Glover v. Holman

• Decision Date: 31 December 1870
• Parties: R. G. Glover, Adm'r, v. Seburn Holman and J. D. Shepherd.
• Court: Tennessee Supreme Court

50 Tenn. 519

R. G. Glover, Adm'r,

v.Seburn Holman and J. D. Shepherd.

Supreme Court of Tennessee.

December Term, 1870.

FROM ROBERTSON.

Circuit Court, February Term, 1867. JNO. ALEX. CAMPBELI, J.

Stark and Judd, for plaintiff, on void and voidable judgments, cited Cooke, 193, 197; Willes, 199; 1 Saund., 313; 2 Strange, 996; 2 Wilson, 382; 1 Hay., 414; 2 Meigs' Dig., p. 641; 1 Hum., 332, 334: Commented on Trousdale v. Donnell, 4 Hum., 273, and Winchester v. Beardin, 10 Hum., 247: Cited West v. Williamson, 1 Swan, 277. On the right of a stayor to attack judgment, they cited Talliaferro v. Herring, 10 Hum., 272, and Lownes v. Hunter, 2 Head, 343.

DEADERICK, J., delivered the opinion of the Court.

Suit was brought before a Justice of the Peace of Robertson county, upon a note for $80, executed by W. H. White, payable to defendant, Holman, due December 25, 1858.

The warrant issued August 1, 1859, against White the payor, and the defendant, Holman, the payee, in favor of T. B. Matthews, for the use of B. Clenard.

The constable to whom it was issued returned it with the following indorsement: “Executed, and set for hearing on the 29th day of October, 1859, before Jesse B. White, at ____ o'clock; this 25th October, 1859.

D. L. Rauls, Con.”

On October 25, 1859, judgment was rendered against W. H. White, and defendant Holman and defendant J. D. Shepherd, by the name of J. Shepherd, is entered as stayor, as appears from the record.

In May, 1866, an execution issued against Holman and Shepherd, and was levied upon the property of Shepherd; and thereupon he and Holman file their petition for writs of certiorari and supersedeas, alleging that White, the payor, is dead, and that the said judgment is void and unjust, as against them.

The said Holman alleges that he knows nothing of said note, never heard of it, nor had or owned any such note; was never summoned upon the warrant, and had no knowledge of said judgment until the execution was issued a few days before the filing of the petition. Defendant Shepherd states that he never stayed said judgment, nor authorized any one to enter his name as stayor; that his name is James D., and not J. Shepherd.

Petitioners also charge that the judgment is void, because the day fixed by the constable in his return for the trial, was 29th October, and the judgment was rendered 25th October, as appears from the warrants and returns thereon.

The cause was brought into the Circuit Court and the defendants at February Term, 1867, entered a motion to quash the execution, upon the ground that the judgment upon which it was founded was void upon its face.

The court being of opinion that the judgment was void upon its face, quashed the execution, and the plaintiff appealed in error to this court.

In this, we think, the Circuit Judge erred. The judgment, upon its face, was not void, although it was irregular. Upon the face of the...