Kipp v. Fullerton

Emmett, O. J. By the Court. The Defendant justifies the taking complained of, under an execution issued upon a judgment alleged to have been rendered in his favor against William Fuller and Julius Mendelson, alleging the property taken to have belonged to the Defendants in said action. The existence of such a judgment was denied by the Plaintiff, and when the judgment roll, judgment book and docket, were offered in evidence by the Defendant, the Plaintiff objected, on the ground that there was no proper evidence contained therein, that any service of any kind, of the summons or complaint, had ever been made on the Defendants in said action, or either of them. The judgment was entered on failure of answer by the Clerk, upon filing with him the summons and complaint upon which was indorsed the following: “ Due service admitted of a true copy of the within summons and complaint, this 30th Nov. 1859. (Signed) J. Mendelson, W. Fuller.” The Judge sustained the objection and excluded the record [480] from the jury. The Defendant moved for a new trial, which the Court refused to grant, and from the order overruling the motion the Defendant appeals to this Court. The judgment against Puller & Mendelson, and the record of the proceedings therein, seem in all respects regular, except as to the admission of service, and as to that, it is insisted that it is insufficient, because it does not state the time and place of service, as required by Sec. 58, Com. Stat. 539, and because there was no proof that the "persons signing the same were the Defendants named in this action, they having, signed by their initials only. Prom the time of the service of a summons in a civil action, the Court is deemed to have acquired jurisdiction, and to have control of all subsequent proceedings. Com. Stat. 539, Sec. 59. If therefore the process were in fact served upon Puller & Mendelson, the jurisdiction was complete, although the certificate, affidavit, or admission of such service may not have stated all the facts necessary. It is then the fact of service that gives the Court jurisdiction, and that fact should be proved in the manner directed by statute, but if necessary to prevent a failure of justice it may be made to appear in any other manner satisfactory to the Court. And when proof of service is offered, and the Court passes upon the sufficiency thereof, and renders judgment against the party, that judgment is valid until set aside or reversed by direct proceedings in that action. Had the Defendants in that action objected to the sufficiency of this proof at the time, or proceeded before the District Court to set aside the judgment, on the ground that process was not served, the Court would have permitted the Plaintiff to supply the omission, or to have made proof of service, aside from the Defendant’s admission. So long, however, as they permit the judgment to stand, it is good against them; and the entry of it, where an issue is joined, on a plea of mil tiel record, gives force and validity to the record of the previous proceedings — ■ not the record of those proceedings to the entry of the judgment. 2 Amer. Lead. Cases, 730. Had the proof of service on Puller &'Mendelson been made to the Judge, and he had rendered the judgment thereon, it would' hardly have been contended that the judgment was [481] not binding until set aside or reversed. I can see no difference as to the effect of a judgment, whether it be rendered directly by the Court itself, or indirectly through its Cleric. In either case it is the judgment of the Court; otherwise a judgment entered by the Clerk is a mere nullity; for under our Constitution he is invested with no judicial power. We must therefore presume where the Clerk is authorized to act in such capacity, that his action is the action of the Court, and that in such instances he merely enters in form, the inevitable sentence or decision of the law, resulting from certain ascertained facts. When a Plaintiff, in order to take judgment for want of an answer, offers to the Clerk proofs of the service of the summons, and that no answer has been received, the Clerk must necessarily decide upon the sufficiency of that proof, and to this extent he acts on behalf of the Court in a judicial capacity. Unless he is authorized to determine for himself whether the proof is sufficient, or in conformity to the statute, he may not feel at liberty to refuse whatever evidence may be offered, but would enter judgment upon the evidence filed, however defective, and let the Plaintiff take the chances of a reversal. If, however, it is conceded that the Clerk may reject the proofs offered, it seems inevitably to follow that his decision is a judicial determination of the question of service, and until set aside or reversed, as conclusive upon the parties as if it had been made by the judge himself. There seems to me to be no middle ground between holding the action of the Clerk in all such matters, as of equal validity with the decision of the Judge, and treating it as entirely nugatory; I regard- the decision, as to the sufficiency of the proof of service, by whomsoever made, as a judicial determination of the question of jurisdiction of the person, and binding upon the parties until set aside or reversed, by a direct proceeding in the same action. But whatever might be the result of a proceeding on the part of the parties against whom this judgment was rendered, for the investigation of any error in the proceedings, wo are clearly of opinion that the judgment cannot be called in question 1 collaterally in the manner proposed by the Plaintiff in this case. [482] The issue presented by the pleading is the existence or nonexistence of the judgment setup in the answer. That judgment is conclusively proved by the record introduced in evidence — and, being rendered by a Superior Court, upon a proceeding within the scope of its general jurisdiction, the presumption that the proper course to make the jurisdiction attach by the service of process or otherwise, is so absolute, that it could not be controverted by evidence by the judgment debtors themselves, so long as the judgment remains unreversed, much less by a third party in a collateral proceeding. The only exception to this rule, which we have been.able to find, is in the instance of suits brought in one State upon judgments rendered in another. There the judgment debtor, when the record was silent as to the service of process, has in some instances been allowed to traverse the fact of his appearance, but that exception, it is said, has been introduced by necessity rather than reason. The decisions again and again assert the principle, that the proceedings of a court of general jurisdiction cannot be questioned collaterally, and are absolutely binding on the parties until set aside by the tribunal in which they have taken place, or regularly reversed on error. 17 Wend. 483; 4 Scam. 384; 10 Peters, 472; 18 Pick. 393; 15 Vermont, 46; 8 Ohio, 108; 22 Maine, 128; 7 W. & S. 499; and 2 Amer. Lead. Cases, 719, note. We think the Judge erred in excluding this record from the jury, and that the order refusing a new trial should be reversed, and a new trial granted.