Youst v. Willis and Bradford

The opinion of the court was delivered by Taesneí, J.: On January 14, 1895, defendants in error, Willis and Bradford, obtained a judgment against the plaintiff in error, John Youst, in the probate court of Payne county, for the sum of $160 and costs of suit, taxed at $100. From this judgment Youst appealed to the district court of said county, and for the purpose and in the perfection of said appeal, said Youst, on January 28, 1895, made and entered into an undertaking or bond for an appeal, as required by law, and containing the conditions, stipulations and undertakings provided by the statute therefor, and F. M. Stallard and Greorge Stees, plaintiffs in error herein, signed and executed said undertaking, or appeal bond, as sureties thereon. On May 24, 1895, said cause being heard in the district court, judgment was rendered therein, against the said Youst, for the sum of $221.27 and costs, amounting in the aggregate to $390. Execution was issued on said judgment, and said execution was returned nulle bona. Thereafter, on the fourth day of February, 1896, defendants in error gave notice to said Youst, Stallard and Stees, that they had filed in said district court a motion to take judgment against said Youst as principal and against said Stallard and Stees as sureties upon said appeal bond, and that said motion would be presented to said district court on the first day of the ensuing April term thereof, or as soon thereafter as the same could be heard. This notice was served upon all the plaintiffs in error. Said motion was filed in said district court, and *415 on April 21, 1896, said motion was considered by tbe court. Upon the hearing of said motion, said Youst appeared and requested the court to allow and set a time for pleading to and resisting the said motion, which request was denied by the court. Stallard and Stees did not appear to said motion. The court entered a default against said Stallard and Stees, and after hearing said motion, and the evidence offered in support thereof, and of the service of notice thereof, rendered judgment upon said appeal bond in favor of said Willis and Bradford and against said Youst, Stallard and Stees, for the sum of $235.40 and costs taxed at $169.10. Exceptions were properly saved and the cause duly brought to this court for review. The only assignment of error, which it is necessary for us to consider, is as follows: “That the entire proceedings of the court below, in this matter, were without any warrant or authority of law and without jurisdiction over Stallard and Stees, and therefore void.” The proposition contended for by plaintiff in error is, that the court below had no jurisdiction of the persons of the plaintiffs in error, which would warrant the rendition of the judgment. It is an ancient principle, embodied in all our constitutions, that no person can be deprived of life, liberty or property except by due process of law, and “due process of law” means, in the due course of legal proceedings according to those general rules and forms which have been established for the protection of private rights. (Pennoyer v. Neff, 95 U. S. 714; Pierson v. Udall, 95 U. S. 294; McMillan v. Anderson, 95 U. S. 237; Davidson v. New Orleans, 96 U. S. 97). In order that a judgment may be valid as being according to the due *416 course of judicial proceedings and by due process of lav/, it is essential, where the judgment is a personal judgment, that the court should have had jurisdiction, both of the subject matter and of the parties to the cause; and only those persons are concluded by the adjudication who are served with process or who voluntarily appear. (McVey v. United States, 11 Wall. 259; Jack v. Thompson, 41 Miss. 49; Littleton v. Richardson, 34 N. H. 179; Meade v. Larkin, 66 Ala. 87; Cooley’s Const. Lim. 496). Process or notice of some kind is the vital breath that animates judicial jurisdiction over the person. . It is the primary element of the application of the judicial power; it is the essence of a cause; without it, there cannot be parties, and without parties, there may be the forms of a sentence, but no judgment obligating the person. (Cases cited, supra). Mr. Freeman, in his work on judgments, §118, says: “ The power to hear and determine a cause is jurisdiction. * * Before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has been preferred and that such person or thing has been properly brought before the tribunal to answer the charge therein contained.” And in § 130 of said work, the author further adds: “The defendant may also give the court jurisdiction by his voluntary action, as where he appears by his answer or in some other mode recognized by law. If he does not do so voluntarily, before the court can rightfully exercise jurisdiction over him, it must be authorized to require him to appear before it and submit to its judgment in the action or proceeding, and its process requiring such appearance, must be issued and served upon him in substantial compliance with the law.” *417 We have, then, to inquire, does the record in this cause bring the proceedings therein within the rules and principles above stated, so as to show a want of jurisdiction in the court below to render the judgment complained of. Ordinarily, the proceedings to recover upon a cause of action, like the one at bar, would require that the defendants in error should have filed their petition in a court of competent jurisdiction, and have caused the process of the court, (the summons), to have issued and been served upon the plaintiffs in error, notifying them of the commencement of an action upon their obligation? and requiring them to answer thereto. That such was the state of the law in this territory, at the time said appeal bond was executed, there is no question. But it is contended, by defendants in error, that the proceeding in the district court was valid, because predicated upon and in conformity with the statute in force at the time such proceedings were had. By an act approved February 26, 1895, it was provided: “Section 1. That when final judgment shall be rendered against the appellant, in the district court, in any action appealed from the probate courts or justice’s courts, under the provisions for appeals from said courts, the court, on motion of appellee, or any other person having an interest in such judgment, or a right to any part of the costs in such actions, after ten days notice of such motion, to be served upon appellant by copy delivered to him, may enter up judgmeut in the name of the appellee or his legal representatives, against the surety or sureties on the appeal bond of the appellant for the amount of such judgment and the costs, which, by the terms thereof, the appellant may be required to pay. Execution may issue on such judgment, as in other cases, for the use and benefit of the successful party or any person interested in such judgment or in the cost of such *418 actions. In case the bondsmen appeal from the judgment entered upon such motion, execution therein shall be stayed sixty day. “Seo. 2. This act shall be in force and effect from and after its,passage and approval.” Was this act authorized tunder the constitutional principles we have stated; and was it valid to confer jurisdiction upon the district court over the persons of the sureties on said appeal bond ? Mr. Cooley says: “The principles, then, upon which the process is based, are to determine whether it is ‘due process’ or not, and not any considerations of mere form. Administrative and remedial process may be changed, from' time to time, but only with due regard to the landmarks established for the protection of the citizen. When the government, through its established agencies, interferes in the title to one’s property, or with his independent enjoyment of it, and its action is called in question as not in accordance with the law of the land, we are to test its validity by those principles of civil liberty and constitutional protection which have become established in our system of laws, and not generally by rules that pertain to forms of procedure merely. Due process of law, in each particular case, means such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the end in question belongs.” (Cooley’s Const. Lim. 434). While, as we have said, no person can be deprived of liberty or property except by “due processs of law,” which means by due course of legal proceedings, in accordance with established principles, and settled maxims, yet what constitutes due process of law, may differ with different classes of cases. While every man *419 has a right to require that his own controversies shall be judged by the same rules which are applied in the controversies of his neighbors, the. necessity for general rules is not su'ch as to preclude the legislature from establishing special rules for particular classes of cases; provided, the particular cases range themselves under some general rule of legislative power; and hence, there are a number of classes of cases where the property of the citizen may be taken without the actual service of ordinary process upon him, or without his ever actually having his day in court; and legislative enactments providing for such procedure have been sustained as not in violation of any constitutional right or inhibition. Proceedings in admirality, and in attachments against the property of non-resident debtors, are illustrations. The right of the legislature to provide a substitute service for that of ordinary process — as a notice — by one party in a controversy to another in certain classes of .cases, has been upheld, and the jurisdiction founded thereon, maintained. In the Matter of the Empire City Bank, 18 N. Y. 199, it was said: “It may be admitted that a statute which could authorize any debt or damages to be adjudged against a person upon purely ex parte proceedings without a pretense of notice, or any provision for defending, would be a violation of the constitution and be void; but where the legislature has presented a kind of notice, by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend, I am of opinion that the court has not the power to pronounce the proceedings illegal.” (Jones v. Driscoll, 94 Mo. 190; Campbell v. Edmonds, 45 N. Y. 356). Where the statute provides for the taking of certain *420 security and authorizes a judgment to be rendered upon it, on motion, without process, the party entering into the security must be understood to assent to the conditions and to waive process and consent to judgment. (Chappee v. Thomas, 5 Mich. 53; Pratt v. Donivan, 10 Wis. 378; Whitehurst v. Coleen, 53 Ill. 247). On the principle of these cases, many statutes which provide for summary proceedings by motion, and with and without notice, for judgment upon appeal bonds and sureties, have been held valid, and we have no doubt of the constitutionality of the act of the legislature of this territory, above quoted, as to appeal bonds entered into and executed since the enactment of the law. But is it valid to sustain a judgment upon such bond, executed before it went into effect? As a general rule, every state has complete control over the remedies which it offers to suitors in its courts. The right to a particular remedy is not a vested right. The exceptions to this rule are those peculiar cases in which the remedy is a part of the right itself. The state may change or abolish old remedies and substitute new;or even without substituting any, if a reasonable remedy still remains. Nor has a party a vested right in the procedure for his defense which will prevent changes in such procedure, which do not affect his substantial rights. There is no doubt of the right of the legislature to pass statutes which may reach back to and affect £rior transactions, provided that no other objection exists to them than their retrospective character. There are numerous cases which hold that retrospective laws are not obnoxious to constitutional objection; while in others they have been held to be void. The distinction in the several cases *421 being based upon the question whether they did or did not impair the obligations of the contracts of the parties or change their substantial rights; and the rule is well established in relation to changes of judicial remedies and procedures, that whatever the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by a subsequent statute; and if the change consists in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.' It follows that if the legislature might, by a prior law,have provided for dispensing with the ordinary process of the court, in order to give jurisdiction to the court over the persons of sureties upon appeal bonds, and substituted therefor such notice as is provided in the act of 1895, or to dispense with such process and notice and make the execution of the bond to give jurisdiction to the court, over their persons in the cause wherein it was made, then, we cannot see why it was not competent for the legislature to provide the procedure which they have provided, and why it is not operative and valid to authorize the proceedings had in this case. Individuals entering into contracts cannot bind the hands of the state as to the organization of its courts or their procedure, so long as such organization or procedure does not interfere with their contractual obligations or deprive them of an effectual remedy thereon. It is true that this statute dbes not provide for giving any notice to the sureties on such bonds, but only provides for a notification to the appellant that a judgment on the bond will be moved for; but the legislature might have provided for dispensing with notice to any or all the parties to the bond and have provided that the making and filing of the bond in the cause *422 would be sufficient to give jurisdiction to the court; and as to the sureties, that is, in effect, what this statute does. The statute had been in force for months after they gave, their bond and before judgment was taken thereon. They had been actually notified of the pendancy of the motion and as to the time when it would be considered. By making the bond, and by operation of this law, they were in court, and the court might, lawfully, render judgment against them. This being our conclusion, and there being no other error assigned, it follow's that the judgment of the court below must be affirmed. It is so ordered. "Dale, C. J., having presided in the court below, not sitting; Bierer, J., and McAtee, J., concurring; Keaton, J., dissenting.