
    Samuel S. Moore v. David Robison, survivor of Jesse Mitchell.
    Where a court has jurisdiction of the subject-matter of an action, and the form of action in which suit is brought, and the parties are before the court by proper process, its judgment in the case, though erroneous, is not void; the jurisdiction is not ousted by the erroneous exercise of the power which it confers.
    Therefore, where a justice of the peace, under the statute of 1831, defining the powers and duties of justices of the peace in civil cases, in a proceeding by scire facias against the bail for stay of execution, renders judgment ^against him without having previously issued execution against the [303 judgment debtor, such judgment is not void, but binds the parties until reversed by proceedings instituted for that direct purpose.
    Petition in error to reverse tbe judgment of tbe district court of Wayne county.
    
      The facts are sufficiently stated in the opinion of the court.
    
      Jeffries & Parsons, and William Given, for plaintiff in error:
    The judgment of Justice Swartz against the plaintiff in error was absolutely void, because he had no jurisdiction of the person of the plaintiff, nor of the subject-matter of the action.
    Before proceedings can be instituted against the bail for stay of execution, execution must have been issued and returned in accordance with the statute; the consideration of the bail bond is not broken until then. 1 Peters U. S. 340; 11 Johns. 175; 19 Ib. 39; 4 Ohio (Ham.), 398; 2 Ib. 392; 4 Blackf. 161, 169, 417, 476; 8 Ib. 396; 5 Ib. 213; 7 Ib. 199; 4; Porter (Ind.), 126; 1 Johns. 20, 228; 23 Pick. 110; 5 Porter (Ind.), 157.
    
      Iracas Mattery and John McSweeney, for defendant in error :
    The judgment rendered by Justice Swartz may be irregular but is not void, and is therefore of binding force so long as it remains unreversed and unsatisfied. Berry v. Greenfield, Wright, 348; Goodrich v. Jenkins, Ib. 349; Weyer v. Zane, 3 Ohio, 306; Adams v. Jeffries, 12 Ib. 272; Douglass v. Massie, 16 Ib. 271; Reynolds v. Stanbery et al., 20 Ib. 344.
   ^ Scott, J.

In 1839, Mitchell and Robison, of whom the defendant in error is the survivor, recovered a judgment' against one Peppard, before Nicholas Smith, a justice of the peace of Franklin township in Wayne county, upon which Moore, the. plaintiff in error, became docket bail for stay of execution.

On a certified transcript of this judgment, Mitchell and Robison, in March, 1848, instituted proceedings by scire facias against Moore, before James Swartz, then a justice of the peace of the township. Due service .of the writ was made upon Moore, and he failing to appear, judgment was rendered against him by default for the amount of the original, judgment against Peppard with interest and costs, although the transcript from the docket of Justice Smith did not show that any execution had ever issued against Peppard, the original judgment debtor.

In July, 1854, the present defendant in error brought suit on this ' latter judgment against Moore before another justice of the peace of the same township, from whose judgment in the premises an appeal was taken to the court of common pleas.

The plaintiff in error, who was defendant in that court, in answer to the petition, set up as a ground of defense in substance, that no execution had ever been issued on the judgment against Peppard, and that the judgment rendered against the plaintiff in error, by Justice Swartz, which constituted the plaintiff’s cause of action, was therefore wholly void. The defense was demurred to, and the court sustained the demurrer, and rendered judgment for the defendant in error.

The district court, upon petition in error, affirmed this judgment, and the question now presented is, was this judgment of affirmance erroneous ?

If the facts relied upon by the defendant in the court below, *as a ground of defense to the plaintiff’s action, show that [305 the judgment of Justice Swartz, upon which suit was brought, was wholly void, then they constitute a good defense, otherwise not. To render judgment against a defendant before a right of action has accrued to the plaintiff, is certainly error, for which the judgment might well bo reversed. But if rendered by a court having j urisdiction of the subject-matter of the action and the person of the defendant, it can not be treated as a nullity. Until vacated by appeal, or reversed by a court having the proper appellate jurisdiction, in a proceeding for that direct purpose, it binds the parties, and can not be collaterally questioned. This is clear upon principle, and well settled by authority. Weyer v. Zane, 3 Ohio, 306; Adams’ Lessee v. Jeffries, 12 Ohio, 272; Douglass v. Massie, 16 Ohio, 272; Aubrey v. Almy, 4 Ohio St. 525; Wright, 348, 349.

Our inquiries are then directed to a single point, the jurisdiction of Justice Swartz in the premises.

Had he jurisdiction of the subject-matter of the action? The matter in controversy between the parties was the liability of the defendant as bail for stay of execution upon the judgment which the plaintiff had recovered against Peppard.

If the law give the justice power to hear and determine such controversy, then it gave him jurisdiction of the subject-matter, and this jurisdiction would not be ousted by the erroneous exercise of the power which it conferred; and such power we think was clearly conferred by statutes then in force. See Swan’s Statutes of 1841, pp. 516, 517, sections 69-71, etc., where the remedy in such case by scire facias is plainly given.

The sixty-ninth section of the act referred to reads thus: “ And 306]' when bail has been given for the stay of execution *as aforesaid, and the period of stay has expired, execution shall in the first instance be awarded against the goods and chattels of the party against whom judgment was rendered ; and if goods and chattels of the party can not be found sufficient to satisfy the execution, and that fact be returned by the constable, the justice shall, unless otherwise directed by the party for whom execution issued, or his agent, proceed by writ of scire facias against the bail.”

Now, it is not denied that the justice would have had jurisdiction of the subject-matter if the liability of the defendant had been previously fixed by the issuing and return of an execution against Peppard. But the jurisdiction of the court does not depend on the merits of the case.. The power judicially to hear the proofs and allegations of the parties must exist in order to ascertain and determine their rights. Were it otherwise, the whole proceeding would be coram non'judice and void, unless the facts of the case wore such as to require judgment to be rendered for the plaintiff.

That jurisdiction of the person of the defendant was obtained by due service of proper process, is shown by the record, and we believe is not questioned. ,

The justice who rendered the judgment upon which suit was brought in the court below having therefore had jurisdiction of the parties and the subject-matter of the action, his judgment, however erroneous, is not void.

Judgment affirmed.

Bartley, O. J., and Swan, Brinkerhoee, and Bowen, JJ., concurred.  