Clarksville weekly chronicle. (Clarksville, Tenn.) 1873-1890, 1880-03-06

ejectment, formedon in descender,
remainder and reverter, dover,
partition, perjury and such felony
and criminal cases where on con-
viction judgment shall be for loss
of life, limb or member excepted,
and all petit iarcenies, assaults, bat
teries and treSiriSses (other than
trespasses when tile of the freehold
may come in qquestion), breaches
of the peace and other misdemean-
ors of what kind soever, of an infe-
rior nature, and all actions of Diet
inue, trover and on penal statutes,
suits for filial portions, legacies and
distributive shares of inteState5'
estates" etc.
Such were the constitution and
powers of the County Court of Pleas
and Quarter Sessions of Montgom-
cry county when it rendered these
judgments, with the additional
powers conferred upon it by the
Act of 1884, Chap. II, Sec. /, which
was as follows:
in all suits at law where the
executors or administrator of any
deceased person shall plead fully
administered, no assets, or not Suf-
fieient assets to satisfy PLAINTIFF
demand, and such plea shall be
found in favor of the deFts, the
plaintiff may proceed to ascertain
his demand and to sign judgment
but before taking out execution VS..
the real estate of the deceased debtor,
a writ or WritS of scire faciaS shall
and may issue, summoning the re-
spective heirs and deviseeS of such
deceased debtor to show cause why
execution should not issue against
the real estate for the amount OF
such Judgment, or so much thereof
as there may not be personal assets
to discharge; and II judgment shall
pass against the heirs or devisees or
any of them, execution shall and
may issue against the real estate OF
the deceased debtor ia the hands OF
such heir or devisee, against whom
judgment shall be. given as afore-
said"
Sec. 2 required, in case the minor
had a guardian, that such guardian
should also be served.
1t thus appears that said County
Court, when these proceedings were
had, was court of very extensive
Jurisdiction, common law, criminal
and otherwise, differing widely
from the County Courts as consti-
tuted at the present day, or as they
have been since the Constitution OF
1884, or acts passed pursuant thereto.
In fact it had at that time to a great
extent the powers of general juris-
diction now conferred upon the
Circuit Courts of Tennessee. 1t was
also a court of record, and its acts
and judicial proceedings were en-
rolled on its minute books as per-
petual memorial and testimony
thereof. Can such a court as this
was at that date be said to have
been an inferior court, having only
limited or special jurisdiction? ]
think not. On the contrary, can
not but conclude that it was court
of general Jurisdiction at that time,
and that the validity or invalidity
of its judgments when collaterally
attacked must be tried alone by the
records thereof, to contradict which
there can be no averment or extra
neous evidence.
Testing these judgments, then, by
this rule, what is the result? 1t
cannot be denied that the court had
jurisdiction of the subject matter.
Looking TO the records furnished,
we find that the record does not
show in either case that the court
did not have jurisdiction of the per-
sons of the minors. Neither do
they q6fgDadtiUe[y recite that the
court did have jurisdiction over
them by service of process; but in
all the cases they do show that the
court assumed that it did have iuris-
dictiOn over them, thus determin-
ing the question for itself, and acted
accordingly by the rendition of the
judgments against them. At most
the records can only be said to be
silent upon the questions of juris-
diction by service of notice. Having
the power to Judge of its own juris-
diction, it did so and took jurisdic-
ton. In such cases, being a court
of general jurisdiction, we have
f fffe ptRat n BBS2fnon is sH that it acted
correctly, in the usual course, and
with due authority Freeman, Void
Judicial Sales, p. "a; Freeman on
Judgments, Sec. 124-I3D; and its
judgment is valid, nothing being
presumed to be out of its jurisdic-
ton but that which expressly APP
pears to be So"
1t cannot affect the question that
no scire facias or other notice served
upon the heirs appears in the trans
cripts filed as exhibits to these bills,
or can now be found among the
files. The bills concede that a por-
ton of the process in all the cases is
gone, has been lost or destroyed.
The transcript to one of the bills
consists alone of the judgment
against the administrators, the
Judgment granting execution against
the real estate and the execution
issued thereon. In the other it con-
sists of the judgment VS.. the adj
ministrators, a scire facias to the
regular guardian, judgment against
the real estate and the execution
issued thereon. The summons
served on the administrators in the
original suit, the note or claim on
which the suit was based and iudg-
ment rendered, the declaration,
pleas, etc.--indeed the entire pro-
ceeding in the matter of the iudg-
ment VS.. the administrators in all
the cases is lost, except alone the
Judgment entered of record on the
minutes of the court. The bills not
only cOncede that the transcripts
are imperfect, but the clerks certifi-
cate thereto attached shows the fact,
and that the balance of the papers
in each case have been "lost or de-
The loss or destruction
of SO many of the important papers
in the proceedings furnishes a full
to the suggestion that be-
cause no notice served upon the
heirs can now be found, it is to be
presumed that none such ever ex-
listed. But when to the fact that
these material papers have been lost
we add the reflection that sixty
years have elapsed since these pro-
ceedings were had, we might well
be justified, in a mere collateral
to impeach them, in pre-
that the minor defendants
were duly served with process, or
in some way had the proper notice,
so as to give the court Jurisdiction
of their persons. chopper VS.. Fish
er, 2 Head, 257, is in accord with |
this. Says Judge Wright in that |
case: "When we see therefore that |
the Court of Chancery at McMinn-
Vile had jurisdiction over the SUBJ |
~,cLl L \