The foregoing opinion of CAMPBELL, C., is adopted as the opinion of the court. The judgment reviving the judgment of May 4, 1932, is reversed; the motion to quash the execution and levy thereunder is sustained and that judgment is set aside, and the sheriff is ordered and directed to deliver to Fred A. *Page 1017 Benz all of the personal property seized under the aforesaid execution. All concur.
ON MOTION FOR REHEARING. Plaintiff in motion for rehearing says the opinion fails to take into consideration the provisions of Section 1099, Revised Statutes 1929; fails to consider that any misjoinder of defendants in the original cause was weived; and fails to follow Section 66 of the National Bank Act.
Section 1099, supra, relates to imperfection in a judgment and provides that informality in entering and making up the record of a judgment shall not affect the validity of such judgment.
The judgment of May 4 was not informal or irregular in form; it was the very judgment sought in the petition; its invalidity appeared upon an examination of the facts stated in the petition; facts which, under the provisions of Section 66, supra, forbid the rendition of a personal judgment against Fred A. Benz. The facts alleged further show that Fred A. Benz had neither right nor interest in the stock at the time the bank suspended; that Susie M. Benz was not the real or actual owner of the stock at any time, and for that reason the court lacked power to render a personal judgment against her. It must be remembered that a void judgment neither gives nor takes away a right. It is entitled to neither respect nor consideration.
Counsel ask: "Suppose W.H. Powell, Trustee, had died two (2) days before the date of the closing of the Bank and a successor Trustee had not yet been appointed. Would this Court hold that the Receiver for the unfortunate depositors could not recover from the assets?" Were we to answer that question either yes or no the answer would be dictum for the reason that no such issue was presented or determined in the original action. The failure to present that issue is the cause of the fatal defect in the judgment. However, it is proper to say that we have not determined that the "trust assets" could not be held for the assessment made by the comptroller; that we held in effect that the original action was not in rem, quasi in rem, in equity or a proceeding to enforce a statutory lien on the property of the trust estate, but an action to recover an ordinary money judgment. We know of no legal principle which permits a court to render a judgment which would be a special lien or charge upon specific property not described in the pleadings or judgment.
Counsel further say: "The opinion is wrong in asserting that the plaintiff under the judgment rendered could levy on the individual property of Fred A. Benz. In the first place the judgment is not against Fred A. Benz personally but against him as trustee of the estate of Maggie Shively under her will. . . ."
No authority is cited in support of the insistence that the judgment was not a personal one against Fred A. Benz. *Page 1018
The decree in the case of Howard v. Leete et al., 257 F. 918, 169 C.C.A. 68, was against "D.R. Howard, trustee." The court heldprima facie the word trustee was merely descriptive and that the decree was a personal one against D.R. Howard. So, in the present case the word trustee in the petition and judgment was merely descriptive of the defendant Fred A. Benz. The execution issued on the judgment was a general execution against Fred A. Benz, trustee, and Susie M. Benz and not against any specific property. Were we to say the judgment was not a personal one against Fred A. Benz we would disregard the federal rule announced in the Howard case, supra.
The motion for rehearing is overruled. Sperry, C., concurs.