« AnteriorContinuar »
to be affected, and to give him an opportunity to appear and defend. The right of the legislature to prescribe such notice, and to give it effect as process, rests upon the necessity of the case, and has been long recognized and acted upon.?
But such notice is restricted in its legal effect, and cannot be made available for all purposes. It will enable the court to give effect to the proceeding so far as it is one in rem, but when the res is disposed of, the authority of the court ceases. The statute may give it effect so far as the subject-matter of the proceeding is within the limits, and therefore under the control, of the State; but the notice cannot be made to stand in the place of process, so as to subject the defendant to a valid judgment against him personally. In attachment proceedings, the published notice may be sufficient to enable the plaintiff to obtain a judgment which he can enforce by sale of the property attached, but for any other purpose such judgment would be ineffectual. The defendant could not be followed into another State or country, and there have recovery against him upon the judgment as an established demand. The fact that process was not personally served is a conclusive objection to the judgment as a personal claim, unless the defendant caused his appearance to be entered in the attachment proceedings. Where a party has property in a State, and
1“ It may be admitted that à Commissioners of Seneca Co., 19 statute which authorized any debt Ohio, n. 8. 173; Campbell v. Evans, or damages to be adjudged against a 45 N. Y. 356; Happy v. Mosher, 48 person upon purely ex parte proceed- N. Y 317. In Burnam v. Commonings, without pretence of notice, or wealth, 1 Duv. 210, a personal judgany provision for defending, would be ment against the absconding officers a violation of the constitution, and of the provisional government was void; but when the legislature has sustained. But in the case of conprovided a kind of notice by which it structive notice, if the party appears, is reasonably probable that the party he has a right to be heard, and this proceeded against will be apprised of cannot be denied him, even though what is going on against him, and an he be a rebel. McVeigh v. United opportunity is afforded him to defend, States, 11 Wall. 259, 267. I am of opinion that the courts have 2 Pawling v. Willson, 13 Johns. not the power to pronounce the pro- 192 ; Heirs of Holman v. Bank of ceedings illegal.” Denio, J., in Mat- Norfolk, 12 Ala. 369; Curtis v. Gibbs, ter of Empire City Bank, 18 N. Y. 1 Penn. 399 ; Miller's Ex'r v. Mil200. See also, per Morgan, J., in ler, 1 Bailey, 242; Cone n. Cotton, 2 Rockwell v. Nearing, 35 N. Y. 314; Blackf. 82 ; Kilburn v. Woodworth, Nations v. Johnson, 24 How. 195; 5 Johns. 37; Robinson o. Ward's Beard v. Beard, 21 Ind. 321 ; Mason Ex'r, 8 Johns. 86; Hall v. Williams, v. Messenger, 17 lowa, 261 ; Cupp v. 6 Pick. 232 ; Bartlet 0. Knight, 1
* resides elsewhere, his property is justly subject to all [* 405] valid claims that may exist against him there ; but beyond this, due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered.
The same rule applies in divorce cases. The courts of the State where the complaining party resides have jurisdiction of the subject-matter; and if the other party is a non-resident, they must be authorized to proceed without personal service of process. The publication which is permitted by the statute is sufficient to justify a decree in these cases changing the status of the complaining party, and thereby terminating the marriage ;and it might be sufficient also to empower the court to pass upon the question of the custody and control of the children of the marriage, if they were then within its jurisdiction. But a decree on this subject could only be absolutely binding on the parties while the children remained within the jurisdiction; if they acquire a domicile in another State or country, the judicial tribunals of that State or country would have authority to determine the question of their guardianship there.? Mass. 401; St. Albans v. Bush, 4 Vt. field v. McIntyre, 10 Ohio, 28; Ditson
Fenton v. Garlick, 6 Johns. 194; v. Ditson, 4 R. I. 97 ; Harrison v. Bissell v. Briggs, 9 Mass. 462; Den- Harrison, 19 Ala. 499; Thompson v. ison v. Hyde, 6 Conn. 508; Aldrich State, 28 Ala. 12 ; Harding v. Alden, r. Kinney, 4 Conn. 380 ; Hoxie v. 9 Greenl. 140; Maguire v. Maguire, 7 Wright, 2 Vt. 263; Newell v. Newton, Dana, 181; Todd v. Kerr, 42 Barb. 10 Pick. 470; Starbuck v. Murray, 5 317. It is immaterial in these cases Wend. 161; Armstrong v. Harshaw, whether notice was actually brought 1 Dev. 188 ; Bradshaw v. Heath, 13 home to the defendant or not. And Wend. 407; Bates v. Delavan, 5 Paige, see Heirs of Holman v. Bank of Nor299; Webster v. Reid, 11 How. 460; folk, 12 Ala. 369. Gleason v. Dodd, 4 Met. 333; Green 2 This must be so on general prinv. Custard, 23 How. 486. In Ex parte ciples, as the appointment of guardian Heyfron, 7 How. (Miss.) 127, it was for minors is of local force only. See held that an attorney could not be Monell v. Dickey, 1 Johns. Ch. 156; stricken from the rolls without notice Woodworth v. Spring, 4 Allen, 321 ; of the proceeding, and opportunity to Potter v. Hiscox, 30 Conn. 508; Kraft be heard. And see ante, p. *337, n. v. Wickey, 4 G. & J. 322. The case Leaving notice with one's family is of Townsend v. Kendall, 4 Minn. 412, not equivalent to personal service. appears to be contra, but some reliRape 0. Heaton, 9 Wis. 329. And ance is placed by the court on the see Bimeler v. Dawson, 4 Scam. 536. statute of the State which allows the
1 Hull v. Hull, 2 Strob. Eq. 174; foreign appointment to be recognized Manley v. Manley, 4 Chand. 97; Hub- for the purposes of a sale of the real bell v. Hubbell, 3 Wis. 662; Mans- estate of a ward.
[* 406] * But in divorce cases, no more than in any other, can
the court make a decree for the payment of money by a defendant not served with process, and not appearing in the case, which shall be binding upon him personally. It must follow, in such a case, that the wife, when complainant, cannot obtain a valid decree for alimony, nor a valid judgment for costs. If the defendant had property within the State, it would be competent to provide by law for the seizure and appropriation of such property, under the decree of the court, to the use of the complainant; but the legal tribunals elsewhere would not recognize a decree for alimony or for costs not based on personal service or appearance. The remedy of the complainant must generally, in these cases, be confined to a dissolution of the marriage, with the incidental benefits springing therefrom, and to an order for the custody of the children, if within the State.
When the question is raised whether the proceedings of a court may not be void for want of jurisdiction, it will sometimes be important to note the grade of the court and the extent of its authority. Some courts are of general jurisdiction, by which is meant that their authority extends to a great variety of matters ; while others are only of special and limited jurisdiction, by which it is understood that they have authority extending only to certain specified cases. The want of jurisdiction is equally fatal in the proceedings of each ; but different rules prevail in showing it. It is not to be assumed that a court of general jurisdiction has in any case proceeded to adjudge upon matters over which it had no authority; and its jurisdiction is to be presumed, whether there are recitals in its records to show it or not. On the other hand, no such intendment is made in favor of the judgment of a court of limited jurisdiction, but the recitals contained in the minutes of proceedings must be sufficient to show that the case was one which the law permitted the court to take cognizance
1 See Jackson v. Jackson, 1 Johns. elaborate examination of the subject, 424; Harding v. Alden, 9 Greenl. 140; expresses the opinion that the State Holmes v. Holmes, 4 Barb. 295 ; may permit a personal judgment for Crane v. Meginnis, 1 Gill & J. 463; alimony in the case of a resident Maguire v. Maguire, 7 Dana, 181; defendant, on service by publication Townsend v. Griffin, 4 Harr. 440. In only, though he conceded that there Beard v. Beard, 21 Ind. 321, Perkins, would be no such power in the case of J., after a learned and somewhat non-residents.
of, and that the parties were subjected to its jurisdiction by proper process.
* There is also another difference between these two [* 407] classes of tribunals in this, that the jurisdiction of the one may be disproved under circumstances where it would not be allowed in the case of the other. A record is not commonly suf
A fered to be contradicted by parol evidence; but wherever a fact showing want of jurisdiction in a court of general jurisdiction can be proved without contradicting its recitals, it is allowable to do so, and thus defeat its effect.2 But in the case of a court of special and limited authority, it is permitted to go still further, and to show a want of jurisdiction even in opposition to the recitals contained in the record. This we conceive to be the general rule, though there are apparent exceptions of those cases where the jurisdiction may be said to depend upon the existence of a certain state of facts, which must be passed upon by the courts themselves, and in respect to which the decision of the court once rendered, if there was any evidence whatever on which to base it, must be held final and conclusive in all collateral inquiries, notwithstanding it may have erred in its conclusions.
1 See Dakin v. Hudson, 6 Cow. 221; 3 Iowa, 114; Sears v. Terry, 26 Conn. Cleveland v. Rogers, 6 Wend. 438; 273 ; Brown v. Foster, 6 R. I. 564; People v. Koeber, 7 Hill, 39; Sheldon Fawcett v. Fowlis, 1 Man. & R. 102. r. Wright, 1 Seld. 511 ; Clark v. But see Facey 0. Fuller, 13 Mich. Holmes, 1 Doug. (Mich.) 390; Cooper 527, where it was held that the entry v. Sunderland, 3 Iowa, 114; Wall v. in the docket of a justice that the Trumbull, 16 Mich. 228; Denning v. parties appeared and proceeded to Corwin, 11 Wend. 647 ; Bridge v. trial was conclusive. And see Selin Ford, 6 Mass. 641; Smith v. Rice, 11 v. Snyder, 7 S. & R. 72. Mass. 511; Barrett o. Crane, 16 Vt. 4 Britain o. Kinnard, 1 B. & B. 246; Teft v. Griffin, 5 Geo. 185; Jen- 432. Conviction under the Bumboat nings v. Stafford, 1 Ired. 404; Her. Act. The record was fair on its face, shaw v. Taylor, 3 Jones, 513; Perrine but it was insisted that the vessel in c. Farr, 2 Zab. 356 ; State v. Metz- question was not a “boat” within ger, 26 Mo. 65.
the intent of the act. Dallas, Ch. J.: ? See this subject considered at "The general principle applicable to some length in Wilcox v. Kassick, 2 cases of this description is perfectly Mich. 165. And see Rape v. Heaton, clear: it is established by all the an9 Wis. 329; Bimelar v. Dawson, 4 cient, and recognized by all the Scam. 536; Webster v. Reid, 11 How. modern decisions; and the principle 437.
is, that a conviction by a magistrate, 8 Sheldon v. Wright, 5 N. Y. 497; who has jurisdiction over the subDyckman v. Mayor, &c. of N. Y., 5 ject-matter, is, if no defects appear N. Y. 434; Clark v. Holmes, 1 Doug. on the face of it, conclusive evidence (Mich.) 390 ; Cooper v. Sunderland, of the facts stated in it. Such being
(* 408] * When it is once made to appear that a court has
jurisdiction both of the subject-matter and of the parties,
the principle, what are the facts of has been said about the danger of the present case? If the subject magistrates giving themselves jurismatter in the present case were a diction; and extreme cases have been boat, it is agreed that the boat would put, as of a magistrate seizing a ship be forfeited; and the conviction stated of seventy-four guns, and calling it a it to be a boat. But it is said that boat. Suppose such a thing done, in order to give the magistrate juris- the conviction is still conclusive, and diction, the subject-matter of his con- we cannot look out of it. It is urged viction must be a boat; and that it is that the party is without remedy; competent to the party to impeach and so he is, without civil remedy, in the conviction by showing that it was this and many other cases; his remnot a boat. I agree, that if he had edy is by proceeding criminally; and not jurisdiction, the conviction signi- if the decision were so gross as to call fies nothing. Had he then jurisdic- a ship of seventy-four guns a boat, it tion in this case ? By the act of would be good ground for a criminal Parliament he is empowered to search proceeding. Formerly the rule was for and seize gunpowder in any boat to intend every thing against a stinted on the river Thames. Now, allow- jurisdiction: that is not the rule now; ing, for the sake of argument, that and nothing is to be intended but • boat' is a word of technical mean- what is fair and reasonable, and it is ing, and somewhat different from a reasonable to intend that magistrates vessel, still, it was a matter of fact to will do what is right.” Richardson, be made out before the magistrate, J., in the same case, states the real and on which he was to draw his own point very clearly: Whether the conclusion. But it is said that a vessel in question were a boat or no jurisdiction limited as to person,
was a fact on which the magistrate place, and subject-matter is stinted in was to decide; and the fallacy lies in its nature, and cannot be lawfully assuming that the fact which the exceeded.
but upon the magistrate has to decide is that which inquiry before the magistrate, does constitutes his jurisdiction. If a fact not the person form a question to be decided as this has been might be decided upon the evidence ? Does
questioned in a civil suit, the magisnot the place, does not the subject trate would never be safe in his jurismatter, form such a question? The diction. Suppose the case for a possession of a boat, therefore, with conviction under the game laws of gunpowder on board, is part of the having partridges in possession; could offence charged; and how could the the magistrate, in an action of tresmagistrate decide, but by examining pass, be called on to show that the evidence in proof of what was alleged? bird in question was really a partridge; The magistrate, it is urged, could not and yet it might as well be urged, in give himself jurisdiction by finding that case, that the magistrate had no that to be a fact which did not exist. jurisdiction unless the bird were a But he is bound to inquire as to the partridge, as it may be urged in the fact, and when he has inquired, his present case that he has none unless conviction is conclusive of it. The the machine be a boat. So in the magistrates have inquired in the pres- case of a conviction for keeping dogs ent instance, and they find the sub- for the destruction of game without ject of conviction to be a boat. Much being duly qualified to do so; after