Reed v. Cumberland & Oxford Canal Corp.

Danforth, J. It is evident that- the exceptions in this case must be overruled. Nothing appears in them to show that any wrong has been done to any party by the ruling of the court. The first objection raised is to the overruling of the respondents’ motion. This motion as the case shows asks for the dismissal of “said petition” “for want of sufficient service.” It appears further that there was an order of court upon this petition, which we may presume directed what notice should be given, though this does not appear, and we may also suppose that such order had been complied with, as no objection is made on that ground. The objection as we learn from the argument is that the court had no authority to grant an order of notice in its discretion, upon such a process, but that its time is fixed by a rule of law. If the process is what it is denominated in the motion, a “petition” we know of no rule either of statute or common law, which necessarily prescribes the precise notice to be given. If it is a petition for permission to file an information in the nature of a quo warranto as would be necessary if its purpose was to vindicate private rights, clearly the notice should be such as the court might order. But in the respondents’ argument it is referred to as an “information in the nature of a quo warrantor [55] If it were so, still the notice does not appear to be insufficient. Though the information has in many jurisdictions taken the place of the writ of quo warranto, the proceedings under it are somewhat different. In the writ, which, under our statute, would seem to be a legal process in this state, the notice may properly be given before the entry in court and must be by summons. In proceeding by information which is criminal in form, though in its nature but a civil remedy, the entry is first made in court, and such process is then issued as may be necessary to compel the appearance of the defendant. Formerly it was by a venire facias ; more lately, a summons in some cases has been resorted to as in Massachusetts in Commonwealth v. Fowler, 10 Mass., 290; Same v. Dearborn, 15 Mass., 125, and Same v. Smead, 11 Mass., 74. As the sole object of the notice is to secure the attendance of the defendant, as it is issued after the entry of the process and in many cases only at the discretion of the court, it would seem almost as a matter of course that the length and manner of notice must be such as the court may order, upon the filing of the information, even though there may be a definite legal rule as to notice in the case of a writ, which is a civil proceeding in form as well as in substance. But as already seen, we have not the means to know certainly that the ruling is right, nor can we say that it is wrong. The process is not before us as it was before the court, where the ruling was made. This court sitting as a court of law, has no records and no original papers. These all belong to the court below, and • cannot properly be removed therefrom. Hence the only way in which we can obtain such papers as may be necessary to a right understanding of the case, is to have them made a part of the case, and copies furnished. The second ruling complained of, is an order “for the respondent corporation to make answer in writing to the allegations of said petition, on the first day of the next January term of this court.” The objection to this is, that it was premature, because the proper service had not been made. It is undoubtedly true, that if the proper notice had not been given, and not waived by an appearance, the order was premature. But in that case, it [56] would be simply void. Any order, decree, or judgment even, before the appearance of, or due notice to a defendant, can have no effect whatever, upon the rights of such party. The notice, or that which is tantamount to it, alone lays the foundation for subsequent proceedings. Besides, it is to a party only, that the statute accords the right of filing exceptions; and how can a person become-a party, until he has made an appearance. The respondent was properly in court as a party, or he was not. If he was in,„the order was discretionary with the judge, and no exceptions will lie; if he was not in court, he was not in a condition to file exceptions, nor would there be any occasion for any. Exceptions overruled. Appleton, C. J ., Walton, Dickerson, Barrows and Yirgin, JJ., concurred.