L. M. Wiley, Parish & Co. v. Kelsey , 9 Ga. 117 ( 1850 )

By the Court.

Warner, J.

delivering the opinion.

The facts of this case are briefly as follows: At the October Term of Houston Superior Court, in the year 1846, it was ordered and adjudged by the Court, upon the evidence of the plaintiffs’ counsel, and an inspection of the record, that the Clerk had issued an execution upon a judgment rendered in favor of L. M. Wiley, Parish ¡& Co. vs. T. & S. Williams, through mistake, for the sum of $753 95, instead of the sum of $1753 95; and it was farther ordered and adjudged by the Court, that the execution so erroneously issued,,be and the same is hereby cancelled and annulled, and that the Clerk forthwith issue a fi. fa. for the correct amount of the judgment, nunc pro tunc; and, also, that the late Sheriff, George M. Duncan, do enter upon said fi. fa. so to be issued, any levy or payment which may have been made or received upon the execution erroneously issued as aforesaid.

The execution so issued in accordance with the judgment of the Court, has. claimed money in the Court below, and has once been before this Court, when it was adjudged not to have been a dormant execution.

At the last term of the Court, the execution established by the judgment of the Court, as before stated, was placed in the Sheriff’s hands, to claim money arising from the sale of the defendants’ property, when a motion was made to set it aside, upon the ground that an execution, alleged to have been the original execution, was produced in Court, which had been issued for the correct amount, and was dormant under the law, and the Court sustained the motion, and set aside the fi. fa. so issued in accordance with the judgment of the Court, made at October Term, 1846. The only question involved is, whether the judgment of the Court, rendered in October, 1846, can be attacked and set aside in this collateral manner.

The only effect of the evidence offered is, to show that the Court was mistaken as to the facts when the judgment was rendered in 1846, and that the judgment was erroneous. In other words, the evidence now offered expressly contradicts the judgment rendered in 1846. The judgment rendered in 1846 declares, that the execution issued for the wrong amount. The evidence now offered is for the purpose of showing that there was no mistake, and that the execution was originally issued for the correct amount, and to prove that fact, a paper is offered which is said to he the original execution.

Admit the paper offered in evidence to be the original execution, and what effect can it have as evidence ? The judgment of the Court, in 1846, declares it to be cancelled and annulled; and so long as that judgment remains unreversed, it is difficult to perceive upon what legal principle it can be corttradicied, and especially how it can be contradicted by offertng a paper in evidence, which, by the judgment of a Court of competent jurisdiction, has been adjudged to have been cancelled and annulled.

Although the judgment may have been erroneous, yet it is conclusive as to the facts which it purports to decide — it being the act of a Court having competent jurisdiction over the subject matter — it cannot be contradicted or attacked, in the manner proposed in the Court below. Stark vs. Woodward, 1 Nott & McCord’s Rep. 329. Lyles vs. Brown, Harper’s Law Rep. 31. Geyer vs. Aguilar, 7 Tenn. Rep. 691. Sims & Wise vs. Slocum, 8 Cranch, 298. 1 Cond. Rep. U. S. 541. We are of the opinion the Court below erred in its judgment, in allowing the judgment rendered in 1846, establishing the execution, to be impeached, colatterally, by the evidence offered for that purpose.

Let the judgment of the Court below be reversed.