Buffum v. Ramsdell

Danforth, J.

To enable this complainant to sustain his bill, it is conceded that he must show a good title to the *254 land claimed. To do this, he offers in evidence a judgment in his favor against Joseph Bousley and Milton P. Locke, recovered at a term of this Court, holden in the county of Oxford, on the second Tuesday of August, 1863, an execution issued thereon, and a levy upon the land as the property of Bousley. The respondent, who also claims under Bousley, by a prior deed, alleged to be fraudulent as against creditors,' contests the plaintiff’s title on the ground that his judgment is erroneous. It is conceded that Locke was not an inhabitant of the State, that no legal service was made upon him. As to him, the Court had no jurisdiction, and the judgment against him is therefore void. Penobscot R. R. v. Weeks, 52 Maine, 456.

The judgment being an entirety, if void in part is void in all; if reversed as to one of the parties it must be reversed as to all. 2 Saund., 101; 2 Bac. Abr., 227, 228; Benner v. Weld, 45 Maine, 483; Hemenway v. Hicks, 4 Pick., 500.

It is true that, in some cases, where the judgment is several as to the parties, it may be reversed as to one and affirmed as to the others ; as in Whiting v. Cochran, 9 Mass., 532, whei’e judgment was rendered against the principal defendant and a trustee, it was-decided that the principal defendant could not avail himself of a want of service on the trustee. So, in Shirley v. Lunenburg, 11 Mass., 379, where the same principle is recognized. But no such severalty is involved in the judgment under consideration. On the contrary, it is against the parties jointly, and both ak to them and the subject matter, is one and entire. It must, therefore, stand or fall as a whole.

The case of Ellis v. Bullard, 11 Cush., 498, relied upon by the plaintiff, does not weaken this position but tends rather to confirm it. This was a writ of error to reverse a judgment haviug the same defect as that in the judgment relied upon by the plaintiff in the case at bar. The Court refused to reverse the judgment, not because there was no error, but because one of the plaintiffs, and the one having *255 cause to complain, had released that error and refused to prosecute the suit. Thomas, J., remarks, — "Were this not so, yet, as upon the reversal of a judgment on a writ of error, the Court may enter the same judgment which the Court below might have rendered, it may enter judgment against Ellis.” Here is a very clear intimation that, but for the release of the error, the judgment must have been reversed, — though, if justice required, another which would have been valid might have been entered. In that case, the parties to the judgment sought to be reversed, were before the Court,, and the process pending was such as to authorize the Court to do that between them which the law and jus-ticé required. In the judgment relied upon in the case at bar, the error has not been released, the parties to it are not before the Court, and no process is pending which can give the Court any authority to modify or change it in any respect, or substitute a new one in its place. We must take this judgment, or pretended judgment, as it now stands without addition or diminution, and, upon principle as well as authority, it is erroneous.

That the respondent in this process, not being a party or privy to that judgment, may avail himself of any illegality in it is well settled. Vose v. Morton, 4 Cush., 27, and cases cited. Caswell v. Caswell, 28 Maine, 237.

Bill dismissed with costs.

Kent, Walton, Barrows and Tapley, JJ., concurred.