Toms v. Whitmore

• Decision Date: 03 March 1896
• Parties: TOMS ET AL. v. WHITMORE
• Court: Wyoming Supreme Court

44 P. 56

6 Wyo. 220

TOMS ET AL. v. WHITMORE

Supreme Court of Wyoming

March 3, 1896

Commenced in District Court March 6, 1894.

ERROR to the District Court for the County of Sweetwater, HON JESSE KNIGHT, Judge.

Replevin by Clarkson Toms against Tom Whitmore, sheriff of Sweetwater County, for certain personal property claimed to have been delivered to the plaintiff by F. D. Toms in pledge, the sheriff having attached the property as the property of F. D Toms, while the same was in transit on board cars consigned in Idaho by F. D. Toms to Clarkson Toms in Kansas. The material facts are stated in the opinion.

Reversed.

E. E. Enterline, for the plaintiffs in error.

Parol evidence is inadmissible to contradict or change the record as kept by a justice of the peace. (17 Am. & Eng. Ency. L., 422.) The judgment rendered by the justice shows on its face that it is void; the hour for trial not being entered, and the record failing to show that plaintiff appeared, both of which are jurisdictional. (1 Black on Judg., 282; Mudge v. Yaples, 58 Mich. 307; Beach v. Botsford, 1 Doug. Mich. 199; Vroman v. Thompson, 51 Mich. 452; Post v. Harper, 61 id., 434; King v. Bates, 20 Am. St. Rep., 518 and notes; 80 Mich. 637.) Statutes permitting constructive service of process must be strictly construed, and the record of the justice must affirmatively show jurisdiction. (1 Black on Judge., 222, 232, 281; Levy v. Ferguson, 51 Ark. 317; 12 Am. & Eng. Ency. L., 504.) A judgment of a justice of the peace, rendered without jurisdiction, is a nullity and subject to collateral attack. (1 Black on Judg., 218, 220, 278, 282; Murphy v. Lyons, 19 Neb. 689; 12 Am. & Eng. Ency. L., 148, note 2 and cases cited; Spear v. Carter, 48 Am. Dec., 688; McDonal v. Prescott, 90 Am. Dec., 517.) Judgment of a court without jurisdiction is not even prima facie evidence of debt. (Pelton v. Planter, 42 Am. Dec., 197.) No undertaking after judgment and before execution being filed as required by statute the sheriff is not protected. (Rev. Stat., Sec. 3573; 8 Am. & Eng. L., 328; Bush v. Visant, 40 Ark. 124.) The following additional authorities were cited in a supplemental brief. (Miller v. Plue, Neb., 64 N.W. 232; Garbanati v. Beckwith, 2 Wyo., 213; Leonosio v. Bartelino, 63 N.W. 543; Const., Art. 5, Sec. 10; Rev. Stat., Secs. 3415-3664; Jones v. Hunt, 63 N.W. 81.

C. C. Hamlin and C. A. Warner, for defendant in error.

For mere irregularities affecting in no way the jurisdicof the court, the judgment can not be attacked in a collateral proceeding by one not a party to the record. (O'Farrell v. Stockman, 19 O. St., 296; Billings v. Russell, 29 Pa. 189; Webster v. Daniel, 47 Ark. 131.) As between two conflicting dates in the record of a justice it is competent to prove by the testimony of the justice which is the correct one. (Darem v. Gow, 50 N.W. 140.) A record may be amended to conform to the facts. (Com. v. Phillips, 11 Pick. 27; Morton v. Edwin, 19 Vt. 77.) Justice of the Peace courts are courts of general jurisdiction, and it will be presumed that they acted properly unless the contrary affirmatively appears by the record. (Fox v. Hoyt, 12 Conn. 491; Lyon v. Alvord, 18 id., 73; McNamara v. Rogers, 36 id., 205; Wright v. Hazen, 24 Vt. 143; Farr v. Ladd, 37 id., 158; Billings v. Russell, 23 Pa. 189; Stevens v. Mangum, 27 Miss. 481; Turner v. Ireland, 11 Humph., 447; Lightsey v. Harris, 20 Ala. 411.) Where the proceedings of a court of competent jurisdiction are brought before another court collaterally, and it appears on the face of them that the subject was within the jurisdiction of the court, they are voidable only, and errors of irregularities are to be corrected by direct proceedings, either before the same court to set them aside, or in an appellate court. (Thompson v. Tolmie, 2 Pet., 157; Vorhees v. Bank, 10 Pet., 449; Hendrick v. Whitmore, 105 Mass. 28; Black on Judg., Sec. 245.) The rule applies where the court has jurisdiction of the res. (Black, Sec. 246; Otis v. The Rio Grande, 1 Woods, 279.) The judgment of a court of competent jurisdiction can not be attacked collaterally for irregularities not going to the jurisdiction. (Jackson v. Astor, 1 Pinney, 137; Allen v. Huntington, 2 Aik. (Vt.,) 249.) Nor for the reason that the judgment was erroneous. (Black, Sec. 262.) Nor for irregular or defective service, or even for the entire lack of service. (Black, Sec. 263; 15 O., 435; 24 Ark. 405; 3 Strob., 108.) Nor for improper reception of evidence. (Odle v. Frost, 59 Tex. 684; Martin v. Porter, 4 Heisk., 407; Pollock v. Bene, 43 Miss. 140; Bartlett v. Russell, 41 Ga. 196.) Where there is general jurisdiction of subject-matter, justice judgment is not open to collateral attack. (Turner v. Conkie, 132 Ind. 248.) In regard to inferior courts, if the record does affirmatively show the facts necessary to confer jurisdiction, then the same presumptions are indulged in favor of the regularity and validity of its proceedings as are extended to superior courts. (Black, Sec. 287; 77 Ind. 143; 3 Iowa 114; 3 Wall., 396; 22 N.J.L. 396; 18 Ala. 176; 35 Me. 97; 12 Ga. 424; 97 Mo. 406; 117 Mo. 106.) A court may acquire jurisdiction in attachment proceedings without personal service. (Benson v. Cilley, 8 O. St., 615.) The justice judgment is not void because it fails to show presence of plaintiff. (24 Ark. 122; 2 Wend. 602; 22 Wis. 40; 62 id., 632; 49 N.W. 1128; 6 Barb. 621; 14 Mass. 233; 31 Kan. 306; 108 Ind. 443; 78 id., 579: 1 Iowa 86; 94 U.S. 664; 86 Ind. 43.) Evidence aliunde may be received in support of proceedings before a justice, and even to show jurisdictional matter, at least where the same is not required to be entered on the record. (2 Colo. 85; 12 id., 352; 34 Cal. 321; 27 Miss. 209; 51 N.Y. 378.) An execution will be presumed to have regularly issued. (24 Ark. 359; 1 C. C. A., 339; 6 S.W. 23.)

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

Clarkson Toms claimed in his petition a special interest and ownership in certain goods and chattels consisting of one surgeon's operating chair, one sewing-machine, and the contents of three boxes and one trunk, consisting generally of paintings, books, and household goods, alleging that such special ownership and interest was that of pledgee, and that the said property had been delivered to him in pledge, to secure an indebtedness due to him, by F. D. Toms on the 29th day of January, 1894. That on the 31st day of January, 1894, the defendant, as sheriff of Sweetwater County, wrongfully took said property from the possession of plaintiff, and wrongfully detained the same. An order of delivery was issued, and upon the execution of the statutory undertaking the property was delivered into the custody of the plaintiff. The answer denied generally the allegations of the petition, excepting that the official character of the defendant was admitted, and also alleged the value of the property taken under the order of delivery to be the sum of two hundred and fifty dollars. Upon the trial, without the intervention of a jury, the court awarded judgment to defendant and against plaintiff and his surety, The Rock Springs National Bank, for the sum of $ 153.07, damages and costs of suit.

The defendant, upon the trial, claimed the right to the possession of the goods, under an attachment in the suit of The Blyth & Fargo Company against F. D. Toms, brought and pending before a justice of the peace of Sweetwater County, a judgment rendered therein against said F. D. Toms, and an execution issued thereon. The property had been levied on by the sheriff under the writ of attachment, and was subsequently held under the execution.

The plaintiff objected to the introduction of the papers and records, in the suit before the justice, and contended that the judgment was void, in that it did not affirmatively appear by the docket that the justice had jurisdiction, and various questions are raised respecting the proceedings in that suit. The view which we take of the case, renders a consideration and review of such questions unnecessary. If there was a valid pledge, and delivery of the property to Clarkson Toms before the attachment levy, and if they were legally in his possession as pledgee at the time of such levy, he is not concerned with the other suit in which the attachment issued, as no rights thereunder, however perfect the proceedings may have been, could be acquired in or to the property as against him, unless it should be established that the pledge agreement and delivery of possession to the plaintiff was fraudulent and void as to creditors of F. D. Toms, and then it would be necessary for defendant to show a valid lien upon the property in order to question the bona fides of the transaction between F. D. Toms and the plaintiff. If there was no valid pledge, or delivery of possession, and the plaintiff was not in fact in possession as pledgee at the time of the levy, under the writ of attachment, he could not be heard to question the validity of such attachment and levy, it being clear that any right which he claims or acquired, if any, was so acquired prior to the levy.

It appears from the testimony of Clarkson Toms and F. D. Toms, that, on the 29th day of January, 1894, the latter, who was then residing at Pocatello, Idaho, was indebted to the former in the sum of six hundred and seventy-five dollars for money which had been loaned and advanced to him from time to time, and that the same was then due. That Clarkson Toms, who was a banker residing at Pratt, Kan. had insisted upon being secured, and that it was agreed between them that F. B. Toms should deliver said goods and chattels to the plaintiff in pledge to secure the payment of said indebtedness, the same to be retained by the pledgee until such...