ON MOTION FOR REHEARING. Through inadvertence or oversight the dissenting opinion of the last Chief Justice in this case has been overlooked by me. Since, however, my attention has been called to it, I fear I have shot far of the mark in the majority opinion, if he and Judge *Page 129 DAVID BLAIR are right in the minority opinion. In the majority opinion I proceed upon the theory that neither the justice of the peace, the circuit court, the Court of Appeals, nor Division No. 2 of this court could acquire jurisdiction of the subject-matter of the case of Gary v. Kelley et al., for the reasons stated in the majority opinion, and therefore had no power or authority to render any judgment herein except one dismissing the proceedings. Any other judgment would justify a justice of the peace, the probate court, the county court, the circuit court, the court of appeals or this court or any other court, State or Federal, in attacking its validity either directly or collaterally, because of the want of the jurisdiction of the justice of the peace over the subject-matter of the case.
That being true I thought that it was but a natural consequence that this court in a proceeding by way of certiorari of which it always has had jurisdiction, under and by authority of the express provisions of the Constitution of the State, to quash the record of a justice of the peace, and of all other courts in the State, which attempt to assume jurisdiction over a case where, under the law, it, or they, have none. In this connection I want it to be distinctly understood that I did not place the majority opinion in that class of cases in which this court has repeatedly held that we have no power or authority to go behind the power or authority of the Court of Appeals to decide a case as it sees fit, so long as it does not violate the last controlling opinions of this court in any particular case, but proceeded upon the bold and independent principle that neither a justice of the peace court nor any other court in this State, under the proceedings filed in this case, had jurisdiction over the subject-matter to render a valid judgment of any kind herein.
I have always understood that this court has the undoubted authority to prevent any court within its jurisdiction from rendering judgment in any case over which *Page 130 it has no jurisdiction, which would take the property or money of one person and give it to another without due process of law, whether it violates the last controlling rulings of this court or not.
(I write this opinion for the sole purpose to show the bench and bar of the State that some of my learned brethren have misconceived the majority opinion).
That being true, I thought that it was but a natural consequence that this court in a proceeding by way ofcertiorari of which we had jurisdiction could pass upon the jurisdiction of all courts of this State to render any judgment in this case, which would authorize the plaintiff to recover of the defendants the sum of $50,000 or more or less as the case may be. I did not proceed in the majority opinion on the theory that this court was limited in our jurisdiction, and simply to inquire whether or not the Court of Appeals had failed to follow the last controlling decisions of this court, but upon the broader ground that neither that court nor any other court in this State acquired jurisdiction of the subject-matter of this case for the reasons stated in the majority opinion. This court has always had the power and authority to inquire into any kind of a proceeding that may come before it, either directly or even collaterally, just as the judgment might properly be attacked even collaterally in any or all courts of this State from a justice of the peace court to the Supreme Court.
If our last Chief Justice is correct in his major premise that this court was limited in its jurisdiction to make inquiry as to whether or not the Court of Appeals followed the last controlling decision of this court, then in my opinion his conclusion would be correct, but as I look at this case, his major premise has nothing under the sun to do with this case, but the majority opinion holds, and correctly so, in my opinion, that neither the Court of Appeals, nor any other court in this State, regardless of its name, acquired any jurisdiction over the subject-matter so as to render any judgment in this case *Page 131 whatever, except to dismiss the original proceeding of forcible entry or unlawful detainer, whichever it may be designated. That being unquestionably true, how could we prevent quashing the record of the Court of Appeals, which undertook to take $50,000 from the defendants, when it had no jurisdiction whatever to render the judgment we quashed?