Childs & Childs v. Shannon's Administrator
Childs & Childs v. Shannon's Administrator
Opinion of the Court
delivered the opinion of the court.
In the case of Merrick & Webster v. Greeley & Gale, 10 Mo. Rep. 106, it was decided by this court, that the sureties in ajmnd, given to release a boat seized under a complaint, were required by law to take notice of the proceedings against her, and that it was not necessary to give them notice of any step taken in the cause. Now an owner of a boat, who appears and makes defence for her, is no party to the suit. His office is like that of an attorney of a court of record. Had Shannon been alive, it would not have been necessary to have served him with notice of the motion for judgment on the bond. It will not be contended, that the death of Shannon discharged the bond. Now, if the merits of the judgment against the boat cannot be re-opened, in a proceeding on the bond, is it not .a matter of perfect indifference whether the judgment is entered on a motion or in a suit on the bond? Is there not as much warrant in the boat law for the one course, as for the other? Had this question been propounded to the general assembly, is there any doubt but that they would have declared, that the judgment should be rendered against the administrator, on motion? Can we suppose, that the legislature would take from the hands of a creditor the boat which he had seized in
Here is a proceeding in tbe highest court of original jurisdiction known to our constitution and laws ; it is pending for years ; a judgment is pronounced, and now we are called upon to pronounce that proceeding an utter nullity, and regard it as though it bad never taken place. Interest reipublicss ut sit finis litium. Tbe court unquestionably bad jurisdiction of tbe subject matter of tbe suit. Whether notice should have been given, was-a question of law ; tbe court may have committed an error or irregularity in not requiring it, but it does not therefore follow that its proceedings are a nullity. It would be a strange state of things, if tbe judgments of tbe Courts of tbe highest jurisdiction should be regarded as nullities for any error or irregularity in their proceedings. Tbe party to whose prejudice an error has been committed, is not without redress. He may have tbe proceedings set aside, on motion, or he may sue Out bis writ of error. If these remedies are neglected, be cannot expect that tbe courts will treat as nullities, tbe judgments of tbe tribunals of tbe highest original jurisdiction known to tbe law. Tbe case of tbe Perpetual Insurance Company v. Rogers, 11 Mo. Rep. 295, grew out of an irregular judgment of tbe Circuit Court of St. Louis, in a proceeding under tbe statute concerning boats. In that case, a judgment of condemnation, it appeared, bad been pronounced against a boat without authority of law, and she was sold, notwithstanding she bad been regularly bonded; yet, in an action of trespass against tbe party, this court held, that tbe procedure was not a nullity ; that tbe judgment was tbe act of a court of general authority, having jurisdiction of tbe subject matter, and, as such, was a sufficient warrant for tbe execution under which tbe boat was sold.
Tbe judgment being rendered against tbe administrator
The alleged errors in the proceedings in the case against the boat, cannot be reviewed on this writ of error. The other Judges concurring, the judgment will be affirmed.
Reference
- Full Case Name
- Childs and Childs, in Error v. Shannon's Administrator, in Error
- Status
- Published