Callen v. Ellison

G'holsoN, J. .The remark is frequently found in judicial opinions, that, to give validity to the judgment of a court, there must be jurisdiction of the cause and of the person. Jurisdiction of the cause arises out of some right or claim to a thing within the territorial jurisdiction of the court; or, out of some controversy between parties — involving the claim of — 453 — one or the other, for the performance of some act, as the payment of money, the transfer of property, or the doing or omission or forbearance to do some act — which controversy the court is invested with authority to decide. When a court is moved by one party to enforce a claim, or decide a controversy, and for that purpose brings before it the other party, this is obtaining jurisdiction of the person. Jurisdiction of the person is properly acquired by personal notice or service of process; but other modes have been substituted by express provision of law or the practice of courts — as publication* notice to the agent or attorney of the party, or an appearance for him by one of the attorneys of the court. ' A suit is “ the prosecution or pursuit of some claim, demand or request. In law language, it is the prosecution of some demand in a court of justice. The remedy for every species of wrong is, says Judge Blackstone, ‘ the being put in possession of that right whereof the party injured is deprived.’ ‘ The instruments whereby this remedy is obtained are a diversity of suits and actions, which are defined by the Mirror to be ‘ the lawful demand of one’s right;’ or, as Bracton and Fleta express it, in the words of¿ Justinian, ‘jus prosequendi in judicio quod alicui debetur.’ Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right. To commence a suit is to demand something by the institution of process in a court of justice ; and to prosecute the suit is, according to the common acceptation ‘of language, to continue that demand.” Marshall, C. J. Cohens v. Virginia, 6 Wheat. 264-407. When process is instituted — when, on a demand for it in the prescribed mode, the process of the court is issued — the steps taken under that process must be matter proper for the consideration of the court. The court must determine whether the suit is prosecuted — whether the demand for the thing to. which a right is asserted is continued. So, if it be claimed that process has been waived, the fact of waiver, or the authority to waive, as shown by the evidence, must be — 454 — decided by the court. ' This determination or decision may be express on the very point, as by an assertion on the record that the process has been served, or that the party has appeared by an attorney, or it may be necessarily implied in the action of the court upon the demand of the party. The determination or decision that a party has been served with process, or that he has given authority to waive process, if in truth he has- not been served, or given such authority, is a determination or decision, when he has had no opportunity to be heard. Hence the right to show, in opposition to 'the record of such determination or decision, the truth by evidence has been claimed, as required by the principles of natural justice. If the court acts at all upon the question whether a party has been served with process, or has authorized an appearance in the absence of such party, then the decision must be made at the risk of an incorrect conclusion. And it would be absurd to require notice of such inquiry, as that would involve a similar inquiry whether there was notice of that notice. The court must act upon the demand for which process has been instituted, either with or without inquiry into the fact whether such process has been served. That there should be no inquiry — that a judgment by default should be rendered without inquiry into the fact whether the process had been served on the defendant — can not, with any propriety, be claimed. If, then, the inquiry should be made, what effect is to be given to the deteiunination or decision Í It is obligatory, unless impeached or set aside in the.mode prescribed as to other decisions of the court, or may it be disregarded, as null and void, whenever brought in question, upon allegation and proof that the party, in truth, had no notice or opportunity to be heard ? Here arises a conflict between principles of policy, which require the former conclusion, and principles of natural justice, which lead to the latter; and, as might be expected in cases of such conflict, the decisions of courts have differed. The decisions may, to some extent, be reconciled by classifying the cases, in view of the well known distinction between — 455 — courts of general and courts of special and limited jurisdiction, and of tbe difference between domestic judgments and the judgments of other states and countries. As to the judgments of courts of general jurisdiction, under which class the one now under consideration falls, the decisions in this state, though perhaps not entirely uniform or consistent, do undoubtedly show a strong inclination to sustain such judgments against indirect or collateral attacks on their validity and effect. It appears to have been thought that natural justice is satisfied, when notice is required, and an impartial tribunal established to ascertain and determine whether it has been given. Nor can it be properly said that such a tribunal has jurisdiction because it has so decided. Its decision is binding because it was authorized to make it, and because public policy, and the respect due to the sovereignty it represents, at least in tribunals acting under the same sovereignty, requires that the decision should be regarded, while it remains on the record unimpeached and unreversed. We feel inclined to go as far in sustaining the validity and effect of the judgments of courts of general jurisdiction as our predecessors have gone, and no disposition to permit an indirect attack upon them in any case not authorized by former decisions. And, looking at those decisions, we are satisfied that, without disturbing any of them, we are at liberty to sustain the judgment under consideration in this case. In the case of Lessee of Fowler v. Whiteman, 2 Ohio St. Rep. 270, 286, it is said to have “become established by a series of decisions in Ohio, that the finding of a court of general jurisdiction, upon a subject matter properly before it, shall not be collaterally impeached; but while such finding is unreversed, it is conclusive of the matter so found.” The finding in that, and in the previous cases there referred to, was upon the question of notice. In the case of Moore v. Starks, 1 Ohio St. Rep. 369, 373, it was intimated, though no decision was made or required on the point, that there is a distinction between an express finding that notice had — 456 — been given, and the necessary implication of such a finding, shown by the act of rendering the judgment. Whether such a distinction can be properly made, we need not decide. The point really decided in that case was, that where it affirmatively appears in the record, that the defendant was not served with process or otherwise legally notified, the judgment is void. This w-as the principle on which the court acted; whether it was properly applied, we are not required to say. Regarding the above as the principles properly applicable to this case, in the record of the judgment now under consideration, we have this express finding of the court: “the de-fandants, by George Collings, Esq., their attorney, come into court, and by virtue of his power of attorney, filed in this court, confessed judgment for the. defendants, for the sum of,” etc. Now, this finding not only entirely fails to show a want of jurisdiction, but shows its existence in positive and direct terms. It is claimed, that a power of attorney, found among the papers of the case, shows that- it. was not executed by some of the defendants, and that in truth some of the defendants were married women, and could not legally execute a power of attorney. But the power of attorney found among the papers is not a part of the record — neither in fact, nor certified to us as such. It was not intended to be made so, either by the law, or the action of the court. The object of filing the power of attorney, on which the judgment was predicated, was, not that by it or by proof connected with it, the judgment of the court might be shown to be without jurisdiction and void, but to furnish the parties affected by the judgment ready means to apply to the court itself, to correct any irregularity or error. Had such an application been made, and it had been shown, that by mistake or inadvertence, a judgment had been rendered against parties who had not executed the power of attorney, or who were married women, there can be no doubt the judgment would have been set aside. The other point which has been presented for our consideration in this case is novel, but we think is answered by the general principle as to the validity and effect of a judgment, — 457 — and the provision of the statute subjecting the real estate of a debtor to sale under a judgment and execution. The judgment was rendered against Rebecca Callen, who then owned the land in controversy, who was in fact a married woman, but whose coverture is not shown by the record, was not relied on as a defense, or urged as an objection to the rendition of the judgment. It is not claimed, and certainly is not law, that a judgment against a woman is void, if, in fact, she was at the time a married woman. The judgment then was a valid judgment against Rebecca Callen. The question then arises, whether it bound her real estate, so as to authorize its sale, notwithstanding the restrictions upon the alienation by married women of their real estate. The statute (2 Chase, 1297), shows what was the legal effect in this respect of the judgment against Rebecca Callen. “ The lands and tenements of a debtor shall be bound for the satisfaction of any judgment against such debtor, from the first day of the term at which judgment shall be rendered, in all cases where such lands lie within the county where the judgment is entered, and all other lands, as well as the goods and chattels of the debtor, shall be bound from the time they are seized in execution.” The sheriff was authorized to sell the lands under an execution, and to make to the purchaser, “ as good and sufficient a deed of conveyance for the lands and tenements so sold, as the person or persons against whom such writ or writs of execution wrere issued, might or could have made for the same, at, or any time after said lands became liable to said judgment.” The judgment shows that Rebecca Callen was a debtor. The legal effect of the judgment was to bind her lands and subject them to sale under execution. This legal effect can not be destroyed by averment and proof that she was a married woman. Even a technical difficulty, which might have been suggested under the provision of the statute last quoted, had Rebecca Callen been sued alone, is obviated by the fact that her husband was also a defendant, and both must be regarded a.s having constructively joined in a conveyance to the purchaser. Nor do we think, assuming, as is claimed by — 458 — the defendant in this case, and as we may assume, in support of the validity and effect of the judgment, that the debt foi which the judgment was rendered against the husband and wife was, really, the debt of the wife, there is any hardship in the case. A married woman has no power to convey or dispose of her land, except as provided by law. Nor at common law could lands be sold under execution for payment of debts. But when the law authorized lands to be sold for th-e payment of debts, no reason can be perceived why the lands of a woman, who, when sole, has contracted a debt, or, after marriage, incurs a personal liability, should not be liable as the lands of any other debtor, and sold on a judgment against her and her husband. But it is enough in this case to say that we can not permit the plaintiffs to vary or destroy the effect of the judgment by proof that they, or those under whom they claim, were married women at the time of its rendition. Looking at all the facts contained in the agreed statement, and giving them what we regard to be their proper legal effect, we think we are bound to render a judgment for the defendant. Judgment for defendant. Sutliee, O.J., and Peck, Bkinkerhoee and Scott, JJ., concurred.