Owens v. Cocroft , 14 Ga. App. 322 ( 1914 )

Russell, C. J.

This suit was brought in the county court of Putnam county, and a jury was demanded at the March term, 1909, — the trial term. At this term the case was called, and on motion of the defendant the judge passed an order dismissing the suit for want of prosecution. Shortly after the adjournment of the court, though upon the same day, the plaintiff’s attorney arrived at the court-house, and entered into an agreement with the attorney for the defendant that an order should be taken from the judge, vacating the order of dismissal and reinstating the case. This order was passed by the trial judge on the date of the order of dismissal, and the case came on to be heard in the county court at the next term; at which term the defendant and his attorney were present, and in open court stated that they would confess judgment in favor of the plaintiff and depend upon their right to carry the case, by appeal, to the superior court. A judgment, reciting these facts, was thereupon entered for the plaintiff. After this judgment was taken, the defendant entered his appeal to the superior court, and the case was twice tried in the superior court before a jury, a verdict being rendered once for each party, and a new trial being granted in each instance. The ease came on for a third trial in the superior court at the September term, 1913, when a motion was made to dismiss the suit. The defendant’s counsel, in open court, admitted that the order of the judge of the county court, reinstating the case, was passed with his consent, being drawn jointly-by himself and the attorney for the plaintiff; that he was present when judgment was finally taken in that court, and that he confessed judgment in favor of the plaintiff; but he contended that he had no authority to consent to the reinstatement, that the court was without jurisdiction to pass the order, and that for that reason the judgment was void. The court sustained this contention and dismissed the suit.

There is a natural equity which is personally compelling in the argument of counsel for the plaintiff in error, to the effect that the defendant, after having confessed judgment and having thereafter appealed to the superior court, should be estopped from attacking the judgment of the county court reinstating the 'action after it had been dismissed. And this view is strengthened, if possible, by the fact that the defendant has twice taken the chances of a verdict in his favor, by actively participating in the two trials which have been held in the superior court. If the point involved were one incidental to the trial, instead of being one concerning the jurisdiction of the court, there could be no doubt that the defendant would be estopped. We think that there can be a waiver of many of the, formal requisites of a trial, and even pleadings may be dispensed with when the consent of parties to this effect is approved by the trial court. And so the question in this case really turns upon whether, by consent of both parties to a cause, jurisdiction can be conferred upon a court (or rather upon a person who when court is in session would be clothed with authority as a court) in a ease where, but for this consent, the court would have no jurisdiction, or in an instance where the personal tribunal is coram non judice. It is undisputed in the evidence that the judgment vacating the dismissal and reinstating the plaintiff’s case in the county court was passed after the court had adjourned. The act of the learned and able lawyer who presides in the county court was, at the time he signed the order of reinstatement, merely a personal one. The judgment was coram non judice, and, under the rulings cited in the headnote, to which others might be added, the purported judgment was not merely voidable, but absolutely void. Some confusion has been created by the careless use of the word “void," as if it were interchangeable with the term “voidable;" in other words, the term “void” has sometimes been used in referring to proceedings merely voidable; but a judgment really void can not be vitalized by any subsequent action of the parties. A judgment that is void may be attacked in any court and by anybody. Civil Code, § 5968. It is well settled that after adjournment the court loses control of judgments rendered during the term, which the court might for any legal reason satisfactory to itself have vacated before adjournment, and these judgments thus become conclusive upon the parties, subject only to be set aside upon proper motion made to the court when in session at some subsequent time, and as provided by law.

The majority of this court is of the opinion that since the case was dismissed by a legal judgment, rendered before the adjournment of the court, the effort, subsequent to the court’s adjournment, to reinstate the cause was futile, and, considered as a judgment, was wholly void. “The judgment of a court having no jurisdiction of the person and subject matter, or void for any other cause, is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.” Civil Code, § 5964. The county court of Putnam county, it is true, had jurisdiction both -of the person of the defendant and of the subject-matter of the suit. That court entered a formal judgment dismissing the ease. The attempt to enter a judgment reinstating the case, and the purported competing judgment, taken after the adjournment of the court, were void. We think that when the point was made the trial judge correctly held that the only valid judgment was that dismissing the suit, and that there was nothing before the court. Despite all that can be said as to the defendant’s conduct, the order of dismissal in the county court destroyed its jurisdiction as to the original ease, and as there was no case, there could be no appeal to the superior court.

It is not necessary at this time to decide whether the judgment reinstating the case, and taken with the defendant’s consent, would be enforceable as a contract; for this view of the case is not now before us. We may say, however, in passing, that it would seem that unless the defendant himself consented to the action of his counsel in agreeing to the reinstatement, the defendant would not be bound thereby. Judgment affirmed.