Sloan v. McKinstry

The opinion of the Court was delivered, by

Rogers, J.

The defendant in error contends that the Court' properly sustained the plaintiff’s objection to the transcript, on two grounds: 1. Because John R. Johnston had no authority to give the transcript from the docket of David Johnston; and, 2. Because the transcript sets out the return of a summons, but does not show it was served.

The first exception is disposed of by the 17th section of the Act of the 20th March, 1810. That Act enacts, “ If the party defendant shall not reside in the county where a judgment is had against him before a justice of the peace, the person in possession of the docket in which such judgment may be entered, on application to him made by the plaintiff, or his agent, shall make out, certify, and deliver to such applicant, a transcript thereof,” &c. The plaintiff has brought himself precisely within the words and spirit of the Act.

Nor do we think there is anything in the second exception. The decision is founded on an entire misapprehension of the law. The judgment is not void; if anything, it is voidable merely, and might have been reversed. If any point is settled, it is that a voidable judgment is binding and conclusive until reversed or set aside by a legal proceeding. It is needless to cite authorities in support of a principle so plain.

Judgment reversed, and a venire de novo awarded.