Johnson v. Dismukes , 104 Ala. 520 ( 1894 )

BBICKELL, C. J.

The jurisdiction of the circuit court, or court having like jurisdiction, to order a sale of lands levied on under execution issued by a justice of the peace, is derived- fronrthe statute. (Code, § § 3359, 3862). An essential element of the jurisdiction is, that all the papers in the cause in which the judgment was rendered, upon which the execution was issued, shall by the justice be transmitted to the next term, after the levy of the execution, of the court from which it is proposed to obtain the order of sale. This is the plain, unequivocal mandate of the statute, which must be obeyed, or the jurisdiction of the court can not be called into exercise. The levy of the execution seems to have been made, and the papers- transmitted by the justice to the city court during a regular term. But at that term the court could not take jurisdiction, and make an order of sale. The court could act only at the time the statute prescribes ; and if from any cause / prior to the term appointed, the order should be made, it would be void. When a court renders a judgment void on its face, it is a duty, on a proper application being made, to vacate it, at any time subsequent to its rendition. — 2 Brick. Dig. 140, § 137. The city court properly vacated the order of sale granted prior to the term next succeeding the levy of the execution, and the transmission into the court of the papers before the justice. The order was void on its face, and it was a duty to expunge it from the record, so that it would not be a hindrance to the subsequent exercise of the rightful jurisdiction of the court.

The judgments of the city court, by the terms of the statute creating the court, become final on the expiration of ten days from their rendition, as .the judgments of all courts become final, according to the common law, on the close of the term, at which they were rendered. — Pamph. Acts, 1890-91, § 27, p. 1102. The court is not thereby inhibited from the exercise of the power, pertaining to all courts, to vacate judgments or orders void on their face because of a want of jurisdiction. Such judgments or orders are not final, in any proper sense of the term. They are not sentences or decisions, determining the merits of the cause, and terminating the particular suitor proceeding. The vacation of the order prematurely granted, was not a final j udgment, from which an appeal will lie. The original proceeding instituted by the transmission of the papers by the justice of the peace, and the motion for the order of sale, remained pending in the court, unaffected, undetermined by the vacation of the premature order. The order, judgment, or decree of a court, made during the pendency of a cause, not affecting its merits, nor precluding further proceedings, is not the matter of an appeal. The motion to dismiss the appeal must be granted.

Appeal dismissed.