Hendrick v. Whittemore

Wells, J.

This verdict rests upon the judgment rendered on scire facias against the plaintiff and defendant jointly. The objection made to that judgment is, that the writ named no hour, on the day of return, at which the defendants were required tc appear.

The forms of writs, returnable before a justice of the peace given by the St. of 1784, c. 28, make them returnable at a fixed *27 hour. It was held in Blanchard v. Walker, 4 Cush. 455 , that such a writ could not properly be entered after the hour had elapsed; and if so entered, that the defendant might refuse to appear, or might appear for the purpose merely of moving to dismiss the action. Objection having been properly taken before the justice, and renewed, on appeal, in the court above, it was held to defeat the action.

Assuming that the same rule applies to writs of scire.facias, and that the proceedings in this case might have been defeated by an objection taken in the case, or upon writ of error, the question still remains, whether the validity of that judgment can be impeached collaterally, when offered in evidence against either of the defendants therein. The general principle is, that a domestic judgment of a court of common law jurisdiction, to which a writ of error will lie, is valid, as between the parties, until reversed; notwithstanding a failure to obtain, by proper process, jurisdiction of the person of the party against whom it is rendered. Cook v. Darling, 18 Pick. 393 . Finneran v. Leonard, 7 Allen, 54 .

A distinction is sometimes made between courts of general jurisdiction, and courts of an inferior and limited or special jurisdiction. In the former, the power of the court to render the judgment will be presumed until the contrary is shown; in the latter, the judgment must appear to be within the jurisdiction of the court. But the decree of a court of general jurisdiction is invalid, if it be shown that it had no authority over the cause in which it assumed to act. It is then not a judicial proceeding. Folger v. Columbian Insurance Co. 99 Mass. 267 . In matters over which the jurisdiction of the court appears to extend, there can be no difference, in this respect, between the inferior and the superior court; between a court of limited and a court of general jurisdiction.

When the cause is ydthin the jurisdiction of the court, but the proceedings are based upon a defective writ, or are prosecuted without service, of process or notice upon the party to be affected, the objection is no more fatal to the jurisdiction and power of an inferior court than it is to one of general jurisdiction. In such cases a judgment ir another state, even of a court of general juris *28 liction, may be impeached by plea and proof, upon the ground of a want of jurisdiction of the person, in the court rendering the judgment. Carleton v. Bickford, 13 Gray, 591 . Domestic judgments, however, cannot be thus impeached collaterally, by the parties thereto; not because of an apparent authority in the court to render the judgment, but because the remedy by review or writ of error is held to be more appropriate. This consideration, and not the rank of the court as inferior or superior, is the ground of distinction between erroneous proceedings which are to be treated as void, and those which are voidable only. Smith v. Rice, 11 Mass. 507 . Chase v. Hathaway, 14 Mass. 222, 227 . Peters v. Peters, 8 Cush. 529 , 543. Harvey v. Tyler, 2 Wallace, 328, 342. Christmas v. Russell, 5 Wallace, 290, 304.

A justice of the peace exercises his jurisdiction mainly according to the course of the common law; his court is, for many purposes, a court of record, to which a writ of error will lie. Martin v. Commonwealth, 1 Mass. 347, 389 . Thayer v. Commonwealth, 12 Met. 9 . Valier v. Hart, 11 Mass. 300 . Arnold v. Tourtellot, 13 Pick. 172 . Gay v. Richardson, 18 Pick. 417 . In our view, the rule which makes the judgment of a court of record binding upon the parties, until reversed by proper proceedings therefor, although jurisdiction of the person was not properly obtained, is applicable as well to a judgment of a justice of the peace as to one of a court of general jurisdiction. It was so applied in Hawes v. Hathaway, 14 Mass. 233 ; and that decision is cited with approval in Crockett v. Drew, 5 Gray, 399 . A contrary decision, however, is found in Rossiter v. Peck, 3 Gray, 538 . This decision was manifestly made without much consideration. The case of Hawes v. Hathaway was not referred to; and the decision seems to have been based upon Piper v. Pearson, 2 Gray, 120 , 124. But in Piper v. Pearson the justice assumed to exercise a judicial power, when, in fact, he was clothed with no judicial authority in the premises. The whole proceeding was 'coram non judice ; and he was a mere trespasser. There is a broad distinction between that case and one where the magistrate possesses the requisite judicial authority, but, in the exercise of that authority, fails to secure, by proper proceedings, jurisdiction of the person *29 of the defendant. The case of Brown v. Cady, 19 Wend. 477 also cited by the court in Rossiter v. Peck , does support that decision ; and is in direct conflict with Hawes v. Hathaway. But the only question discussed in Brown v. Cady was the sufficiency of the proof that there was service of process upon the defendant, in the original suit; and it is to that point that the case seems to have been cited. The judgment of a justice of the peace was held to be invalid, without showing such service; and insufficient to support an action of debt or contract for the amount due upon it. But the propriety of impeaching such a judgment, without proceeding to reverse it directly by writ of error, does not appear to have received the consideration of the court.

Many considerations favor the rule that judgments of a court of competent jurisdiction which are erroneous by reason of defect of process, or insufficiency or want, of service, can be impeached by parties thereto only by proceedings instituted directly for that purpose. The plaintiff is concluded by such judgment. His demand is merged in it. He cannot treat it as a nullity, and proceed again upon his original demand as if no such judgment had been rendered. He can only proceed by levy of execution, or by suit upon his judgment. If the defendant may defeat any proceeding in either mode, the plaintiff is left remediless; unless he too may regard the judgment, which he has obtained, as absolutely void. But there can be no reason for holding, or permit ting the plaintiff to consider, a judgment obtained by him in * justice’s court to be absolutely void, which does not equally apph to a like judgment in any other court.

Writs not in exact conformity to the statute forms, but defective, like the present one, in not stating, with accuracy and precision, the time or place for the defendant’s appearance, may be amended, if, by intendment of law, the effect is not changed, and the defendant is not misled thereby. Parkman v. Crosby, 16 Pick. 297 . McIniffe v. Wheelock, 1 Gray, 600 . Or if, by a correct summons, the defendant is informed of the true time and place for his appearance. Kimball v. Wilkins, 2 Cush. 555 . Such writs, therefore, though voidable, are not necessarily void. Smith v. Saxton 6 Pick. 483 . The writ is merely the process *30 by which the court gains jurisdiction of the person of the defendant. The effect of an insufficient writ, upon the subsequent proceedings, cannot be essentially different from the effect of an improper service or a failure of service upon the defendant. Defects of that character often furnish the cause for reversal, by writ of error, of judgments rendered by justices of the peace, as well as in superior courts. And we are satisfied that, for errors in the mode only of exercising a judicial authority vested in a justice of the peace, the writ of error is the appropriate remedy by which to set aside the judgment; and that until so set aside the parties are concluded by it. If the defendant would avoid the effect of the judgment, he must do so by procuring the judgment itself to be vacated. Emery v. Nelson, 9 S. & R. 12. Tarbox v. Hays, 6 Watts, 398 .

Another consideration bears upon the rights of the parties in this case, and we think also upon the question we have been considering. The payment, for which he seeks to recover contribution, was made by the plaintiff upon an execution against himself and the defendant jointly. That execution issued from a court of competent jurisdiction to adjudge the cause of action. It was regular in form, and disclosed no want of authority in the magistrate who issued it. It was a perfect protection to the officer in collecting the amount due upon it, by levy upon the persons or property of the defendants. Chase v. Ingalls, 97 Mass. 524 . The plaintiff has been compelled to satisfy an execution, upon which the defendant was equally liable with himself, and which neither of them could resist. Ho case could better illustrate the unfairness and impropriety of allowing a party to a judgment, while permitting it to remain unreversed, to escape from its effect by throwing upon another party to the same judgment the burden of proving the regularity of all the proceedings upon which it was founded.

In the absence of evidence of collusion, we think the j ayment, by the plaintiff, on execution, of the amount of such a judgment, entitles him to contribution from the other joint defendant therein ; and that this defendant is concluded by the judgment as to all facts at issue, or necessarily involved in the rendition of such judgment.

*31 It follows, that the questions as to the execution and validity of the bail bond are not open in this suit. The question of variance, and that of the identity of the bond, are immaterial. The recovery in this action is for the amount paid on the judgment, not upon any bond.

The defendant was liable for the costs of scire facias equally with the plaintiff, if liable at all.

Upon the question relating to the effect of the defendant’s signing the bail bond at the request of the plaintiff, the instructions were sufficiently favorable to the defendant. The defendant was allowed to state all that passed between him and the plaintiff, and between himself and the principal, in relation to the execution of the bond. We do not see that the questions put and excluded could have elicited anything further that would have been competent. Exceptions overruled.