This was an action instituted by the Townsly-Myrick Dry -Goods Company against L. P. Fuller to recover damages. The claim was based on the following facts : On the 16th of March, 1891, D. A. Wilson, a merchant doing business at the town of Olio, in this State, being' indebted to plaintiff, executed to it his promissory note for $2000, and at the same time executed, acknowledged and delivered a mortgage, whereby he conveyed to plaintiff certain goods, wares and merchandise to secure the payment of the note, and stated therein the conditions on which the mortgagee might thereafter take possession of them and sell the same for the purpose of paying the note. The mortgag'e was duly recorded. On the 15th of May, 1891, Wilson having committed a breach of the conditions, plaintiff took possession of the mortgaged property. On the 9th of May, 1891, Israel Brothers, a justice of the peace, issued an execution on a judgment which purported to be confessed before him, in his judicial capacity, by Wilson in favor of Barton Bros, for the sum of $90 ; and delivered the same to the defendant, who was then sheriff, and he executed the same in his official capacity, on the 30th of May, 1891, by forcibly taking from the possession of the plaintiff a part of the mortgaged property and selling the same at public outcry.
The facts which we have stated were proved at the trial. To justify his action the defendant introduced in evidence the judgment and execution under which he acted, both of which were subsequent to the mortgage; and attempted to show that the mortgage was executed by Wilson to defraud his creditors. To show that the seizure of the property was wrongful, the plaintiff offered to prove that the judgement was void by the following testimony of Wilson : “Daniel Hon and Israel Brothers came to my store-house on the 29th of April, 1891,- and Hon and I went into the store and had a talk about a claim for ?90 that he had for collection against me in favor of Barton Bros. I told him I could not pay it, but it was a just debt. He said something about saving costs to me, and I said I wanted to save all I could. He said he had been to see Brothers that morning and Brothers had come to Olio with him to get his mail. Hon then went to the door, and called Brothers in. When he came in, Hon had some papers in his hand, and read over the amount of the Barton Bros, account, and asked me if it was all right. I said it was, and a just claim. I do not remember of Brothers saying anything about it at the time. We were standing by, or leaning on, the counter in the storehouse. Five or six people were around there, but none noticing our conversation. Any of them could have been reached by raising' the voice. No court was cried, no officer in attendance — • nothing was said about a court. I did not know I was confessing' judgment, and did not know a court was in session. I did not offer to confess judgment, and did not know one was rendered till the 9th of May, when execution was issued. Don’t know whether I would have confessed judgment had I known Mr. Hon desired it or not. Hon called for pen and ink, and I got it, and went to ■another part of the store to wait on a custonier, and nothing more was said on the subject. No summons was ever served on me in the case referred to, and I never confessed judgment in the case, unless the facts above stated constituted the same. ” And the court refused to allow it to introduce the testimony, and plaintiff excepted. Other testimony to the same effect was offered by the plaintiff, and excluded by the, court.
The jury returned a verdict, and the court rendered judgment thereon, in favor of the defendant; and plaintiff moved for a new trial, on the ground, among others, that the court erred in excluding testimony as before stated. To this motion the defendant filed a response, setting up the facts which wTere not shown in the trial, such as he claimed would estop the plaintiff from prosecuting' his action. The court sustained the response, and denied the motion ; and plaintiff appealed.
1 ‘ Appellant’s motion for a new trial does not set up any of the grounds mentioned in the 2nd, 3rd, and 7th subdivisions of section 5151 of Mansfield’s Digest, and therefore no issue of fact could be made upon it.” The response thereto should have been wholly disregarded, or, on motion, should have been stricken from the files of the court.
The exclusion of the testimony offered by appellant presents the only question necessary for us to consider. The underlying principle which controls its admissibility is clearly and forcibly stated by Chief Justice Dixon in Bogert v. Phelps, 14 Wis. 89-92, in nearly this language : * ‘ In case of an action against the officer by the party against whom process issued, the process itself, being valid on its face, constitutes a complete justification. But in case of suit by another person claiming title to the property seized, under the party against whom process issued, which title is contested on the ground of fraud, the officer must, in addition to showing that he acted under such process, show also that he acted for or on behalf of a creditor. Where he acts under process of execution, this is done by producing the judgment on which it is issued. If it be mesne process, then the debt must be proved by other competent evidence. This proof, however, is required, not because it affects the process, or is in that respect necessary to protect the officer,- but because it affects the title to the property in question. No one but a creditor can question the title of the fraudulent vendee ; and hence the officer must show that the relation of debtor and creditor exists between the party against whom the attachment or execution ran and the person in whose behalf it was issued. It is a necessary link in the chain of evidence by which the fraud is to be established.” Bean v. Loftus, 48 Wis. 371 ; Damon v. Bryant, 2 Pick. 411; Ames v. Sturtevant, 2 Allen, 583 ; Suydam v. Keys, 13 Johns. 445 ; Earl v. Camp, 16 Wend. 562 ; Hines v. Chambers, 29 Minn. 7 ; Cross v. Phelps, 16 Barb. 502 ; Horton v. Hendershot, 1 Hill, 118 ; Maley v. Barrett, 2 Sneed, 501 ; Dunlap v. Hunting, 2 Denio, 643 ; S. C. 43 Am. Dec. 763 ; Sheldon v. Van Buskirk, 2 N. Y. 473 ; Sexey v. Adkinson, 34 Cal. 346 ; S. C. 91 Am. Dec. 698 and note; Cooley on Torts, sec. 463; 1 Freeman on Executions (2d ed.)., sec. 101.
In this case, the appellee, in his official capacity, levied upon the mortgaged property by virtue of an execution in favor of Barton Bros, ‘and against Wilson, who he claimed was the owner of the property. He attacked the mortgagee to appellant as fraudulent and void. As it was valid between the parties to the same, and, if fraudulent, was only void, under the statute of frauds, as to creditors and purchasers, it was necessary for him to prove that the execution, under which he acted, was issued on a valid judgment, in order to show that he had the right to attack the title of appellant by seizing the mortgaged property ; for in that way only could he show that he was representing a creditor. A void judgment is not sufficient for that purpose. See cases above cited.
Says Mr. Freeman : ‘‘A void judgment is, in leg'al effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally ■worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress. The first and most material inquiry in relation to a judgment or decree, then, is in reference to its validity. For if it be null, no action upon the part of the plaintiff, no action upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in the legislature or other department of the government, can invest it with any of the elements of power or vitality. It does not terminate or discontinue the action in which it is entered, nor merge the cause of action; and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judgment upon the same cause, either in the action in which the void judgment was entered or in some other action.” 1 Freeman on Judgments (4th ed.), sec. 117.
In all adversary suits “ in which a defendant does not voluntarily appear, service of process upon him in some mode authorized by law is indispensable, and if it appears, even in a collateral proceeding, that any judgment has been rendered against one who has neither voluntarily appeared nor been served with process, it must be treated as void.” Boyd v. Roane, 49 Ark. 397, 411 ; 1 Freeman on Judgments, sec. 120c.
A domestic judgment of a court of general jurisdiction, whether the record shows jurisdiction affirmatively or is silent upon the subject, is not subject to collateral attack based upon extrinsic evidence showing’ want of jurisdiction. It is said “that the question of the jurisdiction of a court of record over the parties to any domestic judgment must in all collateral proceedings be determined by the record ; and that the answer to this question is not, except in some direct proceedings instituted against the judgment, to be sought from any extraneous proof.” Boyd v. Roane, 49 Ark. 397 ; 1 Freeman on Judgments, secs. 131-134. But this is not true as to the judgments of justices of the peace. They keep no unimpeachable memorial of their transactions. “Any statement in relation to jurisdiction found in their minutes is only prima facie evidence; in opposition to which it may be shown, by any satisfactory means of proof, that the authority of the court did not extend over the matter in controversy, nor over the parties to the action.” Jones v. Terry, 43 Ark. 230 ; Smith v. Finley, 52 Ark. 373 ; 2 Freeman on Judgments, sec. 517.
In Jones v. Terry, 43 Ark. 230, the plaintiff sued upon a judgment recovered by him upon a promissory note before a justice of the peace. The defendant answered and denied that the justice had ever acquired jurisdiction over his person. Upon demurrer to the answer this court said : “The defendant was not sued for the original debt. That was merged in the judgement, if there has been a valid one. And all matters which might have been litigated before the justice, save only the question of jurisdiction, are concluded by that judgment. * But it may be shown by extrinsic evidence, in the face of a recital in the judgment that the defendant was • served with process or appeared to the action, that in fact he had no notice and that the judg-ment is therefore void for want of jurisdiction.”
Smith v. Finley, 52 Ark. 373, was an action to recover the possession of a town-lot. The plaintiff claimed title by virtue of a purchase made by him at a sale under a deed of trust executed by the defendant to secure a debt, and a subsequent conveyance made in pursuance of the terms of the purchase. The defendant pleaded that the deed of trust was void for usury. The original transaction was shown by the evidence to be usurious. A judgment by confession rendered by a justice of the peace against the defendant for a debt secured by the deed of trust was introduced in evidence. The justice, who rendered the judgment, testified that he went with the plaintiff, who recovered the judgment, to the defendant’s house, and she then, at the date of the judgment, and with the plaintiff’s consent, confessed the judgment. On cross-examination, he stated that he went with the plaintiff to defendant’s home, and she stated that she owed the note ; but that she did not come to his office to confess judgment, and he did not see her in his office. The defendant testified that the justice merely asked her if she owed the note, and she answered “Yes that she did not understand that she was confessing judgment, and did not do so. The plaintiff in the action to recover the town-lot insisted that she was estopped by the judgment from setting up usury. This court held that the parol testimony was admissible to show want of jurisdiction, and was conclusive of that fact, and that the judgment of the justice was, therefore, void'.
In this case the appellee, in his official capacity of sheriff, seized property which was held in possession and claimed by appellant under a mortgagee. Appellant denied his right to do so. Appellee responded by saying that he seized it by virtue of an execution against the mortgagor, and that the mortgage was fraudulent and void. Appellant replied that if it was fraudulent, it was valid against every one except creditors and purchasers, and that appellee did not represent either of them. Upon this they joined issue. Appellee introduced the execution and judgment of the justice of the peace upon which it was issued, both of which were subsequent to the mortgage, as an evidence of his right to attack it for fraud, in the right of a creditor. Appellant offered to prove that the judgment, although regular upon its face, was invalid — void—for want of jurisdiction of the defendant against whom it was rendered, and, therefore, did not prove the existence of any debt or right to seize the property, and the court refused to allow him to do so.- The evidence was competent, and should have been admitted.'
The judgment of the circuit court is, therefore, reversed, and the cause is remanded for a new trial.
Wood, J.,' did not participate in the decision of this cause.