Mcgehee v. Wilkins

• Decision Date: 26 January 1893
• Citation: 12 So. 228,31 Fla. 83
• Parties: McGEHEE v. WILKINS.
• Court: Florida Supreme Court

12 So. 228

31 Fla. 83

McGEHEE v. WILKINS.

Florida Supreme Court

January 26, 1893

Appeal from circuit court, Lake county; John D. Broome, Judge.

Ejectment by J. J. McGehee against W. C. Wilkins. From a judgment of nonsuit, plaintiff appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. Before a sheriff's deed is admissible in evidence for the purpose of providing title thereunder, a valid judgment and execution must be shown.

2. Where the defendant was not actually or by legal construction before the court rendering the judgment, it was coram non judice, and the judgment is void, and may be assailed collaterally.

3. Where a judgment is rendered by a court of limited powers and jurisdiction, it must affirmatively appear from the record that the court had jurisdiction of the person and the subject-matter.

4. Under chapter 2040 of Laws (Acts 1875) an attachment issued from the court of a justice of the peace could not legally be levied upon real estate, and where so levied, and the defendant was not personally served with summons, and did not appear, the justice acquired no jurisdiction of the defendant.

COUNSEL J. B. Gaines, for appellant.

Alex. St. Clair-Abrams, for appellee.

OPINION

The other facts fully appear in the following statement by YOUNG J.:

This was an action of ejectment brought by appellant against appellee. The plea was not guilty. The plaintiff proved title, through mesne conveyances, under a patent from the United States, and that he went into possession the latter part of June, 1887, and erected improvements, and had not sold or leased the premises sued for. The defendant then offered in evidence a certified copy of a writ of fieri facias, which was issued by the clerk of the circuit court of Lake county, on a judgment by a justice of the peace, with the return thereon. Plaintiff objected to its introduction, and the objection was overruled, and plaintiff excepted. Defendant then offered in evidence a certified copy of a transcript of a judgment rendered by the justice of the peace against J. J. McGehee. Plaintiff objected to its introduction, and the objection was overruled, and he excepted. Defendant then offered in evidence a sheriff's deed to himself, conveying the lands in question, and which was based upon a levy and sale under the execution in evidence. The introduction of this deed was objected to, on the ground that the deed was made upon a sale under fieri facias issued on a judgment rendered by a justice of the peace, which judgment had not been proven, and it had not been proven that the justice of the peace who rendered the judgment had jurisdiction either of the person of the defendant or the subject-matter of the suit. The objection was overruled, and the deed admitted; the judge ruling that the plaintiff should introduce the record of the proceedings of the justice, if he claimed that they were invalid, to which ruling of the judge the plaintiff excepted. Defendant then offered in evidence a transcript of the docket entries in the justice's docket, certified to by the clerk of the circuit court, the docket having been filed in his office upon the expiration of the term of office of the justice. Plaintiff objected to its admission, and the objection was overruled, and plaintiff excepted. Defendant closed, and plaintiff then introduced in evidence the original docket entries and papers in the suit before the justice, in which the judgment was rendered, on which the execution issued that was levied on the land in controversy. It appears from the evidence, so introduced in rebuttal, that the suit before the justice was commenced by attachment; that the attachment was levied upon the lot in controversy; and that the defendants were not found, were never personally served, and never appeared. It appears from the transcript that, after all this evidence was in, the judge again overruled the objection of the plaintiff to the admission of the sheriff's deed, and that, in consequence of this plaintiff took a nonsuit, with a bill of exception.

YOUNG J., (after stating the facts.)

In all cases where a deed is executed under a power, it is necessary to prove the power before the deed is admissible in evidence. Where a sheriff sells and makes a deed under a fieri facias he is acting under a power. 'He acts in fact as the attorney of the defendant, appointed by law for that purpose.' Davis v. Shuler, 14 Fla. 447. Before a sheriff's deed is admissible in evidence, for the purpose of proving title thereunder, a valid judgment and execution must be shown. Donald v. McKinnon, 17 Fla. 746; Kendrick v. Latham, 25 Fla 819, 6 South. Rep. 871. Where a court has jurisdiction of the person and the subject-matter, it has a right to decide every question which occurs in the cause; and, whether its decision be correct or not, it is valid and binding till reversed. 'The line which separates error in judgment from the usurpation of power is very definite, and is precisely that which denotes the cases where a judgment is reversible only by an appellate court, or may be declared a nullity collaterally. In the one case it is a record importing absolute verity; in the other, mere waste paper.' Voorhees v. Bank, 10 Pet. 449; Elliott v. Peirsol, 1 Pet. 328; Thompson v. Tolmie, 2 Pet. 157. 'To authorize the assertion that a judgment is void, it must have emanated from a court of limited jurisdiction, not acting within its legitimate prerogative, or a court of general jurisdiction, where the parties are not, actually or by legal construction, before the court, and subject to its jurisdiction.' Ponder v. Moseley, 2 Fla. 207. ...