Clark v. Bryan

Bartol, J., delivered the opinion of this court: The decision of this appeal depends upon the validity of the judgment rendered by the court of Common Pleas, at the suit of the appellees against J. M. Hale. The proceedings in that suit are set out in the record before us, and it appears, from those proceedings, that on the 2nd of October 1857, an attachment on warrant was issued at the suit of the appellees against Hale as a non-resident; the attachment was accompanied with the ordinary summons to him — both returnable the second Monday of January following. At the return day, the sheriff made return to the attachment “that he had taken property of the defendant as per schedule.”' “Attachment dissolved by bond,” and the writ, or summons against the defendant he returned unon est.” The bond' sued on in this case was given by the appellants on the 5th of October 1857, for the purpose of dissolving the attachment, accepted by the counsel for the appellees, and approved by the court. It is in the ordinary form — the condition being “that if the said J. M. Hale, or any one in Ms behalf, do and shall pay to said plaintiffs, or to their legal representa-, tives, the value of such goods and chattels as have been levied on under said attachment, if the said plaintiffs in such attachment shall recover against the defendant, an amount equal to the value of such goods and chattels or credits; or. shall pay to said plaintiffs the amount so recovered, if the ¹⁷⁶ same shall be less than the value of the goods and chattels and credits so attached; then the bond to be void, otherwise to remain in full force, &c.” On the 10th of October 1867, the appellees filed a declaration against the original defendant, Hale, containing a notice that, “on his appearance to the action, a rule would be entered requiring him to plead thereto within fifteen days there-, after,” with directions to the clerk to “set up copy,” which was done.

On the return day of the writs a judgment by default was entered against Hale, for not appearing, and at the same term, (on the 25th of March,) under an inquisition, damages were assessed against him, on which judgment was rendered for the,amount so assessed. If the judgment so rendered was a valid and legal judgment, which the court of Common Pleas had jurisdiction and power to render, then the liability of the appellants upon their bond is clear, and they have no ground for this appeal; but if that judgment was coram non judice and void, then these appellants are not responsible on their bond. The basis of this action is the judgment recovered against Hale, and if there be no legal valid judgment against him, the appeal in this case must be sustained. The ground has been taken by the appellees, in this court, that in an action upon their bond the appellants cannot take advantage of any defect or informality in the judgment rendered against Hale, nor can it be inquired into collaterally in this case. “It is a well settled principle,” that “the judgment of a court of competent jurisdiction, when coming incidentally in question, * ® ® * is conclusive upon the question decided, and cannot be impeached, on the ground of informality in the proceedings, or error or mistake of the court in the matter on which they have adjudicated.” Raborg vs. Hammond, 2 H. & G., 50 . 6 H. & J., 182 . 1 H. & G., 492 . 9 Gill, 241 .

It is also equally well settled that a judgment manifestly rendered without jurisdiction, will be void; whether the tribunal which pronounces it be an inferior court of limited and ¹⁷⁷ special jurisdiction, or a superior court of record proceeding’ according to the course of the common law. The distinc-' tion being that, with regard to the former, the jurisdiction cannot be presumed, but must be shown affirmatively on the face of the proceedings; while, with reference to the latter, when called collaterally in question, every intendment and presumption is made in their support, and the judgment