, 1892-05-20
TO RECOVER MONEY.
A Pierce County Judgment Re
Yersed, and Why.


a Judgment to Have Been Re-
corded on sunday.
TNotice-Au decisions of the supreme
cOurtwill appear in The DAILY and WEEK
LY TRIBUNE.
J. H. Fox, T. H. McGoVern and Lott Farr.
doing business under the firm name of
Fox & Co., T. f. Loeder & Co., and
Laumelster q Todd, plaintiffs and re-
spOndents, VS.. f. Nachtsheim and J.
Klee, partners, doing business under the
firm name of Nachtshelm & Klee, defend
ants and appellants. No. 345.
This appeal is taken from the Judgment
rendered in the superior court of Pierce
county. Several errors are alleged. among
others, that the judgment of the court be-
low is erroneous and void, for the reason
that the same was rendered on Sunday, a
nOn-Judiclal day. Respondents move to
dismiss the appeal for the following rea-
sons: (l). That the proceeding is a civil
action at law for the recovery of money,
and the original amount in controversy
does not exceed the sum of two hundred
dollars, and does not involve the legality
OF tax, lmpOst, assessment, toll, munich
pal hne, or the validity of a statute: (2)
That 1t is not an appeal from final order
or the final, decision of any superior court,
1t appearing from the record that the al
legged judgment or order appealed from is
pending IN the superior court of Pierce
county.
So far as the first ground of dismissal is
concerned, this court has already held in
Washington Iron Works Co., VS.. Jensen
and Crossett--Paciio Reporter, that an ac-
uon to toreclose a mechanics lien is an
equitable proceeding.
In support of the second ground of dis.
missal 1t is urged that as under the law the
court had no jurisdiction to enter iudg-
ment on Sunday, the judgment is absO-
lutely vOid-there is nothing to appeal
from. That the superior court having no
jurisdiction to act, this court cannot take
notice Of such void act, even for the pur-
pose of reversing it, and some authorities
are cited by respondent which sustain this
view. And, indeed, at first blush it would
seem to harmOniZe with the general prin-
clples of the law that void Judgment was
no judgment at all, and could therefore.
have no effect; and that, therefore, the
time OF the appellate courts could not be
taken up in considering a harmless iudg-
ment. But while the Plausibility of this
theory cannot be questioned as a practical
fact the illegal judgment may not prove Ia
be harmless, but may prevent the full en-
lOyment Of rights which the owner has in
property which is seemingly affected by
the judgment. One of the rights which
the owner of property has, is a right to
sell 1t at its lull value, and anything that
tends to prevent such a sale is a depriya-
ton Of right; and certainly a judgment
which on its face is lien on property will
affect It's sale. There is always presump-
ton IN favor OF the validity of a judgment.
If this presumption must be recognized by
the courts, how much more strongly will
1t attach itself to the minds of citizens at
large who are incapable of understanding
the nice distinctions of the law, There is
a universal and oft-expressed disinclina-
tion on the part of trading people to "buy
a law suit" Experience has taught them
that they are often enough forced into ex-
penslve litigation to defend titles against
which no clouds were visible when they
bought, and they will be very slow to buy
property which appears to be subject to Z
lien imposed upon it by the formal iudg
ment OF a court of competent jurisdiction
regular upon its face, even though as
sured that such Judgment is void If they
bought at all under such circumstances Il
would be at greatly reduced prices, and on
the theory of chances. Fine-spun theories
should not refute practical example, and 8
persons rlghtto full, tree and untrammeleC
enjoyment OF his property should moi
be hampered or menaced bv a slavish adj
herence to impracticable theories, 1t i,
upon this principle that suits are enter
tanned by courts of equity to set aside
fraudulent deeds. Under the statute OF
frauds and the statute of Elizabeth. which
are part OF our common law, a deed made
for the purpose Of defrauding creditors is
declared to be absolutely void. The strong.
est possible language is employed to des-
cribe its invalidity, and vet it is the univer.
sal practice Of courts of equity to entertain
suits to cancel such deeds for the purDose
OF removing clouds from the title. While
the deed in one sense is illegal and Of no
effect, yet it does have sufficient vitality to
pernlclously affect the rights of the own
o. Al
jurisdiction and notice of it sufficiently to
cancel and destroy it, so that a purchaser
may not have to incur the risk of acting
upon mistaken opinion upon the legality
OF the title, or the inValidity of the alleged
fraudulent deed. So, in this case while
the defendants would doubtless have a
night TO treat this judgement as a nullitv
yet, if they did so, it would be at tbeiI
peril; and there seems to be no good reason
why they should be deprived Of the rigbt
to have the matter judiciOusly determined
on appeal 1t seems to be the lust and
more sensible rule, and is endorsed bv The
great weight of authority.
1t is true that in Wicks VS.. Ludwig Q
Cal. 173, the court decided suuarelv that a
judgment entered in vacation, where the
constitution of California only conferred
judgment on the district courts to trv
cases in term time, was illegal and void
and that no appeal could be taken from
such judgment. But the later California
cases sustain exactly the reverse doctrine
Thus, in LivermOre VS.. Campbell, 50 Cal.
75, the court says: at has been repeatedly
held by this court that an appeal lies
from void judgment, and it. follows that
an order setting aside judgment in form
on the ground that it is in fact invalid is
also appealable.'
In City Of Parsons VS.. Livesley, Al Kan
sas Al, it was held that Sunday was a non
Judicial day, and that the Judgment rem
dered on that day was void, and that such
judgment would be reversed on appeal.
To the same effect is Arthur VS.. Mosbv
2 Bibb. $780, Chapman vs.. The State. 8
Blackf. Ill; Peters VS.. Ryan and Brown, 10
Texas 215
In fact the right Of appeal in those cases
seems to have been conceded. This seems
also to be the rule in the supreme court of
the United States. In United States VS.
NOurse, 6 Peters 470, the court saws; "Ifit
clearly appear that the circuit court had no
jurisdiction, still this court may take iuris-
dictiOn so far as regards the proceedings
had before the circuit court; but those prO-
ceedings being wholly unauthorized must
be annulled or reversed" +"
See also Linch vs.. DiYans, executors, 66
Wisconsin 400.
Commonwealth VS.. O'Neal, 6 Gray 341.
Hayne on new trials, page 566.
In Moore vs.. Wait, 1 Binn. 219. it was
held that tana appeal would lie from Justices
court in case where the justice had no
jurisdiction
This court has also held, in Stewart VS..
LOhr, WASH. 341, that it could take iuris-
dlctlOn to reverse a void Judgment.
though in that case the appeal was dis
missed.
We think, however, the more consistent
practice would be to entertain the appeal.
The motion to dismiss will, therefore, be
denied, and as it is conceded bV both par
ties that the Judgment is illegal, having
been rendered on Sunday, which both un
der the common law and under the statute
is dies non juridicus. The judgment must
be reversed and the case remanded to the
superior court with instructions to proceed
in accordance with this opinion.
DUNBAR, j..
/ cOncur:-Anders, G. J.
concur in the disposition Of this case. |
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