Pollard v. Wegener

By the Court, Dixon, O. J. The principles adopted in the ease of Rape vs. Heaton, 9 Wis., 328, seem decisive of this action in the form in which it is now presented for our consideration. The broad and rational doctrine that we may, in all cases where a decree or judgment is relied upon as the foundation of a legal right, inquire into the facts which by law are made necessary to the jurisdiction of the court or tribunal by which it was pronounced, and, if it appears that such facts did not exist, disregard such decree or judgment as unauthorized and void, is there asserted, and, as we think, [573] maintained by a process of reasoning which cannot well be answered. Such facts being the source whence the must derive its authority to bind and conclude the parties, it follows as a logical necessity that there can be no estoppel or conclusive effect when they did not exist. And in this respect it is immaterial whether the supposed adjudication or recital be such as concerned the nature or existence of the jurisdictional facts themselves, or such as pertained to the merits of the matters originally in controversy. In either case, if jurisdiction was wanting, the proceeding was without life or validity. It is a rule which admits of no exceptions, in cases where the right to exercise judicial power depends upon the existence of certain facts, or the prior performance of particular acts; and those cases in which the court or tribunal, its jurisdiction being otherwise complete, is authorized to determine certain matters of fact which in some sense relate to its power to proceed farther and take cognizance of the action, are in reality not exceptional. The power to act upon a given state of facts, and likewise to decide whether they exist, constitutes jurisdiction; and the judgment upon them is conclusive until it is reversed by a direct proceeding. Wanzer vs. Howland, 10 Wis., 16. Hence the recitals contained in the record before us, that the plaintiff in error was duly served with the process of subpoena in the action for a divorce, are not now and could not, if the record were silent as to the manner of the attempted service, be conclusive of the fact that she was so served. For until the court, by a proper service of the process, had acquired jurisdiction of her person, it was powerless to bind or conclude her upon that or any other question which might arise in the action. It could not adjudicate into existence those facts which were necessary in order to enable it to act at all in the premises. It is not pretended that the plaintiff voluntarily appeared in the action, or that she did any other act by which she waived the strict service of process, or submitted her person to the jurisdiction of the court; but the question rests entirely upon the due service of the subpoena, To say in such a case, what all must admit, that the power of the court to proceed or to create a record, depended upon [574] the fact that the subpoena had been properly served, and at the time, to say that the defendant in the action is conclude(j; ^ a false allegation that it was so served, from showing that it was not, is certainly a most fallacious mode of reasoning. And to hold such allegation conclusive against the facts which the supposed record itself discloses concerning the manner of the alleged service, would be still more absurd.. It is, as Judge MARCY says, in Starbuck vs. Murray, 5 Wend., 148, reasoning in a circle. The paper relied upon is a record, because it says the defendant was duly served with process, and the defendant was duly served with process because the paper is a record. The decision of this court in the case of Tallman vs. Ely, 6 Wis., 260, cited by the counsel for the defendant in error, is not in conflict with the principles laid down in Rape vs. Heaton. It was there held that it was competent to show an appearance in fact by parol proof, the record itself being in that particular vague and uncertain; but it was not decided that it was incompetent to show by the same kind of testimony, that there was in reality no appearance, when the record recited that there was. It was held that such proof of an appearance might be received, because it was not inconsistent with the averments of the record, and because it went to support a record, the validity of which was already presumed in law. That case is therefore entirely in harmony with the position that the existence of the facts which by law are made indispensable to the jurisdiction of the court, may at all times be questioned, notwithstanding any recitals which may be contained in the supposed record. The judgment which was the subject of discussion in Rape vs. Heaton, was placed upon the same footing as a domestic judgment; and in respect to questions of jurisdiction, we apprehend that there can be no distinction between the judgments of our own, and those of our sister states, except so far as those questions may be affected by such statutory regulations as the state in which the judgment was rendered may constitutionally enact. That case was decided upon the ground, that according to the laws of Wisconsin, the want of jurisdiction was apparent upon the face of the record [575] itself. That ground of decision, we believe, has never been anywhere disputed. It has always been admitted, that the facts upon which the supposed jurisdiction was assumed are recited in the record, and they appear from it to have been insufficient and not such as in law would confer such jurisdiction, then the party is not bound by it, but may disregard all its averments. Such is the condition of the record under consideration. The want of jurisdiction appears on its face. The statute in force at the time the action was commenced (section 16, chapter 84, R« S., 1849), provides as follows : “ Every subpoena or process for, appearance shall be served on the person to whom it is directed, at least ten days before the return thereof, by giving him a copy thereof, or by leaving a copy thereof at the dwelling house or usual place of abode of the defendant, with some person of the age of ten years or upwards, to whom the nature of such process shall he explained.” The return of the officer is in these words: “ Jefferson county, ss.: I hereby certify, that I duly served the within subpoena by leaving a true copy thereof at the defendant’s last and usual place of residence in said county, this 4th day of April, A. D. 1850. E. D. MASTERS, Sheriff.” It will be readily seen that this was no compliance with the substantial requirements of the statute. Two of the most important requirements of a service by copy were entirely omitted, viz.: the leaving of the copy with a person of the age of ten years or upwards, and the explanation to such person of the nature of the process. Statutes which dispense with the actual personal service of process, and in its place provide that which is less certain and satisfactory, must be strictly pursued. No departure from' their provisions ought ever to be allowed; but on the contrary, every measure which the legislature has adopted for the purpose of securing the object in view, which is, that: the party may receive actual notice, should be particularly carried into effect. This was not done in the case before us, and the supposed service was therefore inoperative and I void. In addition to the defects apparent on the record, the counsel for the plaintiff in error called her to the stand as a witness, and offered to show by her testimony that the sub [576] poena was never served upon or received by ber personally or otherwise, and that sbe bad no notice or knowledge of tbe commencement of tbe action in wbicb it was issued, until after tbe decree bad been rendered therein. To tbis offer tbe defendant objected, tbe objection was sustained, and tbe plaintiff excepted. Sbe also called the sheriff by whom tbe supposed service was made, and offered to prove by him that be did not leave a copy of the subpoena with ber or any person for ber; that at tbe time of making service be did not see her or any other person; and that tbe service was made by simply leaving a copy of it at ber place of residence, but not with or in tbe presence of any person. Tbis offer was also objected to, tbe objection sustained, and exception taken. After what has already been said, it is needless for us to add that tbe circuit court erred in excluding tbis testimony. It should have been admitted. Eor these reasons, tbe judgment must be reversed, and a new trial awarded.