Thomas E. Buckingham vs. William Bailey, et al.
If the judgment upon which a forthcoming bond purports to be founded is void, by'reason of the want of jurisdiction in the court over the subject-matter, or over the parties, the forthcoming bond, and the judgment consequent upon its forfeiture, are likewise void.
A garnishee summons, issued before the writ of attachment against the absconding debtor, and a final judgment taken thereon against the garnishee, without a judgment nisi having been first rendered, give the court no jurisdiction over such garnishee ; and a forthcoming bond executed by him, to effect the delivery of property levied on under execution on such final judgment, will be absolutely void, and may be quashed at any time, even after the return term of the execution under which it was taken.
If the judgment upon a forthcoming bond is merely erroneous, the court cannot, at the term subsequent to the return term, quash it} but if the judgment be absolutely void, the court may quash it at any time.
Whether a forthcoming bond, taken by the sheriff of one county, requiring the property levied on to be delivered at the court house of another county, can lay the foundation of a statutory judgment on the bond % Query ?
In error, from the Monroe circuit court.
Thomas E. Buckingham, on the 4th of December, 1838, made affidavit before John R. Greer, a justice of the peace for Monroe county, that John E. Foster was indebted to him, in the sum of two hundred and sixty-two dollars and sixteen cents, due the first day of January, 1839, by open account, and that Foster had absconded, so that the ordinary process of the law could not be served upon him. Buckingham executed bond, with security, on the same date, which was approved by the magistrate, who, on the 25th day of January, 1839, issued a writ of attachment in accordance with the affidavit. This writ was received by the sheriff on the 8th of February, 1839, and was levied on a sideboard, on the 12th of the same month.
On the 6th day of December, 1838, the following writ of garnishment issued, viz. :
*539
“ State of Mississippi, }
Monroe County, j
To the sheriff of Itawamba county, greeting:
We command'you to summon Rueben Wygat, William Bailey, --- Hartgrove, Alfred F. Holcombe, and Thomas J. Fos-
ter, if to be found in your county, personally to be and appear before the judge of our next circuit, to be holden for the county of Monroe, at the court house of said county, on the fourth Monday of April next, then and there to answer upon oath whether or not they are indebted to John E. Foster, and in what sum or sums, or whether or not they have any of the effects of the said John E. Foster in their hands or possession, or whether or not they know of any person or persons who are indebted to the said John E. Foster, or have effects in their hands or possession, at the time of serving this garnishment.
Herein fail not, and have then and there this writ.
Witness: The Honorable Stephen Adams, presiding judge of the ninth judicial district for the state of Mississippi, the fourth Monday of October, 1838, and the 63d year of the American Independence. Issued this 6th day of December, 1838.
Attest, J. H. Buckingham, Cleric.”
This writ of garnishment was returned, “ Executed on the 13th of March, 1839, on William Bailey; ” “ Executed on the other garnishees, March 20, 1839.”
To the April term, 1839, of the circuit court of the county, Buckingham, by John R. Greer, his attorney, filed his declaration in assumpsit, under the attachment, and on the 26th of February, 1840, took a judgment by default, against Foster, for the sum of two hundred and sixty-one dollars and ninety-six cents. The record showed no notice of the proceedings to Foster, either by publication or otherwise.
No steps, so far as the record discloses, were taken against the garnishees, at this term of the court; but on the 4th day of April, 1840, the clerk of the circuit court issued a scire facias, directed to the sheriff of Itawamba county, commanding him to make known to the parties named in the writ of garnish*540ment before referred to, that on the 27th day of February, 1840, that court had rendered judgment nisi against them, at the suit of Thomas E. Buckingham, as garnishees of John E. Foster, and requiring them to appear and show cause, at the April term, 1840, why this judgment should not be made final. This writ of scire facias was received on the 14th, and executed on the 16th of April, 1840.
No further notice of the case appeared in the record, until the 28th of October, 1840, when the following entry was made :
“ This day came the plaintiff, by his attorney, and it appearing to the satisfaction of the court that the said Thomas J. Foster, Rueben Weyggle, William Bailey, Andrew F. Holcombe, have been duly summoned to show cause, if any they had, why the judgment nisi, rendered at a former term of this court, should not be made absolute; and after being solemnly called they came not, but wholly made default; it is therefore considered by the court, that the plaintiff recover, of the said Thomas J. Foster, Rueben Weyggle, William Bailey, Andrew F. Holcombe, the sum of three hundred dollars and fifty cents, the amount of judgment rendered at the former term of this court, in this cause, together with the cost in this cause expended.”
On the 29th of January, .1841, an execution of fieri facias issued on this judgment, against the garnishees, to Itawamba county, was received by the sheriff on the 8th of April, 1841, and was returned by him, “Not executed, for want of time. April 22, 1841.” An alias fi. fa. issued on the 31st of May, 1841, was received on the 10th of June, 1841, and was returned with the following indorsement: “ Received June 10th, 1841. October 4th, 1841, levied the within execution on one wagon, five horses, fifty head of hogs, as the property of William Bailey. H. Jameson, Sheriff." “ Bond taken and forfeited, 18th October, 1841 ; Weyggle, Hartgrove, and Foster,-have no property in my county, and neither of them would sign the bond. H. Jameson, Sheriff."
The following was the condition of the forthcoming bond, viz.:
*541
“ The condition of the above obligation is such, that whereas a writ of fieri facias issued from the clerk’s office of the circuit court of the county of Monroe, on the 31st day of May, 1841, to the sheriff of said county, directed in favor of the said Thomas E. Buckingham, against the goods and chattels, lands and tenements, of the said William Bailey and others, founded on a judgment rendered on the 28th day of October, 1840, for three hundred dollars and fifty cents, damages, and twenty-five dollars and fifty cents, costs; which two sums, exclusive of interest accruing and payable on said damages, amount together to the aggregate of three hundred and twenty-six dollars; and whereas the said sheriff hath levied said writ on one wagon, five head of horses, and fifty head of hogs, as the property of William Bayley; now if the said William Bailey shall have forthcoming and deliver to the sheriff, at the court house of said county, the property above described, on the third Monday of October, 1841, by twelve o’clock, noon, it being the day appointed for the sale of said property, to be sold to satisfy as well the damages and costs aforesaid, as the interest accruing and payable as aforesaid, and all subsequent lawful cost in this behalf, then the above obligation to be void, otherwise to remain in full force.
“ William Bailey. (Seal.)
“ Henry Sullivan. (Seal.)”
This bond was returned forfeited, and execution issued thereon to the sheriff of Itawamba, who returned, that he had “ levied the same on seven horses, one wagon, one hundred bushels of corn, seventy head of hogs, twelve head of sheep, ten head of cattle, as the property of William Bailey; which property was advertised for sale, on the third Monday of July, 1842, but the sale was suspended by supersedeas June 23d, 1842.”
On the 19th of June, 1842, William Bailey filed his petition for a writ of error, coram nobis and supersedeas, in the office of the clerk of the circuit court of Monroe county, with the fiat of the Hon. Stephens Adams, the judge of the ninth *542judicial district. The petition set forth the proceedings in substance as detailed, and averred that the petitioner had never executed the forthcoming bond, upon which the execution had issued.
At the October term, 1842, Bailey moved the court to quash the execution on the bond, to quash the first execution that had issued, and to quash the forthcoming bond, for reasons apparent on the record, which motion was argued and sustained, and the bond and execution quashed. No bill of exceptions was taken.
Buckingham prosecuted this writ of error, and now assigns as error:
“ That the court took jurisdiction of and quashed the forthcoming bond, given in this cause in the court below, after the term of the court to which the said forthcoming bond was made returnable had elapsed.”
Stephen Cocke, for plaintiff in error.
It would be unnecessary to examine the record and proceedings had in the case prior to the giving and forfeiture of the forthcoming bond. It is conceded that errors did intervene in obtaining the original judgment, and in the judgment against the garnishees in the first instance, but the giving and forfeiture of the forthcoming bond merged them all, and the court below had no right, after the term had elapsed to which the forthcoming bond given in the case was forfeited, to look behind the statutory judgment on forfeiture of the forthcoming bond.
The error complained of is, that the circuit court, after two terms had elapsed from the giving and forfeiture of the forthcoming bond, quashed the forthcoming bond on the motion of the defendants. That the circuit court had no power or jurisdiction to quash the forthcoming bond after the term of the circuit court, to which the same was returnable, had elapsed, may now be regarded as the settled law. Conn v. Pender, 1 S. & M. 386; Field v. Morse <j~ Harrod, lb. 434; Wanger v. Barker, 4 How. R. 363; Kernighan v. Scanland, 6 lb. 540.
*543It is submitted that the judgment below, in quashing the forthcoming bond, should be reversed.
W. Thompson, for defendant in error.
The executions and forthcoming bond are not presented properly to the notice of this court, and the party complaining must show in what the court below erred. It does not appear, by the terms of the motion or of the judgment, that the motion was subsequently to the return term of the forthcoming bond. The executions alluded to may very readily be taken to be those which preceded the bond.
The executions and forthcoming bond are not made part of the record by bill of exceptions, and the judgment does not show the motion was made to quash the forthcoming bond subsequently to the term at which it was returnable.
It appears the parties appeared by their counsel, and the motion to quash the executions and forthcoming bond was argued before the court. There is nothing in the motion or judgment of the court, showing this motion was made at a subsequent term to the one at which the forthcoming bond was returnable. If such was the fact the party complaining of the judgment below should have made it so appear by bill of exception. According to the repeated decisions of this court the presumption is in favor of the judgment below. It does not appear that the motion was made to quash the execution which had issued on the forthcoming bond, from which it might be inferred it was at a term subsequent to the return of the bond. The motion was to quash the executions, the first and the last that issued in the cause, and so was the judgment of the court. These executions issued both before the forthcoming bond was taken, for aught that appears in the motion or the judgment. What is there, then, in this record, to show the motion was made at a term subsequent to the return term of the forthcoming bond ?
Mr. Justice Crayton
delivered the opinion of the court.
This is rather a complex case. It is admitted by counsel *544that there is error in the record, but it is insisted, that the error is not made to appear in such a manner that this court can act upon it. This is true of the errors relied on in argument, but there is another, lying at the root of the case, which goes to the jurisdiction of the court, and which shows that the proceedings before the judgment, as to the defendants in error, were coram non judice, and void.
On the 4th December, 1838, Buckingham made an oath for procuring an attachment against one John Foster, but the attachment did not in fact issue till 29th January, 1839. On the 6th December, 1838, the plaintiff, Buckingham, caused to be issued from the circuit court office of Monroe county, a summons for Bailey and others, in the county of Itawamba, requiring them to appear at the ensuing term of the Monroe circuit court, on fourth Monday in April, to answer and say what they were indebted to John Foster. The summons did not state at whose instance it was issued, nor the pendency of any suit by attachment or otherwise, nor did it state for whom they were required to appear. It was quite as applicable to any other attachment against John Foster, which might have been instituted in Monroe county, before the court to which it was returnable, as to this. The garnishees did not appear and answer at the return term, nor were any steps taken against them. In February, 1840, at, probably, a special term of the court, a judgment by default was rendered in favor of Buckingham, against Foster, the absconding debtor, for the sum of $261. On the 4th April, 1840, a sci?'e facias was issued against the garnishees, suggesting that a judgment nisi had been rendered against them, and commanding them to appear and show cause against a final judgment. The record does not show any judgment nisi, nor that any answer was filed, nor that they were called, and failed to appear. They made no defence to the scire facias, and in October, 1840, a final judgment was rendered against them, for the sum of $300 50. An execution issued on this judgment, on which a forthcoming bond purports to have been given by Bailey, and which was forfeited. In June, 1842, an execution issued upon the judgment upon the bond, which was superseded by *545the parties, and in November, 1842, upon their application, the bond and execution were quashed; from which the cause comes by writ of error to this court.
Upon this state of facts the question arises, whether the original judgment was void or valid; and if void, whether all the subsequent proceedings are not equally so. The statute, (sec. 32, H. & H. 556,) authorizes “ the court having jurisdiction of attachments, to summon and compel the attendance of any garnishee from one county to another, and to proceed against them in the same manner, as garnishees residing in the county where the attachment is returnable.” It is clear that the summons in this case issued before the attachment was sued out, and therefore before any court had jurisdiction of it; and, couched in such general and indefinite terms, was wholly insufficient to lay the foundation of any legitimate judgment. Then the scire facias had no judgment of any kind to rest upon, at any rate none which could be regarded otherwise than as a nullity for want of notice.' If then there were no judgment nisi rendered against the garnishees, upon proper service of process, or upon notice in some mode recognized by law, the final judgment \Vould be void.
The question then arises, as to the judgment upon the bond. The forthcoming bond must rest upon a previous judgment. If the judgment upon which it purports to be founded is void, by reason of the want of jurisdiction in the court over the subject-matter, or over the parties, the forthcoming bond, and judgment consequent upon its forfeiture, are likewise void. The sheriff, and ajl the parties concerned in enforcing a void judgment, are trespassers, and all their acts under it are void. Martin v. England, 5 Yerg. 318. Ib. 285.
There is nothing in the- previous decisions of this court, at war with this conclusion, although at first blush, some of them wear that aspect. We must again repeat the rule, so often adverted to, that the language of a court must always be construed with reference to, and in connection with, the facts before it.
The case of Wetherby v. Proby, 1 How. 98, was a motion to *546quash an execution, “ because there was no judgment to authorize it.” The case shows a confession of judgment, informally and defectively entered, and that one of the parties to the original judgment did not join in the bond. The court refused to quash the execution. They said “ they could not, on that motion, inquire into anything that preceded the bond, because the bond was a satisfaction of the judgment.” They farther say, “ If the bond was irregular, or insufficient, it might have been quashed, but the party has acquiesced in the effect, and cannot avail himself of any such irregularity, on a motion to quash the execution that emanated from it.” This is a very just view of the subject. By his motion to quash the execution alone, the party waived, so far as he could do so, all objection to the judgment. When the defect of jurisdiction, in the court rendering a judgment, arises frpm a want of service of process, or other personal privilege, the subsequent consent of the party, or waiver by him, will cure the defect.. In matters of this kind, that is of'personal exception or privilege, consent will give foundation. Gracie v. Palmer, 8 Wheat. And it is only in matters of this kind, that consent will confer jurisdiction. The consent, or the waiver, to have that effect, must be explicit. The giving and forfeiture of a forthcoming bond, we do not regard as an act of that character, farther than it is made so by statute ; that is, it cures all -erroneous judgments, but does not validate those which are void. But when the party goes farther, and moves to quash the execution which issued on the bond, without calling in question the judgment upon the bond, he may then properly be holden to have recognized that judgment, and to have waived all previous defects, just as by a plea in bar he is held to have waived all .right to plead in abatement, or to object to the process, or its mode of service.
The next case we shall notice is United States Bank v. Patton, 5 How. That was also on motion to quash an execution. The doctrine was ably and elaborately discussed in argument. The court, in its opinion, used some very general expressions, which, when confined to the facts of the case be*547fore it, were all right and proper, but if applied to a case like the one under consideration, are hardly warranted in our view of the law. The motion was to quash the execution ; not the bond. The error in the original judgment, if any, was that it was confessed by an attorney, without proof of his power. Clearly if Patton made no objection to the judgment, for want of power in the attorney, and made no objection, by his motion, to the judgment upon the bond, it was not incumbent upon the court to do it for him. It was a matter which he might waive, and which, according to the case of Weatherby v. Proby, he did waive, by confining himself to a motion to quash the execution.
The case of Kernighan v. Scanland, 6 How. 540, is a case in which the motion was to quash the bond, as well as the execution, “ because there was never any judgment.” The opinion of the court is very brief, and does not contain a full statement of the facts; the statement of .the reporter is also very brief. The court says, “ the first ground relied on to reverse the judgment is, that a motion to quash a bond and execution comes too late, after the term to which they were returnable. On this ground we have no doubt. The court erred in going back and quashing the process to a preceding term, as has often been decided by this court.” This would be a clear authority, if, in fact, there had been no judgment. This induced us to examine the original record in the cause, and it sets out a judgment regularly rendered and entered, after a plea had been filed, and subsequently withdrawn. No objection is perceived to the judgment, except, perhaps, that it is not very formal y this case, therefore, does not stand in the way of our conclusion.
There are other cases, which go directly to sustain our present view. In Hoy v. Conch, 5 How. 188, it is decided, that if the original judgment be reversed on writ of error, the forthcoming bond and judgment thereon are void, and it is not necessary to enter a formal motion to quash them.” This doctrine is sustained by a case in 7 Cr. 288, and in 4 Munf. 76. It rests upon the principle, that the forthcoming bond judgment *548must have a previous judgment to support it; and if "there be none such, it is void. The consequence must be the same, if the original judgment is void. In Pender v. Felts, 2 S. & M. 539, it was holden that the affirmance of a void judgment by this court, from purely technical causes, would not cure the radical error. Much less ought a judgment on a forthcoming bond, to make a judgment valid which was previously void. See also Tombigbee Bank v. Bell, et al., MS.
The forthcoming bond, in this case, was taken by the sheriff of one county, and if it contains any definite stipulation, as to the delivery of the property, it is required to be at the court house of another county. This is not authorized by the statute, and it may well be doubted if it could lay the foundation of a statutory judgment.
Then as to the proceedings in the circuit court, subsequent to the forfeiture of the bond. If the judgment upon the bond had been merely erroneous, the court could not, at a term subsequent to the return term, have quashed it. But when void, it might do so at any time. 2 Yerg. 242. We come, therefore, to the conclusion, that all the previous proceedings being void, for want of proper process and service of process, the judgment of the court, in finally putting an end to them, was correct.
The judgment is therefore affirmed.