Leo Santerre v. Harold C. Sylvester
| Citation | 189 A. 159,108 Vt. 435 |
| Parties | LEO SANTERRE v. HAROLD C. SYLVESTER |
| Decision Date | 05 January 1937 |
| Court | Vermont Supreme Court |
November Term, 1936.
Characteristics and Effect of Voidable Judgment---False Imprisonment---Judgment Held Protection for Acts Done Until Set Aside---Right to Raise Ad Damnum in Writ.
1. Generally speaking, it is only jurisdictional defects that render a judgment void; and where the court has jurisdiction of the parties and the subject matter involved, and authority to render the particular judgment under any circumstances mere error or irregularities in the exercise of that jurisdiction, although such as to render the judgment erroneous, and subject to be reversed or set aside in a proper proceeding for that purpose, do not render the judgment void, and until so set aside it is valid and binding for all purposes.
2. In action for false imprisonment, where plaintiff was arrested and confined in close jail on a certified execution issued in a trover action in which judgment by default was awarded against him without a copy of a motion to raise the ad damnum filed by defendant, who was counsel for the plaintiff in the trover action, having been delivered to him, though one was left with the judge for that purpose, held that the judgment in such trover action was, at most, voidable and until reversed or set aside in some proceeding instituted for that purpose was full protection to all persons acting under it so that defendant was entitled to a directed verdict.
3. The ad damnum specified in a writ can be raised under proper circumstances at any stage in the proceedings.
ACTION OF TORT for false imprisonment, involving use of judgment claimed to be void. Plea, the general issue. Trial by jury at the April Term, 1936, Franklin County, Sturtevant, J presiding. Verdict directed for the plaintiff, and judgment thereon. The defendant excepted. The opinion states the case.
Judgment reversed, and judgment for defendant to recover his costs.
Robert W. Ready and M. H. Alexander for the defendant.
Albert W. Butler for the plaintiff.
Present: POWERS, C. J., SLACK, MOULTON and SHERBURNE, JJ., and SHERMAN, Supr. J.
The material facts are these: The defendant is a lawyer. On February 16, 1935, he brought an action in trover for one Fitzgerald against Leo Santerre, this plaintiff, returnable to the Franklin municipal court. The writ was legally served and duly entered in court. On May 20, 1935, Santerre not having entered an appearance therein, and the time having expired for him to do so, judgment was entered against him by default. The damages were found to be sixty-five dollars while the ad damnum in the writ was only fifty dollars. The court directed that this situation be called to the attention of plaintiff's lawyer, this defendant, which was done. He immediately filed a motion for leave to raise the ad damnum, to one hundred dollars, and at the same time left with the judge of such court a duplicate copy of such motion for Santerre, in accordance with the provision of city and municipal court rule III, par. 7. Without such copy having been delivered to Santerre, as required by said rule, the court, on the same day, granted the motion and entered judgment against him for the amount of the damages, and costs; and acting under the provisions of P. L. 2197 then and there found that the cause of action arose from the wilful and malicious act or neglect of Santerre, etc. The next day a body execution, with a certificate of the above endorsed thereon, was issued on said judgment and Santerre was arrested thereon and committed to Franklin county jail, where he was confined between two and three weeks.
At the close of all the evidence each party moved for a directed verdict; the plaintiff on the ground that the record in the original suit showed that defendant procured and made use of a void judgment; the defendant on the grounds that that judgment was such that its validity could not be attacked in this suit, and that defendant therein had taken no steps to have it set aside or modified; that the motion therein to raise the ad damnum was granted as a matter of discretion and could not be revised in any court except in a proceeding directly attacking the judgment, and that such motion was filed at the request of the court, and defendant did all that the law, or the court rule above mentioned, required of him respecting notice to Santerre. The defendant's motion was denied and the plaintiff's was granted, all subject to defendant's exception.
The main question for review is whether the circumstances attending the rendition of the judgment in the original suit were such that that judgment is void or merely voidable. If the former, the judgment herein must be affirmed; if the latter, it must be reversed.
It may be said at the outset that some confusion has been created by the careless use of the word "void," as if it were interchangeable with the word "voidable," in other words, the term "void" has sometimes been used in referring to proceedings merely "voidable." Generally speaking, it is only jurisdictional defects which render a judgment void. Where the court has jurisdiction of the parties and the subject matter involved, and authority to render the particular judgment under any circumstances, mere error or irregularities in the exercise of that jurisdiction, although such as to render the judgment erroneous, and subject to be reversed or set aside in a proper proceeding for that purpose, do not render the judgment void, and until so set aside it is valid and binding for all purposes.
In support of his claim that the judgment in the original case is void because it exceeds the ad damnum in the writ, and was rendered without notice to him, plaintiff has cited indirectly, several hundred cases, that is, he has called attention to several paragraphs of Corpus Juris where that number of cases are cited, without calling attention to any particular case or cases there referred to. We have examined only such of these as appear to relate to the question before us. Among such as hold a judgment defective because for a larger amount than is named in the declaration or complaint, and rendered without notice to defendant, are Cole v. Roebling Con. Co. , 156 Cal. 443, 105 P. 255; Morgan & Co. v. Pace , 145 Ark. 273, 224 S.W. 483; Hibbard v. Estridge , 156 Ky. 122, 160 S.W. 746; Northern Tr. Co. v. Albert Lea College , 68 Minn. 112, 71 N.W. 9; Johnson v. Mantz , 69 Iowa 710, 27 N.W. 467; Gadsden v. Fertilizer Co. , 89 S.C. 483, 72 S.E. 15; Edison Electric Co. v. Thackara Mfg. Co. , 167 Pa. 530, 31 A. 856; Ruth v. Smith , 29 Colo. 154, 68 P. 278; Brown v. Caldwell , 13 Cal.App. 29, 30, 108 P. 874; Dorn v. Briggs , 106 Ill.App. 79; Drake v. Mowder , 89 N.J.L. 306, 98 A. 460; Excelsior Elec. Co. v. Sweet , 59 N.J.L. 441, 31 A. 721; Davenport v. Jamison , 74 Okla. 82, 177 P. 550; Leavenworth, L. & G. R. R. Co. v. Van Riper , 19 Kan. 317, and Littlefield v. Schmoldt , 24 Ill.App. 624. In all of these the judgment was attacked in the suit wherein it was rendered and not in a collateral proceeding, and the question of whether the judgment was void or merely voidable was not raised. On the other hand Carr & Hobson v. Sterling , 114 N.Y. 558, 22 N.E. 37; Pierrard v. Hoch , 97 Ore. 71, 184 P. 494; Martinson v. Marzolf , ...
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