Field v. Morse

Mississippi Supreme Court
Field v. Morse, 9 Miss. 347 (Miss. 1843)
Clayton

Field v. Morse

Opinion of the Court

Mr. Justice Clayton

delivered the opinion of the court.

In this ease, Lewis Field obtained a judgment against Morse and Harrod, in the circuit court of Lowndes county. An execution issued, and Morse gave a forthcoming bond, with one *349Baldwin as surety, in which Harrod did not join. At the term of the court, next after that to which it was returned forfeited, the bond was quashed upon motion of the plaintiff. Another execution was then issued on the original judgment, which was levied on the property of Harrod, who gave a forthcoming bond, which was quashed at the return term thereof, upon his motion. A pluries execution was then issued upon the original judgment, which Harrod moved to have quashed, on the ground that the original judgment had been satisfied and extinguished by the forfeiture of the first bond. This motion was sustained by the court, from which judgment the plaintiff, .Field, prosecuted this writ of error. ■

On this state of facts, the first inquiry is, whether the order of the court, quashing the first forthcoming bond after the return term, was voidable or wholly void! If only voidable, then the parties having acquiesced in the order, and taken no steps to reverse it, are bound by it, and the execution afterwards issued was valid. But if void, nothing which has subsequently transpired has made it good, and the execution was not valid. By the decisions of this court heretofore made, the parties have a day in court, at the term next after the forfeiture of the bond, to appear and contest it, if they have objections to it. Wanzer v. Barker, 4 How. 363. But if that term passes without any action on the subject, the judgment on the bond, which was previously inchoate, becomes absolute, and no farther day is given. - It is then no longer a mere bond, but a judgment on which execution may issue. If, at a subsequent term, the court undertakes to quash the bond, it attempts something more—to set aside or quash a judgment. After the term at which judgment is rendered, the power of the court over it is at an end— the same tribunal cannot reverse, or set it aside. 1 Robinson’s Prac. 638. A judgment without notice is void. A judgment cannot be reversed in an appellate court upon writ of error, without notice; an appeal taken at the time of judgment in open court, operates as notice. A judgment cannot be amended without notice. The order, therefore, in this case, to quash the judgment upon the bond, made without notice, at a term sub*350sequent to the return term, is void for want of jurisdiction in the court. Its power over it had ceased, as entirely as its power to set aside the original judgment. The order is void, not merely voidable, and does not affect the rights of the parties.

If this view be correct, it follows that the judgment upon the first forfeited bond is still in force, and that the issuing of the subsequent execution upon the original judgment against Harrod, was erroneous, and the judgment of the court in quashing them1, right and proper.

The judgment must therefore he affirmed.

Reference

Full Case Name
Lewis Field v. Ague T. Morse and William Harrod
Status
Published