
    Minos Cannon et als. vs. William Wood.
    1. Motion. Judgment by. What facts the judgment must asstime. It is the settled law in this State that a judgment by motion must assume al! the facts which constitute the case provided for by the statute that gives . the motion. So, oil a motion against a constable and his sureties for failing to return an execution, it appeared that the judgment rendered by a justice of the peace upon which said execution was founded, was in these words; “It appearing to me, that judgment was entered against Wm. Wood as surety for ¡John Dromgoole, L. W. True (and others,) in favor of Thomas Coy for $495 and costs, and that said Wm. Wood has paid the same; It is therefore considered,” &c. Held : That said judgment does not sufficiently state the nature of the liability of said surety, or the forum in which the same was rendered, and being defective in this, said motion cannot be sustained.
    
      2. Same. Jurisdiction of justices of the peace. A justice of the peace has no jurisdiction of a motion by a surety against his principal, unless such suretyship appear upon the face of the note, bill, bond or obligation which is the foundation thereof.
    3. Same. Waiver of errors not presumed, in the summary ex parte proceeding by motion, where the defendant has no day in court, any presumption of a waiver of errors by him is not to be made. The onus is upon the plaintiff to make out his case in every material point, and if the proceeding be defective in matter material, it is not merely voidable but void. The strictness of this rule is, however, relaxed in proceedings against delinquent officers, which are liberally construed in favor of the remedy for reasons of public policy and necessity. Vide 1 Yerg. S., 148.
    FROM BEDFORD.
    The defendant in error recovered, before a justice of the peace, a judgment by motion against Cannon, a constable of Bedford county, and his securities for the amount of an execution placed in his hands, and which he failed to return. The judgment upon which said execution was founded, is in these words: “It appearing to me, that judgment was entered against William Wood as surety for John P. Dromgoole, L. W. True, L. N. Hendricks and H. B. Quimby in favor of Thomas Coy, for four hundred and ninety-five dollars and costs, and that said William Wood has paid the same; It is therefore considered by me, that William Wood recover of the said John P. Dromgoole, &c., the said sum of four hundred and ninety-five dollars and costs, and that execution issue for the same. This 27th July, 1853. Wm. Galbraith, J. P., [Seal.] Prom the judgment before the justice, the plaintiffs appealed to the circuit court, where, • at the August term, 1854, before judge Davidson, said judgment was affirmed; whereupon they appealed in error to this court.
    
      Ed. Cooper, for the plaintiffs in error,
    said:
    The judgment below in favor of William Wood, should be reversed.
    1. The failure to return was because of instructions of the plaintiif, and held up at his request.
    The return of the officer states such to be the fact.
    2. The bill filed by William Wood shows that it was held up by his permission.
    If the failure to return was caused by the act of the plaintiff, Wood, then he is not entitled to any remedy for such failure. Billingly vs. Ranlcin, 2 Swan, 82. Robinson vs. Harrison, 7 Humph., 189. Gate vs. Howard, 1 Swan, 15.
    Then was it held up and not returned by the request of the plaintiff Wood?
    1. The return so states the facts, and it is evidence of what it states, and must be taken as true — on a motion for failure to return. Rains vs. Childress, 2 Humph. 449. Watson on Sheriff, 83, 119.
    If the return is false, then another and different remedy is given, and must be pursued.
    2. The judgment rendered by William Galbraith, upon which the process was issued is absolutely void, and being void, the officer was not bound to execute it.
    
    That it is void, see, Ragsdale vs. State, 2 Swan,. 416. Barnes vs. Hayes, 1 Swan, 304. Eason vs. Cummings, 11 Humph., 210. The last case being a strong one. Van Bibber vs. Van Bibber, 10 Humph. 53. Burt vs. Davidson, 5 Humph. 425.
    3. But if the judgment was only irregular and voidable, yet it will give the man who has it issued no remedy against the officer refusing or failing to execute or return it. Waite vs. Dolley, 8 Humph., 406. Nanee, lessee vs. Wilson, 11 Humph., 189. Deveraux & Battle, 138.
    E. A. Keeble and Davidson, for the defendant in error,
    with whom was Whitesides, who said:
    The judgment of Wood vs. Dromgoole and others by motion before Wm. Galbraith, Esq., was not void but merely voidable — perhaps not even voidable. The only objection to it is, that it does not' recite before whom Thomas Coy recovered the judgment against Dromgoole, Wood and others. The judgment of Wood vs. Drom-goole and others by motion shows all that the statute requires to entitle him to the motion, namely, his sur-etyship, the rendition of a judgment against him, and payment of the judgment by him. Act of 1801.
    2. A ministerial officer is protected in the execution of process, whether the same issue from a court of limited or general jurisdiction, although such court have not, in faet jurisdiction in the case — provided that on the face of the process it appears that the court has jurisdiction of the subject matter, and nothing appears m the same to apprise the officer but that the court has also jurisdiction of the person of the party to be affected by the process. Saoaoool vs. Broughton, 5 Wendell, lYO. See also 16 Wendell, 514, whore the opinion of judge Marcy in Savaeool vs. Broughton is approved by chancellor Walworth and the whole of the court of errors.
    
      These cases are cited with approbation by this court' in Etherige vs. Edwards, 1 Swan, 426, where it is ruled that if the process is merely voidable, the officer-will not only be protected, bnt that he is bound to execute the writ without enquiry after the judgment. See also Stevenson vs. McLean, 5 Humph., 332, and Barnes vs.' Mayes, 1 Swan, 304.
   Totten J.,

delivered the opinion of the court.

Motion before a justice for the non-return of an execution.

An execution was issued by a justice of Bedford in favor of William Wood vs. L. W. True and others, for $495, July 9, 1853, and came to Minos Cannon, a constable of said county, to be executed. He failed to make due return of the execution; and thereon, the creditor, Wood, moved for judgment against said constable and his sureties, before the justice who issued the execution. The justice, rendered judgment against the constable and his sureties for the amount of the execution. The defendants appealed to the circuit court, where the judgment was affirmed, and then they appealed in error to this court.

The execution, was founded on a judgment by motion rendered by said justice as follows:

“It appearing to me that judgment was entered against Wm. Wood, as surety for John P. Dromgoole, L. W. True, &c., in favor of Thomas Coy for $495 and cost, and that said William Wood has paid the same: It is therefore considered,” &c.

The ease turns upon the validity of the judgment on which tíre execution issued.

The judgment by motion must assume the ease, that is, must state all the facts which constitute the case provided for by the statute that gives the motion. It will also be strictly construed, because the proceeding is summary and extrinsic in its nature; and because a judgment without notice is a violation of principle, and not to be favored. This has ever been the settled doctrine of the court in such oases.

The remedy by motion in cases like the present, is given by the acts 1801, ch. 15. 1809, ch. 69. 1850,, ch. 219, and 1854, ch. 52, § 1, the last two acts extending the jurisdiction of justices of the peace in certain cases.

Now, the judgment is defective in several respects. It does not appear on its face in what forum the judgment against said Wood, as surety, was rendered.

We cannot see that it was rendered by a court of competent jurisdiction, so as to -be a valid judgment: nor indeed, that it was rendered as required by the act of 1801, ch. 15, by any “judicature in this State."

Nor does it appear that the judgment against said Wood was rendered on a “note, bill, bond or obligation,” in which he is liable only _ as surety. It simply states that judgment was entered against him- as surety, but the nature of the demand, or how it appears that he is surety is not stated.

We further observe, that .if it does not appear oh the face of the note, bill, bond or obligation, that the party is a surety and not a principal, ■ a jury must “ ascertain the fact” before a judgment by motion can be rendered; act 1809, ch. 69. This wise and conserva-.tive provision is necessary to prevent abuse and injury^, because, prima facie, the parties to a note, &c., are ail principals; and. this presumption can only he removed by satisfactory proof to the contrary.

Row, as a justice has no jury to ascertain the fact in question, it is not competent for him to render the judgment by motion, except where the suretyship appears on the “face of the note, bill, bond, .or obligation.” In such case, there is written evidence of the fact, that the one party is principal and the other surety: but in the absence of such evidence, the case must be submitted to a jury. If, then the judgment in question was rendered- by a justice of the peace, it was not valid unless it appeared on the face of the note, bill, bond or obligation, that the parties were in the nature of principal and surety. And the fact should be stated in the justice’s judgment, so that his jurisdiction may appear.

Eor a judgment by motion must be perfect in itself, and cannot be aided by extrinsic proof; as that would be in effect, to try the case de novo, after it had been finally adjudged. It must be tested by the facts, which appear on its face.

It is argued, that though the judgment be defective, it is not void, but only voidable, at the instance of the party against whom it is rendered.

This principle can only apply in the ordinary proceeding where the party has notice to appear and defend the suit. Then, where the court has jurisdiction of the subject and party, if he do not object to the error and cause it to be corrected, he is presumed to waive it, and the erroneous judgment will remain in force and effect, and give validity to an execution and sale under it. No one else can object or insist upon the error.

But in the summary ex parte proceeding, where the defendant has no day in court to make defence, no such presumption can arise: and therefore the onus must rest on the plaintiff to malee out Ms ease in every material point, and cause it to be adjudged in his favor. This must appear in the judgment he obtains, otherwise we are to presume that the case was defective in respect to the material faets omitted. The ex parte proceeding, being without notice, is at the peril of him who instituted it, and if it be defective in a matter material, it is not merely' voidable, but void.

It may be proper to observe, that the motion against delinquent officers, being a substitute for the attachment for contempt at common law, forms an exception to the strietness of the rule we have stated, and such motion is liberally construed in favor of the remedy, upon the ground of policy and necessity. Cook vs. Smith, 1 Yer. R., 148.

Now, as to the motion against the officer, it may be formal and regular, but the objection goes to the judgment on which the execution issued. And that being void, as we have seen, the plaintiff therein can have no right to enforce it, and can have no right to a motion against' the officer, for failing to enforce it by execution. The execution and any remedy upon it in such case must stand or fall with the judgment.

The judgment will be reversed, and the motion be dismissed.

McKinney, J".,

was of opinion that the officer could not be heard to object to the judgment of the justice;. as the objection to the judgment was merely a matter of error, not going to the jurisdiction of the justice. Consequently, the execution would have been a sufficient justification to the officer.  