Fleming v. Kemp ( 1943 )

Defendant in error brought this action against plaintiff in error based upon a magistrate's judgment, a photostatic copy of which is appended hereto as a part of this opinion. See 178 S.W.2d page 402. This action was begun in a magistrate's court where judgment was rendered against the plaintiff in error. The plaintiff in error in due season prosecuted his appeal to the Circuit Court, where judgment was likewise rendered against him and his sureties on the appeal bond. The plaintiff in error filed no pleas. He offered no proof. He took the position that the judgment was void on its face and could not be corrected or explained by parol evidence.

Defendant in error, apparently feeling there was a question about a valid judgment, offered evidence showing the original papers were lost and that the only evidence of the judgment was the copy of the magistrate's docket as appended hereto. In explanation of this he proved by a former clerk of the magistrate (the magistrate being dead) that the judgment was rendered against plaintiff in error; that the plaintiff in error had paid the costs in the original case and on garnishment. He proved by a deputy sheriff that he, the deputy sheriff, had served the original process on the plaintiff in error. The plaintiff in error preserved his exception to this evidence, i.e., all evidence offered to explain or contradict the original judgment as it appeared from the magistrate's docket.

The Circuit Judge, without the intervention of a jury, rendered judgment against the plaintiff in error. From the record it is apparent that the controlling reason for this judgment was the evidence heard aliunde the docket entry.

Under the title "Evidence," the rule is stated in 22 C.J. 1079, as follows:

"Parol or extrinsic evidence is usually held inadmissible to vary or contradict the record or docket of a justice of the peace, showing proceedings before him, although there are some decisions to the contrary. This rule will protect a justice's return on appeal, or his certificate as to the proceedings in a cause before him, and will preclude a showing that the justice intended to enter a judgment different from the one recorded in his docket, or that the form of the judgment was the result of a supposition that no other could properly be entered in the case." To the same effect see 32 C.J.S., Evidence, Sec. 867, p. 798; 31 Am. Jur., 778.

The Supreme Court of this State has reached the same conclusion in two reported cases, to-wit: Witt v. Russey, 29 Tenn. 208, 51 Am. Dec. 701; McClellan v. Cornwell, 42 Tenn. 298.

In McClellan v. Cornwell, supra, the Court said:

"We are aware the doctrine is well settled, that, upon grounds of public policy, if not of necessity, the proceedings of these domestic tribunals will be favored and upheld, if, upon their inspection, it can be seen they have been in substantial compliance with the requirements of the rules of law. But we think they should, in each case, show, with such reasonable certainty, what was intended, that, without resorting to parol,or other evidence de hors the proceeding, we may be able toascertain, with reasonable certainty, what was intended; and that a judgment rendered by a Justice of the Peace, void upon its face, cannot be aided by reference to the proceedings or judgment in another suit.

"This Court has held, that if a judgment be valid upon its face, it cannot be invalidated when it comes up collaterally, by parol or other proof, de hors the proceeding: [Witt v. Russey], 10 Hum. 208. And, if such proof cannot be resorted to in a collateral proceeding, to invalidate a judgment, which, upon its face, seems to be valid, much less, as we believe, can it be resorted to even in a proceeding of similar character, to make valid a judgment, which, upon its face, is null and void. And the principle would apply, with still greater force, where the question as to the validity of the judgment is placed directly in issue by the pleadings in the case, as in this case.

"By the Act of 1835, under which these proceedings were had, it is provided, among other things, `That every Justice shall keep, in a well bound book, a judgment and execution docket, showing in whose favor, and against whom, each is rendered, and its date and amount,' etc. The judgment upon which the execution in this case, was founded, does not show in whose favor it was rendered; it purports to be for the plaintiff, and, therefore, under the very liberal, not to say charitable, rules before referred to, for the construction of such proceedings, we would hold, that, by intendment, it is against the defendants; but it wholly fails to show who the plaintiff is; and in whose favor it was intended to be rendered, can only be ascertained, so far as appears in this record, by reference to the preceding judgment, or by resortingto parol proof, which cannot be done for that purpose." (Italics ours.)

In this case the magistrate who tried the case and the constable who served the papers were offered as witnesses. Their testimony was rejected as appears from the language above quoted.

The result is, that error was committed in admitting the evidence of the clerk Murphy.

The case of White, Adm'r, v. Patterson, 60 Tenn. 450, is cited and relied on as contra to the above. This case is not in point. The evidence admitted here was in accordance with Act of 1859-60, Williams' Code, Sec. 8931. Under this section of the Code when the docket book and the original papers are destroyed the magistrate or his successor may make "an affidavit setting forth the name of the plaintiff" etc. In the case at bar the docket book was in existence. The appellee made no pretense of setting up his judgment under this act.

Is the judgment sued on valid on its Face?

"The settled rule," says Mr. Justice McKinney in Bass v. Southern Surety Co. et al., 158 Tenn. 233, 12 S.W.2d 714, 715, "in this state is that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged. Kilcrease's Heirs v. Blythe, 6 Humph. (25 Tenn.) [378] 389; Brien v. Hart, 6 Humph. (25 Tenn.) 131; Hopper v. Fisher, 2 Head (39 Tenn.) 253; Harris v. Hadden, 7 Lea (75 Tenn.) [214] 216. . . .

"A justice court is an inferior tribunal within the rule. Harris v. Hadden, supra."

Section 10189 of Williams' Code provides as follows:

"Every intendment is in favor of the sufficiency and validity of proceedings before justices of the peace, when brought in question, either directly or collaterally, in any of the courts, where it appears on the face of the proceedings that the justice had jurisdiction of the parties."

The docket entry sued on is as follows:

"Judgment for Pl'tff-Def't vs. Def't-Pl'ff for $38686, Dollars and all costs of suit for which execution may issue.

"This 19 day of Jan 1932.

"Ed Robinson, J.P. "Interchange"

Can it be said this judgment was for "Pl'tff" or "Def't"?

The amount of the judgment is not punctuated except for a comma after the figures 38686. The face of the judgment does not show $386.86. The amount, if we consider punctuations, is in excess of the magistrate's jurisdiction. Can we punctuate these figures? We might make the judgment of a few dollars or thousands of dollars.

Suppose the plaintiff in error was suing the defendant in error on this very docket entry and claimed by parol evidence that he had recovered a judgment by set-off or counter-claim. His claim certainly would be as good as defendant in error's under the docket entry sued on.

I quote from New York Cas. Co. v. Lawson, 160 Tenn. 329, at page 336, 24 S.W.2d 881, at page 883:

"A void judgment is one which shows upon the face of the record a want of jurisdiction in the court assuming to render the judgment, which want of jurisdiction may be either of the person, or of the subject-matter generally, or of the particular question attempted to be decided or the relief assumed to be given."

I have carefully studied every case cited and all that we can find in the books wherein judgments were rendered for and against suits of this character. Several of these cases are briefly digested and appended hereto. See below.

"As a general rule, an attack upon a judgment is regarded as collateral if made when the judgment is offered as the basis of the opponent's claim." 31 Am. Jur., page 204, section 610.

For the reasons stated, I am of the opinion that the defendant in error has not made out his case. The judgment of the trial court should be reversed and the suit dismissed at the costs of the defendant in error.

[EDITORS' NOTE: CIVIL DOCKET IS ELECTRONICALLY NON-TRANSFERRABLE.]

Appendix Parker v. Swan, 20 Tenn. 80, 34 Am. Dec. 619, was a suit in which there were three defendants. The words written on the warrant, "Judgment in favor of the plaintiff for sixty-one dollars and eighty-three cents and costs," was held to be a judgment against all the defendants.

Witt v. Russey, 29 Tenn. 208, 51 Am. Dec. 701, the proceedings did not show (warrant or judgment) the character of liability sued on. Parol evidence held inadmissible to explain.

Hubbard v. Birdwell, 30 Tenn. 220. The words written on the warrant, "judgment $37.00," held vague, uncertain, without notice, and did not appear for whom rendered.

Cannon v. Wood, 34 Tenn. 177, 182, was a suit against an officer for failure to return an execution. Dismissed because judgment on which execution based was void. The judgment was in these words: "It appearing to me that judgment was entered against Wm. Wood as surety for John Dromgoole, L.W. Tune (and others), in favor of Thomas Coy, for $425 and costs, and that said Wm. Wood has paid the same; it is therefore considered," etc.

Bell v. Williams, 36 Tenn. 196, was a suit in which scire facias was sued out to revive a judgment in the following words, after giving date and name of parties, "Amount of judgment, $200." The judgment was revived by the magistrate and case appealed to circuit court where he plead in abatement "that he was never served with process of any kind in the original suit," etc. Held, defendant could not avail himself of this defense and that the docket entry was in conformity with the statute.

Anderson v. Kimbrough, 45 Tenn. 260, 261, the following judgment was held good — "H.C. Anderson -vs.- M.L. Elcan. Judgment granted vs. defendant, for M.L. Elcan, for $433.90."

Johnson v. Billingsley, 22 Tenn. 151, the following judgment was held good, "at any rate, could not be attacked collaterally by a third person":

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October | B.F. Bidgman   | 43.15 | Returned  | Confessed | 25 | Fi. Fa
18      |       vs.      | _____ | 5th       |           |    | Issued
No 723  | Tho. Mooneyham | 43.15 | May 1840  |           |    | to plt'ff
|                |       | Cr.       |           |    | 10th
|                |       | $922 1/2  |           |    | April
|                |       |           |           |    | 1840
|                |       |           |           |    |
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