Rushing v. Thompson's Executors , 20 Fla. 583 ( 1884 )

The Chief-Justice delivered the opinion of the court.

The material questions are, 1, whether the cause was in a condition to be referred for trial at the time it was referred ; 2, whether the referee can be appointed on the application of one party, the other being in default; 3, whether under the Constitution and laws a referee has power to try a cause and render a final judgment or decree, to be effectual as a judgment or decree of the Circuit Court without further action of the Judge of the Court.

The Circuit Court had jurisdiction of the bill in equity to set aside and cancel a deed for fraud. On the return of the subpoena showing defendant was not to be found the court had power to order defendant to appear and that the order be published. This was done and publication was made for four months, which time expired February 28, 1878. On the fourth of March following complainants’ solicitors entered, in form, an order pro confesso not signed by the Judge. This order was of no effect, without the signature of the Judge. It was entered before the expiration of one month after the expiration of the four months, and would have been for that reason irregular if it had been signed by the Judge. Sec. 13, Act of 1828, McC. Dig., 155. On the eighth day of May, 1878, the Judge made and signed au order reciting “ that no plea, answer or demurrer has been put in by the defendant, that a decree p?'o confesso has been regularly taken and filed and entered, and that the time for further pleading has expired under the rule,” it -was, therefore, ordlered that the cause be referred to a master to take testimony.

This order was made more than one mouth after the expiration of the publication for four months of the order to plead. We can but regard this order of May 8, in its terms and effect, as an order taking the bill as confessed on that day. It refers to an order pro confesso as having been duly entered and adopts it over the signature of the Judge. It is equivalent to signing the first order on May 8, the date of the last order.

Afterwards, on the 19th March, 1880, on motion of the complainants’ solicitor, it was ordered that the cause be referred' to H. Jenkins, Jr., a practicing attorney, as referee, for trial and final determination according to the statute.

It is objected that this order is void because the Constitution does not authorize such reference for trial, except “ upon the application of the parties,” thereby meaning all the parties in a suit.

By rule 44 in equity, after the entry of an order taking the bill as confessed in default of pleading, “ thereupon the cause shall be proceeded in ex parte.,” &c. And thus, the defendant having been summoned in the manner' required by law, and having failed to appear and plead within the time allowed, there is but one party before the court to proceed in the cause and the court is authorized to proceed to-take testimony and to a final determination of the matters before it in any manner authorized by law. The trial by a referee is provided for the convenience of the court and of parties and to expedite causes. In this case, there being-but one acting party before the court, it is entirely consistent with the constitutional provision to refer the cause for trial on the motion of the only party before the court entitled to speak.

Upon another ground, however, it may be said that the-decree could not be collaterally attacked. It has always - been held that the title of an officer, de facto, acting under-color of an election or appointment, cannot be inquired, into-collaterally, whether the office be judicial or ministerial;.

In Indiana it was provided bylaw that in case-of the-temporary absence of t he Circuit J udge, the clerk, auditor and .sheriff were authorized to appoint some member of the bar to preside as Judge. A vacancy occurred in the office of Judge and the officers mentioned appointed an attorney to preside, the appointment being in legal form. The court held that the law did not authorize such an appointment during a vacancy in the office of J udge, yet that a court de facto, if not dejare, was constituted, and a party convicted of larceny could not, after conviction, call in. question the authority of the court. Case vs. The State, 5 Ind., 1.

Where, in Ohio, a clerk had beeu appointed by Judges, whose appointment to the judicial office had been regular in form but at the time of the appointment of the clerk by them they were not rightfully in office, it was held that as they were in by color of right they were Judges de facto, and as to the public or individuals their acts must be held valid. State vs. Alling, 12 Ohio, 16.

It would be strange, indeed, it the judgment or decree of a court of competent jurisdiction could be impeached on the ground that a flaw had been discovered in the commission of the Judge. People vs. White, 24 Wend., 520, 527.

In Tennessee, one under thirty years of age was appointed Circuit Judge, contrary to the provisions of the-Constitution. The court says : The Governor’s commission renders the functionary prima facie competent and clothes him with powers of the office so far as his official acts are concerned. He may be removed from office and his powers terminated by the proper proceedings, biT until that is done his acts are binding. The plaintiff in error had been indicted for a crime when this judge presided, and the judgment was affirmed. Blackburn vs. State, 3 Head., 690.

The same doctrine was held in Pepin vs. Lachenmeyer, 45 N. Y., 27; People vs. Cook, 8 N. Y., 67, citing many authorities; McInstry vs. Tanner, 9 Johns., 135; Buckingham vs. Ruggles, 15 Mass., 180; Tolle vs. Stone, Burnett, Wis., 230; In re Boyle, 9 Wis., 260.

And so it seems that though there be a defect in the title of a person exercising the duties of an office, whether it be on aocouut of some personal disqualification or because of the improper exercise of the appointing power, if he is in the office under the color of an appointment by proper authority, his official acts are recognized as valid ' and not liable to collateral attack on the ground of defect in his title.

A referee is a judicial officer who may be appointed by the Circuit Judge to try and determine a cause before the court, .and according to the authorities in analagous cases, his commission, though there may be some irregularity in his appointment, makes him an officer defacto whose title cannot be assailed in a collateral proceeding. If the Judge has improvide$ly made the order appointing the referee, the remedy for the error is in the same court or by appeal.

Counsel for appellant, arguing that the finding and decision of the referee is not a final decree, refer to the ruling of this court in Chambers vs. Savage & Haile, 13 Fla., 555. That case.arose before the passage of any act by the Legislature regulating appeals or regulating the proceedings and trial before referees, and the manner of entering judgments upon their findings, and the result was that as there was then no law providing for the entry of their judgments in the record of any court, there was no machinery provided for the enforcement of such judgments or for appealing therefrom. Ho provision had been made for filing or recording the proceedings of the referee in the clerk’s office, or making the finding a judgment of the court, and a return made by the clerk upon an appeal could not be recognized until the Legislature should make proper provision, or the court should direct judgment to be entered upon the finding of the referee.

The action of the Legislature in 1879, chapter 3122, supplemented the provision of the Constitution on the subject, regulated the trial, empowered the referee to summon -witnesses, to file his findings in the clerk’s office, provided •tor granting new trials, and the entering and recording of his judgments and decrees by the clerk, and that the same ishall be effected as other judgments and decrees of the Circuit Court. The judgments and decrees of referees duly-appointed are intended by the constitutional provision to be efficacious and final as judgment and decrees rendered by the Circuit Judge. The referee for the purposes of the trial and final decisions is substituted for the Judge. The cause is commenced in the Circuit Court, and the judgment is that of the court when duly entered.

But it is said by appellant that the proceedings before the referee were unauthorized and void, that he had no jurisdiction of the cause for. the reason that the decree pro confesso, so-called, was prematurely entered and was not signed by the Judge as the law requires and therefore the judge had no power to take further proceedings looking to a final decreee.

"We think the order made subsequent to the irregular entry of the order pro confesso is substantially a decree taking the bill as confessed, as before observed. But if no regular decree pro con. had been entered it did not affect the yarisdiction of the court to render a final decree.

In Savage vs. Berry, 2 Scammon, 545, it was held that the want of a formal entry that the bill be taken for confessed is not material and does not prej udice the defendant; that the objection is purely technical, not in the least affecting the justice of the ease, and that the want of such formal entry in the record could not be assigned for error.

In Heath vs. Mitcherson, 1 J. J. Mar., 547, the court say that after due service the court had a right to decree as to the defendant and it was not necessary that it should appear formally on the record that the bill was taken as confessed against him. The decree was affirmed on appeal.

In Shields vs. Bryant, 3 Bibb, 525; Carman vs. Watson & Pope, 1 How., Miss., 333; and Legrand vs. Francisco, 3 Muni, 83, the final decree was set aside as irregular or erroneous because no decree pro confesso had been entered.

In Brown vs. Humphreys, 1 J. J. Mar., 392, a final decree was set aside as irregular because the decree pro con. was entered before the time for appearance had expired.

And so it seems that the courts have held that the absence from the record of a decree pro confesso is not good ground for reversal of a final decree; or that if no decree pro confesso had been entered the final decree was irregular or erroneous and reversed, but we have found no case in which the final decree was held void for that reason, or that it affected the jurisdiction of the court.

It is a well settled rule that jurisdiction being obtained over the person and the subject matter, no error in its exercise can make the judgment void. The authority to-decide being shown, it cannot be divested by being improperly or incorrectly employed. Freeman on Judg., §135, and notes.

Especially is it settled also that a domestic judgment cannot be assailed collaterally, there being no want of jurisdiction shown by the record itself. Whatever errors- or irregularities may appear upon its face to have been committed by the court rendering a judgment, if the court has acted within its jurisdiction once obtained the judgment cannot be assailed, except in the court where it was pronounced, by moving to set it aside, or by equitable aid to-prevent its execution, or by appeal to a higher tribunal to reverse or correct it. Freeman Judg., §§130, 135, and authorities cited. •

In this case there does not appear to be a defect of jurisdiction. The court of chancery had power to decree the prayer of the bill, and to acquire jurisdiction of the person as to the res by publication and proof' thereof. On completing the statutory service of notice the court had powqp to appoint a referee and the referee had power to hear and determine. Eo error is alleged in the proceedings from the filing of the bill to the final decree, which is not, if it be error, an irregularity not affecting the jurisdiction. If irregularity exists, a court of superior, not of collateral jurisdiction, can correct it.

The appellants here are suing as the heirs at law of the granteee named in the deed which was set aside by this decree. She was a party to the decree annulling that deed, and the plaintiffs claim in her right and occupy the- same position she would occupy if she was living and was the plaintiff here instead of her heirs. They are, therefore, directly affected by the decree as though they had been parties, and can avoid it only as Mrs. Magruder herself could avoid it if she were living.

There was no error in admitting the record of the decree as evidence, and the effect of it was necessarily to destroy the plaintiffs’ evidence of title.

The judgment is affirmed.