Masterson v. Matthews , 60 Ala. 260 ( 1877 )

STONE, J.

The act “ To establish an inferior court of record in the town of Courtland, Alabama,” approved January 2,1872 (Pamph. Acts, 104), and the act to establish a similar court in the town of Decatur, approved December 17,1873 (Pamph. Acts, 68), are indentical in their provisions. In Ex parte Roundtree, 51 Ala. 42, this court, in an able and satisfactory opinion, held that section 15 of the statute creating said court was' unconstitutional. That section is in the following language : “That the judge of the fourth judicial circuit of Alabama shall be the judge of said Court of Law and Equity.” No other clause of said statute was declared unconstitutional, and we are not aware of any sound argument that can be urged against the constitutionality of the other provisions. We thus, have the case of a court constitutionally created in all its appointments, save in the matter of the judge who is to preside over it: he was not constitutionally chosen.

In 1840, the legislature created the 10th judicial circuit, and elected to the judgeship of it a person who was constitutionally ineligible to hold the office. He presided for a time, and rendered judgments. An information in the form of a quo warranto was filed against him in this court, and he was ousted by the judgment of this court, on account of his ineligibility.—See State, ex rel. v. Porter, 1 Ala. 688. A question arose, whether the judgments, so rendered by him, were valid and binding. This court held them valid, remarking: “ It is now too well settled, that the acts of a judge cle facto, whose title to the office has not been adjudged insufficient, are valid and irreversible, to allow of serious controversy.”—See Mays v. Stoneum, 2 Ala. 390. We are unable to distinguish, in principle, between that case and this. The judgments of the Law and Equity Court of Lawrence, rendered before the decision of this court in the case of Ex parte Roundtree was announced, are valid and binding, and not reversible on account of the manner in which the presiding judge was chosen. He was a judge de facto.

Probably the most elaborately considered case on this question, is that of The State v. Carroll, 38 Conn. 449, decided in 1871. The court, in that case, quoted with approbation the following language : “ If you find a man executing the duties of an office, under such circumstances of continuance, reputation, or otherwise, as reasonably authorize the presumption that he is the officer he assumes to be, you may submit to, or employ him, without taking the trouble to inquire into his title; and the law will hold his acts valid as to you, by holding him to be, so far forth, an officer defacto. If he has color of appointment, or election, and yet is not a good officer for the want of authority in the appointing power, or irregularity in exercising it, or because there was another lawful officer entitled to the office, or because the incumbent was inelegible, or had not qualified as the law required, or his term had expired, your case is made stronger by the color; but that kind of color is not essential to your protection, for you are not bound to inquire to see that it exists.”

We need not, and do not, go the full extent of the doctrine stated above. The wants of the case in hand do not require it. All we affirm in the present case is, that the judge of the fourth judicial circuit was, de facto, judge of the Law and Equity Court of Lawrence county, until the prohibition was awarded in Ex parte Roundtree.—See Den, ex dem. v. Reddick, 4 Ired. Law, 368; State v. Alling, 12 Ohio, 16; Case v. The State, 5 Ired. 1; State v. Anone, 2 Nott & McC. 27; Taylor v. Shrine. 2 Trud. S. C. 693.

2. This record is strangely obscure in the matter of the rulings on the demurrers. There was a general demurrer to the whole complaint, for misjoinder of counts. This was sustained by the court. This ruling, without amendment of the complaint, put the case out of court. Without any note of amendment, the record shows that defendant then demurred to the second count, assigning causes. It contains no demurrer to the third count. Yet, the judgment-entry affirms, the court overruled the demurrer to the second and third counts; and pleas were then interposed to the second and third counts, and issues joined on them. We feel it our duty to presume that, after the demurrer was sustained to the whole complaint, for the misjoinder of counts, the court gave plaintiffs leave to amend, which they did by striking out the first count. There being no demurrer to the third count, we need not consider its sufficiency.

3. The second count is sufficient. It affirms the recovery of a judgment, the court in which it was recovered, the date, parties, and amount. The court having been created, and its jurisdiction defined, by a public statute of Alabama, it was not necessary to aver the court had jurisdiction. The law gave it jurisdiction of the subject-matter; and if the judgment was open to any defense, that was a proper subject for a plea. So, it was not necessary to aver that the judgment remained of full force, unreversed, and unsatisfied. The law does not presume the reversal of a judgment, nor its satisfaction, except after the period of twenty years. Satisfaction and reversal are matters of defense.

4. Nor is it any defense to this action that, ordinarily, a replevin bond, given in an action of detinue, has the force and effect of a judgment, when properly indorsed and returned forfeited. This is but a cumulative, summary remedy, and does not take away the common-law right to sue on the bond.

Judgment affirmed.