Page:Borden v. State ex rel. Robinson.pdf/18

536 the proceedings on such a subject matter. But as to the latter there would be a defect of power, not only when the subject might be without the jurisdiction, but also when within it, if the mode of action was without the limits of the defined boundary, and consequently the functionary would be a trespasser whenever the boundary of his powers had been passed, either as to the subject matter or the mode of proceeding; because when the powers of the functionary ended, the acts of the trespasser began, all acts beyond these powers being but the private acts of a private person.

Accordingly the doctrine is distinctly laid down by some of the most respectable authorities that "the judgment of a superior court is not void but only voidable by plea on error." (8 Bac. Ab., (C.) p. 170, citing 2. Salk. 674. Priggs vs. Adams, S. C. Carth. 274); thus an erroneous attainder is not void but voidable by writ of error. (2 Inst 184. 2 R 3 fr. 21, 22.) See also 1 Chitty Pl. 181; and cases cited in note (T.); also 7 ''Bac. Ab.'' 67. "The judgments of a superior court are never considered void and until set aside they are to be considered as regular judgments for every purpose." (Stebbin Walbridge vs. Hiland Hall, 3 Vermont Rep. 114.) "A judgment of a court of competent jurisdiction, though rendered in a form of proceeding unknown to our practice and apparently without service of process cannot be treated as a nullity while unreversed." (Weyer vs. Zane, 3 Ham. Ohio R. 305.) "However summary or irregular the judgment of a competent tribunal may be it cannot be treated as a nullity." (Buell vs. Cross, 4 Ham. Ohio Rep. 329.) "When judgment on a forthcoming bond states that notice was duly proved it will be taken for granted in the appellate court unless there be a bill of exceptions showing the contrary; but if the judgment contains no such statement and the defendant did not appear the judgment will be reversed as erroneous." (4 Munford R. 380.) "An imprisonment under a judgment can not be unlawful unless that judgment be an absolute nullity, and it is not a nullity if the court has a general jurisdiction of the subject although it be erroneous." (Ex parte Tobias Watkins, p.