Galpin v. Page

Mr. Justice FIELD, after stating the facts of the case, delivered the opinion of the court as follows: The Supreme Court of the State in its opinion, to which we are referred.in the findings, speaks of its decision as though there-were two separate decrees before it; but this is an evident inadvertence, as there was but one decree, and that was reversed for the reasons assigned as applying to proceedings in the separate suits before their consolidation. After the reversal of the decree' it is possible that the suits proceeded independently of each other as before their consolidation, until the dismissal disposed of them entirely. The defendant relies upon the validity of the decree of the District Court, notwithstanding its subsequent reversal, to uphold the commissioner’s sale and deed. • Her position is this: that the District Court of the State was a court of general jurisdiction ; that being such it is presumed to have had jurisdiction both of the subject-matter and persons which authorized the rendition of the decree in question; that such presumption is conclusive, and the validity of the decree cannot be collaterally attacked by auy matter outside of the record-, and that, therefore, the sale made under the decree before it was reversed is not affected by the reversal. The position of the defendant was sustained by the Circuit Court. “The record in the consolidated action,” says that court, “ is here attacked collaterally, and not on appeal, or in a direct proceeding of any kind to reverse, set aside, *365 or vacate the decree. The rule is different in the two cases. When attacked collaterally it is not enough that the record does not affirmatively show jurisdiction, but, on. the contrary, it must affirmatively show that the court did not have .jurisdiction, or the decree will be valid until reversed on appeal, or vacated on some direct proceeding taken for that purpose,” If the rule as thus stated were universally true it would not support the decree in the case at bar, for the record in the consolidated action does affirmatively show that the District Court never acquired jurisdiction over the person of Franklina C. Gray in one of the actions; and, therefore, had no more authority to appoint a guardian ad litem for her .in that action than it had to appoint attorneys for the other defendants. That record embraces the judgment df the appellate court as well as the decree of the District Court; and it contains an express adjudication of the appellate court to that effect. The record of. itself establishes, therefore, the invalidity of the decree. The adjudication of the appellate court constitutes the law of that case upon the points, adjudged, and- is binding upon the Circuit Court and every other court when brought before it for consideration. The Circuit Court possesses no revisory power over the decisions of the Supreme Court of the State, and any argument to show that that court mistook the law and misjudged .the jurisdictional fact would have been out of place. There were no facts before the Circuit Court which were not before the Supreme Court of the State when its judgment was pronounced. • But the rule of law as stated by the Circuit Court is not universally true. It is subject to many exceptions and qualifications, and has no application to the case at bar. It is undoubtedly true that a superior court of general jurisdiction, proceeding within the general scope of its powers, is. presumed to act rightly. All intendments of law in such cases are in favor of its acts. It is presumed to have jurisdiction to give the judgments it renders until the contrary appears. And this presumption embraces jurisdic *366 tion not only of.the cause'or subject-matter of the action in which the judgment is given, but of the parties also. The former will generally appear from the character of the judgment, and will be determined by the law creating the court or prescribing its general powers. The latter should regularly appear by evidence in the record of service of process upon the defendant or his appearance in the action. But when the former exists the latter will be presumed. -This is familiar law, and is asserted by all the adjudged cases. The rule is different with respect to courts of special and limited authority; as to them there is no presumption of law in favor of their jurisdiction; that must affirmatively appear by sufficient evidence or proper averment in the record, or their judgments will be deemed void on their face. But the presumptions, which the law implies in support of the judgments of superior courts of general jurisdiction, only arise with respect to jurisdictional facts concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence or averments respecting the facts .presumed. .They have no place for consideration when the evidence is disclosed or the averment is made. When, therefore, the record states the evidence or makes an averment with reference to a jurisdictional fact, it will be ■understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred. If, for example, it appears from the return of the officer or the proof of service contained in the record, that the summons was served at a particular place, and there is no averment of any other service, it will not be presumed that service was also made at another and different place; or if it appear in like manner that the service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also. Were not this so it would never be possible to attack collaterally the judgment of a superior court, although a want of jurisdiction might be apparent upon its face; the.answer to the attack would always be *367 that, notwithstanding the evidence or the averment, the necessary facts to support the judgment are'presumed. The presumptions indulged in support of the judgments of superior courts of general jurisdiction are also limited to jurisdiction over persons within their territorial limits, persons who can be reached by their process, and also over proceedings which are in accordance with the course of the common law. The tribunals of one State have no jurisdiction over the persons of other States unless found within their territorial limits; they cannot extend their process into other States, and any attempt of the kind would be treated in every other forum as an act of usurpation without any binding efficacy. “ The authority of every judicial tribunal, and the obligation to obey it,” says Burge, in his Commentaries, “are circumscribed by the limits of the territory in which it is established.” * “No sovereignty,” says Story, in his Conflict of Laws, “can extend its process beyoud its own territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity, and incapable, of binding such persons or property iji any other tribunals.” † And in Picquet v. Swan, ‡ the- same learned justice says: “The courts of a State, however general may be their jurisdiction, are necessarily confined to the territorial limits of the State. Their process cannot be executed beyoud those limits; and any attempt tp act upon persons or things beyond them would be deemed a usurpation of foreign sovereignty, not justified or acknowledged by the law of nations. Even the Court of King’s Bench, in England, though a court of general jurisdiction, never imagined that it could serve process in Scotland, Ireland, or the colonies, to compel an appeax-ance, or justify a judgment against- pei’sons residing therein at the time of the commexicement of the suit. This results from the general principle that a court created within *368 and for 'a particular territory is bounded in the exercise of its powers by the limits of such territory. It matters not whether it be a kingdom, a state, a county, or a city, or other local district. If it be the former, it is necessarily bounded and limited by the sovereignty of the government itself, which cannot be extra-territorial; if the latter, then the judicial interpretation is that the sovereign has-chosen to assign this special limit, short of his general authority.” In Steel v. Smith, Mr. Chief Justice Gibson, of the Supreme Court of Pennsylvania, after referring to the citations we have made from the treatises of Burge and Story, says: “ Such is the familiar, reasonable, and just principle of the law of nations; and it is scarcely supposable that the framers of the Constitution designed to abrogate it between States which were to remain as independent of each other, for all but national purposes, as they were before the Revolution. Certainly it was not intended to legitimate an assumption of extra-territorial jurisdiction which would confound all distinctive principles of separate sovereignty.” * Whenever, therefore, it appears from the inspection of the record of a court of general jurisdiction that the defendant, against whom a personal judgment or decree is rendered, was, at the time of the alleged service, without the territorial limits of the court, and thus beyoud the reach of its process, and that he never appeared in the action, the presumption of jurisdiction over his person ceases, and the burden of establishing the jurisdiction is cast upon the party who invokes the benefit or protection of the judgment or decree. This is so obvious a principle, and its observance is so essential to the protection of parties without the territorial jurisdiction of a court, that we should not have felt disposed to dwell lipón it at any length, had it not been impugned and denied by the Circuit Court. It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until.he has béen duly cited to appear, and *369 lias been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered. When, therefore, by legislation of a State constructive service of process by publication is substituted in place of personal citation, and the court upon such service is authorized to proceed against the person of an absent party, not a citizen of the State nor found within it, every principle of justice exacts a strict and literal’compliance with the statutory provisions. And such has been the ruling, we believe, of the courts of every State in the Union. It has been so held by the Supreme Court of California in repeated instances. In Jordan v. Giblin, * decided in 1859, service of publication was attempted, and the court said that it had already held, “in proceedings of this character, where service is attempted in modes different from the course of the common law, that the statute must be strictly pursued to give jurisdiction. A contrary course would encourage fraud and lead to oppression.” In Ricketson v. Richardson, † decided in 186-1, the court, referring to the sections of the statute authorizing service by publication, said: “These sections are in derogation of the common law, and must be strictly pursued in order to give the court jurisdiction over the person of the defendant. A failure to comply with the rule there prescribed iu any particular is fatal where it is not cured by an appearance.” In McMinn v. Whelan, ‡ decided in 1866, the plaintiff in ejectment traced his title from one Maume. The defendants endeavored to show that the title had passed to one of them under a previous judgment against Maume. This judgmfent was recovered against Maume and others, who ware non-residents of the State, upon service of summons b}r publication. It appeared from the record that a supplemental complaint had been filed in the action, and that the summons published was issued upon *370 the original complaint, and not after that had been superseded by the supplemental complaint. It was objected that the publication thus made was insufficient to give the court jurisdiction of the person of the absent defendants; the objection was answered by the position that the judgment could not be questioned collaterally for the reason that the jurisdiction of a court of general or superior jurisdiction would be presumed, in the absence of evidence on the face of the record to the contrary. But the court held the objection well taken, and after referring to the case of Peacock v. Bell, in Saunders, said that that case “ involved the question of jurisdiction as to the subject-matter of the action and not as to the person of the defendant, and it may be doubted if a case can be found which sanctions any intendment of jurisdiction over the person of the defendant wlien the same is to be acquired by a special statutory mode without personal service of process. If jurisdiction of the person of the defendant is to be acquired by publication of the summons in lieu of personal service, the mode prescribed must be strictly pursued.” But it is = said that the court exercises the same functions and the same power whether the service be made upon the defendant personally Or by publication, and that, therefore, the same presumption of jurisdiction should attend the judgment of the court iu tue one case as in the other. This roasoniiig would abolish the distinction in the presumptions of law when applied to the proceedings of a court of general jurisdiction, acting within the scope of its general powers, aud when applied to its proceedings had under'special statutory authority. And, indeed, it is contended that there is no substantial ground for any distinction in such cases. The distinction, nevertheless, has long been made by courts of the highest character, both in this country and in Englánd, and we had supposed that its existence was not open to discussion. “ However high the authority to whom a special statutory power is delegated,” says Mr. Justice Coleridge, of the Queen’s Bench, “ we must take care that in the exercise of it the facts giving jurisdiction plainly appear, and *371 that the terms of the statute are complied with. This rule applies- equally to an order of the Lord Chancellor as to any order of Petty Sessions.” * “ A court of general jurisdiction,” says the Supreme Court of New Hampshire, “ may have special and summary powers, wholly derived from statutes,-not exercised according to the course of the common law, and which do not belong to it as a court of general jurisdiction. In such cases, its decisions must be regarded and treated like those of courts of limited and special jurisdiction. The jurisdiction in such cases, both as to the subject-matter of the judgment, and as to the persons to be affected by it, must appear by the record; and everything will be presumed to be without the jurisdiction which does not distinctly appear to be within it.” † The qualification here made that the special powers conferred are not exercised according to the course of the common law is important.' When the special powers conferred are brought into action according to the course of that law, that is, in the usual form of common-law and chancery proceedings, by.regular process and personal service, where a personal judgment or decree is asked, or by seizure or attachment of the property where a judgment in rem is sought, the same presumption of jurisdiction will usually attend the judgments of the court as in cases falling within its general powers.- Such is the purport of the language and decision of this court-in Harvey v. Tyler. ‡ But where the special powers conferred are exercised in a special manner, not according to the course of the common law, or where the general powers of the court are exercised over a class not within its ordinary jurisdiction upon the performance of prescribed conditions, no-such presumption of jurisdiction will attend the judgment of the court. The facts essential to the exercise of the special jurisdiction must appear in such eases upon the record. *372 The extent of the special jurisdiction and the conditions of its exercise over subjects or persons necessarily depend upon the terras in which the jurisdiction is granted, and not upon the rank of the court upon which it is conferred. Such jurisdiction is not, therefore, the less to be strictly pursued because the same court may possess over other subjects or other persons a more extended and general jurisdiction. Upon this subject the commentators on Smith’s Leading Cases, after referring to numerous decisions holding that in such cases the record must show a compliance with the provisions of the statutes conferring the special jurisdiction, very justly observe that, “the inconveniences, which may occasionally result from this course of decision are more than compensated by the lesson which it teaches, that from whatever source power may come it will fail of effect when unaccompanied by right.” * In the supplemental complaint filed in the action of Gray v. Eaton and others, and in the original complaint of Eaton v. Palmer, the absence of Franklina from the State and her residence in auother State are alleged. The record in the two actions,'and of course in the consolidated action, shows that she was thus beyond the reach of the process of the court. All presumption of jurisdiction over her person by the District Court, which otherwise might have been indulged, is thus repelled, and it remains for the defendant to show that by the means provided by statute such jurisdiction was obtained. The statute provides, in case of absent and non-resident defendants, for constructive service of process by publication. It requires an order of the court or judge before such publication can be made; it designates the facts which must exist to authorize the order, the manner in which such facts must be made to appear, the period for w'hich publication must be had, and the mode in which the publication must be established. These provisions, as already stated, must be strictly pursued, for the statute is in derogation of the common law. And the order, which is *373 the sole authority for the publication, and which by statute must prescribe the period and designate the paper in which the publication is to be made, should appear in the record with proof of compliance with its directions, unless its absence is supplied by proper averment. ■ If there is any different course of decision in the State it could hardly be expected that it would be followed by a Federal court, so as to cut off the right of a citizen of another State from showing that the provisions of law, by which judgment has been obtained against him, have never been pursued. The provisions mentioned were not strictly pursued with respect to the infant defendant. There were various omissions and irregularities in the proceedings taken which prevented the jurisdiction over her from ever attaching. It is unnecessai^ to specify them, as the effect of some of them has been the subject of judicial determination by the Supreme Court of the State. That court has adjudged that no sufficient service was eVer made upon her, and that until such service no guardián ad litem, could be appointed for her; and that adjudication is conclusive. It follows that the decree against her, and all proceedings founded upon such decree, so far as her rights are concerned, necessarily fall to tlie ground. Judgment without jurisdiction is unavailing for any purpose. . The decree being thus reversed, the title acquired by Page, the purchaser at the commissioner’s sale, falls with it. He was one of the attorneys of the plaintiff Gray, and the law imputes to him knowledge of the defects in the proceedings, which were taken under his direction and that of his copartners, to obtain service upon the infant. The conveyance by him of an undivided half to his law partner, also one of the plaintiff’s attorneys, was made after the decree of'the Fistiict Court had been reversed for want of jurisdiction over the infant. The partner also took his interest with knowledge of this defect. The protection which the law gives to a purchaser at judicial sales is not extended in such cases to the attorney of the party, who is presumed to be cognizant of all the proceedings. *374 In many of the States it is the law that a purchaser at a judicial sale loses his title upon a reversal of the judgment or decree under which the sale was made, where such pur-' chaser is a party to the judgment or decree. In Reynolds v. Harris it was held by the Supreme Court of California that, where a plaintiff bought property under a judgment, he must restore it to the defendant on a reversál of the judgment; the court observing, after citing several cases, that the current of authority, broken only by a case or two, went “'direetly to the point that a party obtaining through the judgment before reversal any advantage or benefit, must restore what he got to the other party, after the reversal.” * The writer of this opinion endeavored to combat this doctrine.in a case in the Circuit Court of the United States, where a purchase had been made under a decree in that court for the enforcement of a mechanic’s lien. In that case the complainant was mentioned in the decree as a possible bidder, and provision was made for crediting his bid on the amount adjudged due to him. On a reversal of the decree the court sustained the sale, and endeavored in its opinion to show that on principle the same protection should extend to purchasers under judgments and decrees when parties as when strangers. The law, however, of the State does not appear, so far as we are enabled to discover from the decisions of its Supreme Court, to have been changed since the decision in Reynolds v. Harris. And according to that law the purchasers being the attorneys of the parties, and standing in the same position as the parties, could not maintain their title independent of any defects of jurisdiction iu the proceedings. The same doctrine prevails in Missouri.' “The restitution,” says the Supreme Court of that State,to which the party is entitled upon the reversabof an erroneous judgment, is of everything which is still in the possession of his adversary. Wliere a man' recovers land in a real action, and’ takes possession or acquires title to laud or goods by sale under *375 execution, and the judgment is afterwards reversed, so far as he is concerned his title is at an .end, and the land or goods must be restored in specie; not the value of them, but the things themselves. There is an exception where the sale is to a stranger bond fide,, or where a third person has bond fide acquired some collateral right before the reversal.” * The same doctrine is asserted in McJilton v. Love, by the Supreme Court of Illinois, † and is there stated to be well established by authority, and numerous eases in support of the position are cited. In New York the doctrine would seem to be settled in the same way. ‡ As this case must go back for a new trial, this position can be more fully considered than it appears to have been by the court below. The defendant in this case acquired her interest, one-half, by devise from the purchaser, Page; and the other half by conveyance from one of the attorneys years after the reversal of the decree. ' It follows that the judgment must be reversed, and the CAUSE Remanded for a new trial. DAVIS, J., did not sit in the case; and took no part in its decision. Footnotes [*] Commentaries on Colonial and Foreign Law, p. 1044. [†] Section 539. [‡] 5 Mason, 40. [*] 7 Watts & Sergeant, 451. [*] 12 California, 100. [†] 26 Id. 149. [‡] 27 Id. 300. [*] Christie v. Unwin, 3 Perry & Davison, 208. [†] Morse v. Presby, 5 Foster, 302. [‡] 2 Wallace, 332. [*] Vol. 1, p. 1012. [*] 14 California, 680. [*] 41 Missouri, 416. [†] 13 Illinois, 486. [‡] Jackson v. Cadwell, 1 Cowen, 644.