Roberts v. Orr

The opinion of the court was delivered, November 14th 1867, by Strong, J. It is plain that the judgment against Roberts, whether entered for want of an appearance, or in default of a plea, was unauthorized, and that it cannot be sustained if there was no service upon him of the writ or of the rule to plead, or something done that by Act of Assembly is made equivalent to service. The action was ejectment against Roberts and five other defendants, for a tract of land in Armstrong county, and the writ was returned as served upon four of the defendants and “nihil” as to Roberts and one other. From the affidavit of service, it appears to have been made by the deputy sheriff of Allegheny county. On the day on which the writ was returnable, a rule was taken on all the defendants to appear and plead on the first [180] day of the next ensuing term, on penalty of judgment in default of such appearance and plea. The rule having been published more than sixty days before the return-day thereof, and no appearance or plea having been entered, the court at the said second term gave judgment for want of an appearance against the defendants served with the writ, and for want of a plea, against all the defendants, including Roberts, as to whom the sheriff had returned “ nihil.” That this would have been grossly irregular in any ordinary ejectment is but faintly denied. But it is said this was an ejectment by a vendor to enforce a specific performance of the agreement against his vendee or vendees claiming under him for land upon which there was no person resident, and therefore that the judgment was warranted by the Act of Assembly of April 14th 1851. By that act it was enacted, that in any action brought by a vendor to enforce the.specific performance of a contract for the purchase and sale of unoccupied lands, if brought against the vendee or vendees, or persons claiming under them, and if the defendants cannot be found by the sheriff of the proper county, the court may, after the return-day of the writ, on motion of the plaintiff or his attorney, grant a rule on the defendant, describing the premises, to appear and plead, which rule shall be published sixty days before the return-day thereof, in one newspaper of the county in which such action is brought, to be inserted at least three times, and if no proper person shall appear to defend against the said action, the court, on proof of such publication, shall, on motion in open court, at the stated term, give judgment by default.” The procedure authorized by this act is entirely out of the course of the common law, and the judgment allowed is a departure from common right. Eor this reason it must always appear not only that the ejectment is one of the class for which the provisions were made, but that the course prescribed has been strictly followed, in order to justify a judgment against a defendant not served with the writ, under the Act of 1851. Such a judgment can be given only in an ejectment brought by a vendor to enforce the specific performance of a contract to purchase land. There is nothing on the record in this case to show that this was such an ejectment. Neither in the prsecipe, nor writ, nor declaration, nor in the rule granted, nor in any affidavit even, taken and filed of record, does this fact appear, a fact indispensable to sustain a judgment against a defendant unwarned. It is undoubtedly true, that when a record complete in itself is used in another case as a ground of defence or claim, if the subject-matter of it be set forth generally, parol evidence may be adduced to show what was really adjudicated in it; but this is a very different thing from showing, by such evidence, what is necessary to confer jurisdiction, or authority to give judgment at all. Without, however, deciding at present whether a plaintiff in ejectment [181] who seeks for a judgment under the Act of 1851, against a defendant not served with the writ, must cause it to appear of record that his ejectment is against his vendee, or person claiming under such vendee, to enforce specific performance of the agreement for the sale and purchase, it is enough for this case that the directions of the act were not pursued. If it be assumed that the action was one of the class contemplated, still the rule to appear and plead, and the advertisement thereof, were fatally defective. Not dwelling upon the fact that the rule was granted on the return-day of the writ, instead of after, as the statute directs, neither it nor the advertisement contained any description of the premises for which the ejectment was brought. The statute authorizes no judgment unless a rule to appear and plead, “ describing the premises,” be first granted and published. This is a very material requisite, a thing of substance, not merely of form. It was prescribed that the absent and unwarned defendant might be notified of what he was called upon to answer, and that he might be apprised of the penalty incurred by his neglect to appear in obedience to the rule. The publication was intended to notify him not merely that the plaintiff had commenced an action, but also what was the nature of the demand. In the present case there was neither a description of the premises in the rule and in its publication, nor was it even mentioned that the pending action was ejectment. If Roberts had seen the advertisement of the rule, for aught he could have known, the action might have been covenant or ejectment, for some other tract of land in which he had no interest, or even trespass, debt or assumpsit, in either of which cases he was under no obligation to appear, and he could have incurred no penalty by default. Now, as it is only in a case where a rule “ describing the premises” has been granted and duly published, that a court is empowered to enter judgment unwarranted by the common law, there was no ground prepared upon which the judgment against Roberts can rest. It is contended by the plaintiffs below, now defendants in error, that because the language of the record is, that the judgment was entered “ on due proof of the service of the writ and publication of the rule to plead,” the judgment is right upon its face; and that as the court had jurisdiction of the subject-matter all presumptions are in its favor. The principle is freely conceded that in courts of general jurisdiction, everything is presumed to be rightly done whenever a court has jurisdiction of the subject-matter and of the parties. Whether this presumption prevails when a peculiar authority has been conferred by statute dependent for its lawful exercise upon the existence of unusual conditions precedent, we need not inquire. The very question here is, whether the court had jurisdiction over Roberts, the party defendant. This must appear affirmatively before any presumption [182] can arise. It is not shown that the writ was served upon Roberts by the entry on the record, “ on due proof of the service of the writ, and publication of notice.” The same record contains the return of the sheriff of “ nihil” as to Roberts, that is, that the writ was not served upon him. And as it was served upon some of the defendants, the words “ on due proof of service of the writ,” are satisfied by that. The language is not “ on due proof of service of the writ on all the defendants,” or even the “ defendants” generally. Besides, the very form of the judgment explains the entry, and demonstrates that it is not a record of service upon all. The record reads thus: “ On due proof of the service of the writ, and publication of the rule to plead, it is now ordered and adjudged by said court, that judgment be entered for want of an appearance .against the defendants served with the writ, and for want of a plea against all the defendants.” There is nothing then in the record of the service of the writ, to show that the defendant Roberts was within the jurisdiction of the court, and certainly nothing to show any adjudication or proof that the service of the rule to plead was sufficient. There is still another reason for holding that the judgment in this case against Roberts was irregular and unauthorized. It did not appear that he had notice in fact of the suit in time to appear and defend it. That this was indispensable was decided in Haslett v. Foster et al., 10 Wright 471. It was there ruled that the proviso contained in the supplementary Act of Assembly of April 13th 1858, respecting unseated or unoccupied lands, embraces also actions of ejectment brought under the 11th section of the Act of 14th April 1851, relative to actions by vendors to enforce specific performance. An earnest and elaborate argument has been submitted to us, to show that the decision made in Haslett v. Foster was a mistake. We have carefully considered the argument, and we have not been convinced by it. Even if the question were a doubtful one, the anqmaly o.f rendering a personal judgment (for ejectment is a personal as well as real action) against an individual, without actual notice to him, is so great, that doubts ought to be decisive, that the legislature intended there should be such notice by the enactment of the proviso. For these reasons we are constrained to hold that the judgment against Roberts was erroneous. This makes it unnecessary to consider the 2d assignment of error, or the argument against the application to vacate the judgment founded upon the facts that it was not verified by affidavit, and that it did not aver the applicant had a defence against the ejectment. The difficulty of the plaintiffs is, that the court had no authority at all to give judgment against Roberts. A case was not presented in which such a judgment was legally possible. The judgment against W. Milnor Roberts is reversed, and the record is remitted.