Christ v. Flannagan, 23 Colo. 140 (Colo.)

Chief Justice Hayt

delivered the opinion of the court.

Upon this record three questions are presented:

First. Did the district court of El Paso county have jurisdiction to proceed to judgment in the original cause after having granted defendant’s application for a change of venue without a formal order setting the same aside ?

Second. Plaintiff Colton having died prior to the issuance of the execution upon which the property was sold, was such execution and sale void ?

Third. Roman, one of the judgment debtors, having died before such execution was issued, did the fact that the same was issued with his name, as one of the defendants, render void the sale of his codefendants’ property thereunder?

The original action was an action of trespass, transitory in character. It is undisputed that the district court of El Paso county had jurisdiction of the subject-matter. A number of authorities have been cited to show that jurisdiction over the subject-matter cannot be conferred by consent. This we concede, but in all other cases jurisdiction may be waived by consent of parties, and it will be held to have been so waived if objection to the jurisdiction is not promptly taken.

The record imports absolute verity, and we must assume that no other order with reference to venue was made except the one appearing in the transcript. When the district court made that order it surrendered jurisdiction over the particular case then before it, but when the parties thereafter voluntarily appeared and went to trial without objection, they thereby reinvested the district court with jurisdiction. Having thus voluntarily submitted their controversy to a court having jurisdiction of the subject-matter, they cannot now be allowed to question the authority of such tribunal. Edwards v. Smith, 16 Colo. 530; Reed v. Cates, 11 Colo. 527; Smith v. District Court, 4 Colo. 236; Yater v. State ex rel., 58 Ind. 299; Gager v. Doe, 29 Ala. 341.

We may next consider what effect, if any, the death of Colton, the judgment debtor, had upon the execution thereafter issued. Counsel for plaintiff in error claim that the execution so issued and all proceedings thereunder were absolutely void. This claim is- based, in part, upon section 2571 of Mills’ Annotated Statutes. This provides, in effect, that upon the death of a judgment plaintiff, the executor or administrator may proceed to collect the amount of the judgment. It is clear, however, that this statute only applies where the property in the judgment remains in the judgment plaintiff. The statute does not reach the case of a judgment plaintiff who has parted with all interest in the judgment by assignment.

Executors or administrators are only given control of the property owned by the decedent at the time of his death. Such representatives have no control over, or duties in connection with, property which the deceased has sold and transferred prior to his death. The estate having no interest in the judgment, it would have been a useless thing to have made the representative of the deceased a party to the action. It would have been proper, under our practice, to have substituted the assignee for the judgment plaintiff, but a failure so to do did not render the sale subject to this collateral attack.

In this case there were three judgment debtors, one of whom died before the issuance of the execution upon which the sale was made. The levy was made upon the real property of one who survived.

No new party was sought to be charged, nor was the property of the deceased sought to be taken, the judgment being joint, and several might be satisfied out of the property of any one of the judgment debtors.

At common law the lands of the defendant were not subject to execution, but were made so by the statute of Westminster 2d (18 Edw. 1). Under this statute each judgment debtor had the right to demand that the lands of his codefendant share the burden with him; hence the necessity of a revivor in the case of the death of one. Under our statute lands are subject to levy and sale the same as personal property, and the lands of one judgment debtor may be sold to satisfy a judgment without reference to the property of other judgment debtors in the same manner as the personal property of one might be sold under the English statute.

The reason upon which the English rule with reference to real estate was founded does not exist in this state, and the rule itself must therefore fall. In order that the execution might conform to the judgment, it was necessary to use the name of the deceased; but as the property of .Christ was only sought to be subjected to the process, it was entirely unnecessary, and would have been a useless expense to have sued out a scire facias to the representatives of the deceased. Freeman on Executions (2d ed.), sec. 36; Martin v. Branch Bank, 15 Ala. 594 (50 Am. Dec. 147); Reed v. Garfield, 15 Ill. App. 290; Ransom v. Williams, 2 Wall. 313.

Finding no error in the record, the judgment will be affirmed.