1880. July Term. Gray & al. V. Stuart & not be assailed in any other court but an appellate court. The latter may be assailed in any court, anywhere, whenever any claim is made, or right asserted under it. 5. The bill should have been dismissed at the hearing in the court below as to P, and that court having made a decree subjecting G's land, and having made no decree against P, upon appeal by G and P, the appellate court will dismiss the suit as to P, but without the costs of the appeal; but will amend and affirm it as to G. This was an appeal from the decree of the circuit court of Washington county in a suit in equity brought by Stuart & Palmer against Robert E. Gray and others. The decree directed the land of Gray to be rented out for the purpose of satisfying a judgment which had been rendered against him and others. And the appeal was by said Gray and John Preston, who was a party in the suit, but had not been served with process. The case is fully stated in the opinion of the court delivered by Judge Christian. Campbell & Trigg, for the appellants. Johnston & Trigg, for the appellees. CHRISTIAN, J., delivered the opinion of the court. This case is before us on appeal from a decree of the circuit court of Washington county. The following facts are proved in the cause as shown by the record: The appellees Stuart and Palmer were the holders of a negotiable note for $1,304.34, of which Cuthbert Owens was the maker, and John S. Owens, Joshua Owens, R. E. Gray, John Preston, and William King Heiskell, were endorsers. The note was not paid at maturity, and was duly protested. Suit was brought 1880. July Term. on this note against the maker and all the endorsers; and on the 26th June, 1868, judgment was rendered against R. E. Gray, John Preston and William King Heiskell. Subsequently a judgment was rendered in Gray the same court against all the defendants. & al. V. Stuart & The stay laws being then in force, no execution was Palmer. issued. In March, 1877, (William King Heiskell having in the mean time departed this life), a scire facias was issued to revive the judgment against all the defendants. The three Owens having left the State, the scire facias was served only on Gray and Preston. Upon this scire facias judgment was entered by the county court against all the defendants. An appeal was taken by the defendants Preston and Gray to the circuit court. None of the proceedings in the circuit court appear in record before us except the judgment of that court which is in these words: "This day came the parties, by their attorneys, and the transcript of the record of the proceedings in the county court being seen and inspected, the court here is of opinion that the record given in evidence before the county court disclosed two several judgments, the one rendered on the 26th day of June, 1868, valid against R. E. Gray and Wm. King Heiskell, (they and the said Preston being severally and not jointly bound for the debt sued on,) and void as to the said Preston, no process having been served upon him, and he not having entered an appearance to the action; the other rendered on the 5th day of December, 1868, after the final order entered on the 26th of June, 1868, against R. E. Gray, John Preston and Wm. King Heiskell, who were not further served with process, was only a judgment against the defendants Cuthbert Owens, John S. Owens and Joshua Owens, the recitals in the judgment of the appearance of the parties and of the rendition of judgment against the defendants applying VOL. XXXIII-45 1880. July Term. Gray & al. V. Stuart & only to the parties served with process, and against whom the action was pending. (Moss v. Moss, 4 Hen. and Munf.) The judgment recited in the writ of scire facias being a judgment against R. E. Gray, John Preston and Wm. King Heiskell, and a joint judgment Palmer, against all the defendants named in the original summons, and the record of the judgment produced showing a judgment only against R. E. Gray and Wm. King Heiskell, and a judgment only against Cuthbert Owens, John S. Owens and Joshua Owens, it seems to the court here that there is a variance between the description of the judgments recited in the writ, and the judgments offered in evidence, and that there is error therefore in the judgment of the county court. It is therefore considered by the court that the judg ment of the county court be reversed and annulled, and that the appellants recover against the appellees their costs by them in this behalf expended. And this court proceeding to render such judgment as the county court ought to have rendered, it is considered that there is no such record as by the writ of scire facias aforesaid is supposed, and that the appellees take nothing by their said writ, and that the appellants recover against the appellees their costs in their defence in the county court expended." To this judgment of the circuit court neither plaintiffs nor defendants applied for a writ of error, but submitted to the judgment of the circuit court reversing the judgment of the county court and dismissing the scire facias upon the ground of the variance set forth in its judgment of reversal. In September, 1877, Stuart and Palmer filed their bill in equity in which they set forth the aforesaid judgment and the proceedings by scire facias in the county and circuit court above referred to, and after alleging the insolvency and non-residence of the Owens, 1880. July and admitting that Preston had never been served with process, and that Gray had no personal property which Term. an execution could reach, sought to subject the lands of Gray to the. lien of said judgment. To this bill Gray alone was made a party defendant. Gray & al. V. Stuart & A demurrer for want of proper parties was sustained; Palmer. and afterwards an amended bill was filed, in which the Owens, Heiskell's representative, and John Preston were made parties. The amended bill was answered only by Gray and Preston; it being taken for confessed as to the other defendants. A demurrer was also filed to the amended bill. With this bill was filed exhibits above referred to showing a judgment for the amount of the negotiable note, the scire facias sued out to revive said judgment, and the proceedings under the same in the county and circuit courts of Washington county. The defendant Gray in his answer admits that the allegations of the bills so far as they are verified by the exhibits filed are true. He denies that there is a judgment against him valid and binding in law, or that there is a lien upon his land which can be enforced by the court. He denies that the judgment, if there be one, can only be made by a sale of his real estate. He asserts that the rents and profits of the land will pay the judgment within five years. Preston in his answer denies that there is any such judgment against him as that named in the bill, or any judgment whatever against him in favor of complain ants. The cause came on to be heard upon the bill and answers and exhibits filed, and the court overruling the demurrer, decreed that the plaintiffs recover of the defendants Cuthbert Owens, John S. Owens and R. E. Gray, the amount of their judgment, being $1,304.47, with legal interest thereon from the 5th day of December, 1868, till paid, and $10 costs, subject to a credit of V. 1880. $81.50, 2nd August, 1869, $650, July 30, 1870, and July Term. $76.55, July 17th, 1871. And it was further decreed (parties being willing to waive order of reference to a Gray commissioner to ascertain the rents and profits of the & al. land), that unless the defendants, should pay within Palmer, thirty days, the amount of said judgment with interest and costs, a commissioner appointed for the purpose should rent out the land of the defendant Gray for a time sufficient not exceeding five years, to pay said debt interest and costs. Stuart & From this decree the defendants, Preston and Gray, applied for an appeal; which was awarded by one of the judges of this court. The court is of opinion that as to Preston the bill ought to have been dismissed. The circuit court had declared in its judgment on the scire facias that Preston had never been served with process. This is taken as a conceded fact in the cause. The plaintiffs did not make him a party to their original bill, nor did they seek to hold him in any way responsible for the judgment recovered against his co-defendants. The judgment as to him was treated as a void judgment. He was made a party to the suit by the direction of the court, and against the protest of the plaintiffs. While it was proper on the filing of the amended bill that Preston should be made a party, as his interests might have been effected by the decrees of the court, yet it is plain that upon the hearing the bill ought to have been dismissed as to him, inasmuch as it was conclusively shown that the judgment, which was the foundation of the chancery suit, was a void judgment—no process ever having been served upon him. We think therefore the decree must be reformed so as to dismiss the suit as to Preston. But we do not think that this is such a reversal of the decree as entitles Preston to recover costs against Stuart and Palmer in this court. |