Clark v. Bryan

Bartol, J., delivered the opinion of this court: The decision of this appeal depends upon the validity of the judgment rendered by the court of Common Pleas, at the suit of the appellees against J. M. Hale. The proceedings in that suit are set out in the record before us, and it appears, from those proceedings, that on the 2nd of October 1857, an attachment on warrant was issued at the suit of the appellees against Hale as a non-resident; the attachment was accompanied with the ordinary summons to him — both returnable the second Monday of January following. At the return day, the sheriff made return to the attachment “that he had taken property of the defendant as per schedule.”' “Attachment dissolved by bond,” and the writ, or summons against the defendant he returned unon est.” The bond' sued on in this case was given by the appellants on the 5th of October 1857, for the purpose of dissolving the attachment, accepted by the counsel for the appellees, and approved by the court. It is in the ordinary form — the condition being “that if the said J. M. Hale, or any one in Ms behalf, do and shall pay to said plaintiffs, or to their legal representa-, tives, the value of such goods and chattels as have been levied on under said attachment, if the said plaintiffs in such attachment shall recover against the defendant, an amount equal to the value of such goods and chattels or credits; or. shall pay to said plaintiffs the amount so recovered, if the [176] same shall be less than the value of the goods and chattels and credits so attached; then the bond to be void, otherwise to remain in full force, &c.” On the 10th of October 1867, the appellees filed a declaration against the original defendant, Hale, containing a notice that, “on his appearance to the action, a rule would be entered requiring him to plead thereto within fifteen days there-, after,” with directions to the clerk to “set up copy,” which was done. On the return day of the writs a judgment by default was entered against Hale, for not appearing, and at the same term, (on the 25th of March,) under an inquisition, damages were assessed against him, on which judgment was rendered for the,amount so assessed. If the judgment so rendered was a valid and legal judgment, which the court of Common Pleas had jurisdiction and power to render, then the liability of the appellants upon their bond is clear, and they have no ground for this appeal; but if that judgment was coram non judice and void, then these appellants are not responsible on their bond. The basis of this action is the judgment recovered against Hale, and if there be no legal valid judgment against him, the appeal in this case must be sustained. The ground has been taken by the appellees, in this court, that in an action upon their bond the appellants cannot take advantage of any defect or informality in the judgment rendered against Hale, nor can it be inquired into collaterally in this case. “It is a well settled principle,” that “the judgment of a court of competent jurisdiction, when coming incidentally in question, * ® ® * is conclusive upon the question decided, and cannot be impeached, on the ground of informality in the proceedings, or error or mistake of the court in the matter on which they have adjudicated.” Raborg vs. Hammond, 2 H. & G., 50. 6 H. & J., 182. 1 H. & G., 492. 9 Gill, 241. It is also equally well settled that a judgment manifestly rendered without jurisdiction, will be void; whether the tribunal which pronounces it be an inferior court of limited and [177] special jurisdiction, or a superior court of record proceeding’ according to the course of the common law. The distinc-' tion being that, with regard to the former, the jurisdiction cannot be presumed, but must be shown affirmatively on the face of the proceedings; while, with reference to the latter, when called collaterally in question, every intendment and presumption is made in their support, and the judgment is conclusive, unless it manifestly appear upon the record that the court acted without jurisdiction. But if the record shows that the court has proceeded to render judgment inpers'onamf without having jurisdiction over the cause and over the parties, such judgment is void, and cannot be enforced.- Numerous authorities might be cited in support of this principle; some of them tiave been cited by the appellants under the third point in their brief. We refer, also, to the note of the American editors of Smith’s Leading Cases, 5th Edition, vol. 1, 816 to 848, where the decisions on this subject will be found collected and examined with great ability The principle, we have stated has been recognized- by the Court of Appeals of Maryland in- the case of The Batik of the United Slates vs. The Merchants Bank of Balto., 7 Gill, 429. Judge Martin, delivering the opinion of the court, uses the following language: Mt is certainly true that unless the court,- rendering the judgment, had jurisdiction,- both of the cause and- of the parties, it would be treated as a nullity, it. would he considered as merely void, and the party against whom it was used,, could by an appropriate plea, assail it, and put it aside as utterly ineffectual and powerless. The right to attack a judgment on the ground that the tribunal pronouncing- it was not invested with jurisdiction and authority, that i-t. was inoperative and void, as being coram non judice, is undoubted, with respect both to domestic and foreign judgments.” In the case before us, the judgment against Hale, was a judgment by default; this appears upon the record, which-also discloses the fact that the defendant never was sunw [178] moned, or otherwise notified of the proceedings against himr he being a resident of the State of Maine, and not within the jurisdiction or process of the court. Under these circumstances the judgment could have no binding force or efifi-cacy against him; it was coram non judice and void. Kilburn vs. Woodworth, 5 Johns. 37. Harris vs. Hardeman, 14 Howard, 334. There is nothing in the proceedings to show, or to authorize us to presume, any constructive notice to .the defendant of the pendency of the proceedings against him. The 4th section of the Act of Í854, ch. 153, provides that, “no attachment shall be dissolved, unless every defendant appears to the action, and unless also a bond be given, by or on behalf of the defendant, or defendants, in a sum of money equal to the value of the property attached, with security to be approved by the court,, or the judge thereof in the recess, to satisfy any judgment that shall be rendered, in such case, against the defendant or defendants.” The bond sued on was given, under that section, and it has been argued that because upon, the giving of the bond, by the present appellants, the attachment was dissolved and the property released, we are at liberty to presume “that every thing was done, which the law made requisite for such a result..” No presumption can be made, contrary to what is expressly shown by the record. Prom that it manifestly appears,. that the defendant did not appear either in person or by attorney. It is very true that, under the Act of 1854, the plaintiffs in the attachment were entitled to insist, upon both a bond-and an appearance, before they allowed, the attachment to be dissolved or surrendered the property from the hands of the sheriff. But if, through inadvertance, they omitted to require a compliance with the requisites of the statute, it is not in our power to aid them. The giving of the bond by the appellants was, neither in fact nor in law, án appearance by Hale; he was not a party to the bond; nor does it authorize us to suppose that Hale had any knowledge or notice of the transaction, or any opportunity to appear arid [179] defend the suit. The proceeding against him in personam was conducted ex-parte, and the judgment rendered at the first term. (Decided June 15th, 1860.) Judgment reversed,