Rodgers v. Evans , 8 Ga. 143 ( 1850 )

By the Court.

Lumpkin, J.

delivering the opinion.

The order of November, 1842, declaring John P. Evans the principal debtor, in the note which Berry Rodgers was compelled to pay, and giving to Rodgers, as indorser, the use and control of the judgment, to re-imburse himself as security, certainly entitled him to the execution, which he has caused to be issued thereon» and which has been arrested by the affidavit of illegality, interposed by the defendant; and being passed by a Court oí competent jurisdiction, and remaining in full force, we know of no authority in this, or any other Court, to treat it as a nullity. On the contrary, the presumption is omnia rite acta. Any other course would overturn the landmarks of property.

In Rose vs. Himely, 4 Cranch, 278, it is said, if a judgment be merely irregular, the Courts of the Country pronouncing the sentence, are the exclusive judges of that irregularity, and their decision binds the world. So, in Kempe’s Lessees vs. Kenedy, 5 Ib. 186, the Supreme Court of the United States say — “ The judgment it gave was erroneous, but it is a judgment, and until reversed, it cannot bp disregarded.” In Windham vs. Windham, 3 Ch. Rep. 12, an indirect attack was made upon the decree of a Court of Equity, ordering a sale — whereupon, the Lord Keeper remarked — “You blow up with gunpowder the whole jurisdiction, if such a purchaser is not protected.”

We take this to be the true distinction, and to be well settled by the authorities.

[1.] A judgment of a Court which has no jurisdiction of the cause, is entirely void.

[2.] But where the Court has jurisdiction both of the cause and the parties, and proceeds erroneously, the judgment; notwithstanding the error, is binding, until it is vacated- or reversed. Gorrill vs. Whittier, 3 N. H. Rep. 269. The Case of the Marshalsea, 10 Co. 76. Elliot vs. Piersol, 1 Pet. S. C. Rep. 340. Smith vs. Shaw, 12 Johns. Rep. 256, 267. Lotham vs. Edgerton 9 Cowan’s R. 227. Brown vs. Crampton, 8 D. & E. 424. Hecker vs. Jarratt, 3 Bin. 410. Prescott vs. Hull, 17 Johns. R. 290. Holmes vs. Remson, 20 Johns. R. 268. The same parties, 4 Johns. Ch. R. 460, and the cases there cited. Homer vs. Fish et al. 1 Pick. Rep. 435. Saxton vs. Chamberlain, 6 Pick R. 422. Minor vs. Walker, 17 Mass. R. 237. See also 3 Pick. 33. 4 Ib. 228. 7 Ib. 341. 8 Ib. 113.

Without denying the validity of this order, we held, when the same parties were before us in August, 1846, (1 Kelly, 463,) that neither the order, nor any of the numerous Statutes which had been passed for the relief of securities, authorized the capias ad satisfacicndum which was first issued at the instance of Rodgers; and we characterized the November order itself, on that occasion, as a “ most anomalous” proceeding. And it is due to the Circuit Judge, who rendered the judgment against the fi. fia. which we are now called on to review, to state, that he was probably misled by the reasoning of the Court in that case, to pronounce the opinion which he did in the present case. Still, it was not our intention to assume the power to vacate that order, however improperly and irregularly granted.

[3.] Especially, we apprehend, can this not be done, in this proceeding of illegality, the object of which is, not to he delivered against an unjust judgment, by setting it aside; but conceding the rightfulness of the judgment, it resists the execution, on account of some injustice in the party who seeks to enforce it.

The judgment below must, therefore, be reversed.