Penn v. Meeks

3 N.J.L. 151

Opinion

Kirkpatrick, C. J.

— Said that he considered the judgment in Cumberland wholly void; and, therefore, was of opinion, that the plaintiff was entitled to his motion, that the sheriff pay over the money to him.

Rossell, J.

— Was of the same opinion; he considered the judgment in the Cumberland Pleas, a mere trick,

(a)

Peanington, J.

— Said that he had the misfortune to differ in opinion with his brethren; he took it, that this court would not, in this summary way, on a collatteral question, arising on motion, try the fact of fraud, in obtaining a judgment in another Court; nor would it treat a judgment of another court, as void, that was merely voidable. This, then, brought up the inquiry as to void and voidable judgments; the law as to which, lie took to be, that erroneous and irregular judgments obtained in a Court, having jurisdiction of the subject matter, are voidable only, and cannot be considered ipso facto void. But in cases where the Court rendering the judgment, hath no jurisdiction of the cause, and the whole proceeding is coram non judice, there is really no judgment; the proceeding, in such cases, is not only voidable, but wholly void. This principle he took to be illustrated by the following authorities; 10 Coke 76, Carth. 274, 2 Salk. 674. In the case under consideration, the Common Pleas of Cumberland had jurisdiction of the subject matter; an actual judgment was rendered and recorded in the book of judgments, and signed by a Judge.

'The book of judgments under our practice, he said, was in lieu of the judgment roll. The Court of Common Pleas recognized it as a judgment. This being a subsisting judgment, the sheriff p] was bound to execute the writ of execution issued thereon; and this Court ought not, in his opinion, to jeopardize his interest by compelling him to pay the money twice over; for w hich reason he was of opinion that the rule be refused. Rule allowed.

Vide opinion, post. 398.