King v. Burdett et al.

• Citation: 28 W.Va. 601
• Parties: King v. Burdett et al.
• Decision Date: 23 October 1886
• Court: Supreme Court of West Virginia

28 W.Va. 601

King

v.Burdett et al.

Supreme Court of Appeals of West Virginia.

Submitted September 11, 1886.

Decided October 23, 1886.

1. Where process has been regularly served on a defendant, and there is no appearance, and the defendant before judgment dies, and his death is not suggested on the record, and after his death judgment is rendered against him, such judgment is not void but voidable, and can not be collaterally attacked, (p. 609.)

2. In such a ease the personal representative could in the action, in which the judgment is rendered, have the same reversed on writ of error coram nobis on motion under sec. 1 of ch. 134 of the Code. (p. 609.)

3. When there is a joint action against two or more persons, all of

whom are served with process, and one dies before judgment, and his death is not suggested on the record, and there is a judgment rendered against all the defendants, such judgment can not be collaterally attacked, (p. 609.)

4. In a suit in chancery to enforce the lien of such a judgment it

can not be impeached by showing, that it was rendered against one of the defendants after his death, (p. 609.)

J. H. Riley and H.-G Flesher for appellant.

J W. English tor appellee.

Johnson, President:

The plaintiff filed his bill in August, 1884, in the circuit court of Jackson county to subject the real estate of the defendants to the payment of two certain judgments, recovered by the plaintiff against the defendants at law, the one for $500.00 and the other for $1,068.75. It appears upon the face of the bill, that, when the second of said judgements was rendered, the defendant, D. B. Sayre, was dead: and the bill makes his heirs at law defendants and prays, that his said judgment-liens may be enforced against the lands of the several defendants. The other defendants, against whom the judgments were recovered, were J. M. Burdett, Julius Campbell, Abel Sayre and William II. Sayre, of whom at the institution of this suit Julius Campbell and Abel Sayre were dead. Administrators of their estates respectively were made defendants but not their heirs, as it appeared they died insolvent. William II. Sayre answered the bill and in his answer says, that at the time the judgment for $1,068.75 was rendered against him and his co-defendants therein including; D. B. Sayre, the said D. B. Sayre had been dead more than a year, and that said pretended judgment is a nullity not only as to the estate of said D. B. Sayre but also as to respondent and the other defendants named in said action. The heirs of D. B. Sayre were made defendants to the bill, as it is alleged, that he died siezed of a tract of one hundred and forty acres of land. Hugh Sayre one of said heirs averred, that said judgment was recovered against his father after his death and is an absolute nullity as to all the defendants in the action at law.

The cause was referred to a commissioner to report the liens on the lands of the defendants and their priorities. The commissioner ascertained and reported other liens than those mentioned in the bill, and reported the judgment for $1,068.75 as the seventh lien in priority.

In the law-case it appeared, that D. B. Sayre had been served with process long before the judgment against him and his co-defendants was rendered; and that his death was not suggested on the record, and the judgment was rendered against him and his co-defendants after his death.

The defendant, William IT. Sayre, excepted to the com missioner's report as follows: "The defendant, William H. Sayre, excepts to the report of George J. Walker, commissioner, filed on the 5th day of August 1884, because the judgment reported for $1,068.75, as the seventh lien, and as against John M. Burdett, William II. Say re, Abel Sayer and Julius Campbell, when the judgment appears to have been a joint judgment rendered against said parties and one D. B. Sayre, who appears to have been dead more than a year, before said judgment was rendered, and for that reason said judgment was a nullity and should not be reported as a lien against the real estate of any of the defendants.7'

The decree of August 20, 1884, declares, that this was-the only exception to the report, and decrees, that said judgment is an absolute nullity as to all the defendants therein and is not a lien upon the lands of any of the defendants, and proceeds to settle the principles of the cause, and directs the sale of the real estate of the defendant, W. H. Sayre, being all the real estate mentioned in the report, that was in the opinion of the court liable to said judgments or either of them.

From this decree the plaintiff George S. M. King appealed.

The only error assigned is the holding of the said judgment for $1,068.75 liable to collateral attack and decreeing it absolutely void. It is earnestly contended by counsel for appellant, that, the said judgment having been rendered by a court having jurisdiction of the subject and of the person of Sayre, such jurisdiction continued, until the court was informed of the death of Sayre, and, there being no suggestion of his death on the record, the judgment rendered against him after his death is not void but voidable only and could not be attacked collaterally.

It is insisted by counsel for appellees, that a judgment rendered against a dead man under any circumstances is an absolute nullity and may be collaterally attacked anywhere; and that, the judgment being an absolute nullity as to the dead man and being a joint judgment, it is absolutely void as to the other defendants therein.

Is a judgment rendered against a dead man, of whom the court had jurisdiction, and whose death had not been suggested on the record, void or only voidable? In Colson v. Wade, 1 Murphy 43, it appeared, that a judgment by default was rendered at July term, 1782, and a writ of inquiry awarded. On the 1st day of August, 1782, one of the defendants died, and at the October term ot the same year the writ of inquiry was executed, the plaintiff's damages assessed, and judgment rendered against the defendants. The error assigned was, that before the rendering of the judgment one of the defendants died, and the judge having found, that he died after the judgment by default but before the rendering of the final judgment, the case was sent to the Supreme Court on the question: "Was said judgment erroneous, and ought it to be reversed?" The court said, "The judgment in this case is erroneous and void in law," and reversed it.

Another case on the same state of facts went to the same court in 1871. (Burke v. Stokeky, 65 N. C. 569). In delivering the opinion of the court Pearson, Chief Justice, said: "At common law this would have caused an abatement of the action. 8 and 9 Will. III. chap. 11, provides, that the action shall not abate by the death of one of the defendants, but his death may be suggested and the action proceed against the surviving defendant. It was the business of the plaintiff to make this suggestion, as it is error in fact to take judgment against one, who is dead." This was a motion in the court below to vacate the judgment, which was in that court denied; but the judgment was in the Appellate Court reversed.

In Milam Co. v. Robertson, 47 Tex. 222, it was decided, that a judgment in favor of or against a party, who is dead, unless his death is shown by the record itself, is at most only a ground for avoiding the judgment and does not render it absolutely void.

In McClelland v. Moore, 48 Tex. 361, it was decided as to the effect of a judgment against a dead man, that " It is an error in fact and not in law. It could not therefore be corrected under our system of judicature on appeal or writ of error to this court. Relief must be sought in such case by a petition in the nature of a bill of review or for a new trial or by a motion in the court, in which it is rendered, to set aside the judgment, which seems to have been recognized by this court in cases ot this kind as a substitute in modern practice for writ of error coram nobis."

In Case v. Ribelin, 1 J. J. Marsh. 29, it was decided, that the rendition of a judgment for or against a dead person is error in fact, to be corrected only by writ of error coram vobis. The court by Robertson J. said: "Errors of fact or law may and do frequently occur in judicial trials, which can not be corrected by writ of error to this court. If for instance a judgment be rendered in favor of or against a feme covert suing or defending as a feme sole or in favor of or against a dead man, which would be manifestly erroneous, as soon as the tact shall appear, the error could be corrected only by the court, which rendered the judgment. This court could not notice it, because it does not appear on the record. There must be some remedy for such a case, and there are numerous authorities showing, that a writ of error coram vobis is the usual and perhaps the only one. See 1 Roll. Abr. 747; Cro. Eliz. 7, 105; 3 Salk. 145; 2 Tidd's Prac. 1, 107."

In Spalding v. Wathen, 7 Bush 663, the court by Lindsay J. said: u The death, if known, should have been taken advantage of in this court by a plea under the provisions of sec. 878 of the Code. As it was not known to Wathen prior to the reversal of the judgment appealed from, and as the judgment of reversal upon its face was regular, and its validity not a question, which could be properely inquired into in a collateral proceeding, the only means, by which Wathen could obtain relief against it, was by an application to this court upon the discovery of the death for a correction of its judgment for the reason as held in the opinion cited above," (Case v. Ribelin, 1 J.J. Marsh.). "It was an error, which could be corrected (if at all) only by the court which rendered the judgment."

In Coleman v. McAnalty, 16 Mo. 175, the court by Scott J. said: "The only question in the cause is, whether the judgment against the garnishee was void and a nullity by reason of the death of Boyd, before it was rendered. In...