
    Horan v. Wahrenberger.
    Whero the District Court renders judgment upon the merits in a case in which it has no jurisdiction, for example, in case of an appeal from a Justice's Court, its judgment is a nullity: and where the Supreme Court renders judgment upon the merits, ou appeal from the District Court, in such a case, although iti the instance cited such judgment be to re-verso the judgment of the District Court and affirm that of the Justice’s Court, the judgment of the Supreme Court is a nullity. (Note 53.)
    The principle that a judgment of a court acting without authority is null seems to be of universal application. The only difference in its effect on the judgments of courts of general and courts of specially limited jurisdiction is that in support of the former, jurisdiction is presumed, while to sustain the latter, jurisdiction must be shown.
    A salo under execution on a judgment in a case in which the court had no jurisdiction, whether it be the judgment of a Justice’s Court, of the District Court, or of the Supreme Court, confers no right where the judgment creditor is the purchaser; but, Quere? As to the equities in case a third person should be a purchaser. (Note 54.)
    Nor arc we by this opinion precluded from sanctioning such equitable doctrines, consistent with the principles of law, as will protect officers enforcing process under a void judgment, and will meliorate the harshness of the rule as to the effect of jurisdictional mistakes.
    Appeal from Travis. This was an action for the recovery of a lot or parcel of land. The plaintiff (who was appellant in this court) claimed under a judgment, of the Supreme Court and "by virtue of an execution and sale under said judgment. The suit in which that judgment was rendered was between the parties to this action, and it originated before a justice of tlie peace, whose judgment was taken by appeal to the District Court. Tlie judgment of the District Court being- brought to the Supreme Court for revision, was reversed, and tlie judgment of tlie justice of tlie peace affirmed, with damages for the delay. The1” defendant (who was the appellee in this court) set up in his answer that tlie judgment of the Supreme Court and all subsequent proceedings under it were null and void; and, on exception, the answer was sustained and tlie petition dismissed.
    
      A. I. Hamilton, for appellant.
    It is no objection to the title of the appellant that tlie law by which the appeal was had from the Justice’s Court and final judgment in the cause by this court was pronounced unconstitutional. (1 Morris 11., 407, and authorities cited.)
    The. judgment of the Supreme Court was an exercise of jurisdiction, and its mandate obligatory; and being the highest judicial tribunal in the State, no court can ever look behind its judgment. (3 Peters, 193 ; 6 Cranch, 207.)
    
      This court had jurisdiction of causes coining up from Justices’ Courts; and the mode of bringing them up is but a question of error, which must be brought to the notice of the court before pronouncing its final judgment, or it is too late.
    The difference between judgments of this court and inferior courts, in respect of alleged want of jurisdiction, is, that in the'one case the rendition of judgment is an assertion of jurisdiction that cannot be called in question, and in the other, that may be called in question, directly or collaterally.
    The repose of property and the protection of rights based upon or arising from judicial proceedings requires that parties denying the jurisdiction of this court, in the rendition of its judgments, should make the objection of want of jurisdiction before the rendition of judgment, for-the same reason that parties complaining of erroneous judgments of inferior courts are required to prosecute appeals’and writs of error within a given time. In the last case, if no appeal or writ of error has been prosecuted, the judgment is final, and the right secured under such judgments cannot be disturbed. So in the former case, if no objection is made to the jurisdiction until the Supreme Court has pronounced judgment, such judgment is the law of the case, and rights acquired under it will be protected, (fi Peters, above cited, 202.)
    There is no power or authority in this court to re-examine a decision of an inferior tribunal as to its jurisdiction in a case in which its judgment is final. The proposition that the decisions of a court in a case beyond its jurisdiction are void, although true in the abstract; is practically false. Such decisions must stand unless there is power in another court to reverse them. (Case in 3 Peters, above cited, p. 202.)
    The judgment in this ease by this court put at rest the subject-matter of the suit. The judgment being good, the purchase under it was good.
    • This court will not undertake to revise or set aside its own judgments after the term at which they were rendered has elapsed. (Chambers v. Hodges, 3 Tex. K., 517.)
    This court’s “jurisdiction is exclusively appellate ; but its revisory power is “to be exerted, not over its own judgments, but over those of inferior jurisdictions.” (Ib.)
    If the judgment rendered by this court, under which the appellant purchased, was a nullity, the officer making the levy and sale was a trespasser. (3 Peters, 103.)
    The question is, Was the sheriff in this case bound to obey the mandate of this court or the process authorized by the mandate?
    
      W. P. T. H. Duval, for appellee.
    I. It is manifest that Horan’s claim to the property could not be maintained under the present action. It was derived under a judgment of the Supreme Court, upon an appeal coming up from a Justice’s Court, when no such appeal was permitted by the Constitution of the State. The District Court had no jurisdiction. (Titus v. Latimer, 5 Tex. B., 433.) If the court a quo had no jurisdiction, the Supreme Court had none. (Aulanier v. The Governor, 1 Tex. B., 653.) The Supreme Court having no jurisdiction over the case, their judgment in the premises was absolutely null and void, and consequently the execution issued under the same, the levy upon and the sale of the lot in question, and all other subsequent proceedings, were equally void. A void judgment can confer no rights. (Dean ex dem. Fisher i). Ilarnden, 1 Paine C. C., 55.)
    H. To obtain a reversal of the judgment of the District Court, the appellant relies upon three decisions. The first is reported in 1 Morris R., 467. This case certainly goes to great lengths. But it is at war with all the authorities bearing upon the question now presented to this court. Its reasoning with regard to the validity of judgments of courts rendered without jurisdiction or under unconstitutional laws is wholly unsupported by the very cases which the learned judge cites in his opinion. (See'10 Peters, 471; 16 Pick. R., 87.)
    The case which seems to be mainly relied upon here, and which is also cited in the case reported ini Morris, is that of “ex parte Tobias Watkins,” 3 Peters, 193. This ease has no application here. The court will see by reference to it that a judgment was rendered against Watkins, on a criminal prosecution in the Circuit Court of the United States in the District of Columbia. A petition was filed in the Supreme Court of tlie United States for a writ of habeas corpus, to inquire into tlie legality of his confinement, &c. Tlie petition was founded on the allegation that the indictment charged no offense of which the Circuit Court could take jurisdiction, and that consequently its judgment was coram non judice, and totally void. The writ was refused on the grounds—
    1st. That tlie Supreme Court had no jurisdiction in criminal cas'es.
    2d. Because the writ was sought upon a judgment rendered by a court of competent jurisdiction, and which judgment was withdrawn by law from the revision of tlie Supreme Court, even upon a writ of error.
    The case is totally unlike the one at bar; but, giving the greatest possible effect to every portion of the learned opinion therein pronounced, it nowhere establishes the principle that a judgment rendered by a court without jurisdiction is merely voidable and not absolutely void.
    But it is said that tlie want of jurisdiction in this case should have been alleged and brought to the notice of this court before its judgment was rendered. In answer to this we say that when this court had itself solemnly decided that appeals from Justices’ Courts were unconstitutional, and that it had no jurisdiction over tlie same, it was lime enough to plead that fact when the judgment in this case was sought to be enforced by bringing an action of ejectment against Wahrenberger.
    In the ease of Delafieid v. The State of Illinois, 2 Hill’s B., 159, the court says: “It is never too late to object to the jurisdiction where tlie want of “power to hear and determine appears upon the face of the proceedings.” Again, in the case of Latlian v. Edgarton, 9 Cowen, 227, it is said, “ Tlie want “ of jurisdiction makes a record utterly void and unavailable for any purpose.” * * * “ Tlie want of jurisdiction may be always set up against a judgment “ when sought to be enforced, or when any benefit is claimed under it.” And in Bloom v. Benedick, 1 1-Iill, 130, it is said, that “ whenever it appears “ that there was a want of jurisdiction, the judgment will be -void, in whatever “ court it was rendered.”
    The third case relied upon by the appellant is that of Chambers v. Hodges, 3 Tex. B., 617. It is there stated that the jurisdiction of this court “is exclu- “ sively appellate, but its revisory power is to be exerted, not over its own “judgments, but over those of inferior jurisdiction.” In this the court only asserted what is true as to the general powers and duties of a court simply appellate. It was not meant thereby that this court should be excluded, under all circumstances, from a revision of its own judgments.
    The ease of Skillern’s Ex’ors v. Mays’ Ex’ors, 6 Cranch, 267, referred to in the case ex parte Tobias Watkins, has no bearing upon this. That was a case in which the jurisdiction of tlie Circuit Court had not been alleged in the pleadings. The Supreme Court reversed the judgment and remanded the cause for further proceedings. After being sent back it was discovered that the Circuit Court had not j nrisdiction of the cause. But the j udges were divided in opinion whether it could be dismissed for want of jurisdiction after the Supreme Court had acted upon it. The matter being referred to the latter court, they decided that their mandate should bo carried into execution, although the jurisdiction of the Circuit Court had not been alleged in the pleadings.
    Now, if the District Court liad refused to carry tlie mandate of this court into execution it would have been erroneous and illegal under the above authority. But this was not done. Tlie mandate was obeyed by issuing an execution upon the decree of this court, under which Wahrenbergcr’s property was sold. The question here is as to the effect of this mandate." As soon as it was attempted to eject tlie defendant, Wahrenberger, from the property, by an action in the District Court founded on the proceedings had under the mandate, then the -question as to the jurisdiction oí the Supremo Court in rendering the decree on which the mandate was based properly arose.
    Besides this difference, the Supreme Court of the United States liad jurisdiction in the case above mentioned. Here tlie Supreme Court of this Slate had none. Neither had tlie District Court. It was utterly wanting in both.
   HEMPHILL, Cii. J.

In support of the position that the judgment under which tlie sale was effected is a nullity, the appellee refers to the decision of this court iu Titus v. Latimer, 5 Tex. R., 433, in which it was hold that tlie District Court had no power by appeal to take cognizance of judgments rendered in inferior jurisdictions, with the exception of judgments iu inferior tribunals exercising jurisdiction in matters pertaining to tlie estates of deceased persons, and that tlie law vesting such appellate power in the District Court was unconstitutional.

On the principles settled in this case it is very clear that the District Court acted without authority in revising tlie magistrate’s judgment upon its merits, and that the judgment of tlie Supreme Court was equally without authority. For if tlie District Court or the court a quo liad no power, the appellate court had none. (Aulanier v. The Governor, 1 Tex. R., 653; 3 Tex. R., 137.) And it is equally clear that this judgment, without lawful power, is a nullity, and cannot be used as evidence in support of the title set up by tlie appellant. (Coweu and Hill’s Notes, 4 vol., p. 12.)

The principle that a judgment of a court acting without authority is null •seems to bo of universal application. The only difference in its effect on the judgments of general and of specially limited jurisdictions is, that in support of the former, jurisdiction is presumed, while in the latter it must be shown; but whenever the want of power is made to appear, its legal effect is the same', whatever may be the character of tlie jurisdiction. (Cowen and Hill’s Notes, 4 vol., pp. 206, 214, and the cases cited.) The cases are numerous in which the effect of a waut of authority is enunciated, and it is thus perspicuously stated in Elliott v. Piersol, 1 Pet. R., 328-340: “Where a court has jurisdiction it has a right to decide every question which occurs in the cause, and “whether its decision be correct or otherwise, its judgment, until reversed, is “ regarded as binding in every other court. But if it act without authority, it's “ judgments and orders are nullities. They are not voidable, but simply void, “ and form no bar to a recovery sought, even prior to a reversal, in opposition “to them.”

The appellant contends that a judgment of the Supreme Court, having general appellate jurisdiction, is conclusive, unless set aside before the expiration of tlie term, and that uo court can look behind it; and, in support of this position, refers to the case ess parte Tobias Watkins. (3 Peters, 193.) There are some strong expressions iu tlie opinion as to the absolute conclusiveness of judgments by courts of general jurisdiction, unless they be reversed on error or ajipeal. Whether they are reconcilable with other cases iu the same tribunal I shall not attempt to discuss. There are repeated recognitions in the opinions of that court of the general rule as to tlie legal consequence of the want of power, whether the jurisdiction be general or special. In Voorhies v. The Bank of the United States, 10 Peters, 474, it is said, in substance, that tlie only difference between tlie Supreme Court and other courts is, that no court can revise tlie proceedings of the Supremo Court, but that that difference disappears after the time prescribed for a writ of error or appeal to revise those of an inferior court of the United States or of any State. They stand on tlie same footing in law. If not warranted by the Constitution or law of the land the most solemn proceedings of the Supremo Court can confer no right which is denied to any judicial act, under color of law, which can properly be deemed to have been done coram non jiulice, that is, by persons assuming the judicial function in the given case without lawful authority. In Williamson et al. v. Berry, 8 Howard, 540, it was declared, in the opinion of a majority of the court, to he a '■ well-settled rule in jurisprudence that the iurisdiciion of any court exercising authority over a subject may he Ttquired into in every other “ court \th"'i the proceedings in the foi uer arc red ' upon and brought before '■'■fhe Inf1 by a party claiming the 1 ■ .dlt of . h proceedings. The rule ' prevail - hotlier the decree or judgi ut has i given in a,"Court of Ad-miraliy, i. iianeoiy, Ecclesiastical Court, or Court oí Common Law, or whether u the point ruled has arisen under the laws of nations, the practice in chancery, “ or the municipal laws of Slates.” (3 Dall. R., 7; 4 Crauch, 241; 13 Peters, 400; 3 Howard, 750.) The rule thus staled is sulhcieutly broad to cover the judgments of all courts, unless indeed there he a court whose jurisdiction is unlimited.

Note 53. — Foster v. McAdams, post 542; Chambers if. Hodges, 23 T., 104; Cowan v. Nixon, 28 T., 230; Clements u. The City of San Antonio, 34 T., 25.

Note 54. — Where there was a judgment against partners, and the real estate of one of the partners wa s sold thereunder after his death, it was held that the purchaser could not be compelled to restore the property until reimbursed the amount paid by him, and that he was entitled to pay for permanent improvements, and that it was properly decreed that no writ of possession should issue until the plaintiff had paid the money into court for the benefit of the -defendant, and that if plaintiff failed to pay the money within twelve months the title should be vested in the defendant. (Bailey v. White, 13 T., 114; Sydnor v. Roberts, 13 T., 598.)

Another position assumed by the appellant is, that it is no objection to his title that the law by which appeal was had from the Justice’s Court and final judgment in this court was unconstitutional; or, in other words, that where a law, (hough unconstitutional, gives jurisdiction, the judgment is not a nullity. In support of this view, the case of Webster v. Reed, (1 Iowa R., 466,) is cited. This case was revised oil error in the Supreme Court of the United States, and ■the judgment of the lower court was totally reversed. The judgments which had íleon supported by the lower court were by the Supreme Court declared nullities; and it was also held, that when a judgment was brought collaterally before the court as evidence, it may he shown to he void on its face for the want of notice to the person against whom it is'recovered or for fraud.

The principles of law being conclusive against the validity of the judgment relied upon, we, are of opinion that there was no error in overruling the ex■ception to the defendant’s answer and dismissing the petition.

In the case before the court the plaintiff in the execution purchased the property sued for, but had not gone into possession. The facts of this case are not such as to authorize a discussion or decision relative to the equities which might have arisen and the terms which might have been imposed had "the appellant, under a fair sale, gone into possession, or had a third person been the purchaser, and the appellee was by suit attempting recovery of the premises. Nor are we by this opinion precluded from sanctioning such equitable doctrines, consistent with the principles of law, as will protect officers enforcing process uuder a void judgment, and will meliorate the harshness o£ ■the rule as to the effect of jurisdictional mistakes. (Howard and Wife v. North, 6 Tex. R., 315, 316, 317; 5 Wend. R., 176, 177; 11 Mart. R., 610; 7 Mon. R., 615; 8 Da. R., 183.)

Judgment affirmed.  