20 CASES IN THE SUPREME COURT [27 Ark. Hightower et al. v. Handlin & Venneys. [DECEMBER HIGHTOWER et al. v. HANDLIN & VENNEYS. SUPREME uounr—Jurisdiction of, in matters of cost.—Where it is decided that an inferior court had no judisdiction in a cause, this court, on appeal, can render no jUdgment for such costs as have accrued in that court, but it is proper to , render judgment for the costs made in this court, against the party bringing suit. EXE CUTIONS — Requisites of.—An execution must be authorized by a judgment, and must follow it in every essential particular, not only as to material matters of form, but also as to the amount for which it is ren--dered. SAME—When sales made, void.—Where several levies and sales are made for separate sums, only such sales or levies would be void as are made ' to satisfy the amount in excess of the judgment; but whero one sale is made to satisfy the sum actually due, and the execution has been issued for , a sum greatly in excess of that sum, the whole proceeding will be'de-dared void. SAmi—Recourse of purchaser,' when proceedings void, etc.—Where the judgment of , a court, or an execution issued thereon, is declared void, by Competent . authority, the purchaser, under such sale, takes nothing, but would have recourse upon the sheriff, who made the sale, for the money ' paid at it. • SAME—Where sale made after return day.—The sale of real estate, under an execution, after, the return day, Cs without authority and void. PETITION TO QUASH EXECUTION. Gallagher, Newton & Hempstead, for Plaintiffs. 1. Courts have power over their ,own process, when deed has not been executed, approved, etc. State Bank vs. .Noland, 13 Ark., 301; 6 Ark., 425; 10 Ark., 541. 2. Judgment for costs cannot be rendered when courts have no jurisdiction. 5 Eng., 569; 21 Ark., 93. 3. At the time of the issuance of the execution and pretended sale, the ternis of the Supreme Court were the third Mondays of April and October of each year. Acts of 1868, p. 144. 4. Executions issued from any court of record should be returnable the second day of the next term thereafter. Gould's Digest, p. 501, sec. 9. 5. Judgments should have been for costs of Supreme Court only. Gould's Digest, 284, sec. 89.
27 Ark.] OF THE STATE OF ARKANSAS:. 21 TERM, 18711 Hightower et al. v. Handlin & Venneys. 6. A sale after the ieturning day is void. 3 Smeede & Marshal, 471. Should have been sold under ven. ex. Young vs. Smith, 23 Texas, 558; Newton vs. State Bank, 14 Ark., 9. 7. Sale, under execution for much greater amount than judgment, void even as against b'ona fida purchaser. Har-lings vs. Johnson, 1 Nev., 613. T. D. TV. Yonley, for Defendants. BEN NETT, J.—On the 2d day of December, A. D. 1867, Wil-liam H. Norton, et al., recovered a judgment against the plaintiffs in a certain cause, then pending in this court, wherein said Norton, et al., were appellants, and said plaintiffs,, as' heirs-at-law -of Joseph Miller, deceased, were appellees, on appeal from the Circuit Court, in chancery, of' Sebastian county, for the Fort Smith district. The judgment of this court was, that "the decree of said Circuit Court, in chancery, in this cause be, • and the same , is hereby, dor the error aforesaid, reversed, annulled and set aside with costs; and that this cause be remanded to said Circuit Court, in chancerY, with instructions to dismiss the bill for want of jurisdiction. "It is further ordered and. decreed that said appellants recover of said appellees all their costs in this court, in this cause expended, and have execution thereof." On , the 2d day of September, A. D., 1868, an execution , was issued from this court upon said judgment for costs, not only for the amount of the costs of the parties in the Supreme Court, which were taxed at $25.00, but also for the costs of the Circuit Court, which amounted tO $151.75, in all, amounting to $178.60-, with the cost of issuing the execution. This execution was returnable, by law, on the 20th day of October, 1868, Which was the second day of the next October term. It came to the hands of the Sheriff of Sebastian county, to whom A was directed, On the 7th day of September, A. D. 1868, to be executed, and was by him • levied upon the follow-
0 22 CASES IN THE SUPREME COURT [27 Ark. Hightower et al. v. Handlin & Venneys. [DECEMBER ing property, to-wit : Lot No. 12, in Block No. 15, in the city of Fort Smith, and was advertised to be sold on the 26th day of October, 1868, and was by him offered for sale and sold to these defendants, for $25.00. These facts appear from the endorsements and return of the sheriff upon the execution. The plaintiffs have filed their petition in this court to get aside the sale and return of the sheriff, under the execution, and to declare the same void; because, First. If the court had no jurisdiction of the subject matter in controversy, it could not render a judgment for cost. Second. Because the sale, under the execution, was made six days after it should have been returned. The first proposition, to which our attention is directed, would. be , correct if this court, in deciding the case, had' said it had no jurisdiction; but it has done no such thing. It has, merely said that the Circuit Court, from which the appeal came, had no jurisdiction of the matter in controversy. This court acquires jurisdiction, in such matters as are not original, by virtue 'of the prayer for, and the order granting the appeal. When ' that i regular, the jurisdiction is • complete here. The question of jurisdiction in inferior courts, in certain cases, is, often, one of an intricate nature, and can only be settled by the highest tribUnal in the State ; but when once decided that the inferior court had no jurisdiction, there can be no judgment rendered for such costs as have accrued in that court, but it is. proper to render judgment for the costs made in this court against the party bringing suit. In the case before us, the Clerk of the Circuit Court certified the costs made in that court, and the clerk of this court added them to those made here, which ,was erroneous. But will this protect the petitioners against a bona fide purchaser at a judicial Sale ? - It has been well settled, we think, that an execution must be authorized by the judgment, and must follow it in every essential particular, not only as to material matters oi form, but als6 as to amount fpr which it is rendered.
'27 Ark.] OF THE STATE OF ARKANSAS.. .TERM, 1871.] Hightower et al. v. Handlin & Venneys. While it is not incumbent upon bidders and purchasers, at judicial sales, to inquire into any irregularity, ,which may have been permitted by the court rendering the judgment, or the' clerk in issuing the execution, if it is regular upon its .face; yet, if for any cause the proceedings of either should be de-. dared void, by competent authority, he could not take anything by reason of . such sale, but would have . recourse upon the sheriff,. ' who made the sale, for the money he paid at it. When several levies and sales are . made ' for separate sums, only such sales, or . levies, . would be considered void as are made to satisfy the amount in excess . of the judgment. If, however, but one sale . is made to satisfy the . sum actually Clue, and the execution has been issued for a sum greatly in excess of tbat sum, the error . can only be remedied ty setting aside and declaring void the . entire proceeding unclei the execution. The case of . Knigid . i;s. Applegate's heirs, 3 Monroe, 336, is in . point. , An execution was levied for about forty-two dollars more , than the . judgment authorized, and the . court, for that reason, . held that the sale bond could not be sustained. Judge Owsley, who delivered the opinion of the court, after holding that the . executidn was void, proceeded to say : "To uphold a . sale . of . land, made under an execution by an . officer, .it is not enough that the execution purports upon . its face to be regular, and appearf 3 . to have emanated from competent authority, there must also . be . a judgment to which the .sale money is to be applied. The reason is obvious; lands are made subject to . sale under writs . of fieri facias by . statutory enactment, and it is only in satisfaction of judgments . that the statute has authorized the sale, there must, of course, be a judgment to whieh the proceeds of the sale may be applied .to make the sale a valid one. . It would, therefore judging from the facts proved on the trial of the motion, seem to follow ' that the sale ,bond can not be sustaincd, for the land appears , to have . been sold, and the bond . taken for a sum equal to that mentioned in the execution, which issued . in favor of Knight, against the estate of Applegate, and as the judgment
24 CASES IN THE SUPREME COURT [27 Ark. Hightower et al. v. Handlin & Venneys. [DECEMBER in favor of Knight, is in fact, far less than the execution, there is no judgment to which the excess contained in the execution, and included in/ the bond could be applied." Chief Justice Lewis, in the case of Hastings vs. Johnson, 1 Nevada, 615, says : "That an execution issued and, sale of property made, when there is no judgment authorizing it, o ,would be utterly void, there can be no doubt, and for the same reason, we think that an execution and sale for a sum exceeding that actually due upon the judgment, would be ' equally • ,void, because there is no judgment to authorize the collection of the excess for which execution is issued. When the discrepancy between the judgment and the execution is a mere trifle, levy and sale will not be disturbed, beeause it is said, lex non curat de minimis; but when the discrepancy is material, -. it cannot be overlooked or disregarded by the courts." The ; same doctrine is announced in the cas'e of Peck vs. Tiffany, 2 _Comstock, 458. By reference to the judgment in this case, we find there was none f , or money, except for the costs of this court, which appears by the allegation of the petition, and -not denied, to have Veen twenty-five 20-100 dollars; but the ,execution called for one hundred and seventy-six 95-100 dollars, over six times the amount. In accordance with the princiPles, ( as laid down in the . above cited cases, and in accordance with , our own judgment, we „consider the sale of land, ' under such „circumstances, voidable, and in such : capes the sale may be set :aside, even though the right of ,bona fide purchasers have intervened. As to the second cause, .why the sale should be set aside, we think it, if possible, more conclusive than the first. A isale under an execution, of real estate, after the return day, is void and without authority, as the power conferred by the. .writ was non-existent. , It was held - in the case of Lehr vs. Dale, ex dein. Rogers, 3 Smeede & Marshall, 471 : "If we view the execution as, in law, returnable: to the April term, it is manifest that a sale made iunder it, in . July, 1841, was irregular, and conferred no
27 Ark.] OF THE STATE OF ARKANSAS. • 25 TERM, 1871.] Hightower et al. v. Handlin R.; Venneys. title. The sheriff having been bound by law to make a return of the writ to the April term, it, had, at this time, discharged its office. He acted, then, without legal process, and consequently w ithout authority, since the latter expired with the writ. The authority, for the sale of the real estate, could only have been obtained by a writ of venditioni exponas." See, also, Borden vs. McKinnie, 4 Hawk's Law and Equity Rep., 282 ; Towns vs. Harris, 13 Texas, 507 ; Young vs. Smith, 23 Texas, 599. In some of these cases it has been held that personal property levied on before, may be sold by the sheriff after the return day, without a yen. ex., but real property cannot. The proper course is, to make return of the execution upon the • return day, and thereupon issue a venditioni exponas to the officer to sell. A seizure of personal property vests ' special koperty in the sheriff, who may take possession of it for the purposes of the execution, and complete the sale after the returning day, by virtue of the authority previously given, whereas, a levy on land gives no right of property or possession. It gives no authority to the officer to take possession and turn the defendant out, but only the right to enter for the purposes of sale. It confers authority to pass the title merely, not to change the possession ; there must be in existence some lawful authority , for the conversion and sale of the property. The execution could confer none after the return day, for it was dead. The sale, in the case before us, was made some six days after the return day, without any other authority than the original execution. It was ./ therefore void. For these reasons, the prayer of the petitioner must be granted. The return of the sheriff and sale under the execu tion are set aside and held for naught.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.