Gibbs v. Bourland ( 1834 )

Catron, Ch. J.

delivered the opinion of the court.

A justice of the peace for one county, has no jurisdiction to issue an execution on a judgment of a justice of the peace of another county, unless the act of 1805, ch. 66, section 4, is complied with. That act directs, “that when an execution is issued by a justice of the peace against the body, or goods and chattels of any person, who may remove himself, or goods and chattels to any other county in the State before the same is satisfied, it should be lawful for any person having such judgment and execution to obtain the certificate of the clerk of the county court, setting forth that the magistrate who granted the judgment and issued the execution, was at the time an acting justice of his county, and on producing said execution and certificate to any justice of the county to which the debtor may have removed himself or his property, it shall be sufficient to authorize any justice of the peace to issue an execution on the said judgment.” This execution shows none of these facts. This act creates a special jurisdiction to be exercised by the justice. There can be no presumptuous inference of such jurisdiction, but the presumption of law is against it; consequently the execution ought to show that the judgment and execution granted by W. J. Derritt, the justice of Henry county, has been certified as required by the act of 1805, ch. 66, sec. 4, or in other words its issuance ought to be grounded on the execution certified from Henry county, and not on the original judgment; and must recite the facts necessary to give the justice issuing it jurisdiction. The justice had no power to issue the execution; it was merely void, as was the summons by the constable of the garnishee. The justice having had no authority to proceed, and refusing to enter any judgment against the garnishee, acted properly. It follows that there was no judgment that the plaintiffs could appeal from to the circuit court, and therefore that court correctly dismissed the appeal.

Judgment affirmed..