 Ala. 134, 140; Molett v. Keenan, 22 Ala. 484, 488; Com. Court v. Bowie, 34 Ala. 463; State v. Ely, Judge, 43 Ala. 568, 575.

The general line of distinction seems to be that, where the fact recited by the decree is necessary to the court's jurisdiction of the thing or of the person-usually a matter of record, dehors the decree itself-without which the court cannot proceed to a hearing, the recital in the decree is only prima facie evidence of fact thus recited, and its verity may be impeached by evidence dehors the record; but, where jurisdiction has fully attached by the mere filing of a proper petition, as in proceedings in rem, or where the nature of the proceeding requires the court to ascertain a preliminary fact essential to its valid action, the recital of a finding of the necessary fact, if uncontradicted by a primary record in the proceeding, is conclusive on collateral attack.

The theory of the dissenting opinion seems to be that the rule which demands that jurisdiction shall affirmatively appear from the record requires that the decree, whatever its recitals, must be affirmatively supported, when offered in evidence, by introducing in evidence also the primary documents upon which its recitals are founded. This theory is clearly opposed to the numerous decisions above cited. The decree is itself a part of the record, and its recitals are at least prima facie evidence of the primary facts recited. 17 Cyc. 578, and cases cited.

Apart from the authorities, which clearly support this view, it is difficult in reason to discover any valid ojection to the rule, which is one of evidence only, and which in effect merely affirms that the solemn and deliberate findings and recitals of a court of record are to be taken as true, unless impeached by a showing that they are false.

It is also conceived that a decree of sale for taxes is in this respect different from all other decrees. But in Driggers v. Cassady, 71 Ala. 529, it was expressly declared that the general principles which support the validity of decrees of inferior courts on collateral attack are applicable also to tax decrees; and it was specifically held that a recital of statutory notice in the decree was sufficient, without more, on collateral attack, to show jurisdiction of the person. This case is disposed of in the dissenting opinion as limiting this use of recitals to showing jurisdiction of the person only, and with the observation that it was there required that jurisdiction of the subject-matter should be shown by the primary documents of record, dehors the decree. This assumption is entirely erroneous. It merely happened that the proof was thus made, and there is nothing in the opinion to suggest that a decretal recital of jurisdiction of the subject-matter would be less efficient than a similar recital of jurisdiction of the person. The one jurisdiction was an essential as the other, and the requirement is equally that each must be shown by the record.

The case of Gilliland v. Armstrong, 196 Ala. 513, 71 So. 700, quoted from in the dissenting opinion, so far from supporting it, is clearly an authority against it. Speaking there of the effect of a recital of notice in a tax sale decree, Justice Sayre said:

"Our opinion is that in the circumstances of the present case it was not evidence of notice according to law, though doubtless it would have been had the decree been rendered in the lifetime of Georgia Armstrong, against whom it purported to be rendered."

In Lodge v. Wilkerson, 174 Ala. 133, 56 So. 994, it was expressly noted that the decree of sale contained no recital of the necessary jurisdictional fact of the collector's preliminary report.

It has been several times declared by this court that mere recitals in decrees of courts of limited powers cannot give jurisdiction. Doe v. Riley, 28 Ala. 164, 181, 65 Am Dec....