Tallman v. McCarty , 11 Wis. 401 ( 1860 )

By the Court,

Dixon, C. J.

The objection that the Farmers and Mechanics’ Bank of Michigan, under whom the complainant’s claim title to a portion of the lands in question never appeared in the suit instituted in the district court of the United States for the territory of Wisconsin, on the 4th of February, 1848, by John McCarty and others, against the bank and others, cannot be sustained. The petition of the bank on the 15th of September, 1849, for a postponement of of the sale then advertised to be made on the 8th of October following, pursuant to the decree of the previous April term of the court, and for a vacation of the decree, and the order thereupon obtained, and the motion and order setting aside the report of the commissioners, and recommitting the cause to them, made in May, 1850, constituted as valid an appearance upon the records of the court as if it had caused its appearance to be entered with the clerk in pursuance of the rules then in force in the court of chancery. It came into court by its counsel and without objection from, and with the consent of the other parties to the action, made a motion which was the foundation of the order setting aside the previous report of the commissioners, and recommitting the matters in controversy to them. The order was a clear and most unequivocal recognition of its appearance, and it cannot be said now that it never appeared.

As the complainant by virtue ,.of his subsequent purchase from the bank of its interest in the lands, stands in the same relation to that suit that the bank would were • it the complainant in this action, it only becomes necessary to determine, whether as to the bank the order of sale made on the 16th day of May, 1850, and subsequent proceedings, can be treated as a nullity.

We concur with the complainant’s counsel in saying that this is not a bill of revivor, but an original bill, and the question arises, could the bank impeach the order or decree of sale in such collateral proceedings? We think not. The only ground upon which it could do so would be by showing that it was an absolute nullity, either for want of jurisdiction of the subject matter or the parties, or because the court had no power to make such an order in the action. Neither of these objections exist here. The court had jurisdiction of the subject matter, and so far as the bank was concerned, of the •parties; and express power was given it by the statute to direct the sale. It is objected that no preliminary- judgment declaring the rights, titles' and interest of the parties, and determining the same, and decreeing that partition be made between them according to such rights as required by section 20 of chap. 108 of the Revised Statutes of 1849, was made-; and that therefore the order which, by the course of proceeding marked out by the statute, could only be made afterwards, was void. This is not so. No order which a court is empowered under any. circumstances in the course of a proceeding, over which it has jurisdiction, to make, can be treated as a nullity merely because it was made improvidently, or in a manner not warranted by law, or the previous state of the case. The only question in such a case is, had the court or tribunal, the power, under any circumstances, to make the order or perform the act ? If this be answered in the affirmative, then its decision upon those circumstances becomes final and conclusive, until reversed by a direct proceeding for that purpose. In the case before us it was for the circuit court to determine in the first instance when and bow the authority with which it was invested to direct a sale, should be exercised; and if in so doing it committed an error, no matter how egregious, whether in the construction of the statute or otherwise, still the order ivas valid until reversed upon appeal. It was a mere error or irregularity, which could only be taken advantage of by appeal, but cannot be inquired into in this proceeding. Substantially the same question was before us at the last term of this court, Faulkner vs. Guild, 10 Wis., 563, where the same doctrines were announced.

The judgment of the circuit court is affirmed.