WALKER II. CRONKITE.
illegal and oppressive; and any act pretending to confer authority for such discrimination is void. The water-craft act, therefore, has not only 8 false and deceitful title, but its purpose was to confer special privileges upon certain corporations, and to deny to others of the same class the exercise of the same rights. The following authorities are referred to in support of this view, that the act is in conflict with the twenty-second section of the fourth article of the constitution of Illinois: Prye v. Partridge, 82 Ill. 273; Peryple v. fJoryper, 83 Ill. 586; Peryple v. Meech, 101 Ill. 200; Millett v. People, 117 Ill. 305, 7 N. E. Rep. 631; Cooley, Canst. Lim. 389-396. The views already expressed and the conclusions reached render it un.: necessary to consider the fourteenth section of article 11 of the tion of 1870, or the second section of the fourth article of the constitution of the United States, both of which have been referred to as authority against the validity of the act in question. They were cited to sustain the position that a statute is unconstitutional which selects particular persons, natural or corporate, from a class or locality, and subjects them to peculiar rules, or imposes upon them special obligations or burdens, from which others in the same locality or class are exempt. Thia position is so nearly self-evident as not to require authority to support it. In my view, the provisions of the water-craft act, limiting the right to own and use boats and water-craft to such railroad companies as own the real ,estate for a landing, and withholding the right from companies not owning the land for a landing, are obnoxious to both objections urged against its constitutionality, and cannot be upheld as valid or binding. Of course this conclusion in no manner affects provisions of the act which are constitutional. The constitutional and un(',()nstitutional provisions' of this act are perfectly distinct and separable, so that the first may stand, though the latter fall. The salutary and useful provision permitting all Illinois railroad companies terminat:ng on any navigQ,ble river bordering on the state to own and use water-craft as a means of increasing their capacity to serve the public is unexceptionable; but the proviso restricting the use of this additional franchise to companies owning land for a landing is void.
(Olreuit Court, D. Kansas. October 28, 1889.)
Where land has been 80ld on execution under a domestic judgment the judgment. debtor cannot, in a collateral proceeding, and against a bonn fide purchaser, 8eek to impeach the 8heriff's return of service of su=on8 in the original action and the recitations of the judgment. , .
.. SAME-LIMITATION OJ!' ACTIONS.
Under Code Civil Proc. Kan. 5 16, subd. It which provides that a suit for the recovery of laDd BOld under execution must be Drought by the execution debtor Withitl
, ;' recording of the, an execution debtor cannot collaterally ," ' atUick the validity of, a sale ten years after the deed was recor4ea.; where the reQ: '. 'btd 'slfoWS jurisdictionof'tJ:le person and the subject-matter. ' ," ,
At Law. Action0fejectment., J. A. Smith and Johnson, Martin & Xed,(Jjf', for plaintiffs. Kellogg &- Sedgwick and G. N. SterriJ, for defendants. .FOSTER, J. ' The plaintiffs bring their action of ejectment against said defendant'S to receiver eertain real ,estate situate in Lyon county. The plaintiff Walker claims in his petition that he is the owner, and entitled to the possession of said land. This the defendants deny, and allege that in the month of September, 1875, one A. S. Kimball recovered a judgmentin the district court of said Lyon county, Ran., wherein said Thaddeus H.: Walker and others were defendants, and wherein it was considered and adjudged by saideourt that said Kimball and others (defendants in said suit) had recovered judgments against said Walker in several different, counties of this state at different times and for different amounts. ' That said several judgment creditors had filed copies of their judgments in Lyon county, and some of said creditors had levied execution on the lands of said Walker in said county; and the court then clined said judgments to be valid liens on said real estate,-the lund in controversy, with others,-and adjudicated and settled the prIorities of the said several judgments, said Kimball's judgment being first, and ordered a sale of said real estate in satisfaction of said judgments in the order Of their priority. Defendant further avers that said Thaddeus H. Walker was a party defendant to said proceedingsjthat he was duly served with the process of the colirt", and is bound by said record. By reference to the proceedings in that case; it appears from the return of the sheriff ofShawnee county that he served the !laid summons on said defendant 'l'haddeus H. Walker by leaving a true copy thereof, with all the indorsements thereon, at the usual place of residence of said defendant Walker. In the judgment it is recited that the court finds "that Thaddeu!, H. Walker was duly served with a summons in said cause on the 2d day of March, A. D. 1875, by the sheriff of Shawnee county, Kan., by leaving a copy thereof at his usual place of residence in said county." The defendant.,further alleges that in pursuance of said judgment an order of sale of said land was duly issued to the sheriff of Lyon county, who, after appraising and advertising the same according to law, sold the same to said A. S. Kimball, at public auction, he being the highest bidder therefor, which sale was duly confirmed by the court, and a sheriff's deed made to said Kimball, July 24,1877, and the same was duly recorded in the office oJ the register of deeds in said county on the 26th day of July, 1877. That this defendant holds title to said land through several intermediltte conveyances from said A. S. Kimball. for further defense, invokes the statute of limitations., To this answer the plaintiff makes reply, denying that he was ever served with,f:!Umrnons,in said case, or that h,e had any place of residence in said and avers that he)iad no nOtlce of said suit until after judgment
hlld been rendered. He makes several other objections to said judgment, all ,of wbich have heretofore been considered and adjudicated by this court. To this reply tbe defendant files a demurrer. Tbere are two questions presented: (1) Can Thaddeus H. Walker, in a collateral proceeding, and against a bonafide purchaser of said real.estate under said judgment, be heard to contradict and impeach the sberiff's return, and the recitations of said judgment? (2) Is be barred by tbe five-years statute of limitation? Section 16, Code Civil Proc. It is an elemental rule of law that a personaljudgment, rendered with.. out jurisdiction of the person is void, and it bas been held that in an ac.tion on a foreign judgment the defendant may deny jurisdiction of the court over the person, although such defense impeached tbe truth of the record. D'Arcy v. Ketchum, 11 How. 165; Amsbaugh v. Bank, 33 Kan. 101,5 Pac. Rep. 584; Bordenv. Fitch, 15 Jobns.139; Orepps v. Durden, 1 Smith, Lead. Cas. 844. Tbe question at issue here is quite a different one. Here is the record of a domestic judgment, showing service of summons on the defendant. Under that judgment, and in pursuance of its decree, real estate has been sold under the forms of law, and title passed through several parties, relying on the verity of the record, and tbe adjudioation of a court of general jurisdiction. Can it be tbat the defendant to sucb a record may treat it as an absolute nullity, and falsify it by extrinsic evidence, when it is invoked by tbe purchaser ina collateral proceeding in defense of his title? If so, the stability of titles to realty, based on judicial sales, has but little foundation to rest upon. My attention has been called by defendant's counsel to many cases holding that this record cannot be thus contradicted. Ferguson v. Orawjord, 70 N. Y. 253; Grignon's Lessee v. Astor, 2 How. 319; Crepps v. Durden, 1 Smith, Lead. Cas. 823,842, and authorities cited. Also a late case (May 16,1889) in the court of appeals of Kentucky, (Thomas v. Ireland, 11 S. W. Rep. 653,) is very much in point. Again, it is urged by defendants with some force of reason, that the judgment in. question was,so far as Walker was concerned, a proceeding in rein, to which he was not a necessary party. But, supposing it is true, as c1aiined by plaintiff, that be may contradict this record by extrinsic evidence in a collateral proceeding, wbat logical reason can be given why the legislature ofthe state cannot say, in the interest ()f repose of titles; tl)at. his right to do so shall be limited to five years after recording tbe deed on a sale made under tbe judgment? If the record was silent, or showed on its face a want of jurisdiction, the argument of plaintiff's counsel against the application of the statute would have greater force. 'Fhe statute reads as follows:
"Sec. 16. Actions for the recovery of real property, odor the determination of any adverse right or interest therein, can only be brought Within the part,ods hereinafteF prescribed, after the cause of action shall. have accrued, and, at no time 8nereafter. .. . "(1) An action for the recovery of real property sold on execution, brought by the bis heirs, or any persoIiclidming under him by title acquired atlter the date of the judgment, within five 'years after the date ofthe ree.Qrding ofthe·deed made in pursuance of the ' '/'
Inm,. opinion this case comes clearly within the terms and intp.nt of this statute. The record shows jurisdiction of the person and subjectmalter. The sale was made according to law, and the sheriff's deed was made and recorded more than 10 years before this suit was commenced, and the execution debtor now comes too late to question its validity. The following authorities abundantly sustain this conclusion: Va.nclea'l;e v. Milliken, 13 Ind. 105; Brownv. Maher, 68 Ind. 14; Harla,n v. Peck, 33 Cal. 515; Ounningham v. Ashley, 45 Cal. 485; Pillow v.Roberts, 13 How: 412; Meeks v. Olpherts, 100 U. S. 564; Holmes v. Beal, 9 Cush. 223; Scottv. Hickox, 7 Ohio St. 90; Oheesebrough v. Parker, 25 Kan. 566; You7ig v.Walker,26 Kan., 242. , The argument that plaintiff is deprived of his property without having his day in court has no force,for it is the very essence of all statutes oflimitationthat the party shall lose his rights, and his property, unless he shall assert thoserightsw'ithin a certain fixed time. Nor does it relieve the case from the statute because the plaintiff asserts that the judgment is void for want of jurisdiction. The property was sold on execution, on a judgment legal on its face; and the debtor is barred from asserting or' showing by evidence. aliunde that the judgment is void or voidable after the period fixed by the statute. The authorities before cited fully discuss this question, and hold that the statute protects sales under judgments, whether void or voidable. The demurrer to plaintiff's reply must be sustained.
Flpr1da. October 11,1889.)
oltm1' COMMIeeIONER!!-MEMuEiR OF POLITIOAL PARTY-EvmBNOE. One who has always advocated the principles and voted the state and national tickets of the Democratic party, but who at one time organized a Democratic movement in his county in opposition to that part of his party then in power, nominated a ticket, and was himself elected thereon by the aid of Republican votes, acting, while in the legislature, with the Democrats, and proclaiming himself a Democrat, ie a "well-known member" of that political party, within the meaning of act Cong, ,Ju,ne 80, 1879, providing that a jury commiRsioner appointed by the judge shall well-known member of princip.al political party in the district" opposed to that to which the clerk may belong,
On Motion to Quash Venire. Jos. B. Christie, and C. M. Cooper, for defendant. The United States District Attorney, for the United States. SWAYNE, J. This is a motion by the defendant, Owen K. Paxton, to quash the venire of grand jurors, and challenge the array, for the reason set out therein. 'rhe motion is as follows:
"IN CIRCUIT COURT OF UNITED STATES. NORTHERN DISTRIOT OF FLORIDA.
, "Now comes'Owen K. Paxton. who is held to answer this term of said court on the charge of conspiring to prevent by force and intimidation one C. L.