Towns ex rel. Clayton v. Springer , 9 Ga. 130 ( 1850 )

By the Court

Nisbet, J.

delivering the opinion.

[1.] It appears from the statements in the plaintiff’s declaration, that the fi.fa. upon which the rule against the Sheriff was moved, issued upon the foreclosure of a mortgage, and was. returnaile to the Inferior Court. The rale was moved before the Superior Court, and was there made absolute. The question is, was that order absolute or judgment of the Superior Court admissible on the trial, to charge the surety of the Sheriff. We think it was not, because it is a mere nullity. It is a nullity, because the Court which rendered it had no jurisdiction over the Sheriff upon a rule founded on an execution returnable to tire Inferior Court. If a nullity, it is available to the party procuring it for no purpose, consequently it is not available to him, as evidence in this suit against the Sheriffs surety, to show a breach of his bond. The assailability of a judgment of a Court of competent jurisdiction for irregularity is one thing — of a judgment of a Court not having jurisdiction, for the want of jurisdiction, is a veiy different thing. In the latter case, the judgment may be impeached whenever and wherever it is sought to be used as a valid judgment, no matter in what way it is proposed to be used. To make a judgment, in personam, valid, the Court which renders it must have jurisdiction of the subject matter, and of the person against whom it is rendered. In this case, the Superior Court had no jurisdiction over the Sheriff. He is amenable to the Inferior Court upon the process which issues from that Court. That Court has jurisdiction over its own processes. The Sheriff is the officer of that Court, as well as of the Superior Court. He is bound to execute its processes. If he does not, he is in contempt of that Court. He is bound to obey its orders, and if he does not, he is in contempt, and if in contempt, that Court alone has the power of punishing him. As he is not in contempt of the Superior Court for not obeying a process from the Inferior Court, the Superior Court has no power to punish him for not obeying the order absolute on the rule. Bethune vs. Bonner, 2 Kelly, 169. 9 Cow. R. 229. 15 Johns. R. 141. 4 Ibid, 354. 3 Wils. R. 188. 6 Wheat. R. 204. 2 Bay. R. 182. 7 Wheat. 38. Bearing vs. The Bank of Charleston, 5 Ga. R. 497.

This was the only question insisted upon in this case.

Let the judgment be affirmed.