Gilman v. Thompson , 11 Vt. 643 ( 1839 )

The opinion of the court was delivered by

Collamer, J.

The first question is, was the judgment, which the plaintiff recovered against Norris, void, when rendered ?. To render the proceedings of a court void, (not erroneous, or voidable,) the court must be without jurisdiction, either of the subject matter or the parties; and, in such case, the court, the officer issuing execution and the sheriff who serves it, are all trespassers, and no subsequent proceedings can cure the evil. Even the appearance of the parties and submitting to the court will not confer jurisdiction. That the court had jurisdiction of the subject matter of that judgment, that is, of such a debt to such an amount, there is no doubt. Had they jurisdiction of the defendants in that suit? Courts obtain jurisdiction over the persons of defendants, who Have no personal exemptions, by the service of process either on their bodies or property, within the jurisdiction of the court. The attachment of property is one thing, the notice to the party' is another. They are different commands, and the officer has distinct duties to perform for these purposes.' The circumstance that both commands are, in this state, contained in the same process, does not alter the case. If the officer take personal property and return that he has so done, or attach real estate and leave a copy with the town clerk, he has made an attachment, and the court has jurisdiction of the party. If the return also shows notice, it is well; but if his return shows the officer has not done what the law requires he should do, for that purpose, it is merely cause of abatement.

If the defendant does not appear, and the return does not show personal service, the court may permit amendment of the return, suffer personal notice to be otherwise shown, order personal notice or publication, or take any other course for notice, recognized by law. the court having, already, jurisdiction. This principle is fully recognized in Newton v. Adams and Shepherd, 4 Vt. R. 444.

In this case, the return stated that the officer had attached certain lands, as the property of the defendant, and left a copy in the town clerk’s office. This gave the court jurisdiction of the defendant party. All the rest is matter of notice, and there is nothing tending to show that the land was not the property of the defendants. The court published notice and gave judgment, which judgment is not void.

After the plaintiff- had recovered a judgment and taken execution thereon, and levied the same on the land of one of the defendants and commenced ejectment therefor, his attorney altered the return on the original writ. The alterations were in no part of the return which made the attachment and gave jurisdiction to the court, but only in that which related to notice. This was unauthorized, but what was its effect ? The judgment and levy gave the plaintiff a title to the land. This title cannot be vacated and he divested of his freehold by an alteration or destruction of the original writ, any more than a man ¡could lose his farm because his attorney had, unauthorizedly, burnt up his deed. The writ was no part of the record, nor was its production necessary to show the plaintiff's title. When a judgment is recorded, a copy of that judgment is all that need be produced.

. An alien may purchase land and hold the same as against the grantor, who is estopped by Ms deed; and, if a forfeiture or escheat is produced, it is to the state, and for the state alone to assert. But whether an alien can acquire any right by mere operation of law, without a deed from the grantor, is another question. But even this question does not properly 'arise in this case. All the evidence was, that the plaintiff had, for many years, resided in Canada. Now, this was as entirely consistent with his being a citizen of this state as otherwise, and, therefore, c.ould not justify the jury in finding him an alien.

When the record shows, as in this case, that the debtor resides without the state, and shows .no attorney, the officer is, of course, excused from calling on him to choose appraisers. 3 Vt. R. 394.

The degree of certainty, in the description of land in the levy of an execution, has been frequently considered. It needs to be no' more than certainty to a common intent, and the return should be read in the exercise of ordinary discernment, and with reference to this rule of certainty. In this return., “running west parallel with said lot line” means parallel with that line of said lot which runs in a westwardly direction. After running round a tract, it excepts about one acre and a half, sold to Abel Wilder. This must, prima facie, mean sold by deed. And, as all deeds are here recorded, that is sufficiently certain which may be so made by record. This is sufficicient, until it be shown that a reference to the record still leaves it uncertain. Maeck v. Sinclair, 10 Vt. R. 103. 11 Mass. R, 517.

Judgment affirmed.