The national Republican. [volume] (Washington City [D.C.]) 1866-1870, 1867-03-08
THE COURTS.

SUPREME COURT OF THE UNITED STATES
Opinions of the Present Tsrm-IHe Writ of Fiai
FaeidS must Be Rested Before tie Death Of the De.
PENDANT IN The SHit-JohH X. Mitchell, Plaintiff
ia Error, Us. Tile Lessee Of De ST. MaTent ct al
In error to the Circuit Court Of tho United States
for the Northern District of Florida. An action of
ejectment brought In that court by the defend.
ant in error, and the cause was submitted to tho
court upon agreed statement OF facts, as on q
special verdict which, with the record In the eject
ment suit, is made part Of the record here and
tho facts as agreed the court gave judgment for the
plaintiff, who had made title to the lands in con.
troyetsy as lessee Of the heirs ataw Of De St. Max.
ont, to whom the lands had been granted by the
Crown Of Spain in 1916, and confirmed by Congress
In 1928. The defendant there had claimed title
under sale by the Marshal Of the District Of West
Florida by virtue Of writ of feyi JacidJ issued on
the 2lst Of December, 1925, in the usual form,
against the estate Of the original grantee. The
question Is as to the validity Of that SALE the de-
iendant in the attachment having died In Cuba in
1929 the day previous to tho test Of the execution
This action was brought in 1857, thirty-twO years
after judgment.
p. Phillips and Reverdy johnson for appellant;
Carlisle and Mcpherson for appellee.
By the Court, (hlr. Justice Davis delivering the
opinion: Tho solution Of ono question presented
by the record is decisiYa Of this case. Does the
writ of Eeri JaeiGS tested and issued after the
death Of tho party against whom the judgment Is
rendered confer power on the ministerial officer to
execute it? That St. Maxent was the owner Of the
lands in controversy at the time Of his death, and
the plaintiffs below are his hers.ataw, is admitted
but 1t is claimed that the title was Invested by
certain proceedings in attachment against him in
the courts Of Florida which ripened into judgment
while he was alive. 1t Is q well.sottlod principle
of law, which has often received the sanction Of
this court, that the decree or judgment Of q court
having Jurisdiction is binding until reversed, and
cannot he collaterally attacked.
But the defect In this occurs after judgment
Ia nj tn MitohaIlia for n n
judicial sale are not protected If the execution on
which the sale was made Is void. Void process
confers right the officer to sell, and all acts
done under 1t absolute nullitios. The writ Of
6eTi JaeiaS, which Mitchell rests his title, was
tested after the death of St. Maxent; and, accord
| ing to a familiar rule Of the common law II was
| therefore void The death Of defendant before
the test Of an execution compes the plaintiff to
out writ OF SeITe JacaS for the alteration Of the
person altereth tho process" (BacOns abridgo.
ment, title Seire Facias) The heirs deyisees, and
terretenants Of the deceased must have notice be-
fore an execution can regularly issue, for they are
the parties in interest and should have IN oppOr-
tunity to interpose defence, If any they have, to
the enforcement Of the judgment. Erwin's lessees
VS.. Dundas, "a How is an authority in point and
| II Is unnecessary to refer to any other.
But 1t Is contended that the doctrines Of that
case have been overturned by the decision Of Tay-
Tor VS.. Doe, reported in 18th Howard. This Is an
erroneous view of that decision. The court held in
that that II Is not necessary to revive judg.
ment by seiye JaelaS, whore execution regularly
issued during the life of the defendant had been
levied on land, but that the officer who had made
the levy could proceed to sell, under a renditiOni
srp0nas. That pyit was regarded as 4 completion
Of the previous execution, by which the property
had been appropriated, and not as an original OF
Independent proceeding
1t was in the power Of the Legislature Of Florida
to have changed the rule the subject Of the test
Of process but having failed to do II, and having