\ R. H. F. VARIEL ATTORNEY AT LAW LOS ANQCLBS, CAL. THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE LAW OF JUDGMENTS. INCLUDING ALL FINAL DETERMINATIONS OF THE RIGHTS OF PARTIES IN ACTIONS OR PROCEEDINGS AT LAW OR IN EQUITY. By a. C. freeman, COUNSELOR AT LAW. FOURTH EDITION, REVISED AND GREATLY ENLARGED. IN TWO VOLUMES. Vol. 1. SAN FRANCISCO: BANCROFT-WHITNEY COMPANY, Law Publishers and Law £ooKS£LL£as, 1892. r Entered according to Act of Congress, in the year 1873, By a. L. BANCROFT & COMPANY, In the office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1874, By a. L. BANCROFT & COMPANY, In the oflSce of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1881, By a. L. BANCROFT & COMPANY, In the office of the Librarian of Congress, at Washington. Copyright, 1892, By Banckoft-Whitney Company. San Francisco: The Fii.mer-Rollins Electrotype Company, Typographers and STEEEOTYpaxis. PREFACE. The author of this book believes that its publication is amply- justified by the importance of the subject of which it treats, by the frequency with which a correct understanding of that sub- ject is essential to a proper and consistent administration of the law, and by the absence of any other work which even pro- fesses to treat of the matters considered in this. A judgment is not invariably " the end of the law." Perhaps nothing so fairly demonstrates the persistence of litigants as their constant efforts to escape the consequences of prior de- feats. Scarcely a terra passes in any of the courts of last re- sort, in this country or in England, in which it does not become, necessary to determine the effect of some prior adjudication An examination of the reports will convince any one that there are but few" branches of the law which had been more fre- quently before the courts than the Law of Judgments. Whoever, for the first time, gives his special attention to this branch of the law will be less surprised at the number of the decisions than at the assurance with which the most irreconcil- able conclusions have been announced. Cases have frequently been disposed of in accordance with principles which the court evidently regarded as indisputable, but which, in fact, were in direct conflict with the law as understood in most of the other states. Nor can this be deemed remarkable, when we remember that no attempt had been made to collate the various decisions constituting the Law of Judgments. This work, though not formally subdivided in that manner, consists of seven parts: Part first, including chapters one to seven, shows of what the Record or Judgment Roll is com- posed, and states the various classifications and definitions of Judgments and Decrees, and the rules applicable to Entries IV PREFACE. and Amendments, and to the Vacation of Judgments at Com- mon Law and under the Code. Part second, consisting of the eighth chapter, is devoted to the law in regard to Jurisdictional Inquiries in collateral proceedings. The ninth and tenth chapters constitute the third part, and are designed to show what persons are bound by the judgment, by reason of their privity with the parties, or their interest in the subject of liti- gation, or through the operation of the law of lis pendens. Part fourth treats of the important incidents attending judgments, viz.: Merger, Estoppel, and Lien; of the assignable qualities of judgments, and of their admissibility as evidence. Part fifth considers proceedings to revive judgments scire facias, and to enforce them as causes of action or defense, with the rules of pleading applicable to those proceedings. The sixth part contains the chapters on Relief, Reversal, and Satisfaction; showing for what causes a judgment may be avoided in equity, what are the eflFects of its reversal by some appellate tribu- nal, and what are the means and circumstances which pro- duce its satisfaction. The seventh and last part treats of the different kinds of judgments, and the rules peculiar to each. In the hope that, at least by its arrangement and citation of authorities, it may aid in the proper determination of cases yet to arise, and may, by producing a more thorough knowledge of the law, assist in the prevention of needless litigation, this work is respectfully submitted to the members of that profes- sion for whose benefit it was prepared. Sacramento, Oal., January, 1873. PREFACE TO SECOIN^D EDITI0:N'. The author has endeavored to merit the kindness with which the first edition of this work was received, by making the sec- ond as complete as possible. To accomplish this result, he has consulted a large number of authorities, and has made consid- erable additions to the text. Particular pains has been taken to embody in this edition the substance of the decisions pub- lished since the completion of the work as it was first given to the world. The prior decisions have also received attention, and have repaid it by contributing materially to the increase both of the text and of the table of cases. The Canadian reports, which, until recently, were not within the author's reach, have also been examined, and have been cited as freely as those of the other American courts. From these various sources the number of the citations has been augmented nearly twenty-five per cent, and it is hoped and believed that the value of the work has been increased in a like ratio. Sackamento, Cal., August 1, 1874. PREFACE TO THIBD EDITIOIS". The lapse of nearly seven years since the publication of the second edition of this work renders necessary another edition, in order that it may not be left too far behind the most ad- vanced stage of the law. The author has felt a desire to amplify and reconstruct his former work; but the press of other engagements has made this impossible except to a very limited extent. He has, however, added some twelve hundred cases to the authorities cited, and has increased the text about one sixth; and in so doing, has treated some topics not consid- ered in the former editions. Among these topics are, what are final judgments in criminal prosecutions and in intervention cases; the form of judgments with respect to designating the parties and the relief granted; fraud and perjury as grounds for vacating judgments on motion; merger arising from prosecu- tions and convictions in criminal cases; set-off of one judgment against another; and an entire chapter on the conclusiveness of judgments when questioned on habeas corpus. He has also given due prominence to the recent 'decisions of the Supreme Court of the United States, by which judgments, whether foreign or domestic, seem to remain ever open to collateral attack on jurisdictional grounds. Sacramento, Cal., June 1, 1881. PREFACE TO FOURTH EDITIOIN^. When the preparation of this edition was commenced, and for some months afterwards, the author hoped and expected that its contents, though noticeably greater than those of the previous edition, might still be kept within the limits of a single volume. That they might be so kept, he generally re- frained from making extracts from the opinions of the judges, and from citing cumulative authorities upon questions now substantially beyond controversy. Nevertheless, the work grew until its citations doubled in number those to be found in the preceding edition, and its size increased in nearly the same proportion. This increase is distributed so uniformly, that it is dilBcult to specify the portions of the work which have required and received special consideration. Probably, however, the question of jurisdiction has here, as elsewhere, been the one demanding the most serious attention; and the author has noticed with gratification that the result of the deliberation of the courts of last resort during the past decade has been to strengthen tjie presumptions in favor of the jurisdiction of courts of record, and to show that, notwithstanding the decis- ion of the Supreme Court of the United States in Pennoyer v. Neff, the courts of each State have power to enforce obligations entered into by non-residents, to foreclose liens upon their property, to make partition of land of which they are tenants in common, and to determine, at the instance of citizens of the state, adverse claims made by such non-residents to real property situate within the territorial jurisdiction of the court. Special attention has also been given to the orders and pro- ceedings of courts having jurisdiction of the estates of dece- dents, and to partitions of real property made in the exercise of such jurisdiction, and to judgments of acquittal or conviction X PREFACE TO FOURTH EDITION. in criminal prosecutions, as well as to the effect, as against citizens of a municipal corporation, of judgments against it in actions wherein it is the representative of public rights and interests. Realizing that those portions of a text-book which are not adequately indexed remain substantially unpublished, a new and copious index has been prepared, in which the subdivisions of each topic are alphabetically arranged. San Francisco, February, 1892. TABLE OF COIsrTElSrTS. N. B. —For more complete statement of contents, see the synopsis at the head of each chapter. CHAPTER I. DEFINITIONS AND CLASSIFICATIONS OF JUDGMENTS AND DECREES. SECTIONS. Final and Interlocutory Judgments within the Meaning of Statutes Allowing Appeals 1-35 CHAPTER n. THE ENTRY OF JUDGMENTS. Is a Ministerial Act — Distinction between Judgments and Decrees — Time of Entry — Judgment-book — Joint Parties — Construc- tion of the Entry — Form — Designating Parties, Amount, Prop- erty — Judgments of Conviction — Examples of Insufficient Entries — Justices' Courts 37-55 CHAPTER in. NUNC PRO TUNC ENTRIES. Part I. — Where No Judgment has been Ordered or Entered. Part II. — Where Judgment has been Ordered but not Entered — Effect of 56-68 CHAPTER IV. AMENDING JUDGMENTS. Time when may be Made — Data for — Practice — Effect of — Discre- tion of Court 69-74 a CHAPTER V. THE RECORD OR JUDGMENT BOLL. Origin — Verity — Of What Composed — Absence of — Replacing Lost — Supplying Omissions in 75-89 b XU TABLE OF CONTENTS. CHAPTER VI. VACATING JUDGMENTS. sections. At Common Law — By Writs of Error, Coram Nobis, and Coram Vobis — A udita Querela — Causes for — Notice — Effect of 90-104 b CHAPTER VII. VACATION OF JUDGMENTS UNDER STATUTES ON ACCOUNT OF MISTAKE, INADVERTENCE, SURPRISE, OR EXCUS- ABLE NEGLECT. Summary of Statutory Grounds for — Discretion of Court — Prac- tice in Proceedings for — Fraud, Perjury, Neglect, Mistake, Surprise, Unavoidable Casualty, and Misfortune 105-115 a CHAPTER VIII. VOID JUDGMENTS, Inquiries in Collateral Proceedings in Relation to the Jurisdiction of Courts of Record — Jurisdiction, Definition and Source of — Conflicting Concurrent — Jurisdictional Findings and Pre- sumptions — Process, Defects therein or in its Service — Loss or Termination of Jurisdiction — Disqualified Judges 116-14S a CHAPTER IX. OP THE PERSONS AFFECTED BY JUDGMENTS. Part I. — Parties, Who may be — Married Women, Infanta, Luna- tics, Decedents — Construction of Record — Capacity in Which Bound — Second Action in Which Parties are not the Same. Pakt II. — Of Privies — Privity Defined — Administrators and Executors — Principals and Agents — Assignees, Bailees, Garnishees, Heirs, Lessees, Remaindermen, Cestuis que Trust. Part III. — Persons Bound, though neither Parties'nor Privies, and when Notice is Required to Bind Them 149-190 CHAPTER X. LIS PENDENS. Reasons for — Commencement of — Property, What and when Bound by — Amended Pleadings, Persons Bound by — Dili- gence in Prosecution — Termination of — Territorial Limits of. 191-214 CHAPTER XL MERGER OR FORMER RECOVERY. General Principles of — Causes of Action Affected by — Exceptions — Joint Obligations — Collateral Securities — Tort-feasors — Indivisible Causes of Action — Nuisances — Bankruptcy and Insolvency Proceedings 215-245 TABLE OF CONTENTS. Xlll CHAPTER XII. THE JUDGMENT AS AN ESTOPPEL. sections. Part L — Nature and Extent. Part II. — Requisites. Part III. — Evidence to Establish or Rebut. Part IV. — Matters Defendant need not Litigate. Part V. — Pleading. Part VI. — Actions in Conflict with Prior Adjudications. Part VII. — Judgments in Various Actions, Real and Personal — Criminal Cases, and Probate Proceedings. Part VIII. — Motions and Special Proceedings. Part IX. — Miscellaneous Matters.... 246-333 CHAPTER XIII. IMPEACHING JUDGMENTS. When Impeachable and by Whom — Fraud, Collusion, Error, Ir- regularity — Impeaching in Bankruptcy 334-337 CHAPTER XIV. OF THE JUDGMENT LIEN. Part I. — Nature and Creation of. Part II. -r Estates and In- terests Aflfected by. Part III. — Priority of. Part IV. — Suspension and Discharge of. Part V. — Extending and Reviving. Part VI. — For Future Advances. Part VII. — Of Foreclosure Suits. Part VIIL — Of Judgments of the National Courts ». 338-406 CHAPTER XV. JUDGMENTS AS EVIDENCE. Part I. —Mode of Proof. Part II. — Admissibility and Effect. . 407-420 CHAPTER XVI. ASSIGNMENT OF JUDGMENTS. At Common Law — Mode and Form of — Notice of — Rights of Assignee — Prior Assignments — Assignments by Agents — Effect of, and Rights Passing by 421-431 CHAPTER XVII. ACTIONS ON JUDGMENTS. When Sustainable — Appeal — Defenses — Who may Bring — Sur- vivorship — Interest Recoverable 432-441 CHAPTER XVIII. PROCEEDINGS BY SCIRE FACIAS. Nature of — Parties — Pleadings, Service of — Defenses — Judg- ment upon, and its Effect 442-449 XIV TABLE OF CONTENTS. CHAPTER XIX. PLEADING JUDGMENTS. sections. Part I. — General Form. Part II. — Averments of Jurisdiction. Part III. — Description. Part IV. — Pleas in Defense. Part V. — Pleas of Judgments of Other States 450-461 CHAPTER XX. SATISFACTION OP JUDGMENTS. Part I. — By Payment — By Set-off. Part II. — Payor's Right to Subrogation. Part III. — Satisfaction by Proceedings under Execution. Part IV. — Proceedings after Satisfaction. 462-480 a CHAPTER XXL REVERSED JUDGMENTS. Effect of Reversal — Restitution between the Parties and from Third Persona 481-484 CHAPTER XXII. RELIEF IN EQUITY. Grounds for — Parties Who may Apply — Rights of Third Persons — Negligence as a Ground for Denying Relief , 484 a-5 1 6 CHAPTER XXIII. JUDGMENTS OF COURTS NOT OP RECORD. Distinction between, and Courts of Record — Jurisdiction must be Shown — No Presumptions in Favor of — Process and its Ser- vice — Officers Acting under Authority from — Uoards, Per- sons, and Tribunals Acting Judicially 517-531 CHAPTER XXIV. JUDGMENTS BY DEFAULT Effect — Clerk's Authority — Appeal from — Opening 532-542 CHAPTER XXV. JUDGMENTS BY CONFESSION WITHOUT ACTION. Statutes and their Construction — Parties Who may Make or Re- ceive — For What may be Made — Statements — When Void — Remedy to Correct — Effect of 543-558 a CHAPTER XXVI. JUDGMENTS OF OTHER STATES. Constitutional and Legislative Provisions — Jurisdictional Inquiries and Recitals — Constructive Service of Process — Effect of — Defenses to — Decrees of Divorce , 559-587 TABLE OF CONTENTS. XV CHAPTER XXVII. FOREIGN JUDGMENTS. sections. Jurisdictional Inquiries — Fraud — Conclusiveness of — Control of Equity over — Appeal — Are not Records — Foreign Probate, Divorce, and Bankruptcy Proceedings 588-605 e CHAPTER XXVIII. JUDGMENTS IN REM. Definitions and Classification — Probate of Will — Grant of Administration — Jurisdiction — Divorce — Decrees in Ad- miralty 606-618 a CHAPTER XXIX. ATTACKS ON JUDGMENTS BY HABEAS CORPUS. General Rule as to Conclusiveness of Judgments — Errors and Ir- regularities — Jurisdiction — InsufiSciency of the Indictment — Convictions and Sentences not Warranted by Law — Acts Done or Omitted under Constitution and Laws of the United States 61 9-626 LAW OF JUDGMENTS. CHAPTER I. Part I. —'DEFINITIONS AND CLASSIFICATIONS. § 1. Lord Coke's definition. § 2. Common-law definition. § 3. Means of enforcing. § 4. Is a judgment a contract? § 5. Classification with reference to stage of the proceedings. § 6. Classification with reference to state of the pleadings. §§ 7, 8. Various kinds of judgments, and how classified. § 9. Definition of a decree. § 10, Definition of a decree nisi. § 11. Decree taken pro confvsso. § 12. Classifications common to judgments and decrees. § 13. Judgments in rem and in personam. § 14. Judgments under the code. § 15. Orders. Part IL— FINAL JUDGMENTS. § 16. Put an end to the suit. § 17. Dismissal is a final judgment. § 18. Vacating another judgment. §19. Judgment of condemnation. § 20. Settle all issues. § 21. Are not always final adjudications. § 21 a. In criminal prosecutions. § 21 b. Dismissing attachment proceedings, ? 21 c. Denying right to inter\'ene. § 22. Final adjudications in equitable proceedings. § 23, May contain directions t» be executed. § 24. May require future orders of the court. § 25. Requiring transfer of property. § 26. Requiring delivery of property. § 27. Must be final as to all the defendants. § C8. Decrees final, though reserving questions. § 29. Interlocutory decrees defined and classified. § 30. Interlocutory, Provisional decrees or judgments. §31. Interlocutory. Granting temporary or alternative relief. JUDQ. L— 1 §§ 1, 2 DEFINITIONS AND CLASSIFICATIONS. 2 § 32. Interlocutory. Settling questions preliminary to final relief. § 32 a. Interlocutory, Leaving issues unsettled. § 32 b. Interlocutory. Orders for custody and maiiagement of property. § 32 c. Interlocutory. Vacating or reversing judgments, decrees, and orders. § 33. Appeals unnecessary not permitted. § 34. Judgments appealable. § 35. Exceptions to rule of appeaL Part I. — DEFINITIONS AND CLASSIFICATIONS. § 1. Lord Coke's Definition. — One who sought to dignify everything connected with the common law characterized judgments as "the very voyce of law and right." ^ This language, however distant from the truth in individual cases, is, when applied to the aggregate, but a slight exaggeration. A judgment is the end of the law.^ It finally terminates the disputes and adjusts the adverse interests of mankind. That it may in truth be the "voyce of right," legislators strive to make the law more in unison with the dictates of justice; judges distinguished for learning, probity, and wisdom are called to the bench; and the principles educed from successive ages of legal altercation are carefully treasured for the benefit of the present and of the coming generations. Every judgment directly enforces some right or suppresses some wrong, thereby producing the end sought by every humanely con- ceived law. Its incidental results, extending far beyond the time at which it is pronounced, and the parties whose rights it determines, attach themselves to property or to privies in blood or in estate, and continue in binding force and obligation for indefinite periods of time. §2. Common-law Definition. — A judgment, except where the signification of the word has been changed by statute, is defined as being "the decision or sentence of the law pronounced by a court or other competent tribunal upon the matter contained in the record";^ or as "the ^ Co. Litt. 39 a. definition that a judgment may be 2 Blystone w. Blystone, 51 Pa. St. 373. pronounced by "other competent ' Jacob's Law Diet.; 3 Bla. Com. 395; tribunals" as well as by courts, uEtna Ins. Co. v. Swift, 12 Minn. 437. Many of such tribunals are euuuier- It will be observed from the above ated in section 531. 3 DEFINITIONS AND CLASSIFICATIONS. § 3 conclusion of the law upon facts found " by the court or the jury, ** or admitted by the parties";^ "the conclusion of law in a particular case announced by the court";'' " the final consideration and determination of a court of competent jurisdiction upon the matters svibmitted to it"; " the determination of the law as the result of proceedings instituted in a court of justice." * In some instances, courts have employed language indicating that an adju- dication, though final, is not a judgment, if the court in making it acted "in a summary way, and upon a matter addressed to their discretionary jurisdiction."'' We ap- prehend, however, that the idea intended to be expressed was, not that such adjudication is not a judgment, but that because it results from the exercise of a " discretion- ary jurisdiction," appellate courts will not undertake to review it. The language of a judgment is, not that it is decreed or resolved, but that it is considered that the plaintiff recover, or that the defendant go without day. The reasons announced by the court to sustain its de- cision ^ and the award of execution to produce satisfaction constitute no part of the judgment. "At law, the judg- ment is yea or nay, for one party and against the other; and recognizes no liens, awards no execution, against specific property, unless when the proceeding is in rem; but simply contains the conclusion of "the law upon the facts proved, and leaves the party to his legal and appro- priate writ to enforce it."^ § 3. Means of Enforcing. — The law provides the means of enforcing judgments. No court has authority > Tidrl's Practice, 930; Truett v. Craddock v. Croghan, 1 Sneed (Ky.) Lege;, 32 Md. 147. 100. ■' Little Pittslnirg Consolidated Min- ^ Burk v. Table Mountain Co., 12 ing Co. V. Little Chief Consoliilated Cal. 408; Davidson v. Carroll, 23 La. Mining Co., 11 Col. 223; 7 Am. St. Ann. 108. Rep. 226. ' Kramer v. Rebman, 9 Iowa, 114. - Wliitwell V. Emory, 3 Mich. 84; 59 A judgment sliould he a simple sen- Am. Dec. 2'JO. tfehce of the law, upon the ultimate * Mahoning Bank's Appeal, 32 Pa. facts admitted by the pleadings or St. 100. found by the court: Gregory v. Nel- * Claggett V. Simes, 25 N. H, 402; son, 41 Cal. 278. § 4 DEFINITIONS AND CLASSIFICATIONS. 4 to assume legislative powers hj providing other means. Decisions made in some of the states proceed upon the theory that if any court, acting solely under authority conferred by the common law, should add to its judgment an order requiring satisfaction to be made in any other way or by any other means than those provided by law, as by requiring payment to be made in a particular kind of money, the appellate court would strike such order out/ A different conclusion has, however, been sustained by the highest tribunals of several other states; and there is now a decided preponderance of the authorities affirming the existence of the power to enter judgment for coined dollars, and to enforce it by an execution payable in the same kind of money .^ § 4. Is a Judgment a Contract? — That a judgment is a contract, or in the nature of a contract, has been af- firmed^ and denied^ with equal confidence. On one hand, it is urged as conclusive that each judgment creates an obligation capable of being enforced by an action of debt ' Reed v. Eldredge, 27 Cal. 348; 428; 47 Am. Rep. 64; Biddeson v. Whitstone v. CoUey, 36 III. 328; Bur- Whytel, 3 Burr. 1545; Chase v. Curtis, ling V. Goodman, 1 Nev. 314; Olanyer 113 U. S. 452; Rae v. Hulbert, 17 111. V. Blanchard, 18 La. Ann. 616; Buch- 572; Todd v. Crumb, 5 McLean, 172; egger r. Schultz. 13 Mich. 420. Wyman v. Mitchell, 1 Cow. 321; ^ Bronson v. Rodes, 7 Wall. 229; Smith v. Harrison, 33 Ala. 706; Keith Emery v. Langley, 1 Idaho, N. S., 694; v. Estill, 9 Port. 669; Masterson v. Chesapeake v. Swain, 29 Md. 483, 506; Gibson, 56 Ala. 56; Larrabee v. Bald- Paddock V. Com. Ins. Co., 104 Mass. win, 35 Cal. 156. This last case ap- 521; Cheang Kee v. United States, 3 plies to "contracts" as term is used in Wall. 320; Butler v. Horwitz, 7 Wall, act fixing liability of stockholders of 258; Ind. Ins. Co. v. Thomas, 104 corporations. " A judgment is not in Mass. 192; Kellogg v. Sweeney, 46 itself a contract": In re Kennedy, 2 N. Y. 291; 17 Am. Rep. 333; Hittson S. C. 226. "Strictly speaking, a V. Davenport, 4 Col. 16J; Trebilcock w. judgment is a contract, and of that Wilson, 12 Wall. 687; Dewing?;. Sears, class of contracts called specialties; 11 Wall. 379. but the word contract is not ordina- ^ Morse ik Toppan, 3 Gray, 411; rily used in a sense that includes judg- Sawyer v. Vdas, 19 Vt. 43; Taylor v. ments; nor is it generally so used by Root, 4 Keyes, 344; Farmers' & M, law-writers, nor is it so used in section Bank". Mather, 30 Iowa, 283; Stuart 20 of the Code of Civil Procedure": V. Landers, 16 Cal. 372; 76 Am. Dec. Burnes v. Simpson, 9 Kan. 658; 12 6?.S; McGuire v. Gallagher, 2 Sand. Am. Law Reg. 59. A judgment is 402. not a specialty as that term is used * Sprott u. Reid, 3 Iowa, 489; 5^1 Am. in the statute of limitations: Tyler's Dec. 549; O'Brien v. Young, US N. Y. Ex'rs v. Wiuslow, 15 Ohio St. 364. ■5 DEFINITIONS AND CLASSIFICATIONS. g 4 or assumpsit, according to the nature of the judgment; that this obligation is based upon an implied promise entered into by every member of society that he will pay all judgments which may be rendered against him, in consideration that the courts will assist him in preserving and regaining his rights. On the other hand, it is said, with equal truth, that every man who commits a tort im- pliedly agrees, in consideration of the harm done by him, and the injur}'- occasioned by his misconduct, to pay all damages which his wrong produces; and that the same implied premises necessary to prove that a judgment is a contract may be used with equal justness and efficiency to establish the same thing of every conceivable cause of action. All authorities assert that the existence of parties legally capable of contracting is essential to every con- tract. But a decided preponderance of authority recog- nizes judgments entered against lunatics and others incapable in law of contracting as conclusively binding until vacated or reversed. It seems, then, that in order to prove that a judgment is in the nature of a contract, we must supply two of the three essentials of each contract by implication, and the third by some means not yet dis- covered. The question whether or not a judgment is a contract is sometimes of great practical importance, and may be decisive of the case before the court. Thus a stat- ute may have been enacted seeking to impair the effect of a judgment, and which, if the judgment is a contract, will be inoperative because prohibited by the clause in the con- stitution of the United States forbidding the enactment by any of the states of laws impairing the obligation of contracts. If the judgment in question was based upon a contract, it must, necessarily, be protected from the stat- ute, because it is but a means of enforcing such contract, and its obligation cannot be destroyed or impaired with- out impairing or destroying the obligation of the contract. Hence if a cause of action is of such a nature that the legislature could not have discharged or impaired it before § 4 DEFINITIONS AND CLASSIFICATIONS. 6 judgment, it is equally protected after judgment.' There- fore statutes of a state granting discharges to insolvent debtors cannot affect judgments entered against them in another state upon causes of action which were within the protection of the constitution of the United States.^ If, however, a judgment is founded upon a tort, or upon any other cause of action not entitled to protection as a contract, such cause of action is not by the judgment transmuted into a contract, and the judgment may there- fore be impaired without violating the obligation of a contract.^ Though it be conceded that a judgment is not a con- tract, yet perhaps courts are justified, in some cases, in treating it as though it were a contract, or, rather, in de- terminins: that the word "contract," as used in some statute, was intended to include judgments. Thus it has been held that a code provision authorizing the union in one complaint of several causes of action, when they all arise out of contracts, expressed or implied, warranted the- joinder of two or more judgments as causes of action;* that a statute investing justices of the peace with juris- diction over actions upon contracts for the recovery of money gave them authority to hear and determine actions upon judgments;^ that where a statute classifies actions as being ex contractu or ex delicto, judgments must be treated as falling within the former class,® and therefore that their owners are entitled to the same remedies for their collection as if they were contracts, including the right to the issuing of writs of attachment.'^ On the other hand, in several of the states, their courts have declined to give a signification to the word " contract," as used in their 1 Scarborough v. Dusan, 10 Cal. 109 U. S. 285; State u. New Orleans, 305: Weaver v. Lj^psley, 43 Ala. 32 La. Ann. 709. 224. * Childs r. Harris M. Co., 68 V\"is. 231. ■^ Bean v. Laryea, 81 Cal. 152. * Stuart v. Landers, 16 Cal. 372; 76 ' Garrison v. City of New York, 21 Am. Dec. 538. Wall. 196; McAfee v. Covington, 71 •* Moore v. Nowell, 94 N. C. 265; Ga. 272; 51 Am. Rep. 263; Freeland Johnson v. Butler, 2 Iowa, 545. V. Williams, 131 U. S. 405; Sprott v. ' Gutta Percha & R. M. Co. v. Reid, 3 Iowa, 489; 56 Am. Dec. 549; Houston, 108 N. Y. 276; 2 Am. St. Louisiaaa v. Mayor of New Orleans, Rep. 412. 7 DEFINITIONS AND CLASSIFICATIONS. § 5 statutes, different from that to which it is entitled by the weight of authority, and have therefore decided that a statute providing that a promise in writing, or an actual payment, shall be received as evidence of a new and con- tinuing contract to repeal the statute of limitations does not apply to judgments;^ that a statute of limitations prescribing the time within which actions may be brought upon any loan or contract does not control actions on judgments;^ that an assignee of a judgment is not entitled to bring suit thereon in his own name under a statute authorizing the indorsement of contracts in writing for the payment of money so as that action may be brought thereon in the name of each successive indorsee;^ that a judgment is not a written instrument within the meaning of the statute requiring original instruments, or copies, to be filed in actions founded thereon,* nor within the meaning of a statute declaring that all contracts which under the common law are joint shall be considered as joint and several.® § 5. Classification with Reference to Stage of the Pro- ceedings. — Judgments, considered in reference to the stage of the proceedings at which they are entered, are of four sorts: — 1. Where the facts are admitted and the law disputed, as on demurrer; 2. Where the law is admitted and the facts disputed, as in case of verdict; 3. Where both the law and the facts are admitted, as in cases of confession or upon default; 4. Where the plaintiff is convinced that the facts or the law, or both, are insufficient to support his action, and therefore abandons or withdraws his prosecution, as in judgment upon nonsuit or retraxit} ' McDonald v. Dickson, 87 N. C. * Sheehan and Loler Trans Co v 401- Sims, 28 Mo. App. 64. * Jordan v. Robinson, 15 Me. 163. « 3 Bla. (^orn. :syG; Jacob's Law Diet.; » Lovins V. Humphries, 67 Ala. 4.S7. Derl)y v. Jacques, 1 Cliff. 43-_'; Blaikie * Conwell V. Coawell, 100 liid. 437. v. Griswold, 10 Wis. 293. § 6 DEFINITIONS AND CLASSIFICATIONS. 8 This classification, though acquiesced in for a long time, is neither accurately expressed nor correctly illus- trated. There are individual cases where the law is admitted and the facts disputed, but such cases do not form themselves into a distinct class. The law arising upon a verdict is not brought to the attention of the court by any pleading, yet, far from being admitted, it is fre- quently the subject of animated and lengthy contests, both in subordinate and in appellate courts. Nor is it certain, as implied by the third subdivision, that there is any class of cases where both the law and the facts are admitted. A default in no instance authorizes any judgment to be rendered against the defendant unless a sufficient cause of action is stated in the complaint. If there is any case where the law is admitted so as to subject the defendant to a judgment which would otherwise be regarded as erroneous, it must be where a default, or other confession of facts, is accompanied by such circumstances as create a presumption that he agreed to waive all errors. This would amount to an agreement to relinquish his right to reverse a judgment unsupported by law, but not to an admission that the law, applied to the undisputed facts, would properly result in a judgment against him. § 6. Classification with Reference to State of the Pleadings. — Perhaps a better classification of judgments would be one made with reference to the state of the pleadings at the time the court makes its final decision. Such a classification would not diff'er materially from the one heretofore given; but it could be more simply and clearly expressed. According to it, the classes would be as follows: — 1. The judgment rendered where the pleadings pre- sented no other issue than an issue of law. 2. The judgment rendered upon the decision of a court or a jury upon the issue or issues of fact made by the pleadings. L^ DEFINITIONS AND CLASSIFICATIONS. §7 3. The judgment given where no issue has heen made by the party required to plead. 4, Where, before or after the joining of an issue of law or of fact, the plaintiff abandons or withdraws his prosecu- tion. § 7. Various Kinds of Judgments, and how Classified. — In the first class of either classification are included: — 1. The judgment given for the plaintiff, when an issue of law, formed by a demurrer to any of the pleadings in chief, is determined in his favor. It is final, and is called a judgment g'MOc^ ?'ecMpere^.^ 2. The judgment given for defendant when a like issue is found in his favor. 3. Judgment of respondeat ouster, a species of interlocu- tory judgment for the plaintiff, on demurrer to a plea in abatement, when it appears that the defendant has mis- taken the law on a point not affecting the merits of the case. By this judgment he is allowed to plead such fur- ther defense as he may have.^ 4. The judgment given for the defendant on a de- murrer to a plea in abatement, which is, that the writ be quashed. In the second class are included: — 1. The judgment for plaintiff upon an issue of fact found in his favor. 2. The judgment of nil capiat per breve, or per billum, when such issue is determined in his favor. 3. Judgment quod partes replacitent. This is given if an issue be formed and a verdict returned on so imma- terial a point that the court cannot know for whom to give judgment. The parties must then reconstruct their pleadings, beginning at the first fault which occasioned the immaterial issue. 1 Hale V. Lawrence, 22 N. J. L. 72. Heyfrom v. Miss. Union Bank, 7 * At the present time this is tlie Smedes & M. 434; Randolph v. Sin- judgment usually entered, instead of gleton, 1.3 Smedes & M. 43ih Trow v. a judgment quod recuperet, on overrul- Messer, .32 N. H. 361; Cooke r>. Craw- ing a demurrer to plaintiff's complaint: ford, 1 Tex. 9; 4(j Am. Dec. 93. § 7 DEFINITIONS AND CLASSIFICATIONS. 10 The third class includes: — 1. Judgment nihil dicit, rendered whenever the defend- ant fails to plead to the plaintitf's declaration in the time allowed for him to do so. This judgment is proper, al- though the defendant who fails to plead in time may have appeared by attorney.^ 2. Judgment non sum informatus is the one rendered when the defendant enters upon the record that he is not informed of any defense to the action. 3. Judgment by confession relida verijicatione, entered when the defendant either confesses the action in the first instance, or when, after pleading, he, before trial, aban- dons his plea. 4. The judgment non obstante veredicto. This is ren- dered when the plea confesses a cause of action, and the matter relied upon in avoidance is insufficient, although found true, to constitute either a defense or a bar to the action.^ This judgment can be entered only on the appli- cation of the plaintiff,^ made after the verdict, and before the entry of judgment thereon.* The defendant was not, at the common law, entitled to this judgment under any circumstances. If a verdict for the plaintiff was not sup- ported by the pleadings, the remedy of the defendant was ' Stewart v. Goode, 29 Ala. 476; in arrest: Bellows v. Shannon, 2 Hill, citing 6 Comyn's Dig. 147. 86. * Dewey v. Humphrey, 5 Pick. 1S7; * Harrison v. G. N. R'y Co., 11 Com. Fitch V. Scot, 1 Root, 351; Bellows v. B. 542; 21 L. J. Com. P. 16; Beaty v. Shannon, 2 Hill, 86; State i\ Commer- Warren, 4 Madd. & G. 158; 4 Scott cial Bank, 6 Smedes & M. 218; 45 Am. N. R. 725; State v. Bank, 6 Smedes & Dec. 280; SuUeuberger v. Gest, 14 M. 218, on authority of 2 Tidd's Prac- Ohio, 204; Pim v. Grazebrook, 2 Com. tice, 840. As to cases where this judg- B. 429; 3 Dowl. & L. 454; Moye v. ment may be given, see Shepherd v. Petway, 76 N. C. 327; Oades v. Oades, Halls, 2 Dowl. 453; Britton v. Fisher, 6 Neb. 304; Atkinson v. Davies, 11 26 U. C. Q. B. 338; Kerr v. Straat, 8 Mees. & W. 236; 2 Dowl., N. S., 778; U. C. Q. B. 82; Madrall v. Tliellusen, 12 L. J. Ex. 169; Berwick v. Duncan, 21 L. J. Q. B., N. S., 410; Leigh 3 Kx. 644; Cook v. Pearce, 8 Q. B. v. Lillie, 6 Hurl. & N. 165; Snyder ?-. 1044; Ward v. Phillips, 89 N. C. Robinson, .35 Ind. 311; 9 Am. Rep. 738; 215. Lough V. Thornton, 17 Minn. 253; * Schermerhorn v. Schermerhorn, 5 Morris v. Zeigler, 71 Pa. St. 450; Wend. 513; Smith v. Smith, 4 Wend. Glading v. Fnck, 88 Pa. St. 460; 468. The proper course for a defend- Chapman v. Holding, 60 Ala. 522; Pim ant against whom judgment has been v. Grazebrook, 2 Com. B. 429; 3 Dowl. rendered upon pleadings which will & L. 454; Willoughby v. Willoughby, not sustain a recovery is by motion 6 Q. R 722; 9 Jur. 498. 11 DEFINITIONS AND CLASSIFICATIONS. § 7 to move to arrest the judgment.^ The party in whose favor a verdict is is not entitled to a judgment non obstante veredicto, under the code of Indiana. He cannot, hy mov- ing therefor, obtain a judgment not warranted by his verdict.^ In some states the practice prevails, in certain cases, of having the jury return a general verdict, and also to find upon special issues submitted to them; and where the general verdict and the special findings are irreconcilable, to give preference to the latter. Under this practice, the party in whose favor the special issues are found may move for and obtain judgment in his favor, though the general verdict is against him.^ Such judg- ment, however, does not correspond to the judgment non obstante veredicto of the common law. It is not, as the latter was, founded on any defects in the pleadings. Moreover, it is not in opposition to the verdict; for, under the statute, it is the findings upon the special issues which must be regarded as the verdict, and upon them the judg- ment must be pronounced. The fourth class comprises: — 1. Judgment of non pros., euiered against the plaintiff, before any issue is joined, for not declaring, replying, or surrejoining, or for not entering the issue agreeably to the rules of the court. 2. Judgment on nolle prosequi, which is entered when plaintiff declares that he will not further prosecute his suit as to the whole or a part of his cause of action, or as to some or all of the defendants. Of a similar nature is the entry of a stet processus, by which plaintiff agrees that all further proceedings shall be stayed. This entry is usually made when the defendant becomes insolvent pending the action, and the object is to prevent his ob- taining a judgment, as in case of nonsuit.* 1 Quimhy v. Root, 8 Col. 194; Smith ^ Felton v. Chicago, R. L, & R R. R. V. Powers, 15 N. H. 546; Bovvdre v. Co., 69 Iowa, 577; Porter v. Waltz, Hampton, 6 Rich. 208; Bnckinc;ham v. 108 Ind. 40; Cox v. Ratcliffe, 105 lud. McCracken, 2 Ohio St. 287; Bradshaw 374. V. Hedge, 10 Iowa, 402. * Tidd's Practice, 681, 682. » Brown v. Searle, 104 Ind. 218. § 8 DEFINITIONS AND CLASSIFICATIONS. 12 3. Judgment of retraxit. This is given when the plain- tiff, in person/ voluntarily goes into court and enters on the record that he is in nonsuit, or that he withdraws his suit. "A retraxit differs from a nonsuit in this: one is negative, and the otiier positive. The nonsuit is a mere default or neglect of the plaintiff, and therefore he is al- lowed to begin his suit again upon payment of costs; but a retraxit is an open voluntary renunciation of his claim in court, and by this he forever loses his action."^ 4. Judgment of nonsuit; which is of two kinds, volun- tary and involuntary. "When plaintiff abandons his case and consents that judgment go against him for costs, it is voluntary. But when he, being called, neglects to appear, or when he has given no evidence on which a jury could find a verdict, it is involuntary. "Where a plaintiff is demanded and doth not appear, he is said to be in non- suit. And this usually happens where, on the trial, and when the jury are ready to give their verdict, the plain- tiff discovers some error or defect in the proceedings, or is unable to prove some material point for want of wit- nesses." ^ § 8. Judgment Capiatur, Misericordia, and in Actions of Partition and Account. — The defendant who in a civil action was convicted of a wrong committed vi et armis was obliged to pay a fine to the king for the breach of the peace implied in the act. A judgment capiatur was entered against him, under which he was Kable to be arrested and imprisoned until the fine was paid. A judg- ment, sometimes given at common law, against a party for the unjust vexation occasioned by his action was called judgment misericordia. The interlocutory judg- ment in an action for partition directing a partition to be made was called judgment quod partitio fiat; while a final judgment in such action quod partitio facto firma et » Thomason v. Odum, 31 Ala. 108; Oilum, 31 Ala. 108; 6S Am. Dec. 68 Am. Dec. 159. 159. 2 3 Bla. Com. 296; Thomason v. » 7 Bac. Abr. 214. 13 DEFINITIONS AND CLASSIFICATIONS. §§ 9, 10 stabilis in perpetuum was entered after the return of the writ.^ The interlocutory judgment in an action of ac- count compelling defendant to account was named judg- ment quod computet. § 9. Definition of Decree. — Daniell, in his Practice in the High Court of Chancery, says that a " decree is a sentence or order of the court pronounced on hearing and understanding all the points in issue and determin- ing the rights of all the parties in the suit according to equity and good conscience."^ It is to be hoped that decrees generally conform to the description here given of them. They are none the less decrees, however, if pronounced without hearing or understanding the points in issue. Neither is it necessary to their existence or validity that the rights of the parties be determined according to equity and good conscience. The chief diflFerences between decrees in equity and judgments at common law are as follows: The former are pronounced by courts of equity; the latter, by courts of law. The former result from an investigation and determination of the rights of the parties by the means provided and according to the principles recognized in equity juris- prudence; the latter result from an investigation and determination made by the more limited means and more inflexible rales of the common law. The former may be adjusted to all the varieties of interest and of cir- cumstance, and may contain such directions as are needed to carry them into effect, both in letter and in spirit; the latter are in an invariable form, general in terms, and absolute for plaintiff or defendant. And the former often enforce rights not recognized by the common law, and which, without the aid of courts of equity, could be en- forced only by the consciences of men. § 10. Decree Nisi. — A decree nisi is the decree given under the English practice when the cause is called for ' 5 Bac. Abr. 292. * 4 Daniell's Chancery Practice, 1192.. §§ 11-13 DEFINITIONS AND CLASSIFICATIONS. 14 hearing and the defendant does not appear to open his answer. Upon proof of the service of the subpoena to hear judgment,, the court will enter such decree for the plaintiff as his counsel may desire, accompanying it with a clause to the effect that it is to be binding, unless, being served with process, the defendant shall, within a given time, show cause to the contrary. §11. Decree Taken pro Confesso. — A decree taken pro confesso is one entered when the defendant has made default by not appearing in the time prescribed by the rules of the court. A decree nisi is drawn by the plain- tiff's counsel, and is entered by the court as it is drawn. A decree where the bill is taken pro confesso is pro- nounced by the court after hearing the pleadings and considering the plaintiff's equity. § 12. Classifications Common to Both Judgments and Decrees. — Both judgments and decrees, considered in relation to the jurisdiction in which they were rendered, are either foreign or domestic. Considered with regard to. their effect in putting an end to an action, they are either final or interlocutory. Any judgment or decree, leaving some further act to be done by the court, before the rights of the parties are determined, and not putting an end to the action in which it is entered, is interlocu- tory. But if it so completely fixes the» rights of the parties that the court has nothing further to do in the action, then it is final. A final judgment or decree may merely dispose of the action, leaving the plaintiff at liberty to commence another suit on the same cause, as in case of a dismissal or voluntary nonsuit by the plaintiff; or it may, besides disposing of the action, determine all the issues involved in the suit, and become a bar to all other suits between the same parties in reference to the same subject-matter. §13. Judgments in Rem and in Personam. — Judg- ments and decrees are either in personam or in rem. 15 DEFINITIONS AND CLASSIFICATIONS. § 14 They are in personam when the proceedings are against the person, provided the adjudication be of such a nature as to be binding only upon the parties to the suit and their privies in blood or estate. Judgments and decrees in rem are not, as the term implies, confined to proceed- ings where property is proceeded against as a party to the action, but include, in addition to adjudications against the thing, all those decisions or sentences which, by the policy of the law, are binding upon all other persons as well as upon the parties to the suit: The proceedings prior to the judgment or decree may be in personam, no notice need be given except to the defendant, yet if the judgment affect the status of any person or of any subject- matter, as in a suit for divorce, it is conclusive upon the whole world, and is therefore classed as being in rem. The general nature of this class of judgments, and the various definitions given by different authors, will be con- sidered in a subsequent chapter. § 14. Judgments under the Code. — The code of pro- cedure adopted by several states providing that there shall be but one form of civil actions defines a judgment to be " the final determination of the rights of the parties in an action or proceeding." ^ This definition is, in one respect, more comprehensive than the one first given in this chapter, as it includes the final decrees of courts of equity. In another respect it is less comprehensive, be- cause it excludes all interlocutory judgments. It is just broad enough to comprise all final judgments and all final decrees,^ and narrow enough not to comprise any which is less than final. There can, under the codes, be no such thing as an interlocutory judgment in any case.' 1 N. Y. Code. sec. 1200; Kan. Code, Shreve, 3Met. (Ky.)547. *'Evcry final sec. 395; Nev. Prac. Act, sec. 144; adjudication of the rights of the parties Or. Code, sec. 240; Cal. Code Civ. in an action is a judgmeat ": McClaiu's Proc, sec. .577; Rev. Stats. Idaho, ed. Iowa Stats., sec. 4056. 1887, sec. 4350; Rev. Stats. Ohio, ed. ^ State v. McArthur, 5 Kan. 280. 1890, sec. 5310; Neb. Code Civ. Proc, ^ B.-linont v. Ponvcrt, 3 Ro1>t. 096; sec. 428; Sanborn and Berry man's Sellers v. Union L. Co., 36 Wis. 398; Wi3. Stats., sec. 2882; Hughes v. Singer v. Heller, 40 Wis. 544. § 15 DEFINITIONS AND CLASSIFICATIONS. 16 § 15. Orders. — The class of judgments and of decrees formerly called interlocutory is included in the definition given in the code of the word "order." "Every direction of the court or judge made or entered in writing, and not included in a judgment, is an order." ^ The supreme court of California, in one of its earliest decisions, asked the question, "What, then, is the distinction between an order and a final judgment?" and answered it by saying: "The former is a decision made during the progress of the cause, either prior or subsequent to final judgment, settling some point of practice or some question collateral to the main issue presented by the pleadings and neces- sary to be disposed of before such issue can be passed upon by the court, or necessary to be determined in car- rying the execution into effect."^ The same tribunal, in a subsequent opinion, said: "An order is the judgment or conclusion of the court upon any motion or proceeding. It means cases where a court or judge grants affirmative relief, and cases where affirmative relief is denied."* In New York it has been decided that the decision of a court overruling a demurrer and allowing the defendant time to answer is not an order, but a judgment. The grounds upon which this conclusion was based were: 1. That an order is the decision of a motion, while a judgment is the decision of a trial; 2. That a trial is an examination of an issue of law or of fact; and 3. That as a decision upon demurrer necessarily involves an examination of an issue of law, it is a decision upon a trial, and is therefore a judgment,* If this reasoning be correct and the premises assumed be true, it follows that there can, under the code, be two judgments, or in other words, two final determina- tions of the rights of the parties in the same action. The code defines a judgment, but does not define it to be noth- ing more than "the decision of a trial." Only those de- 1 N. Y. Code, sec. 767; Nev. Code, ^ Gilmau v. Contra Costa Co., 8 Cal. sec. 458; Kan. Code, sec. 521; Or. 57. Code, sec. 513; Cal. Code Civ. Proc, * King v. Stafford, 5 How. Pr. 30; sec. 1003. Beutley v, Joues, 4 How. Pr. 335. * Loring v. Ilsey, 1 Cal. 27. 17 FINAL JUDGMENTS. § 16 cisions of trials amounting to final determinations of the rights of the parties answer to the definition given of a judgment. Hence it is obvious that an order overruling a demurrer, but giving the defendant an opportunity to answer, is not a judgment within the meaning of the code; and whether this be true or not, there is no dissent from the proposition that the sustaining or overruling of a demurrer, unless followed by the entry of a final judg- ment disposing of the action or proceeding, is not a judg- ment within the meaning of a statute permitting appeals from judgments.^ Part H.— FINAL JUDGMENTS. § 16. Put an End to the Suit. — The twenty-fifth sec- tion of the judiciary act of the United States provides that a _^naZ judgment or decree in any suit in the highest court of law or of equity of a state in which a decision of the suit can be had may, in certain cases therein speci- fied, be re-examined and reversed or afiirmed in the supreme court of the United States. The statutes of the several states also generally provide for appeals to their highest courts from final judgments and decrees in the subordinate courts. Hence it has frequently been neces- sary to determine, both in the state and in the federal courts, whether a given judgment or decree was final within the meaning of the statute authorizing appeals. A like necessity existed at common law. Thus in 3Iet- calfe's Case^ " it was resolved that no writ of error lies till the last judgment." Lord Ellenborough declared " error can only be brought on final judgment ";3 and there are many other determinations to be found among the com- mon-law reports to the same general effect.* There is no » Elwell V. Johnson, 74 N. Y. 80; H. L. Cas. 234; 5 I. R C L 375- ''O Caml>ndge V, N, B. v. Lynch, 76 Week. Rep. 686. N. Y. 514; Rose v. Gibson, 71 Ala. 35; * Mayor of Macclesfield v. Gee, 14 Kirchnerj;. Wood, 48 Mich. 199; Gage Mees. & W. 470; Shepherd v. Sharp V. E.ch 5b 111. 297. 1 Hurl. & N. 114; Grand Trunk RV 11 Coke, 68 Co. «;. Amey, 20 U. C. C. P. 6; Tolsou ^Samuel t>. Judin 6 East .3.33; 1 v. Kaye, 7 Scott N. R. 222; 6 Madd. I^. R. 43; Scott v. Bennett, L. R. 5 & G. 536. Jddg. L— 2 § 16 FINAL JUDGMENTS. 18 doubt that, in order to come within these statutes or to satisfy the tests applied by the common law, the judgment or decree need not jBually determine the rights of the parties litigant; it is sufficient if it ends the particular suit in which it is entered.' Every definite sentence or decision by which the merits of a cause are determined, although it is not technically a judgment, or although the proceedings are not capable of being technically enrolled so as to constitute what is techni- cally called a record, is a judgment within the meaning of the law. According to the common-law rule, by a final judgment is to be understood, not a final determination of the rights of the parties, but merely of the particular suit.^ Therefore a judgment of nonsuit,^ or of dismissal without prejudice, or in favor of plaintiff or defendant upon a plea in abatement,* or in an action of ejectment where the law denies to a judgment in that action the effect of res judicata,^ because each terminates the action in which it is entered, is final, though the parties may in a subsequent action be permitted to relitigate issues pre- sented in the former action which has gone to judgment. If a judgment, though upon the merits or determining some substantial right, leaves necessary further judicial action before the rights of the parties are settled, it is not final.® A judgment is final, notwithstanding the addition to the record of the words "unless the supreme court shall reverse the rulings of this court and set aside said judgment of nonsuit."'^ If, however, a judgment is imperfect and uncertain, but is to be made perfect and ' Weston V. City of Charleston, 2 * McCartee v. Chambers, 6 Wend. Pet. 449; Ludlow's Heirs v. Kidd's 649; 22 Am. Dec. 556; New York D. Ex'rs, 3 Hamm. 541; Helm v. Short, D. Co. v. Treadwell, 19 Wend. 527; 7 Bush, 623. Jewett v. Davis, 6 N. H. 518. ^ Belt V. Davis, 1 Cal. 138; Klink v. * Weston v. City Council, 2 Pet. Steamer Cusseta, 30 Ga. 504. 449. ^ Box V. Bennett, H. Black. 432; * Benjamin v. Dubois, 118 U. S. Hitchins v. HoUingsworth, 7 Moore 46; Coons v. Harllee, 17 Fla. 484; P. C. C. 228; Hartford F. I. Co. v. Bostwick v. Brinkerhoff, 106 U. S. Green, 52 Miss. 332; West v. Bagly, 3. 12 Tex. 34; 62 Am. Dec. 512; Corning '' Wood v. Coman, 56 Ala. 283. T. Co. V. Pell, 4 Col. 184. 19 FINAL JUDGMENTS. § 16 certain by the action of some non-judicial person, as where it is to be released on payment of such sum as M. shall say is due/ or is confessed for a sum "to be liquidated by attorneys," it is final.^ A judgment "that the defendant go hence, and that he recover his costs, etc.," though not very formal, is a good final judgment, because no further action can be taken while it remains in force/'' But a judgment for costs alone, though entered for defendant, after the jury have found a verdict in his favor, it seems is not final, and cannot therefore be made the subject of revision after appeal. The reasons urged against regarding such a judgment as final are, that it does not dismiss the defend- ant without day, nor state that plaintiff shall take nothing by his suit, nor in any way nor by any terms profess to dispose of the subject-matter of the litigation,* It is fatal to the claim that a particular order or direc- tion of the court is a judgment, that it appears to be but preliminary to the final, formal action of the court, as where it is a direction that judgment be entered, though it is sufiiciently specific to enable the attorneys or the clerk to draught a judgment in conformity therewith.^ An exception to this rule prevails in Massachusetts. By the practice in that state, " an entry upon the docket in a suit in equity of ' bill dismissed' is of itself a final decree; and a more formal order, though convenient and proper for the regular completion of the record, is not essential, and if afterwards drawn up is a mere extension of the final decree already entered, and has relation to the entry of that decree"; and the mere entry upon the docket of "bill dismissed " may at once be appealed from as a final decree.^ ' Turner v. Plowden, 5 Gill & J. 52; v. White, 25 Tex. 319; Green v. Banks, 23 Am. Dec. 596. 24 Tex. 522; Scott v. Burton, 6 Tex. ^ Commonwealth v. Baldwin, 1 332; 55 Am. Dec. 782; Eastham v. Watts, 54; 26 Am. Dec. 33. Sallis, 60 Tex. 576. ^ Rogers v. Gosnell, 51 Mo. 468; ^ Macnevin v. Macnevin, 63 Cal. Smith V. Mayor of Boston, 1 Gray, 186; Eastham v. Sallis, 60 Tex. 576; 72. Gilpatrick v. Glidden, 82 Me. 201; * Warren v. Shuman, 5 Tex. 450; Blount v. Gallaher, 22 Fla. 92. Higbee v. Bowers, 9 Mo. 354; Neyland ^ g^gn ^^ D wight, 121 Mass. 348. §§ 17-19 FINAL JUDGMENTS. . 20 § 17. Dismissal. — The dismissal of a suit by the plain- tiff is a judgment within the meaning of the code. Where in a suit a temporary injunction has been issued, and the plaintiff, after giving bonds to secure the payment of all damages which may be occasioned by reason of the in- junction being improperly issued, dismisses his suit, or permits it to be dismissed for want of prosecution, such dismissal is a final judgment, and an adjudication that the injunction ought not to have issued, on which an action may be maintained on the bond for all damages resulting from the injunction. Although in case of a judgment by dismissal the issues are neither examined nor passed upon by the court, yet by the failure of the plaintiff to prose- cute his action, they are virtually confessed. A dismissal under such circumstances, while it does not estop the plaintiff from maintaining a new suit on the same cause of action, does dispose of the rights of the parties in the action in the same manner as if there had been an adju- dication on the merits.^ § 18. Judgment Vacating Another Judgment. — When in an action to set aside a judgment the court grants the prayer of the complaint and awards a new trial, the order setting aside the judgment is a final judgment, and, as such, may be appealed from. The whole scope and object of the suit being to vacate the former judgment, and to procure a new trial, and the issues all being made up for that purpose, their determination necessarily puts an end to the suit.^ § 19. Judgment of Condemnation. — In a proceeding by a railroad company to condemn lands, or a right of way across lands, where the parties in interest are sum- 1 Cowling V. Polack, 18 Cal. 625; City, 51 Mo. 454; Sloppenbach v. Loomis V. Brown, 16 Barb. 325; Shear- Zohrlant, 21 Wis. 385. man r. N. Y. Central Mills, 11 How. ■' Belt v. Davis, 1 Cal. 134; McCall Pr. 269; Coates v. Coates, 1 Duer, 664; v. Hitchcock, 7 Bush, 615; State v. Leese v. Sherwood, 21 Cal. 163; Gill Allen, 92 Mo. 20. See, however, Dor- V. Jones, 57 Miss. 367; Rodgers v. sey v. Thompson, 37 Md. 25. Russell, 11 Neb. 361; Bowie v. Kansas 21 • FINAL JUDGMENTS. § 20 moned to appear and contest with the petitioners, and where commissioners are appointed to assess the value of the property sought to be condemned, and a report is made by them and confirmed by the court, and the court adjudges that the petitioners have brought themselves within the provisions of the act providing for the con- demnation, the action of the court is a final judgment within the meaning of the section of the Practice Act allowing an appeal from a final judgment entered in an action or special proceeding/ § 20. Must not Leave Issues to be Settled. — Some- times several issues of law and of fact are presented for the consideration of the court in the same suit or proceed- ing. In such case there can be no judgment from which an appeal can be taken while it remains necessary for the court to determine some issue of law or of fact.^ It is not true that a final judgment always settles all the issues presented by the pleadings. A finding upon some of the issues may remove all necessity for consideringothers, and the court, judging them to be, in view of the findings made, immaterial, may pronounce judgment, leaving them undetermined. Such judgment is nevertheless final, because there remains no issue which will be the subject of any further consideration or action. At the common law, a demurrer was treated as an admission of the allegations of the complaint, and therefore removed from the case all issues of fact, and left nothing for judi- cial action save an issue of law. The determination of that disposed of all the issues in the case, and the judg- ment entered therein was final. Under the practice gen- erally prevailing at the present time, a demurrer is not regarded as a confession, except for the purpose of testing the sufficiency of the pleading to which it is interposed. If it is sustained, the pleading is allowed to be amended; " S. P. & N. R. R. Co. V. Harlau, 24 •" Texas Pac. R'y v. Ft. W. R'y, 75 Cal. 337; Huuter's Private Road, 46 Tex. 83; Low i;. Crown Point M. Co., 2 Pa. St. 250. Nev. 75; King v. Barnes, 107 N. Y. 645. § 21 FINAL JUDGMENTS. 22 if it is overruled, the right to answer is not denied. In either event, issues of fact may arise, and it is not until it is known that the plaintiff will not amend his com- plaint, or that the defendant will not by his answer form an issue of fact, that final judgment can be entered on the demurrer. Though no issue is presented by the pleadings, there may be questions which the court must determine as though there were an issue thereon. If so, the judgment cannot be final while a question remains to be judicially answered. Thus though the defendant has made default, and thereby confessed the allegations of the complaint, the statute or the well-established practice of the court may require evidence to be heard before the court can assess the damages, or determine the nature and extent of some other kind of relief sought by plaintiff; and it is not until the damages have been assessed, the amount of the recovery fixed, or the extent of the other relief judicially ascertained and pronounced, that there can be a final judgment. Whatever is judicially done before that is but one of several steps toward the final judgment, from which alone an appeal may be taken.' But, on the other hand, if the amount of a recovery can be made certain " by mere calculation, the judgment is final." '^ An order dismissing a cross-bill does not authorize the entry of a final judgment thereon, if there is an answer to the original complaint or bill by which issues are formed,^ and which must be settled before the case can be disposed of. There cannot be a final judgment on the cross-bill, and after that another final judgment disposing of the other issues.' § 21. Not Always a Final Adjudication. — A judgment may be final so as to authorize an appeal from the court 1 Daniel v. Cooper, 2 Houst. 506; Mo. 132; Hunter v. Hunter, 100 111. Maury v. Roberts, 27 Miss. 225; Clem- 519. ents V. Berry, 11 How. 398; Phillips ^ Sellers v. Burk, 47 Pa. St. 344; V. Hellin^s, 5 Watts & S. 44; Coons v. Adickes v. Allison, 21 S. C. 245. Harllee. 17 Fla. 484; Tuggle V. Gilbert, '^ Low v. Crown Point M. Co., 2 1 Duvall, 340; Deickart v. Rutgers, 45 Nev. 75; Fleece v. Russell, 13 111. 31. 23 FINAL JUDGMENTS. § 21 a in which it was rendered, without being final as to the subject-matter in litigation. An appeal ma}^ be taken, in which case the judgment of the inferior tribunal is not final as to the subject-matter, because it may be changed b}' the appellate court. Thus a covenant in a deed that if the title to certain lands were not confirmed to the covenantor by the courts of the United States before which it was pending, upon the final adjudication of the same, the covenantor would pay a sum of money, does not become a cause of action, when the district court re- fuses to confirm the title and declares it invalid. Until the time for appeal has elapsed, or until the judgment of the highest court in which the suit could be determined has pronounced against the validity of the title, there has been no such final adjudication as was intended by the parties to the covenant.^ § 21 a. In Criminal Prosecutions the same policy with respect to appeals prevails as in other cases. The judg- ments which may be reviewed by appeal or otherwise must be final; and, generally, no judgment will be regarded as final unless it condemns the prisoner to be punished, and sets forth particularly the amount, duration, and place of punishment.^ The defendant cannot appeal from an or- der sustaining a demurrer to his plea of autrefois acquit."^ Evidently an order overruling a demurrer to an indict- ment cannot be appealed from as a final judgment, for it leaves the issues of fact yet to be tried, and judgment thereon yet to be pronounced.* It has also been deter- mined that no appeal can be taken where the court sus- tains a demurrer to an indictment, but enters no formal final judgment in favor of the defendant.^ In California a different rule prevails, and the reasons for its adoption were very clearly and forcibly stated by Mr. Justice Crock- ett,, in People V. Ah Own, 39 Cal. 606, in the following 1 Hills V. Sherwood, 33 Cal. 474. ' State v. Hornetnan, 16 Kan. 452. » Anschincks v. State, 43 Tex. 587; * People v. Hall, 45 Cal. 253 Mayfield v. State, 40 Tex. 289; Ful- ' State v. Gregory, 38 Mor501; State cher V. State, 38 Tex. 505, v. MuULx, 53 Mo. 355. § 21 b FINAL JUDGMENTS. 24 language: "This is an appeal from an order sustaining a demurrer to an indictment for kidnaping. The order sustaining the demurrer is in the usual form; but no other or further order or judgment was entered, and the appeal is taken from this order, treating it as a final judgment or disposition of the case. The objection is urged that no appeal will lie from an order sustaining a demurrer to an indictment; that to entitle the state to an appeal, there mjist be a formal and final judgment; and it is claimed that the order sustaining the demurrer, standing alone, cannot be deemed a final judgment from which an appeal will lie. But we think the point is not well taken. A defective indictment is not subject to amendment, and when decided on demurrer to be insufli- cient, the cause is finally ended. Section 144 of the code defines a judgment to be 'the final determination of the rights of the parties to the action or proceeding'; and it is evident that the final order which decides the matters at issue, adjudicates the rights of the parties, and ends the litigation, must be deemed a final judgment for the pur- poses of an appeal. In civil actions an order sustaining a demurrer to the complaint is not an appealable order, for the reason that the complaint is amendable, and the sustaining a demurrer to it does not end the litigation. It is not a final determination of the rights of the parties. But in a criminal prosecution it is otherwise, and when a demurrer is sustained, the action is finally ended in that court. Nothing more remains to be done. It is true, in proper cases, if the defendant is in custody, the court may detain him to answer another indictment to be found by another grand jury. But the first indictment is, never- theless, finally disposed of by the demurrer, and the order sustaining which may for that reason be properly deemed to be a final judgment." § 21 b. A Judgment Dismissing an. Attachment under the code of Georgia has been held by the supreme court 25 FINAL JUDGMENTS. § 21 C of that state to be so far final as to be subject to review on writ of error " for the reason that the whole attachment element was disposed of by dismissing the attachment. The decision was final as to it, and any judgment which the plaintiflf might recover on his declaration thereafter would have no aid from the levy of the attachment. It would take lien only from the date of the judgment, and the security of the replevy bond would be lost. To main- tain his attachment, it was the right of the plaintiff to have the judgment dismissing it reviewed by a separate writ of error."* These reasons are very persuasive, if addressed to the question whether the statute ought to be amended so as to sanction appeals from orders dismissing, dissolving, or otherwise annulling or impairing writs of attachment or levies made thereunder. The fact that a ruling may be very disastrous to one of the parties does not necessarily entitle it to take rank as a final judgment. The refusal to postpone the time of trial, the exclusion or admission of particular evidence, the giving or refusing to give an instruction, and many other judicial acts, may be decisive of a case; but this does not convert them into judgments, and entitle the injured party to at once test their correctness by appeal. So, we apprehend, the dis- missal, dissolving, or quashing of an attachment or of the levy thereof is not reviewable as a final judgment.^ But if garnishment proceedings are instituted against an alleged debtor, and jurisdiction is acquired over him, and after he has answered a judgment is entered discharging him, this, so far as he is concerned, is a final judgment exhausting the jurisdiction of the court over him, and a judgment subsequently entered against him is void.' § 21 c. An Order Dismissing a Petition for Interven- tion is, in Texas, not subject to review as a final judgment. 1 Bruce v. Conyers, 54 Ga. 680; v. Taylor, 18 Kan, 558; Wearen v. Sutherlin v. Underwriters' Agency, 53 Smith, 80 Ky. 216. Ga. 442. * Jackson v. St L. & S. F. R'y Co., 2 Cutter V. Gumhertz, 8 Ark. 449; 89 Mo. 104. Woodruff i;. Rose, 43 Ala. 382; Butcher § 22 FINAL JUDGMENTS. 26 The petitioner or intervener must wait until the issues between the plaintiff and defendant are determined and their rights fixed by a final judgment, before he can ap- peal.^ The rule is otherwise in California^ and Louisiana,' whether the order be one denying leave to file a complaint of intervention, or sustaining a demurrer thereto when filed, and entering judgment thereupon against the inter- vener. § 22. Final Adjudications in Equitable Proceedings. — Considerable difficulty has been experienced in determin- ing what is a final judgment, under the code, in equitable proceedings, and what is a final decree, where the pro- ceedings are conducted according to the practice in chan- cery. Perhaps the decisions are not wholly reconcilable; but their want of harmony, if it exists at all, is rather in applying than in formulating the general rules by which the answer to this question must be found. We shall first call attention to those decrees which have been declared final, and next to those which have been adjudged inter- locutory, hoping that an examination of each class will assist in identifying the other. " A decree never can be said to be final where it is im- possible for the party in whose favor the decision is made ever to obtain any benefit therefrom without again setting the cause down for hearing before the court, upon the equity reserved, upon the coming in and confirmation of the report of the master, to whom it is referred to ascer- tain certain facts which are absolutely necessary to be ascertained before the case is finally disposed of by the court, or which the chancellor thinks proper to have as- certained before he grants any relief whatever to the com- plainant. But if the decree not only settles the rights of the parties, but gives all the consequential directions which will be necessary to a final disposition of the cause, ' Stewart v. State, 42 Tex. 242. * State v. Parish Judge, 27 La. Ann. « Stich V. Dickinson, 38 Cai. 608; 184. Coburn v. Smart, 53 CaL 742. 27 FINAL JUDGMENTS. § 23 upon the mere confirmation of tlie report of the master by a common order in the register's office, it is a final decree and may be enrolled at the expiration of thirty days, although the amount to which the complainant may be entitled under such decree is still to be ascertained upon a reference to a master for that purpose." ^ Owing to the number of orders or decrees necessarily entered in a suit in equity to furnish all the relief to which the complain- ant may be entitled, the courts have been frequently obliged to determine which is the final decree. So far as any general distinguishing test can be gathered from the numerous decisions, it is this: That if after a decree has been entered no further questions can come before the court except such as are necessary to be determined in carrying the decree into effect, the decree is final; other- wise it is interlocutory.^ But an order or decree made for the purpose of carrying a judgment or decree already entered into effect is not a final judgment or decree, and cannot be appealed from as such.' "The rule is well settled and of long standing, that a judgment or decree, to be final within the meaning of that term as used in the acts of Congress giving this court jurisdiction on appeals and writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered."* § 23. May Contain Directions to be Executed in Future. — A stockholder having commenced an action against a ' Johnson v. Everett, 9 Paic;e, 638. Cook's Heirs v. Bay, 4 How. (Miss.) « Whiting V. Bank of U. S., 13 Pet. 485. 6; Bronson v. R. R. Co., 2 Black, 524; ^ Callan v. May, 2 Black, 541; Ogilvie V. Knox Ins. Co., 2 Black, Smith v. Trabue's Heirs, 9 Pet. 4. 539; Humiston v. Stainthorp, 2 Wall. * Bostwick v. Brinkerhoff, 106 U. S. 106; Miller v. Cook, 77 Va. 806; Bond 3; Grant v. Phoenix Ins. Co., 106 U. S. V. Marx, 53 Ala. 177; Cocke v. Gilpin, 429: St. Louis, I. M., & S. R'y Co. v. 1 Rob. (Va.) 20; Teaff v. Hewitt, 1 Southern Express Co., 108 U. S. 24; Ohio St. 511; 59 Am. Dec. 634; Ware Dainese v. Kendall, 119 U. S. 53; V. Pvichardson, 3 Md. 505; 56 Am. Dec. Keystone M. & I. Co. v. Martin, 132 762; Beebe v. Russell, 19 How. 283; U. S. 91. § 24 FINAL JUDGMENTS. 28 corporation and its officers for an accounting and settle- ment of its affairs, a decree was, after a full hearing on the merits, entered in accordance with the prayer of the complaint. By this decree a receiver was appointed to take charge of the corporate assets until the further order of the court, to collect moneys due or to become due, sell stock, and pay the proceeds in accordance with directions given in the decree. The supreme court declared that this decree was a final judgment, and subject to appeal.^ A decree entered in an action brought for an accounting and for a dissolution of a copartnership, granting the relief prayed for, ordering a sale of all the partnership assets, and specifying the manner in which the proceeds of such sale shall be distributed, is a final decree.'' § 24. May Require Future Orders or Proceedings. — These decisions are fully sustained by several of the de- cisions of the courts of the state of New York. Although further proceedings before the master are necessary to carry the decree into effect, yet if all the consequential directions depending on the result of the proceedings are given in the decree, it is final. A decree is none the less final because some future orders of the court may be- come necessary to carry it into effect;' nor because some independent branch of the case is reserved for further consideration,'* or the disposition of the costs is not deter- mined;^ nor because, when the merits of the controversy are adjudicated upon, and the equities of the parties defi- nitely settled, an account is directed to be taken to ascer- tain what sum is due from the one to the other, as the result of the decision already made by the court.® But in 1 Neall V. Hill, 16 Cal. 145; 76 Am. * Cannon v. Hemphill, 7 Tex. 184. Dec. 508. ^ McFarland v. Hall, 17 Tex. 691, 2 Clark V. Dunnam, 46 Cal. 204; « Bank of Mobile ?;. Hall, 6 Ala. 141; Evans v. Dunn, 26 Ohio St. 439. 41 Am. Dec. 41; Thomson v. Dean, 7 3 Mills V. Hoag, 7 Paige, IS; 31 Am. Wall. 342; Garner v. Prewitt, 32 Ala, Dec. 271; Johnson v. Everett, 9 Paige, 13; Green v. Winter, 1 Johns. Ch. 27; 636; Quackenhush v. Leonard, 10 7 Am. Dec. 475; Bradford v. Bradley's Paige, 131; Dickmson v. Codwise, 11 Adm'r, 37 Ala, 453; Jones v. Wilson, Paige, 189; Stovall v. Banks, 10 Wall. 54 Ala, 50. 583. 29 FINAL JUDGMENTS. • § 25 all cases where further proceedings are to he taken, or further orders of the court are necessary, the judgment cannot be treated as final, even for the purposes of appeal, unless it determines the issues involved in the action.^ A judgment against an administrator, for a specific sum and costs, in the usual form, except that there was a clause added, to the effect that the defendant should have, during the term of the court, to make additional showing, if he could, that he had previously paid the moneys or any part thereof for which judgment was rendered against him, was held to be final, on the ground that this clause did not confer any new right nor detract from the effect of the judgment; for, as the court said, a judgment may always be opened or set aside during the term at which it was rendered.^ A judgment against an administrator in the usual form, "to be released on the payment of such sum as Enoch J. Millard shall say is' due, and costs," was also adjudged to be final, because " to make it absolute as far as regarded the amount due on the account, no fur- ther act of the court was nec^essary." ^ § 25. Requiring Conveyance of Property. — In the case of Travis v. Waters, 12 Johns. 500, a decree was said to be final when all the facts and circumstances material to a complete explanation of the matters in litigation were brought before the court, and so fully and clearly ascer- tained on both sides that the court has been enabled to collect the respective merits of the parties litigant, and upon full consideration has determined between them according to equity and good conscience. This case was for a specific performance of a contract to convey certain lands. The chancellor having made an order that the defendant, under direction of one of the masters of the court, on payment or tender to him of a certain sum of money, execute and deliver to the plaintiff a good and 1 Perkins v. Sierra N. S. M. Co., 10 ^ Turner v. Plow den, 5 Gill & J. 62; Nev. 405. 23 Am. Dec. 596." » Harmon v. Bynum, 40 Tex. 324. § 26 FINAL JUDGMENTS. 30 sufficient conveyance of the real estate in controversy, this order, though silent as to costs, was considered as within the above definition of a final decree, and the plaintiff was not permitted to set the case down for fur- ther hearing, so as to have his bill of costs put in the decree.^ § 26. Final, if Requires Delivery of Property. — Where the assignee of a bankrupt filed his bill in equity to have the deeds of certain lands and slaves made by the bank- rupt to the defendants set aside, and to have the lands and slaves delivered to the assignee, and that an account of the profits of the lands and slaves be taken, and that such profits, when ascertained, should be paid over to the assignee, the court decreed that the lands and slaves be delivered to the assignee and by him sold, and that the account of profits be taken. From this decree an appeal was taken to the supreme court of the United States, where a motion was made to dismiss the appeal because the decree was interlocutory. The motion was denied. The court said that when a decree determined the right to property, and directed it to be given to the complain- ant, or to be sold for his benefit, and he was entitled to have the decree carried into immediate effect, it was final within the meaning of the statute authorizing appeals; and that if no appeal were allowed from such a decree, the property in controversy could be sold, or otherwise disposed of, and thereby placed so completely beyond the reach of the defendants that an appeal at a subsequent stage of the proceedings could do them no good.^ It seems certain, however, that if the decree under consideration in the above case had simply determined the right to the property in dispute, without giving directions for its sale, or delivery to the complainants, no appeal would have ^ A decree is final which determines ' Forgay v. Conrad, 6 How. 201 ; the rights of property, and directs a Davie v. Davie, 52 Ark. 224; 20 Am. conveyance to be made at a, future da,y. St. Rep. 170. Lewis V. Outton's Adm 'r, 3 B. Mon. 453. 31 FINAL JUDGMENTS. §§ 27, 28 been recognized until all the issues had been determined, and such a decree entered as would have completely dis- posed of the suit.^ A decree final in other respects is not interlocutory because it directs a taxation of costs; ^ nor because, as in the case of a decree for the sale of mort- gaged premises, subsequent proceedings under direction of the court are necessary to execute the decree.' § 27. Must be Final as to All Defendants. — The order of the court in an action for the partition of real estate, which determines the several interests of the parties to the action, and appoints a referee to make a partition between them, and report the same to the court, is not a final judg- ment, even against a party whom the court by such order determines to be without any title.* A decree declaring a legacy void as to one defendant, but reserving all other questions, is not such a final decree as may be appealed from.^ And, as a general rule, a judgment determining the rights of some of the parties is not final so as to au- thorize an appeal until it has settled the rights of all the defendants.^ § 28. Instances of Decrees Final, though Some Ques- tions Remain Open. — If a suit is brought by an express company against a railway company to compel the latter to do business for the former on the payment of lawful charges, and it is no part of the object of the suit to have such charges definitely settled for all time, a decree which establishes the express company's right, adjudges costs, 1 Perkins w. Fourniqnet, 6 How. 206; « Peck r. Vandenlierg, 30 Cal. 11; Pulliam V. Christain, 6 How. 209. Gates v. Salmon.' 2S Cal. 320. The ■■^ Craig V. Steamer Hartford, 1 Mc- law has been changed by act of March All. 91. 23, 1864. 'Bronson V. R. R. Co., 2Black, 531; * Chittenden v. M. E. Church, 8 Ray V. Law, 3 Cranch, 179. A decree How. Pr. 327. disposing of a cause, but leaving the ^ Harrison v. Famsworth, 1 Heisk. exact amount due to be calculated by 751; Delap v. Hunter, 1 Sneed, 101; the master, and to be by him reported ^lartin v. Crow, 28 Tex. 614; Wills v. at next term, is final: Meeku Mathis, State, 4 Tex. App. 613; Whitaker v. 1 Heisk. 534. A decree dismissing Gee, 61 Tex. 217; Schultz v. McLean, certain parts of a bill is not final: 76 Cal. 608; Commonwealth v. Mc- Mayor v. Lamb, 60 Ga. 342. Cleary, 92 Pa. St. 188. § 28 FINAL JUDGMENTS. 32 awards execution, and fixes compensation to be paid is final, though leave is given to the parties to apply for a modifi- cation of what has been ordered respecting charges. The efi'ect of the decree is to require the railway to carry for a reasonable compensation, and the permission to apply for a modification in respect to charges was necessary be- cause " the rates properly chargeable for transportation vary according to circumstances," and cannot be reason- able unless changed from time to time, and thereby fitted to changed circumstances/ A decree is final which directs the sale of property and fixes the rights and interests of the respective parties therein, though the officer who is to make the sale is required, after paying a specified claim, to pay the surplus in his hands to the complainant " after deducting such costs as the court shall decree to be paid out of the same." ^ A decree in other respects final is not rendered interlocutory by a direction therein contained, in aid of the execution of the decree, requiring the defend- ants to account concerning certain specified matters, and a reservation to the court of the right to make " such fur- ther directions as may be necessary to carry this decree into efi'ect concerning costs, or as may be equitable and just." ^ If, in an action to recover moneys on a contract for the sale of land and to subject the land to sale for such amount as should be found due, a cross-petition is filed, alleging the existence of a cloud on plaintiff's title, and the court, after trial, adjudges that the cloud has been re- moved, that the complainant has deposited with the clerk deeds conveying to defendant a clear title, that a specified amount is due plaintiff, that such amount be paid to the clerk of the court within thirty days, and in default thereof that execution issue therefor, and that on payment thereof by defendant the deeds be delivered to him, the provision delaying execution and declaring that the deeds iSt Louis I. M., & S. R'y Co. v. 237; Parsons v. Robinson, 122 U. S. Southern Express Co., 108 U. S. 112. 24 3 Winthrop I. Co. v. Meeker, 109 » In Matter of Norton, 108 U. S. U. S. 180. 33 FINAL JUDGMENTS. § 29 shall be delivered only after payment, does not prevent this adjudication from being a final judgment.^ Gener- ally, clauses in judgments or decrees suspending their operation for a specified time, or giving defendant a period within which to make payment, and staying execution in the mean time, are not regarded as rendering interlocutory decrees which are otherwise final.^ § 29. Interlocutory Decrees Defined and Classified. — An interlocutory decree is one made " pending the cause, and before a final hearing on the merits. A final decree is one which disposes of the cause, either by sending it out of the court before a hearing is had on the merits, or after a hearing on the merits, decreeing either in favor of or against the prayer of the bill." But no order or de- cree which does not preclude further proceedings in the case in the court below should be considered final.' A decree is interlocutory which makes no provision for costs, and in which the right is reserved to the parties to set the cause down for further directions not inconsistent with the decree already made;* and so is a decree which con- tains a provision for a reference of certain matters, and that all further questions and directions be reserved until the coming in of the report of the referee. An order or - Linsley v. Logan, 33 Ohio St. was in the hands of a designated third 376. person, subject to a certain agreement, '^ Fleming v. Boiling, 8 Gratt. 292; and to report what was a reasonable Brown v. Van Cleave, 86 Ky. 381. An compensation for a trustee in whose extreme case, and one which is clearly hands the fund had been. This de- not in consonance with the other au- cree was held final and appealable, thorities upon the subject, is that of though it is impossible to determine Hastie v. Aiken, 67 Ala. 313. This from the report of the case that any- was a suit by which complainants thing had been settled bj' it except sought to reach a certain fund which that complainants were entitled to the had been in the hands of a partner- fund as personal representatives of a ship, the members of which were de- certain decedent, if it did not belong ceased. Demurrers interposed to the to another person as representative of complaint were overruled, and a de- another decedent, and if on an ac- cree was entered declaring comyilain- counting between the deceased mem- ants entitled to relief and ordering a bers of the late firm something should reference, 1. To ascertain whether the be found due the decedent v^hom corn- fund belonged to the complainants or plainants represented, another person; 2. To state an account * Chouteau v. Rice, 1 Minn, 24. between the memljers of the late firm, * Williamson v. Field, 2 Barb. Ch. and to find what amount of the fund 281; Harris v. Clark, 4 How. Pr. 78. Judo. I. —3 § 29 FINAL JUDGMENTS. 34 decree pro confesso for an injunction restraining the use of an invention is interlocutory merely,^ but a decree dis- missing a bill,'' or dissolving an injunction and passing definitively on all the essential points in issue, is final.* Interlocutory decrees are entered under an infinite variety of circumstances, and the relief afforded corresponds in variety to the circumstances demanding it. It is there- fore difficult, and perhaps impossible, to formulate any classification which will include every order or interlocu- tory judgment or decree. By far the greater number of those which are at all likely to be mistaken for final judg- ments or decrees fall within the following classification: 1. Those whicl'i, while they may be suiTicient in form and substance to dispose of the suit, are nevertheless, by law or the uniform practice of the court, not treated as final, until the happening of some event or the lapse of some period of time; 2. Those which, though they may grant the relief sought by the suit, are temporary or condi- tional in their effect, and are generally entered without any previous determination of the rights of the parties; 3. Those which, while they determine the rights of the parties either in respect to the whole controversy .or some branch of it, merely ascertain and settle something without which the court could not proceed to a final ad- judication, and the settlement of which is obviously but preliminary to a final judgment or decree; 4. Adjudica- tions of one or more issues, but leaving undisposed of some issue which must be settled before the rights of the parties can be finally determined; 6. Orders made in the progress of the cause, for the purpose of preserving or managing the subject-matter of the action, or bringing it within the control of the court, to the end that the final judgment may be efiective; and 6. Orders, judgments, or decrees made in a cause vacating or reversing any prior judgment or decree therein, whether interlocutory or ' Russell V. Lathrop, 122 Mass. » vSnell r. Dwi^ht, 121 Mass. 348. 300. 8 ijaloy v. Collius, 30 La. Ann. 63. 35 FINAL JUDGMENTS, §§ 30-32 final, if the cause is remanded for further proceedings or the parties otherwise left at liberty to proceed to a final judgment. § 30. Provisional Decrees or Judgments. — In the first class of interlocutory decrees are those taken nisi or pro confesso. These decrees are designed only "to prepare the case for a final decree," and no matter what their pro- visions, they do not amount to final adjudications.* So under the practice in some of the states, a motion for a new trial seasonably filed is deemed to be so directly connected with the judgment that " so long as it remains undisposed of there can be no final judgment within the meaning of the statute regulating appeals." ' § 31. Temporary or Alternative Relief. — In the second class of interlocutory decrees and judgments fall orders granting injunctions which are to be operative only dur- ing the pendency of the litigation, or until the further order of the court,^ and orders for alternative writs by which a party is commanded to do or not to do some act, or else to show cause why he has done or refrained from doing it. § 32. Settling Questions Preliminary to Final Relief. — Instances of interlocutory decrees of the third class are very numerous. Thus if the suit is for the dissolution of a partnership, and for an accounting and a settlement of the partnership business and the division of its assets, the court may be required to determine whether any part- nership existed, and if so, whether it ought to be dissolved, and what were the respective interests of the several par- ties before the court therein. The determination of these questions, accompanied with a direction that an account be taken, will not be deemed a final adjudication, unless ' Russell B. Lathrop, 122 Mass. * Verden v. Coleman, 18 How. 86; 300. Humeston v. Stainthorp, 2 Wall. 106; » New York, C, & St. L. R. R. Co. East & W. T. L. Co. v. Williams, 71 V. Doane, 105 Ind. 92. Tux. 414. § 32 FINAL JUDGMENTS. 36 the decree is so complete that nothing remains to be done except to follow its directions.^ In suits for partition, the courts must determine the interests of the co-tenants, and whether partition shall be made by a sale of the property, or otherwise; but it is not until the confirmation of the partition, whether by sale or allotment, that a final decree exists.'' A decree that -parties account is another famil- iar instance of a determination preliminary to but not constituting a final judgment.' A decree declaring that complainant is entitled to have lands sold to pay purchase- money or a mortgage debt due him is not final if a refer- ence is ordered to ascertain what sum remains unpaid.* An action was commenced to enforce certain liens against real estate, and a judgment therein was entered directing that a sale of the premises be made, and that from the proceeds a sum specified should be paid to discharge one of the liens, and that the plaintiff should be paid an addi- tional sum, less the amount due from him to the defendant for rent of the premises, and that a reference be had to ascertain the amount of such rent. An appeal was taken from this judgment. The appellate court, on motion to dismiss the appeal, considered that as the object of the action was to ascertain to whom the whole proceeds to be derived from a sale of the premises should belong, and that as this could not be ascertained until it was known what amount ought to be deducted from the plaintiff's claims for rents, the judgment entered by the court below was not a final judgment.^ Obviously, a decree of fore- 1 Gray V. Palmer, 9 Cal. 616; Kings- Contra, Ansley v. Robinson, 16 Ala. Imry v. Kingsbury, 20 Mich. 212; 793; Bantou v. Campbell, 2 Dana, 421 ; Rhodes v. Williams, 12 Nev. 20; Darmouth v. Kloch, 28 Mich. 163; Cocke's Adm'r v. Gilpin, 1 Rob. (Va.) Williams v. Wells, 62 Iowa, 740. 20- White v. Conway, 66 Cal. 383. * Beitler v. Zeigler, 1 Penr. & W. 135; 2 Holloway v. Holloway, 97 Mo. 628; Raynor v. Raynor, 94 N. Y. 248; Jack- 10 Am. St. Rep. 339; Turpint). Turpin, son Co. v. Gullatt, 84 Ala. 243. 88 Mo. 337; Murray v. Yates, 73 Mo. * Walker v. Crawford, 70 Ala. 567; 13; Greenu Fisk. 103U. S. 518; Gates Grant v. Phoenix M. L. I. Co., 106 V. Salmon. 28 Cal. 320; Peck v. Van- U. S. 429; Parsons v. Robinson, 122 denburg, 30 Cal. 11; Beebe v. Griffing, U. S. 112; Burlington etc. R'y Co. v. 6 N. Y. 465; Mills v. Miller, 2 Neb. Simmons, 123 U. S. 52. 299; Gesell's Appeal, 84 Pa. St 238. * Thompkins v. Hyatt, 19 N. Y. 535. 37 FINAL JUDGMENTS. §§ 32 a, 32 b closure cannot be final if it neither determines tbe amount to be paid nor ascertains or describes the property to be sold;^ nor if it merely declares the amount due, without awarding to plaintiff the only relief to which he is entitled in the suit, to wit, a direction or judgment that the prop- erty be sold and the proceeds applied to the satisfaction of the mortgage debt,^ While the question of costs can hardly be regarded as forming a distinct issue in the case, nor its reservation as necessarily preventing a final deter- mination of the rights of the parties, yet in some states a judgment or decree, otherwise final, reserving this ques- tion, is treated as interlocutory.^ § 82 a. Interlocutory. Decisions of Part only of the Issues. — Decisions upon demurrers to the pleadings or upon pleas in abatement, and all orders disposing of some of the issues while others remain to be decided,'* or deter- mining the rights of some of the parties, leaving the rights of others undetermined, constitute examples of interlocu- tory decrees and judgments of our fourth class.* § 82 b. Interlocutory. Orders Looking to Preserving Property Pendente Lite. — Orders appointing receivers to take charge of property, or to collect. the rents and profits thereof during the pendency of the suit,^ or to pay money into court or to some officer thereof for preservation dur- ing the pendency of litigation as to its ownership,^ are not final judgments. I Railroad Co. v. Swasey, 23 Wall. « East & W. T. L. Co. v. Williams, 405. 71 Tex, 444; Farson v. Gorham, 117 111. ' Crim V. Kessing, 89 Cal. 478. 137; Hottensteia v. Conrad, 5 Kan. » Williams v. Field, 2 Wis. 421; 60 249; Eaton & H. R. R. Co. v. Varnura, Am. Dec. 426; Dickinson v. Codwise, 10 Ohio St. 622; Maysville & L. R. R. 11 Paige, 189; Williamson v. Field, 2 Co. v. Punnett, 15 B. Mon.'47; Kansas Barb. Ch. 281. Contra, McFarland v. R. M. Co. v. A., T., & S. F. R. R. Co., Hall's Heirs, 17 Tex. 676, 31 Kan. 90; Fuller v. Adams, 12 Ind. * Keystone M. & I, Co, v. Martin, 559, Contra, Lewis v. Campau, 14 132 U. S. 91; Hayes v. CaldM'ell, 5 Mich. 458; 90 Am. Dec, 245; Taylor t>, Gilm. 33; Phelps v. Fickes, 63 111, 201; Swett, 40 Mich. 736. Slagle V. Rodmer, 58 Ind. 465. ' Louisiana Bank v. Whitney, 121 » Owens V. Mitchell, 33 Tex, 228, U. S. 284. §§ 32 C, 33 FINAL JUDGMENTS. 38 § 32 c. Reversing and Vacating Decrees, Judgments, and Orders. — Granting a new trial, vacating a judgment, order, or decree on motion, or reversing it on apj^eal or writ of error, or any other adjudication by which a judg- ment, order, or decree is set aside, and the cause left open for further proceedings which may and must be prose- cuted before the final judgment or decree can be entered, is not a final judgment.^ Hence, though the highest ap- pellate court of a state may have granted a new trial, or reversed a judgment or decree and remanded the cause for further proceedings in the trial court, no appeal can be taken to the supreme court of the United States until after such proceedings have been taken and have resulted in a final judgment or decree.^ But if a judgment of reversal contains directions for the entry of judgment in the trial court, so that the latter has nothing to do except to render and enter judgment as directed, the judgment of reversal is a final judgment and reviewable as such.^ § 33. Appeals Unnecessary not Permitted. — The policy of the laws of the several states and of the United States is to prevent unnecessary appeals. The appellate courts will not review cases by piecemeal. The interests of liti- gants require that causes should not be prematurely brought to the higher courts. The errors complained of might be corrected in the court in which they originated; or the party injured by them might, notwithstanding the injury, have final judgment in his favor. If a judgment, interlocutory in its nature, were the subject of appeal, each of such judgments rendered in the case could be brought before the appellate court, and litigants harassed by use- less delay and expense and the courts burdened with unnecessary labor. » House V. Wright, 22 Ind. 383; Higgins v. Brown, 5 Col. 345; Brown Byersv. Butterfield, 33 Mo. 376; Smith v. Edgecton, 14 Neb. 453. V. Adams, 130 U. S. 167; McCulloch v. ^ Bostwick v. Brinkerhoff, 106 U. S. Dodge, 8 Kan. 476; Lawson ?'. Moore, 3; Johnson v. Keith, 117 U. S. 199. 44 Ala. 274; In re Studdarb, 30 Minn. ^ Mowes v. Fletcher, 114 U. S. 553; Houston v. Moore, 3 Wheat. 167; 127. 39 FINAL JUDGMENTS. §§ 34, 35 § 34. Judgment, when Appealable. — The general rule recognized by the courts of the United States and by the courts of most, if not of all, the states is, that no judgment or decree will be regarded as final v/ithin the meaning of the statutes in reference to appeals, unless all the issues of law and of fact necessary to be determined were deter- mined, and the case completely disposed of, so far as the court had power to dispose of it.^ § 35. Exceptions. — But owing to particular circum- stances and hardships, the courts have refused to dismiss appeals from some judgments which did not completely dispose of the cases in which they were entered. These judgments determined particular matters in controversy, and were of such a nature that they could be immediately enforced, and by their enforcement could deprive the party against whom they were rendered of all benefits which he might obtain from an appeal at any subsequent stage of the proceedings.^ To avoid the necessity of being called upon to review such judgments, the superior courts have cautioned the inferior ones, and endeavored to im- press upon them the evils resulting from the practice of entering interlocutory judgments capable of being at once enforced against a party, and doing him irretrievable damage before a final judgment can be entered.^ Prob- 1 McCollum V. Eager, 2 How. 61; seems to deny the right of appeal even Craighead v. Wilson, IS How. 199; where the judgment is capable of en- Ayres v. Carver, 17 How. 594; Craw- forcement against the parties to it. ford V. Points, 13 How. 11; Mordecai The suit was by C. against A. M., V. Lindsay, 19 How. 200; Montgomery M. M., and L. M. Judgment by de- V. Anderson, 21 How. 386; Barnard v. fault was entered against M. M. and Giljson, 7 How. 650; Pepper v. Dun- L. M., and the cause continued for lap, 5 How. 51; Winn v. Jackson, 12 service against A. M. From this Wheat. 135; The Palmyra, 10 Wheat, judgment an appeal was taken, but by 502; Chace v. Vasquez, 11 Wheat. 429; whom does not appear. In consider- Hiriart v. Ballon, 9 Pet. 156; Ruther- ing the appeal, the court said: "When ford V. Fisher, 4 Dall. 22; Young v. the whole of the matter in controversy Grundy, 6 Cranch, 51. is finally disposed of as to all the '^ Merle v. Andrews, 4 Tex. 200; parties, then there is a final judgment, Stovall V. Banks, 10 Wall. 583. and not before, from which an appeal ^Barnard v. Gib.son, 7 How. 650; or writ of error can be taken." But Forgay v. Conrad, 6 How. 201. The as there are intimations in the opinion case of Martin v. Crow, 28 Tex. 614, that the court seemed to be consider- so far as we are able to understand it, ing the rights of A. M., who was not § 35 FINAL JUDGMENTS. 40 ably to avoid special hardships resulting from the failure to give a right of appeal from other than a final judgment or decree, the following have been decided, for the pur- poses of an appeal, to be final judgments: Orders appoint- ing receivers and directing them to take possession of property;' directing that partition be made, and deter- mining the interests of the respective parties to the action;^ fixing the amount of alimony to be paid pendente lite, and directing its immediate payment;* removing or refusing to remove a cause to another court for trial.* a party to the judgment, it may be 163; Williams v. Wells, 62 Iowa, that he was the appellant. If so, the 740. general language of the court does not ^ Daniels v. Daniels, 9 Col. 133; raise any couliiet with the rule of the Sharon v. Sharon, 67 Cal. 185. cases cited above. * McMillan v. State, 68 Md. 307; 1 Lewis V. Campau, 14 Mich. 458; Home L. I, Co. v. Dunn, 20 Ohio St. 90 Am. Dec. 245. 175; 5 Am. Rep. 642. Contra, Vance 2 Ansley v. Robinson, 16 Ala. v. Hogue, 35 Tex. 432; Jones v. Daven- 793; Banton v. Campbell, 2 Dana, port, 7 Cold. 145; Jackson v. Alabama 421; Darmouth v. Kloch, 28 Mich. G. S. R. R. Co., 58 Miss. 648. 41 THE ENTRY OF JUDGMENTS. § 37 CHAPTER II. THE ENTRY OF JUDGMENTS. § 37. Importance of. § 38. Is a ministerial act. § 39. A distinction between formal entry of judgments and decrees. § 39 a. The time of the entry. § 40. The judgment-book. § 41. Entry in improper book. § 42. On verdicts. § 43. Against joint parties. § 44, Against joint contractors. § 45. Construction of entry. §§ 46, 47. Form of entry. § 4S. Use of t § 48 a. Judgment in figures. § 49. Filling blanks'. § 50.' Sufficiency of entries — General tests of. § 50 a. Designation of the parties. § 50 b. Designation of amount. § 50 c. Designation of property. § 50 d. Judgments of conviction. § 50 e. Signature of the judge. §§ 51, 52. InsufScient entries. § 53. In justices' courts. § 53 a. Failure of justice to enter. § 54. Reference to other cases. § 55. On awards. § 37. Importance of. — The promptings of the most ordinary prudence suggest that whatever, in the affairs of men, has been so involved in doubt and controversy as to require judicial investigation ought, when made certain by a final determination, to be preserved so by some permanent and easily understood memorial. Hence all courts and all tribunals possessing judicial functions are required by the written or unwritten law, and often by both, to reduce their decisions to writing in some book or record kept for that purpose. The requirement is believed to be of universal application.^ So that if any judgment * Meeker v. Van Rensselaer, 15 427; Davidson v. Murphy, 13 Conn. Wend 397; Jones v. Walker, 5 Yerg. 213; Boker v. Bronson, 5 Blatchf. 5. § 38 THE ENTRY OF JUDGMENTS. 42 or decree of any court, whether of record or not of record, whether subordinate or appellate, fails to be entered upon its records, the failure is attributable to the negligence or inadvertence of its officers, and not to the countenance and support of the law. While the entry is not the judgment, its absence tends strongly to indicate that no judgment exists, and in doubt- ful cases may be sufficient to sustain the issue that what- ever has been done has been but preliminary to judgment. Thus a memorandum handed down by an appellate court, of its decision on appeal, is not a judgment, but simply authority to enter one.^ An entry made by a judge in his calendar is not the judgment in the case. It is intended merely for the guidance of the clerk in entering orders and judgments, and cannot prevent the judge from sub- sequently signing and the clerk enrolling the final judg- ment.^ The entry, though without it the judgment be conceded to exist, may be important in other respects besides that of establishing the terms of the judgment, as where, under the statute of a state, a judgment cannot be docketed so as to constitute a lien until after its actual entry ,^ or where judgments are in certain cases required to be recorded before they can affect innocent purchasers or encumbrancers;^ for unless the judgment is entered, no copy of it can exist to be filed for record. § 38. Ministerial Act. — Expressions occasionally find their way into reports and text-books, indicating that the entry is essential to the existence and force of the judg- ment. These expressions have escaped from their authors when writing of matters of evidence, and applying the general rule that in each case the best testimony which is capable of being produced must be received, to the exclu- sion of every means of proof less satisfactory and less au- thentic. The rendition of a judgment is a judicial act; 1 Knapp V. Roche, 82 N. Y. 366. 533; Eastham v. Sallis, 60 Tex. « Traer v. Whitman, 56 Iowa, 443. 576. ' Rockwood V. Daveuport, 37 Minn. * Witter v. Dudley, 42 Ala. 616. 43 THE ENTRY OF JUDGMENTS. § 38 its entry upon the record is merely ministerial.^ A judg- ment is not what is entered, but what is ordered and con- sidered." The entry may express more or less than was directed by the court, or it may be neglected altogether; yet in neither of these cases is the judgment of the court any less its judgment than though it were accurately en- tered. In the very nature of things, the act must be per- fect before its history can be so; and the imperfection or neglect of its history fails to modify or obliterate the act. That which the court performs judicially, or orders to be performed, is not to be avoided by the action or want of action of the judges or other officers of the court in their ministerial capacity. It is, therefore, not indispensable to the validity of an execution and a sale made thereunder that the judgment should have been actually entered before the writ issued.' While its entry of record is not indispensable to a judgment, a judgment is essential to the validity of an entry. The ministerial act of the clerk must be supported by a judicial act pronounced by the court in express terms, or in contemplation of law. The clerk is in some contingencies authorized to enter judg- ment by default; but in these instances the court, in con- templation of law, pronounces the judgment, though as a matter of fact no action may be taken by the presiding judge. In all other cases the entry of judgment by the clerk must be supported by the previous order or direction of the court, or it will be treated as void.* In the case of judgments, they must first be entered upon the record before they are admissible as evidence in other actions.'' The record, if not made up, or if lost or destroyed, should ' Estate of Cook, 77 Cal. 220; 11 * Los Angeles Co. Bank v. Raynor, Am. St. Rep, 267; Schuster v. Rader, 61 Cal. 145. So a judgment of convic- 13 Col. 329; Estate of Newman, 73 tinn will sustain a commitment issued Cal. 213; 7 Am. St. Rep. 146; thereon, though it has not yet been Matthews v. Houghton, 11 Me. 377; formally entered: Ex parte Raye, 63 Fish V. Emerson, 44 N. Y. 376; Criin v. Cal. 491. Kessing, 89 Cal. 478; Couwell v. Kuy- * Lee r. Carrollton Savings and Loan kendalf, 29 Kan. 707. Association, 58 Md. 301. ■' Davis V. Shaver. 1 Phill. (N. C.) " Hall v. Hudson, 20 Ala. 284. 18; 91 Am. Dec. 92. § 39 THE ENTRY OF JUDGMENTS. 44 be perfected or replaced by appropriate proceedings in the court where the judgment was pronounced. § 39. Distinction between Judgments and Decrees. — In respect to the entr}^ of judgments and of decrees upon the record, and the consequent effect of their want of en- try, as affecting their admissibility as evidence in other cases, there seems to be this radical difference: a judg- ment can speak but by the record; a decree, in the ab- sence of any statute or provision to the contrary, takes effect immediately after being pronounced by the court. Its enrollment adds nothing to its force nor to its compe- tency as evidence.^ This distinction arose from the differ- ences in the proceedings at law and in equity. It is inherent in the nature of the two systems. Though the code declares in general terms that there shall be but one form of action, and thereby, in a general manner, attempts to abolish the distinctions before existing in the pursuit of legal and of equitable remedies, it has not altogether succeeded. The necessity for the recognition of equita- ble rights, and for granting equitable relief, continues as before the adoption of the code. The proceedings occa- sioned by this necessity are substantially as they were under the old system. Among the rules of the old system not abrogated by the new is the one that a de- cree pronounced by the court and reduced to writing is admissible in evidence, independent of the fact of its enrollment or entry in the judgment-book.^ But the distinction between a decree and an order for a decree must not be overlooked. " No decree can be said to be entered of record until it is formally drawn out and filed by the clerk. A mere order for a decree, before it is extended in due form and in apt and technical lan- ' Bates V. Delavan, 5 Paige, 303; entry, are irregular and voidable: Winans v. Dunham, 5 Wend. 47; But- Drummond v. Anderson, 3 Grant ler V. Lee, 3 Keyes, 73. But in Can- (U. C.) 151. ada the decree must be entered in the ^ Lynch v. Rome Gas Light Co., 42 register's book, and all proceedings Barb. 591. based thereon, and taken before such 45 THE ENTRY OF JUDGMENTS. § 89 a guage, cannot be held to be a complete record of the judg- ment of the court." ^ § 39 a. The Time of the Entry of Judgment.— At the common law, a judgment took effect as of the first day of the term at which it was rendered, in all cases where it might have been then rendered;^ while in some parts of the United States the reverse rule obtains, and judgments take effect as of the last day of such term.^ The purpose of these rules is merely to place judgments rendered at the same term upon an equality, where all were rendered in cases which were ready for judgment at the commence- ment of the term; they do not prescribe or limit the time in which the clerical labor of entering j\idgment may be performed. Statutes have been enacted specifying the time within which judgments should be entered, either in all cases, or in particular cases enumerated in the stat- ute. Thus in Kentucky, judgments, orders, and decrees were required to be drawn up and recorded by the clerk on the evening of each day.* In California, when trial by jury has been had, judgment must be entered by the clerk in conformity with the verdict within twenty-four hours after its rendition.^ In other instances, statutes have forbidden the entry of judgment until after the lapse of a designated period. A judgment entered before the time allowed by law, or the order of the court, or the agreement of the parties, is irregular, and liable to be vacated on motion;^ but it is not void.^ If the statute requires four days to be given between the filing of a decision and the entry of judgment, four full calendar * Thompsons. Goulding, 5 Allen, 81; * Raymond v. Smith, 1 Met. (Ky.) Gilpatrick v. Glidden, 82 Me. 201. 65; 71 Am. Dec. 458. •^ Farley v. Lea, 4 Dev. & B. 169; 32 ^ Cal. Code Civ. Proc, sec. 664. Am. Dec. 680; Withers v. Carter, 4 * Marvin v. Marvin, 75 N. Y. Gratt. 407; 50 Am. Dec. 78; Faust v. 240. Trife, 8 Jones, 494; Wright v. Mills, ' Lyons v. Cooledge, 80 111. 529; In 4 Hurl. & N. 488. re Newman, 75 Cal. 213; 7 Am. St. ^ Bradish V. State, 35 Vt. 452; Chase Rep. 146; Mitchell v. Aton, 37 Kan. V. Gilman, 15 Me. 64; Herring v. Pol- 33; 1 Am. St. Rep. 231; Essig d. Lower, ley, S Mrtss. 113; Goodail v. Harris, 20 120 Ind. 239 N". H. 363. § 39 a THE ENTRY OF JUDGMENTS. 46 daj^s must be allowed, and the rule of computation which excludes the first day but includes the last is not applica- ble.' We shall hereafter show that if a judgment is not entered at the proper time, its entry nunc pro tunc will be directed by the court, because it will not permit its judg- ments to be annulled through the mere failure of its clerk to enter them. It follows from this that a clerk who has failed to enter judgment within the time directed has omitted to perform his duty at the most appropriate time, but that its performance is still due from him, and he should proceed with it, notwithstanding the lapse of the time designated in the statute. When he does enter the judgment it is as valid as if entered in due time;^ though in the mean tim*e the judge who pronounced it has gone out of office.^ Unless some statute has given the court power to act judicially in vacation, there is, in contempla- tion of law, no court except in term time, and a judgment ' rendered in the interval between two terms is therefore void.* The clerk may, however, proceed with his duty to enter judgments in vacation as well as in term time, if the judgments themselves were rendered at a time when the court was authorized to render them.^ There ought, how- ever, when judgment is entered after the expiration of the term, to be some memorandum in the minutes of the court sufiicient to guide the clerk in making his entries, and where such was not the case it was held that a judg- ment might be stricken out on motion.® In Nebraska it has been decided to be improper to render judgment and direct it to be entered when the pleadings in the case had all been lost,' on the ground, we presume, that the court ought first to proceed to supply its lost records, so that when judgment should be entered there could be a com- ' Marvin v. Marvin, 75 N. Y. 240. visors v. Sullivan, 51 Wis. 115; Sieber "^ Buudy V. Maginess, 76 Cal. 532; v. Friiik, 7 Col. 148; Lind v. Adams, Waters v. Dumas, 75 Cal. 563, 10 Iowa, 398; 77 Am. Dec. 123. 2 Crim V. Kessing, 89 Cal. 478. ^ Montgomery v. Murphy, 19 Mi * Post, sec. 121. 576; 81 Am. Dec. 652. * Myers v. Funk, 51 Iowa, 92; IlifiF ' Grimison v. Russell, 11 Neb. V. Arnott, 31 Kan. 672; County Super- 469. 47 THE ENTRY OF JUDGMENTS. § 40 plete judgment roll, upon which any party feeling himself aggrieved might seek relief by appeal or otherwise. § 40. In Judgment-book, — The code requires the keeping of a judgment-book by the clerk, in which every judgment must be entered.^ In no case ought this re- quirement to be dispensed with. It applies as well where the decision of the judge is made in writing and filed as in any other case.^ The authority of the clerk to make this formal entry is founded on a judgment already valid, and whose validity is not destroyed by his failure to enter it. A judgment drawn up in the form in which it was intended to be entered, signed by the judge, and filed in the cause, is the judgment of the court at that time and of that term, although execution should not be issued upon it then.^ The action of the clerk, being non-judicial, may take place at any time afterward. The usual custom, perhaps, is for him to wait for leisure moments to perform this duty. In many cases the record is not completed until after the adjournment of the term. And this prac- tice seems to have prevailed at common law.'* As the judgment is final before its formal entry in this book, a statute providing that an appeal may be perfected within a specified time from the " rendition " of the judgment certainly commences to run from the time of the drawing up and signing of the judgment, and filing it among the papers in the case.^ The language used in the opinion of the court in the case of Genella v. Eelyea, 32 Cal. 159, though not necessary to the decision of that case, is worthy of citation, as founded upon reason. It indicates that the time for appeal begins to run though no judg- ment is filed. " The court announced its judgment and ^ N. Y. Code, sec. 1236; Cal. Code which does not vitiate the iudgment: Civ. Proc., sec. 6G8. Hotchkiss v. Cuttiiif;, 14 Minn. 542; 2 S. & S. Plank Road Co. v. Thatch- Jorgensen v. Griffin, 14 Minn. 41)6. er, 6 How. Pr. 226. * Osborne v. Toomer, 6 Jones, 3 Casement v. Ringgold, 28 Cal. .335; 440. McMillan v. Richards, 12 Cal. 467. * Gray v. Palmer, 28 Cal. 416; Ge- The omission of the clerk to sign a nella v. Relyea, 32 Cal. 159; Kehoe v. decree is at most a mere irregularity Blethen, 10 Nev. 445. §§ 41, 42 THE ENTRY OF JUDGMENTS. 48 the order for judgment was entered in the minutes of the court on the 15th of August, 1865. The judgment was therefore rendered and the time for taking an appeal com- menced to run on that day." § 41. Use of Improper Book. — If, as in California,^ the clerk is required, in addition to the judgment-book, to keep a "register of actions," and he, neglecting to keep the first named, copies judgments into the latter, they are not therefore invalid. The substantial purpose of the statute is accomplished although the two books are united. No harm results to any one from this union;^ but, independent of the considerations named, the judg- ments should be sustained. If, as the authorities state, judgments are valid when not entered in any book, they surely ought to be equally valid if entered in some record of the court, though not in the one designed for that purpose.^ § 42. On Verdicts. — The Code of Civil Procedure in California* requires the clerk to enter judgment in con- formity to the verdict within twenty-four hours after the rendition of the verdict, unless the court orders the case reserved for further consideration, or grants a stay of proceedings. If there is no doubt as to what judgment is proper, the better practice is to enter it at once. The judgment may as well be set aside as the verdict. There- fore such proceedings as may be appropriate to securing a new trial, or any other right of the losing party, can be prosecuted as advantageously upon granting a stay of pro- ceedings upon the judgment as upon the verdict. The immediate entering of judgment authorizes the making up of the judgment roll, and thus secures a lien on the judgment debtor's real estate. To this security he is at once justly entitled. If the court delays in granting it to 1 Cal. Code Civ. Proc, sec. 1052. 17; Bond v. Citizens' N. B., 65 Md. ' Jorgensen v. Griffin, 14 Minn. 464. 498, » Thompson v. Bickford, 19 Minn. * Cal. Code Civ. Proc, sec. 664. 49 THE ENTRY OP JUDGMENTS. § 43 him, be may during the stay of proceedings he deprived ^f the fruits of his litigation.^ "SI ,...,. Q § 43. Joint Parties. — At common law, m a joint action, ^]^?nvhether upon a joint or a joint and several contract, or Jipon several distinct contracts, the general rule was, that LL-ihere could he no judgment except for or against all of _-the defendants. To this rule the exceptions were: 1. In ,_.\ cases where one or more of the defendants, admitting -the contract, established a discharge therefrom, as by ' -bankruptcy; 2. Where some one of the defendants pleaded and proved that he was incapable of contracting when the alleged contract was made, from some disability, as infancy. So unyielding was the rule, that when one of the defendants suffered a default or confessed the action, no judgment could be given against him, if his co-defend- ant succeeded in maintaining some defense affecting the entire contract.^ Codes of procedure, adopted in several of the states,^ have abolished this rule by enacting that judgment may be given for or against "one or more of several plaintiffs, and for or against one or more of several defendants"; and "that in an action against several de- fendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper," Under these sections, of two persons sued jointly, one may obtain a judgment against the plaintiff, and the other be subjected to a judgment in the plaintiff's favor.* And in general, a several judgment may be properly rendered whenever a several action can be sustained.^ In Califor- nia, in an action against two or more, a judgment may be entered against the defendants in court, excluding those 1 Hutchinson v. Bours, 13 Cal. 50. ' Cal. Code Civ. Proc, sees. 578, 579; 2 Taylor v. Beck, 3 RancL 3i«; Cole N. Y. Code, l-'04, 1205; Wis. Code, 2 Taylor v. Beck, 3 Rand^ ai«; Cole V. Pennel. 2 dHanV PJ^ feJr^ffhe v. ReB^19»ffin-atr.'l; WoodwJu-tU;. New- 41; Ky. Code, 370. ^ R,()we V. Chandler, 1 Cal. 1G7; hdl,'l^k«irtififtEWi*t?^?tf^hanics' Parker v. Jackson, 16 Barb. 33. Bank,^* Pet. 4G; Baber ^« iCook, 11 * Harrington v. HiRliam, 15 Barb. Leigh, S^*]Mlfik«i):^&vis7^ Leigh, 524; Van Ness v. Corkins. VI Wis. 186; 30. Craudall v. Beach, 7 How. Pr. 27L JUDG. L— 4 § 44 THE ENTRY OF JUDGMENTS. ^ 50 not appearing and upon whom summons has not heen served, though the contract appears to be jointly binding on all of the defendants/ The practice is otherwise in New York; and that sanctioned by the California cases is spoken of in terms of strong, and as it seems to us merited, condemnation. The plaintiff cannot, under the code, deprive the defendant of the advantage of having his joint co-contractors united with him in the action, and their property, as well as his, made liable for the judgment. Still less ought the plaintiff to be tolerated in making all the co-contractors parties, for the purpose of avoiding a plea in abatement; and afterwards, without leave of the court, or notice to the defendant served, dropping the unserved defendants from the judgment.^ Every judgment against any joint defendant is irregular until the other is out of the action, and the issues against him disposed of. Until then he has the right to appear at every trial of the issues.^ One of the joint defendants sued on a joint liability having answered, no judgment can be taken against those in default until the issues formed by the answer are disposed of.^ § 44. Joint Contractors. — Upon serving summons in a joint action, upon one or more defendants jointly indebted upon a contract, the plaintiff may, under the code, proceed against the defendants served, unless the court directs otherwise; and if he recovers, the judgment may be en- tered against all the defendants shown to be thus jointly indebted, so far only that it may be enforced against the joint property of all, and the separate property of those served.® This provision is not applicable to a proceeding to foreclose a mortgage, and obtain a decree for the sale of the premises mortgaged. The fact that two persons have joined in the mortgage does not create a presump- 1 Ingraham v. Gildemeester, 2 Cal. * Brown v. Richardson, 4 Robt. 88; Hirschfield v. Franklin, 6 Cal. 607. 603. « Niles V. Battersliall, 27 How. Pr. * Catlin v. Latson, 4 Abb. Pr. 248. 381; Sager v. Nichols, 1 Daly, 1; * Cal. Code Civ. Prnc, sec. 413; Fowler v. Kennedy, 2 Abb. Pr. 347. ' N. Y. Code, sees. 1932-1935. 51 . THE ENTRY OF JUDGMENTS. § 45 tion that the property therein described is owned by them jointly.^ § 45. Construction. — If no date appeared upon a judgment, it was presumed, at common law, to be entered on the first day of the term at which it was rendered. The rule is different in some of the United States, as in Maine, Massachusetts, and New Hampshire, where the rendition is supposed to have occurred at the last day of the term, unless the contrary appears.^ Including in a judgment one who, though named as a party to the suit, never appeared therein, and as to whom the process was returned not found, has been regarded as a mere clerical error, neither affecting the party thus included, nor fur- nishing any ground for a reversal in the appellate court.^ On the other hand, an appeal has been esteemed the ap- propriate remedy for the correction of a similar error.* This is doubtless the better opinion. And in those states where the presumptions in favor of the jurisdiction of courts of record are liberally indulged and applied, a party to a suit who considered the unauthorized addition of his name in the entry of the judgment as a clerical error not requiring attention, and who failed to correct it in some manner, would be in imminent peril of such pro- ceedings as should leave him to regret his misapprehen- sion and neglect. The entry, " This day came the parties by their attornej^s, and the plaintiff enters a retraxit" will not be construed as importing that the plaintiff did not come in person as well as by his attorney. On the other hand, it will be presumed, in support of the judgment, that as the attorney was incompetent to enter a retraxit, the plaintiff personally made the entry.^ If the entry of a judgment is so obscure as not to express the final de- termination with sufficient accuracy, reference may be ' Bowen V. May, 12 Cal. 348. < Joyce v. O'Toole, 6 Bush, 31; Ruby ^ Chase V. Gilinan, 15 Me. 64; Her- v. Grace, 2 Duvall, 540. ring V. Pdlley, 8 Mass. 113; Goodall i;. ^ Thomason v. Oiluin, 31 Ala. 108; Harris, 20 N. H. 3(53. G8 Am. Doc. 159; Couk v. Lowtiier, 1 * Savage v. Walshe, 26 Ala. 619. Ld. Kayin. iJ97. § 46 THE ENTRY OF JUDGMENTS. 52 had to the pleadings and to the entire record. If, with the light thrown upon it by them, its obscurity is dis- pelled, and its intended signification made apparent, it will be upheld and carried into effect,* In case of doubt regarding the signification of a judgment, or of any part thereof, the whole record may be examined for the pur- pose of removing the doubt. One part of the judgment may be modified or explained by another part; and un- certainties in the judgment may become certain under the light cast upon them by the pleadings or other parts of the record.^ Though the judgment purports to be against the defendants, without naming them, only one of them will be bound, if it aj^pears from the context that only he was meant,^ or from the return of the service of process that only he was brought within the jurisdiction of the court.* On the other hand, though the word "defendant" is written in the body of the judgment, it will be construed as referring to and including all the defendants named in the caption.^ § 46. Form. — At common law, the judgment or sen- tence of law commenced with " it is considered by the court that plaintiff or defendant recover," etc. Those words were considered peculiarly appropriate, as involv- ing and expressing the idea that what was about to be ordered was not the sentence of the judges, but of the law. They came to be inseparably associated in the minds of lawyers with the entry of a judgment. The chief stress was laid upon the word " considered." In Arkansas, the insertion of " ordered and resolved " in the place ordi- ^ Fowler v. Doyle, 16 Iowa, 534; ' Barnes r. Michigan Air L. R'y Co., Finnagan v. Manchester, 12 Iowa, 521; 54 Mich. 243. Beers v. Shannon, 73 N. Y. 292; Foot * Malaney v. Hughes, 50 K J. L. V. Glover, 4 Blackf. 313; Bell v. Mas- 546; Clark v. Finnell, 16 B. Mon. sey, 14 La. Ann. 831; Peniston v. 329; Bovd v. Baynham, 5 Humph. Somers. 15 La. Ann. 679. 380; 42 "Am. I)ec. 43S; Neal v. Sm- 2 Clay V. Hildebrand, 34 Kan. €94; gleton, 26 Ark. 491; Winchester v. Fleenor v. Driskill, 97 Ind. 27; Hof- Beardin, 10 Humph. 247; 51 Am. fertbert v. Klinkhardt, 58 III. 450; Dec. 702. Walker v. Page, 21 Gratt. 636; Flack ^ Myers v. Hammons, 6 Baxt. 61. V, Andrews, 86 Ala. 395, 53 THE ENTRY OP JUDGMENTS. § 47 narily occupied by " considered " was held to make the entry a nullity,' No judgment, according to the view then taken, had been entered. No objection was made to the words as ambiguous, or as in any way failing to designate the "sentence" or final determination of the court. But the words used, it was thought, did not import that the law had acted or spoken in the matter, and the case was sent back to the subordinate court, to await the time when the law should speak in stereotyped language. This view was hypercritical in the extreme. No authority in sup- port of it was cited, except the general statement in Black- stone's Commentaries, that the language of a judgment is not that "it is resolved or decreed," but that "it is considered." Some years later the same court came to consider a judgment commencing with "it is therefore ordered, adjudged, and decreed."^ The former decision was left unchanged, with an intimation that it was prob- ably correct. But the words "ordered, adjudged, and decreed" were said to be, when united, equivalent to " considered," and the judgment was sustained. § 47. Form. — Whatever may have been requisite for- merly, it is evident that the sufficiency of the writing claimed to be a judgment must, at least under the code, be tested by its substance rather than by its form. If it corresponds with the definition of a judgment as estab- lished by the code; if it appears to have been intended by some competent tribunal as the determination of the rights of the parties to an action, and shows in intelligible language the relief granted, — its claim to confidence will not be lessened by a want of technical form, nor by the absence of language commonly deemed especially appro- priate to formal judicial records.* The entry of a judg- ' Baker v. State, 3 Ark. 491. Pa. St. 101; 53 Am. Dec. 573; Elliott ^ Ware v. Peimington, 15 Ark. v. Jordan, 7 Baxt. 37G; Bank of Old 22G. Dominion v. McVeigh. .32 Gratt. 5.30; 3 Church V. Grossman, 41 Iowa, .373; Clark v. Melton, 19 S. C. 498; Little Lewis V. Watrus, 7 Neb. 477; McNa- P. C. M. Co. v. Little C. C. M. Co., 11 mara v. Cabon, 21 Nel). 5S9; Potter v. Col. 223; 7 Am. St. Rep. 226- Terry Eaton, 26 Wis, 382; Kase v. Best, 15 v. Berry, 13 Nev. 514. § 48 THE ENTRY OF JUDGMENTS. 54 ment, like every other composition, should be comprised of those words which will express the idea intended to be conveyed, with the utmost accuracy. It should also be a model of brevity, and should contain no unnecessary directions. The forms in use at common law answer these requirements so well, that little or nothing can be gained by departing from them. At law, it is not neces- sary to state in a judgment any of the precedent facts or proceedings on which it is based; ^ and this rule applies under the codes, whether the relief granted is legal or equitable.^ Wherever the code renders the insertion of matters formerly required in a judgment or decree un- necessary, the practice should conform to the law now in force, rather than to that which is abolished. For in- stance, judgments foreclosing mortgages should follow the directions of the code of procedure in the state wherein the judgment is entered,^ in preference to the old forms of chancery practice. They should contain only a state- ment of the amount due to the plaintiff, a designation of the defendants liable personally, and a direction that the premises, or so much thereof as shall be necessary, be sold according to law, and the proceeds applied to the payment of the judgment and costs. The copying into the decree of the directions of the statute adds nothing to the clearness or force of these directions. All that part providing for the report of the sheriff, the confirmation of the sale, who may become purchasers, and their rights pending the time for redemption, the execution of a con- veyance if no redemption be made, the delivery of pos- session, the docketing of the judgment for any deficiency remaining after sale, accomplishes no better purpose than to encumber the record.* § 48. Use of $. — In actions to enforce the payment of taxes, the insertion of numerals without any mark to designate what they were intended to represent has in 1 Hamilton v. Warrl, 4 Tex. 356. » q^\ Code Civ. Proc, sec. 7'26. 2 Judge V. Booge, 47 Mo. 544. * Levistoii v. Swau, 33 Cal. 480. 55 THE ENTRY OF JUDGMENTS. § 48 at least tTVO states* been held to leave the judgment fatally- defective. A similar decision appears in the reports of the supreme court of the United States; but it was made in a case where that court, as stated in its opinion, con- sidered itself bound by the decisions of the Illinois courts. Nor do the courts of Illinois confine this principle of decision to judgments for taxes. In the case of Carpenter V. Sherfy, 71 111. 427, the plaintiffs, in attempting to de- raign title to certain lands under an execution sale against their former owner, offered in evidence a judgment "for four hundred and sixty-one and ^ damages." The court said: "Whether this amount is cents, mills, or what, we are left entirely to conjecture. We have no right to in- dulge in presumptions as to what was found by the court; we must take the record as it reads. A judgment should be for a certain and definite sum of money. This judg- ment is not for any sum of money, and can only be re- garded as a nullity." 2 On the other hand, the highest court in another state has determined that a verdict and judgment are presumed to be for the things or the denomi- nation of currency sued for, rather than for something else, and that a judgment for " 525," upon a complaint claiming "$525," must be construed as being for the same denomination of money named in the complaint, and therefore not void for uncertainty;' and this view seems to be supported by the rule that a judgment must be con- strued, in case of obscurity, with the aid of the pleadings and of the entire record. In Minnesota, while a judgment for taxes in numerals only, with nothing to show what they represent, is void for uncertainty, yet if there is a line or decimal-mark separating the figures, those on the left of it will be understood to denote dollars, and those ' Lane V. Bommelman, 21 111. 143; and not for francs, or any other forei^ Lawrence v. Fast, 20 111. 338; 71 Am. currency: Erlanger v. Avegno, 24 La. Dec. 274; Pittsburg etc. R. R. Co. v. Ann. 77. Chicago, 53 III. 80; Tidd v. Rines, 26 ^ To the like effect, Hopperw. Lucas, Minn.'sOl. A judi/meiit in the United SG Ind. 43. States should be for dollars and cents, ' Carr ». Anderson, 24 Miss. 183. §§ 48 a-50 THE ENTRY OF JUDGMENTS. Sft on the right cents, and the judgment will therefore be treated as certain and valid.^ § 48 a. A Judgment, Expressed in Figures as to its amount, these figures being in connection with a dollar- mark, was objected to on the ground that the statute required judicial records to be written in the English language; but the court was not disposed to hold that the defect was of a character to render the judgment abso- lutely void and of no avail in a collateral proceeding.^ § 49. Filling Blanks. — A court ordered judgment to be entered upon a promissory note, directing the clerk to compute the amount due. He made the entry, leaving blanks for the amounts. Fourteen months afterwards, he filled the blanks by inserting the proper sums. This it was decided might be such an irregularity as could be reached by a writ of error, but it was not available against the judgment in a collateral action.^ There may be instances in which the leaving of unfilled blanks is not fatal to tlie judgment; but this must,* we apprehend, be upon the ground that there is sufficient evidence before the court in which the judgment is called in question to show that it was pronounced as a final judgment, and is entitled to credit as such, though not yet properly entered. So long as there are any blanks which should be filled by insert- ing amounts, we think the better view is, that there is no entry of judgment as to an amount which is not so in- serted; and that the omission in the judgment-book can- not be supplied by docket or other entries which should themselves be based upon the judgment entry.' § 50. Sufficiency of Entries — General Tests of. — It now remains in this chapter to note some of the decisions * Gutswiller v. Crowe, 32 Minn. ♦ Gray's Heirs v. Coulter, 4 Pa. St. 70. 188; Ulshafer v. Stewart, 71 Pa. St. » FuUerton v. Kelliher, 48 Mo. 542. 170. See sec. 50 b. * Case v. Plato, 54 Iowa, 64; Noyes * Lind V. Adams, 10 Iowa, 398; 77 v. Newmarch, 1 Allen, 61; Lea o. Am. Dec. 123. Yeates, 40 Ga. 56. 57 THE ENTRY OF JUDGMENTS. § 50 a in which the sufficiency of various entries of judgments has been questioned and determined, and the general principles which may be evolved therefrom. The cases are not altogether consistent. This arises, perhaps, from the fact that some minds are deeply impressed with the importance of matters of form, and actuated by the dread of encouraging a loose and unlawyer-like practice; while others, paying little regard to technical considerations, are inclined to recognize and enforce that which, though confessedly informal, is capable of being readily under- stood and carried into effect. I think, however, that from the cases this general statement may be safely made: That whatever appears upon its face to be intended as the entry of a judgment will be regarded as sufficiently for- mal if it shows, — 1. The relief granted; and 2. That the grant was made by the court in whose records the entry is written.-^ In specifying the relief granted, the parties against and to whom it is given must, of course, be suffi- ciently identified. According to the supreme court of Alabama, "a judgment should show the plaintiff who re- covers, the defendant against whom the recovery is liad, and the special thing or amount of money recovered."^ § 50 a. The Designation of the Parties for and against Whom the judgment is given must in all cases be suffi- cient to enable the clerk to know at whose instance to issue execution, and against whose property it may be properly enforced. Hence a judgment for or against the captain and master of the steamer Mollie Hamilton,'^ or the legatees of Philip Joseph,* or against a defaulting wit- ness by his proper name, but not stating in whose favor,® is insufficient, if the whole record or judgment roll does not clearly disclose the parties for and against whom ' Flack V. Andrews, 86 Ala. 395. 19 Ala. 198; hut a judgment in favor * Spence v. Simmons, 16 Ala. 828. of the heirs of a designated person lias ' Steamer Molhe Hamilton v. Pas- heeii sustained: Sliaclileford v. Fouu- chal, 9 Heisk. 203. tain, 1 T. B.^Mon. 252; 15 Am. Dec. * Joseph's Adin'r v. His Legatees, 5 115; Parsons*'. Spencer, 83 Ky. 305. Ala. 280; Turner v. Dupree'a Adm'r, * Spence v. Simmons, 16 Ala. 828. § 50 a THE ENTRY OF JUDGMENTS. 58 the judgment is given. On the other hand, it is equally well settled that the names of the parties need not be stated in the body of the judgment.' The name of the firm may be given, instead of the names of its individual members, or the parties may be designated generally as the plaintiffs or the defendants, provided a reference to the caption, or to the pleadings, process, and proceedings in the action, makes certain the names of the parties thus designated;^ and although a judgment purports to be against the defendants generally, its effect will be limited to one only, if from the whole record it is manifest that he, and he only, was intended.' But in Louisiana a judgment against certain named persons and others, as defendants, does not create a judicial mortgage or lien against the lands of any defendant whose name is not stated in the judgment entry, although it can be ascer- tained by examining the pleadings.* As heretofore sug- gested, every judgment may be construed and aided by the entire record. A mistake in the name of a party is therefore rarely of serious consequence. If his name is incorrectly spelled, the principles of idem sonams may render the error immaterial;® if his initials are reversed, or otherwise misstated in the entry, the mistake may be cured by reference to other parts of the record. If he sued or was sued by a wrong or fictitious name, or by some designation which included a part only of his name, and was personally served with process, and, failing to urge the misnomer in any way, judgment was entered for or against him, either by his- correct name® or by such mistaken, fictitious, or imperfect name, it is valid and ' Aldrich v. Maitland, 4 Mich. 205; 521; Holcomb v. Tift, 54 Mich. 647; Smith V. Chenault, 48 Tex. 455; Goof- Banning v. Sabin, 41 Minn. 477; post, gion ?). Gilreath. 32 S. C. 388. sec. 155, and ante, sec. 45. 2 Wilson V. Nance. 11 Humph. 189; * Ford v. Tilden, 7 La. Ann. 533. Little V. Birdwell, 27 Tex. 688; Col- ' Rowe v. Palmer, 29 Kan. 337; lins V. Hyslop, 11 Ala. 508; Hays v. Mallory w. Riggs, 76 Iowa, 748. Yarborough, 21 Tex. 487; McCartney •* Kronski v. Missouri Pac. R'y, 77 V. Kittrell, 55 Miss. 253; Smith v. Mo. 362; McGaughey v. Woods, 106 Chenault, 48 Tex. 455. lud. 380. ' FiQuagaa v, Manchester, 12 Iowa, 59 THE ENTRY OF JUDGMENTS. § 50 b enforceable.^ While the parties to a judgment may, per- haps, be described in terms, the meaning of which cannot be ascertained from the record, as where they are desig- nated as the heirs of J. F.,^yet this practice is not worthy of encouragement. There must be no question that the judgment is for and against some person or persons; and if against certain persons or their representatives or as- signs, it is void for uncertainty.^ § 50 b. The Amount, in Case the judgment is for money, must be designated. It has sometimes been adjudged that the amount cannot be expressed in figures, even when preceded by a dollar-mark to show what the figures were intended to express.^ The supreme court of Illinois has also said "that amounts should not, in the judgment of a court, be entered in figures, but in all cases by letters. There is no safety in using figures for such purpose. It is not to be tolerated."* We concede that the entry in figures of the amount of a judgment is unsafe, and ought not to be encouraged. We nevertheless believe that judgments so entered would not be adjudged void in the majority of the states.^ The amount must in all cases be certain. Thus judgment for a specified sum, subject to a credit " for one hogshead of tobacco delivered in the year 1799," without ascertaining the value of the tobacco, is fatally indefinite and uncertain.' The final judgment ought to designate the precise amount recovered, and not ^ Vogel v. Brown Township, 112 Ind. incorrect publication of plaintiff's 299; 2 Am. St. Rep. 187; Newcomb name: Ex parte Cheatham, 6 Ark. 531; V. Peck, 17 Vt. 302; 44 Am. Dec. 340; 44 Am. Dec. .525. Root V. Fellowes, 6 Gush. 29; First ^ Shackleford v. Fountain, 1 T. B. Nat. Bank v. Jaggers, 31 Md. 38; 100 Mon. 252; 15 Am. Dec. 115; Parsons Am. Dec. 53; Petterson v. Litta, 74 v. Spencer, 83 Ky. 305. Iowa, 223; Lindsay v. Delano, 78 Iowa, ^ Miller v. Peters, 25 Ohio St. 350; Hoffield v. Newton Board of Ed., 270. 33 Kan. 644. Where, however, sum- ^ Smith v. Miller, 8 N. J, L. 175; 14 mons is served by publication against Am. Dec. 418. defendant by her maiden name, and ^ Linder v. Monroe, 33 111. 390. judgment entered in that name, it does ® See sec. 48 a. not affect her: Freeman v. Hawkins, ' Early v. Moore, 4 Munf. 262. See 77 Tex. 498; 19 Am. St. Rep. 769; also Berry v, Anderson, 2 How. (Miss.) and perhaps a like result follows the 652. § 50 C THE ENTRY OF JUDGMENTS. 60 leave it to be determined by a subsequent computation.* But if there is a verdict for a definite sum, judgment thereon for the " said sum of dollars, assessed as aforesaid," is sufficiently explicit.^ It is not fatal to a judgment that a computation is necessary to ascertain tlie amount of the recovery if it furnishes the data for such computation,^ as where it is for a sum designated, with lawful interest from a specified date.* § 50 c. The Property which is the subject of a judg- ment or decree must also be described with sufficient certainty to leave its identity free from doubt;^ but the bill or complaint may be referred to in the judgment, for the purposes of description.® The judgment may be either for. the possession or the sale of real or personal property, and while it is being executed, or afterwards, a question may arise whether its descriptive words are suf- ficient to support a sale made by virtue of its authoriza- tion, or to justify the execution of a writ of possession based upon it. So far as any general rule can be formu- lated upon this subject, we apprehend it is this: That a judgment may be aided by the pleadings and other parts of the record, and if the description obtainable from it and them would be sufficient if found in a conveyance to divest the title of the grantor, it will be sufficient to sus- tain sales made or possession taken under the judgment,^ and otherwise, that the judgment and all proceedings 1 Nichols V. Stewart, 21 111. lOS; Minogue, 29 Ark. 637; Tribble v. Smith V. Trimble, 27 111. 152; Ander- Davis, 3 J. J. Marsh. 633; McManus son V. Reed, 11 Iowa, 177; Landerman v. Stevens, 10 La. Ann. 177; Shepherd V. McKinson, 5 J. J. Marsh. 234; v. Pepper, 133 U. S. 626. Mudd V. RoL'ers, 10 La. Ann. 648. « Jones v. Belt, 2 Gill, 106; Foster * Ellis V. Dunn, 3 Ala. 632; Dyer v. v. Bowman, 55 Iowa, 237. Hatch, 1 Ark. 339. ' Coleman v. Reel, 75 Iowa, 304; * Guild V. Hall, 91 111. 223; Dins- Posey u. Green, 78 Ky. 162; Miller w. more v. Austill, Minor, 89; Ladnier v. Indianapolis, 123 Ind. 796; Wright v. Ladnier, 64 Miss. 368; Stokes v. San- Ware, 50 Ala. 549; Bloom ?'. Biirdick, born, 45 N. H. 274. 1 Hill, 130; 37 Am. Dec. 299; McWil- * Wilbur V. Abbot, 58 N. H. 272; liams v. Walthall, 65 Ga. 109; De Morrisons. Smith, 130 111. 304. Sepulveda v. Baugh, 74 Cal. 4GS; 5 ° Gayle v. Singleton, 1 Stew. 566; Am. St. Rep. 455. Hurt V. Moore, 19 Tex. 269; Jones v. 61 THE ENTRY OF JUDGMENTS. ' § 50 d under it must be treated as void/ In California, after great deliberation, the conclusion was reached and an- nounced, that the description of land in a judgment must be perfect in itself, and cannot be aided by a reference in the judgment to any paper or record not constituting a part of the judgment roll in the case in which the judgment was rendered; and judgments were treated as void which directed the sale of land, and referred for purposes of description to certain deeds, the dates and places of record of which were specified, or to a final judgment in partition making an allotment of the land in controversy.^ These decisions were ultimately over- ruled, as they deserved to be.^ If the description referred to is itself uncertain, it cannot aid the judgment, as where a writ is directed to issue to restore to plaintiff possession of the lands, or so much thereof as are not farther south than the boundary line described in the verdict, and the verdict merely designates such line as being seven and nine feet south of a certain hedge.* § 50 d. A Judgment of Conviction may be said to consist of two parts, to wit: 1. The facts judicially ascer- tained, together with the manner of ascertaining them, entered of record; 2. The recorded declaration of the court pronouncing the legal consequences of the facts thus judicially ascertained. Both of these parts are equally necessary in the entry of a judgment of convic- tion. "In the first part it is usual and proper to set forth in the minutes of the court the title and number of the case, the calling of the case for trial, the appearance of the parties, the plea of the defendant, and if 'not guilty' the selection, impaneling, and swearing of the ' Hearne v. Erhard, 33 Tex. 60; laid out in town lots by James Roach, Keith V. Hayden, 26 Minn. 212. and have been sold and conveyed * Crosby v. Dowd, 61 Cal. 557; Hill prior to the execution of the mortgage V. Ware, 66 Cal. l.SO. herein," has been adjudged fatally de- s De Sepulveda v. Baugh, 74 Cal. fective: Bowen v. Wickersliam, 124 468; 5 Am. St. Rep. 455. But a de- Ind. 404; 19 Am. St. Rep. i06. Bcription of a tract of land, "except * Robertson v. Draue, 100 Mo. Buch portions as have heretofore been 273. §§ 50 e, 51 THE ENTRY OF JUDGMENTS. 62 jury, the submission of the evidence, the charge of the court, the return of the verdict, and the finding of the jury. In the second part it should be declared upon the record, in connection with the verdict, in the event of a conviction, that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury, and that the defendant be punished as it has been determined by the jury, — in cases where they have the right to determine the amount, or the duration and place of punishment, — setting forth particularly the amount, or the duration and place of ^punishment, in accordance with the nature and terms of the punishment prescribed in the verdict." ^ § 50 e. The Signature of the Judge to the judgment or the record in which the judgments are entered is some- times required by statute; and in some states its omission has been held fatal,^ either as making the judgment void, or as presumptive evidence that the alleged judgment had never received judicial sanction. More frequently, how- ever, statutory'' requirements of this character have been adjudged to be directory merely, and the absence of the judge's signature to in no way impair the effect of the judgment,'^ whether it is legal or equitable in character. § 51. Sufficient Entries, Examples of. — "I give judg- ment." These words, if the parties are made certain and the amount ascertained by other parts of the judgment, are as effective as: "It is considered that plaintiff recover," etc.* "Whereupon the court orders that plaintiff pay the 1 Mayfield v. State. 40 Tex. 290; man, 56 Iowa, 443; Clapp v. Hawley, Roberts v. State, 3 Tex. App. 47. See 97 N. Y 610; Keener v. Good^on, 89 ante, sec. 21 a. N. C. 273; Gunn v. Tackett, 67 Ga. 2 Saloy V. Collins, 30 La. Ann. 63; 725; French v. Pease, 10 Kan. 51; State V. Jumel, 30 La. Ann. 421; Ray- Fontaine v. Hudson, 93 Mo. 62; 3 Am. mond V. Smith, 1 Met. (Ky.) 65; 71 St. Rep. 515; Rollins v. Henry, 78 Am. Dec. 458; Hatch v. Arnault, 3 N. C. 342; Cannon v. Hemphill, 7 Tex. La. Ann. 48-'; Galbraith v. Sidener. 184; Cathcart v. Peck, 11 Minn. 45; 28 Ind. 142; Ferguson v. Chastant, 35 Childs v. McChesney, 20 Iowa, 431; 89 La. Ann. 4S5. Am. Dec. 545. * Crim V. Kessing. 89 Cal. 478; Baker * Deadrick v. Harrington, Hemp. V. Baker, 51 Wis. 538; Traer v. Whit- 50. 63 THE ENTB,Y OF JUDGMENTS. § 51 costs of suit, and that execution issue therefor," in a record showing the trial by a jury and a verdict for the defend- ants, though not in technical language, is sufficient to constitute a valid judgment.* ''We should not hesitate to enforce a judgment because 'decreed' or 'resolved' was used instead of 'considered,'"^ "No judgment will be reversed for the use of inappropriate or untechnical words." ^ " No particular form is required in the pro- ceedings of the court, to render their order a judgment. It is sufficient if it is final, and the part}- may be injured."* "A judgment, in addition to the ordinary circumstances of time and place, sbould exhibit the parties, the matters in dispute, and the result, but the form is immaterial."^ The following have been determined to be sufficient entries of judgments: "I hereby render judgment against plaintiff for costs herein. Judgment rendered against plaintiff for costs."' "After hearing the proof, it is the opinion of the court that the defendant, Anton Gabon, is indebted to the plaintiff in the sum of $100. It is there- fore considered and adjudged by me that Anton Gabon pay to the plaintiff, McNamara and Duncan, the sum of $100, with interest from December 20, 1883, and costs of suit, taxed at $3.15."^ "Whereupon the court orders that plaintiff pay the costs of suit, and that execution issue therefor." ^ " Therefore it is considered and adjudged by the court that the plaintiff in this action have judgment against the defendants for the sum of $226.45 for his said damages on his said action, and the sum of $35.55 for his costs and disbursements, and that he have execution therefor."^ "Now, on motion of plaintiffs' attorneys it is adjudged that plaintiffs have judgment herein for the sum of $476, and one cent damages, and for their costs, * Huntington v. Blakeney, 1 Wash, ' Ordinary v. McClure, 1 Bail. 7. 129. 8 Marsh v. Snyder, 14 Nel), 8. '•'Taylor v. Runyan, 3 Clarke, ' McNamara i>. Cal)on, 21 Neb. 5S9; 474. Black V. Gallon, 24 Nel). 248. ^ Minkhart v. Hankler, 19 111. 47. "* Huntington v. Blakeney, 1 Wash. * AVells V. Hotjan, Breese, 3J7; John- 111. son V. GiLett, 52 111. 300. » Potter v. Eaton, 26 Wis. 382. § 52 THE ENTRY OF JUDGMENTS. 64 $126.34, amounting in all to $602.35," preceded by a mar- ginal entry of the names of the parties, and of the trial before a jury and of their verdict.^ "There being no issuable plea filed in this case on oath, judgment is ren- dered by the court for two hundred and ninety-seven dollars and ninety-nine c^nts principal, with the sum of ninety dollars and thirty cents for interest to date," the court being of the opinion that the faiUire to state iu whose favor the judgment was was immaterial, because it appeared to be entered on plaintiff's declaration, on the ground that no sufficient answer had been made thereto.^ " There being no issuable defense filed, ordered that the plaintiffs have leave to enter up judgment against the de- fendants."^ Judgment by consent in favor of the plain- tiff for ten thousand seven hundred and sixty dollars, the debt in the declaration mentioned, with interest thereon from the first day of January, 1866, till paid, and costs. Execution to be stayed for ninety days." * " Therefore plaintiff for costs," accompanied by the statement of the justice who entered it, that it appeared to him that he did not have jurisdiction of the subject-matter.* § 52. Insufficient Entries, Examples of. — The entry must not only indicate what adjudication took place, but should also appear to have been intended as the entry of judgment, and not as a mere memorandum by the aid of which the formal record w^as to be constructed.* "June 14, 1838, judgment sec. reg. for want of plea. January 9, 1839, sum ascertained at $155.07. Interest from June 14, 1838." This writing, being offered as evidence of a judg- ment, was rejected on the grounds that there was nothing to show by whom judgment was rendered, or against whom, nor for what amount, if in fact any judgment had 1 Flack V. Andrews, 86 Ala. 395. ■ * Ease v. Best, 15 Pa. St. 101; 53 » A.lams V. Walker, 59 Ga. 506. Am. Dec. 573. * Tift V. Keaton, 78 Ga. 235. « Smith v. Steele, 81 Mo. 455; Tom- * Bank of Old Dominion v. McVeigh, beckbee Bank r. GoJbold, 3 Stew. 240; 32 Gratt. 630. 20 Am. Dec. 80. 65 THE ENTRY OF JUDGMENTS. § 52 ever been given by any court against any person.* It is obvious that in some of the cases the entry offered in evidence has been disregarded, not from or on account of the absence of the essential elements of a judgment record, but because the court thought that such entry had been originally designed as nothing but a brief direction to the clerk, or as a certificate made by the clerk of some judg- ment already formally put upon the record. Thus "judg- ment rendered for plaintiff in the above-entitled suit at the above-named term by the court for the sum of seventy- eight and ^ dollars damages, and his costs of suit, against said defendant on motion," was determined not to be the entry of a judgment. These words certainly show the action of the court, the nature and extent of the relief granted, and the parties against and to whom it was awarded. So far they are appropriate to the record of a judgment; but they do not appear to be the direction of the court itself. On the contrary, they seem rather to be the certificate of the clerk of certain events transpiring in court, as he recollects them, or as he understands them from such information as he may possess, than the origi- nal record of the court in relation to those events.^ The words "judgment on verdict for $3,000 and costs," though found among the records, and showing, as they certainly do, that a final determination had been made, are not the record of a judgment. They neither show what authority directs nor how the direction is to be carried into effect. They are apparently intended as a mere memorandum for the information of the clerk.® The following entry was also rejected on a plea of nul tiel record, as implying at most only a minute of proceedings, and not the solemn act of the court determining the rights of the parties: "The following jury was sworn and impaneled [here follow twelve names], who find all the issues in favor of the plaintiff, and assess his damages at five hundred and 1 Taylor v. Runyan, 3 Clarke, * Wheeler v. Scott, 3 Wis. 362. 474. » Martin v. Earnhardt, 39 111. 9. JUDG. L— 6 § 53 THE ENTRY OP JUDGMENTS. 66 eighty-five dollars. Judgment at September term, 1844, $585; the costs arising in this suit due to the county, to witnesses and officers of court, is $134.92,"^ The follow- ing have been declared to be insufficient as entries of judgments: "December 6, 1841. Reuben Emory and Har- riett Emory v. Reuben Abbott, On hearing counsel in this cause, on motion of George Woodruff, plaintiffs' at- torney, judgment for plaintiffs on demurrer, and that it be referred to the clerk to compute the amount due on the bond mentioned in the plaintiffs' declaration, and the clerk having computed the amount due on said bond at eight hundred dollars, the penalty thereof to be discharged on the payment of six hundred and twenty-four dollars and eleven cents, and costs to be taxed." ^ A record show- ing the issuing and return of a writ, and a docket entry that "the court grant judgment"; that proceedings had been taken before a sheriff's jury, by which the amount of plaintiff's damages has been assessed, and that another docket entry was thereupon made that "the court grant judgment on the finding of the inquest.'" "The court, after due consideration, sustained said demurrer, and ren- dered judgment for the defendant, and against the plain- tiff for the costs of the action, taxed at $11.20."* "Verdict for plaintiff; let writ issue."® "Judgment rendered upon the verdict of the jury."^ § 53. Justices' Courts. — Though the nature of a final adjudication in a justice's court is in no respect different from that of a court of record, several causes uniting have produced rules of construction by which the records of the former court are scrutinized with less severity than those of the latter. In the first place, the higher courts being presided over by men of learning, and supplied with officers whose sole duties consist in keeping the 1 Hinson v. Wall, 20 Ala. 298. * Miller v. B. & M. K R, R. Co., 7 * Whitwell V. Emory, 3 Mich. 84; 59 Neb. 227. Am. Dec. 220. » Stark v. Billings, 15 Fla. 318. 3 Rape V. Heaton, 9 Wis. 328; 76 « Meyer v. Teutopolis, 131 111. Am. Dec. 269. 152. 67 THE ENTRY OP JUDGMENTS. § 53 a various papers filed in court in proper place and condi- tion, and in reducing the various orders and directions of the judges to writing upon records required by law for that purpose, a loose memorandum would naturally be viewed with distrust when offered as the final result of all this learning and formality. Its form at once dis- tinguishes it as an intruder, and shows its humble origin and design. But as justices of the peace, except in cities, rarely know anything of the technical learning of the common or even of the statute law, to insist upon their keeping their records with that accuracy and formality required in courts of record would end in the complete overthrow of most of their proceedings. Besides, as jus- tices of the peace have no clerks assigned them by law, there is little ground for the presumption that even loose and disjointed memoranda, found upon their minutes or dockets, were designed as rough outlines for another hand to round into more perfect form. § 53 a. Failure of Justice to Enter Judgment. — In New York, justices of the peace are required to enter their judgments in their dockets within four days after the ren- dition thereof. But, under the general rule that the entry of the judgment is a ministerial act, the failure of a justice to comply with this part of the law within the time re- quired has, by repeated decisions, been held to leave the judgment in full force.' The judge who delivered the opinion of the court of appeals in a recent case said the failure of the justice to obey the law is deserving of I Hall V. Tuttle, 6 Hill, 38; 40 Am. the presence of the by-standers and Dec. 382; Walrod v. Shuler, 2 N. Y. entering it on the docket: Smith v. 134; Martin v. Pifer, 96 Ind. 245. In Bahr, 62 Wis. 244. In Iowa, on the Wisconsin, however, where the statute other hand, " forthwith," as used in requires a justice, on receiving a ver- statute concerning entry of judgments, diet, to render judgment forthwith, his is interpreted as signifying witiiin a failure to so render it deprives him of reasonable time, and a justice is not re- jurisdiction, and his judgment rendered quired tolay aside all other affairs, that fourteen hours afterwards is void: he may act at once; though he delays Hull V. Mallory, 56 V\'is. 355; Sibley twenty-four hours, he may bo consid- V. Howard, 3 Denio, 72; 45 Am. Dec. ered to have acted forthwith: Davis v. 448. The statute is not satisfied by Simma, 14 Iowa, 154; 81 Am. Dec. 462; merely reading the verdict aloud in Burchett v. Casaday, 18 Iowa, 344. § 53 a THE ENTRY OF JUDGMENTS. 68 censure, but added: " I am unable to find any principle of law requiring us to hold that the omission to docket must inflict a penalty upon the plaintiff, more justly due to the magistrate." ^ In Maine, a justice of the peace, after being out of office for three or four years, completed the record of a case tried during his official term, by writing up a judgment in his judgment-book. Of this transaction, Mellen, C. J., said: "A magistrate does not act judicially in making up and completing his record. In doing this, he performs himself what this court does through the agency of its clerk. It is a mere ministerial act. The judgment is regular." ^ In a case before a justice of the peace in California, the jury rendered a verdict in favor of the plaintiff "for one hundred and seventy-five dollars, in gold coin." This verdict was entered in the justice's docket, but no judgment was in fact entered in pursuance thereof. Subsequently, on api^lication of the plaintiff, the justice issued an execution, reciting that a judgment had been rendered by him for that much money, and for costs of suit. Under this execution, a sale was made by the sheriff, at which the plaintiff became the pur- chaser. Relying upon title derived from this sale, the plaintiff brought an action of ejectment to recover the realty purchased by him; but the defendant insisted that the sale was void, on account of the failure to enter judg- ment upon the verdict. In considering this portion of the defense, the court said: "The justice, upon receiving the verdict, was required by statute to 'immediately ren- der judgment accordingly.' The formal entry of the judg- ment was therefore a mere clerical duty imposed upon him by the statute, and the performance of which he had no discretion to decline. He might have been compelled to make the proper entry in his docket by judicial pro- ceedings instituted against him for that purpose by the plaintiff; and it may be conceded that to issue an execu- tion before judgment entered in form upon the verdict 1 Fish V. Emerson, 44 N. Y. 377. ^ Matthews v. Houghton, 11 Me. 377. 69 THE ENTRY OP JUDGMENTS. § 54, 55 would be a bad practice, and that a timely motion by the defendant to set it aside for that reason should be sup- ported. That would be so, however, not because such an execution would be void, but because it would be irregular merely. And a failure to make the objection would, of course, amount to a waiver of the irregularity. As was said by the supreme court of New York:^ 'We are to overlook matters of form, and to regard proceedings be- fore justices of the peace according to the merits. Accord- ingly, in that case, a plea of former judgment in favor of the defendant was held to be supported by proof of a ver- dict in his favor, upon which the justice of the peace ought to have rendered judgment, but had omitted to do so.' "2 § 54. Reference to Another Case. — The entry of a judgment, even in a justice's court, must either be perfect* in itself, or be capable of being made perfect by reference to other parts of the docket, or to the papers on file in the action. An entry in which the identity of the parties can- not be ascertained without referring to the entry of some other case is fatally uncertain. The rule of construction permitting all the records and papers in a case to throw light upon an obscure entry is sufficiently liberal, and ought not to be extended so as to include the records or pleadings in another suit.^ § 55. On an Award. — An action being tried by refer- ees, they reported " that the defendant is indebted to the plaintiff on the above complaint in the sum of four dol- lars, and nine dollars and six cents costs of suit," The justice of the peace thereupon wrote: "Judgment rendered December 26, 1840. M. Tindal." A marginal note stated the amount of judgment and costs to be the same as 1 Felter v. Mulliner, 2 Johns. 181. ' McClellan v. Cornwell, 2 Cold. 2 Lynch V. Kelly, 41 Cal. 232. See, 298; Tombeckbee Bank v. Strong's to same effect, Gaines v. Betts, 2 Doug. Ex'rs, 1 Stew. & P. 187; 21 Am. Dec. (Mich.) 98; Hess v. Beckman, 11 Johns. 657. 457; Overall v. Pero, 7 Mich. 315. § 55 THE ENTRY OF JUDGMENTS. VO named in the report. This was held to constitute a suffi- cient entry, because the inference was unavoidable that the judgment was intended to be in conformity with the award, this inference being strengthened by the marginal note, to which resort could be properly had to explain and uphold the judgment.^ Note. — The following entries of judgments have been considered sufficient in the higher courts: "Peacham, 16, 1828. Judgment rendered by the court for plaintiflf, at $5.25. R. Blanchard, Justice of the Peace," accompanied by marginal entry of "Costs allowed, $5.25": See Story v. Kimball, 6 Vt. 541. ^' H. C. Anderson v. M. L. Elcan, Judgment granted v. defendant, M. L. Elcan, for $433.90. May 17, 1857. C. J. Spencer, J. P.": Ander.ion v. Kimhrough, 5 Cold. 260. In Baratt v. Garragan, 16 Iowa, 44, the transcript showed the proceedings up to and including trial, after which was written: "Judgment for plaintiff against the defendant for , October 24, 1856: — "Damages $84 00 ' ' Justice's fee $0 SO "Const 25 "Two witnesses 25 1 30 $85 30" Tills was pronounced a perfect judgment. It exhibited the time, the parties, and the result so clearly as to be unmistakable. This case was subsequently approved in Church v. Crossman, 41 Iowa, 373. In New York, the words " Fish V. Emerson. Testimony submitted June 30, 1863. "Judgment for plaintiflf; damages $124 80 3 92 128 72" .— were held to be sufficient as the entry of a judgment: 44 N. Y. 376. On the other hand, a judgment in this form: "The plaintiff filed his demand for thirty dollars; the defendant not appearing, the plaintiff proves his demand, and I gave judgment for the same," — was reversed for not being such a judg- ment as the law requires: Polhemus v. Perkins, 15 N. J. L. 435. "Be it re- membered that at Barnard, April 23, 1836, Asaph Wilder, of Woodstock, -was attached to answer James Wright, of Barnard, on former judgment of Lyman Stewart, Esq., in a case, James Wright v. Loren Gay. Now, the plaintiff says that the judgment of Lyman Stewart was collected by E. Parker, deputy sheriff, and converted same to his own use, and never accounted for same, nor any part thereof. The said Wright recovered judgment by default for the sum of $15. 15 damages, and $1 .99 costs of suit. Winslow W. Ralph, Justice of the Peace," — upon a plea of nul tiel record was considered as containing no legal evidence of a judgment, on the ground that it showed no court holden, no appearance by either party, no adjudication by the justice, no allusion to any writ or process or declaration, and uo award of execution: Wriglit v. 1 Elliott V. Morgan, 3 Harr. (Del.) 316. 71 THE ENTKY OF JUDGMENTS. § 55 Fletcher, 12 Vt. 431. A jury returned a verdict: "We, the jury, find in favor of the plaintiff, and assess his damages at in the sum of $4,493"; and the record showed the entry "whereupon the court enters judgment on the verdict." It was held that this entry had no element of a judgment other than the mere recognition of the verdict. "The ideo considemtum est is wanting": Faulk v. Kcllums, 54 111. 189. "Gave judgment in favor of plaintiff for $171 and costs" is a sufficient entry of a justice's judgment: Hutchinson v. Fulghum, 4 Heisk. 550. § 56 ENTRY OF JUDGMENTS NUNC PRO TUNC. 72 CHAPTER III. OF THE ENTRY OF JUDGMENTS AND DECREES NUNC PRO TUNC. Part I. — WHERE NO JUDGMENT WAS RENDERED. § 56. Policy and antiquity of the practice. § 57. Cases where delay is occasioned by non-action of the court. § 58. Where party is tied up by some motion. § 59. Entry to be made only when case was ready for final judgment. § 60. Not to be made, where the delay is not by the court. Part II. —JUDGMENTS RENDERED, BUT NOT ENTERED. § 61. Cases where judgment was rendered, but not entered. § 62. Evidence to base entry upon. § 63. Parol evidence as basis of. § 64. Practice on application for. § 65. Withdrawal of jurisdiction. § 66. Saving of rights of third persona. § 67. Effect of. § 68. Must be confined to clerical omissions. Part I. —JUDGMENTS NOT RENDERED. § 56. Policy and Antiquity of the Practice. — The policy of entering judgments and decrees nunc pro tunc is agreeable to the maxim, Actus curie neminem gravabit: an act of the court shall prejudice no one. This maxim, says Mr. Broom, " is founded in justice and good sense; and affords a safe and certain guide to the administration of the law."^ As an expression of the principle upon which judgments are given effect, as of sometime prior to their actual entry, the maxim, in the interests of accuracy, requires to be changed to " a delay of the court shall pre- judice no one." The power of making an entry nunc pro tunc seems to have been possessed and exercised by courts of law and of equity from the earliest times.^ The period in which this power could be successfully invoked was never limited;^ a decree in one instance being entered 1 Broom's Legal Maxims, 115. Iowa, 41; Davis v. Hooper, 4 Stew. & 2 Mayor of Norwick ?;. Berry, 4 Burr. P. 231; 24 Am. Dec. 751; Long v. 2277; Hodges v. Templer, 6 Mod. 191; Long, 85 N. C. 415. Evans v. Rees, 12 Ad. & E. 167; Mays ^ Reily v. Burton, 71 Ind. 118; Ful- V. Hassell, 4 Stew. & P. 222; 24 Am. ler v. Stebbins, 49 Iowa, 376. The Dec. 750; Shephard v. Brenton, 20 power may be exercised in crimmal 73 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 57 after the lapse of twenty-three years.^ The practice was confined to those cases in which some hardship would be visited upon one of the parties without any fault of his^ unless he was relieved from it by allowing his judgment to be entered at some period when he was legally entitled thereto, and of such a date as was necessary to avoid the embarrassment in which he would otherwise be involved. The power to enter judgments, decrees, and orders nunc pro tunc is inherent in the courts, both at law and in equity, and is not dependent for its existence upon any statute.^ Whether it is inherent in the courts in the sense that they cannot be deprived of it by the legislature is, so far as we are aware, an undetermined question; but doubtless every statute purporting to confer this power or to provide the mode in which it may be exercised will be regarded as cumulative merely, and not as withholding the power, in cases where it existed by the common law, nor as limiting its exercise to the time and mode designated in the statute.^ §57. Delay of the Court. — The cases naturally re- solved themselves into two classes. The first comprised a large number of actions in which no judgments had ever been rendered, but which were, so far as the suitors could make them, in condition for the rendition of final judg- ments. The second was composed of cases, comparatively few in number, in which judgments, though formally pronounced, had from accident or from negligence of the clerks never been put upon the records. The first class contained not only the greater number of cases, but each of the cases within it was, in all probability, more deserv- ing of relief than any of the cases of the second class. No prosecutions as well as in civil cases: (U. C.) 152; Reid v. Morton, 119 111. Ex parte Beard, 41 Tex. 2.34; Smith v. 118. State, 1 Tex. App. 408, 516; Ex parte * Mitchell ». Overman, 103 U. S. 62; Jones, 61 Ala. 399. Reid v. Morton, 119 III. 118; Burnham ' Daniell's Chancery Practice, 1219; v. Bailing, 16 N. J. Eq. 310. Lawrence v. Richmond, Jacob & W. * Chissom v. Barbour, 100 Ind. 1; 241. See also Downs v. Lewis, 11 Vcs. Fuller v, Stebbius, 49 Iowa, 370. 601; Drummond v. Anderson, 3 Grant § 57 ENTRY OF JUDGMENTS NUNC PRO TUNC. 74 case could be ranked among the first class in which the delay to render or enter judgment was imputable to any negligence or even misapprehension of the parties. The rule that no judgment would be ordered entered nunc pro tunc excejDt for delay of the court admitted of no excep- tions in theory, and was so constantly observed in prac- tice that one of the judges remarked that he had never known of its violation during his experience, extending at bar and bench over a period of forty years.^ The neces- sity for entering judgments as of some day prior to their rendition arose chiefly, if not exclusively, in those cases where, after the trial and submission of a cause, one of the parties died, as no judgment could properly be entered bearing date subsequent to his death. As the suitor who brought his action on to trial, and caused it to be tried and submitted, had manifestly been guilty of no laches, the court protected him from any prejudice he might suffer by the death of his adversary after such submission; and instead of permitting the action to abate, directed the judgment to be given effect, if necessary, as far back as the day of the submission. Thus the time taken by the court for deliberation was, as far as possible, prevented from working injustice to the party ^vho should in the end prevail in his suit.^ In the appellate courts, if a cause is argued and submitted either upon the merits or upon motion to dismiss the appeal, and thereafter one of the parties dies, the final judgment of reversal or afiirm- 1 Heathcote v. Wing, 11 Ex. 855; Paine, 483; Perry v. Wilson, 7 Mass. Freeman v. Trannah, 12 Com. B. 406; 393; Springfield v. Worcester, 2 Cush. Fishmongers' Co. v. Robertson, 3 Com. 52; Astley v. Reynolds, 2 Strange, B. 970; Lawrence v. Hodgson, 1 917; Neil v. McMillan, 27 U. C. Q. B. Younge & J. 368. 258; Day v. Cameron, 15 U. C. Q. B. 2 Jarrett's Estate, 42 Ohio St. 199; 175; Abington v. Lipscomb, 11 L. J. Mitchell V. Schoonover, 16 Or. 211; 8 Q. B., N. S., 15; Miles v. Wil- Am. St. Rep. 282; Jennings v. Ashley, liams, 16 L. J. Q. B., N. S., 47; Miles 5 Pike, 128; Pool v. Loomis, 5 Pike, v. Bough, 15 L. J. Q. B., N. S., 30; 110; Jones v. Le Davids, 2 Fowler's Turner v. L. & S. W. R'y Co., 43 L. J. Ex. Pr. 169; Campbell v. Mesier, 4 Ch. 430; Wilson v. Myers, 4 Hawks, Johns. Ch. 344; 8 Am. Dec. 570; 73; 19 Am. Dec. 510; McLean v. State, Davies V. Davies, 9 Ves. Jr. 461; Wood 8 Heisk. 22; Key v. Goodwin, 4 Moore f. Keyes, 6 Paige, 478; Hess v. Cole, & S. 620. 23 N. J. L. 116; Griswold v. Hill, 1 75 ENTRY OF JUDGMENTS NUNC PRO TUNC. §§ 58, 59 ance or dismissing the appeal will be entered as of some day prior to the death of the party but subsequent to the argument.* § 58. Delay Occasioned by Motions.— Besides the de- lay occasioned by the deliberations of the judges after the argument of a cause, the prevailing party was likely to be tied up by various motions whose pendency deprived him, for a time, of the fruits of his litigation. The considera- tion of these subjected him to the same peri] and entitled him to the same relief as though he were endangered by being compelled to await the decision of the judges after the argument on the trial.^ Hence if during the pen- dency of a motion in arrest of judgment,^ or for a new trial, "whether after verdict or nonsuit, on demurrer or writ of error,'' or to reduce the amount of an award,^ or if pending the decisions of questions of law which could not be heard on account of press of business in court," ^ one of the parties dies, the other may have judgment entered as of some term during the lifetime of his oppo- nent. § 59. Made only when Cause was Ready for Final Judgment. — But in every case, to entitle the applicant to have his judgment entered nunc pro tunc on account of the death of one of the parties, the action must at the time of such death have been ready for the rendition of ^Richardson v. Green, 130 U. S. * Spalding v. Congdon, 18 Wend. 104; Powe v. MoLeod, 76 Ala. 418; 543; Ryghtmyret;. Durham, 12 Wend. Snow v. Carpenter, 54 Vt. 17; Citizens' 245; Currier v. Lowell, 16 Pick. 170; Bank v. Brooks, 23 Fed. Rep. 21. Tooker v. Duke of Beaufort, 1 Burr, 2 Mitchells. Schoonover, 16 Or. 211; 147; Terry i;. Briggs, 12 Cush. 319; 8 Am. St. Rep. 282; Skidaway S. R. R. Dial v. Ilolter, 6 Oliio St. 228; Den v. Co. V. Brooks, 77 Ga. 136; Goddard v. Tomlin, 18 N. J. L. 14; 35 Am. Dec. Bolster, 6 Me. 427; 20 Am. Dec. 320; 525. Tapley v. Goodsell, 122 Mass. 176; ^ Bridges v. Smyth, 8 Bing. 29. Long w. Stafford, 103 N. Y. 275; Board « Miles v. Williams, 9 Q. B. 47; V. Hall, 79 N. C. 606; Witten V. Kobe- Tapley v. Martin, 116 Mass. 275; son, 31 Mo. App. 525; Paige's Estate, Blaisdell v. Harris, 52 N. H. 191; 50 Cal. 40. Seymour v. Greenwood, 30 L. J. Ex. ^Tidd's Practice, 8th ed., p. 966; 189; Moor v. Roberts, 3 Com. B., N.S., Griffith V. Ogle, 1 Binn. 172; Brown v. 844; 4 Jur., N. S., 241; 27 L. J. Com. P. Wheeler, 18 Conn. 199. 161. § 60 ENTRY OF JUDGMENTS NUNC PRO TUNC. 76 the final judgment.^ It is not sufficient that an interlocu- tory judgment had been pronounced, and proceedings were pending in pursuance of a writ of inquiry,^ nor that judgment had been given against the defendant on de- murrer with leave to amend. In each of these cases no judgment could properly have been entered when the death occurred, and that event ought not to give the sur- vivor any greater advantage than he previously possessed. "It [entering judgments nunc "pro tunc] should be con- fined to cases where the judgment is final, as where a verdict has been rendered or a nonsuit ordered, which is confirmed by the court on motion for a new trial, or where a judgment is rendered on a special verdict, de- murrer to evidence, or a w^it of error. But according to the present practice judgment on demurrer is seldom final." 3 § 60. Delay, not of Court. — If, however, the delay is in no wise attributable to the court, nor to the tying up of the case during the time required to dispose of such motions as we have mentioned, no doubts nor difficulties, nor mistakes of law, in which one of the parties has been involved, will entitle him to this relief.* If, for instance, the counsel in a case are unable to decide at once what form of judgment or decree is best, and while discussing this matter among themselves the plaintiff or defendant dies,^ or if a party, upon applying to have judgment signed, does not press the matter because one of the officers suggests a doubt as to whether it is not a legal holiday, and the defendant dies the same day,^ neither of these cases warrants the interposition of the court. The court is in no way blamable for the doubts or misappre- ^ O'Riordan v. Walsh, 8 I. R. C. L. Kissam v. Hamilton, 20 How. Pr. 158; Hall v. Brown, 59 N. H. 198; 375. Hazards. Durant, 14 R. I. 25; Perkins * Tuomy v. Dunn, 77 N. Y. 515. V. Dunlavy, 61 Tex. 241. Contra, * Fishmongers' Co. v. Robertson, 3 Webber v. Webber, 83 N. C. 280. Corn. B. 970; 16 L. J. Com. P., N. S., 2 Jennings v. Ashley, 5 Pike, 12S. 118; 4 Dowl. 6o&. » North V. Pepper, 20 Wend. 677; « Wilkes v. Perkes, 5 Man. & G. 376. 77 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 61 hensions of the parties nor of their advisers, and it will not change its course of proceeding to relieve them from the consequence of any mistake of law or of fact. That there is a surviving defendant is not a sufficient objection to the entry of judgment nunc pro tunc, if the other facts authorize it.' The rule that judgment will not be entered nunc pro tunc will, unless to relieve a party from injury attributable to a delay of the court, be enforced even where a delay has been occasioned by the party against whom the entry is sought to be made. Thus where judg- ment would have been entered within two terms after the entry of the verdict but for the fact that the plain- tiff's executor was delayed in proving a will on account of a caveat entered by the defendant against the probate being granted, the court, though conceding the case to be one of extreme hardship, denied the application to enter judgment nunc pro tunc, one of the judges saying: "I think we ought not to be induced, by our desire to do substantial justice in the individual case, to depart from those general principles which are the only safe guides for the administration of the law." ^ Part II. — CASES OF JUDGMENTS RENDERED, BUT NOT ENTERED. § 61. In Relation to the Second Class of Cases, some degree of negligence is always chargeable against the par- ties for not attending to having the proper entries made. Frequently, however, both parties suppose the judgment to be entered as well as rendered. Upon that supposition, process is issued and enforced, or other proceedings taken to carry out the judgment, and new rights and interests are based upon it. To protect these, it is occasionally necessary to have the judgment entered as of some time prior to their inception. The entry of judgment nunc pro tunc is always proper when a judgment has been ordered by the court, but the clerk has failed or neglected to copy 1 Harrison v. Heathorn, 6 Scott N. " Freeman v. Trannah, 12 Com. B, R. 797; 1 Dowl. & L. 529. 406; 21 L. J. Com. P., N. S., 214. § 61 ENTRY OF JUDGMENTS NUNC PRO TUNC. 78 it into the record.^ Therefore, if a judgment of divorce has been rendered which the clerk of the court has ne- glected to enter until after the death of one of the parties, he may be directed to enter it nunc pro tunc as of some day in the lifetime of the decedent,^ on application of one who was not a party to the cause, and, when entered, it becomes operative as of the day of its rendition, and if collaterally drawn in question it is conclusive as to all matters of evidence necessary to its validity.' A sale of the lands of a minor having been made and reported to the court, and the judge having indorsed on the report his approval of the sale, an order was entered sixteen years afterwards approving the sale as of the day when the approval was indorsed on the report." It would be idle to attempt the enumeration of the different classes of judgments which may be entered nunc pro tunc, for the rules of law upon this subject are no less applicable to one class of cases than to another. Nor is the power to make nunc pro tunc entries confined to judgments and decrees. It is a power which courts have and liberally exercise, to make their records speak the truth, and if a clerk has omitted to make an entry of any proceeding, whether be- fore or after the final judgment or decree, the court may require him to supply his omission nunc pro tunc.^ A judgment thus entered need not be one which the court or judge formally pronounced, if it was one which the law required the clerk to enter. Hence a clerk's neglect to enter, at the proper time, a judgment by confession or of voluntary dismissal may be set right by a nunc pro tunc entry." It has been said that a court would not order judgment entered nunc pro tunc to enable a party to avoid iHagler v. Mercer, 6 Fla. 721; * Estate of Cook, 77 Cal. 220; 11 Howell V. Morlan, 78 111. 162: Frank- Am. St. Rep. 267. lin V. Merida, 50 Cal. 289; Fulton v. ^ In re Cook's Estate, 83 Oal. 415. Fulton, 8 Abb. K C. 210; Hansbrough * Reid v. Morton, 119 111. 118. ?; Fudge, 80 Mo. 307; BelkintJ. Rhodes, ^ State v. Cox, 33 La. Ann. 10o6; 76 Mo. 643; Forbes v. Navra, 63 Miss. State v. Moran, 24 Neb. 103; Security 1; Whorley v. M. & C. R. R. Co., 72 Co. v. Arbuckle, 123 Tud. ol8. ^ Ala. -20; Aydelotte v. Brittain, 29 Kan. ® Mountain v. Rowland, 30 G-a, 929; 98; Whittaker v. Gee, 63 Tex. 435. Davis v. Barker, 1 Ga. 559. 79 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 61 its effect by pleading against it his discharge in bank- ruptcy, and the reason suggested was, that the court would not thus aid him " to release himself from a valid claim against him." ^ There was, however, in the case in which this suggestion was made, no reason for entering the judgment as requested. The action was still pending when the discharge was granted, and it was not then known that any judgment would ever be entered against the bankrupt. He had not been prejudiced by any delay of the court, nor by any omission of its clerk, and was, therefore, not entitled to the special relief which he sought. Had the judgment been rendered against him before his discharge was granted, we apprehend that the court would have ordered it entered as of its proper date, though his object in procuring such entry was to bring the judgment within the operation of the discharge. Surely, one should not be deprived of a legal right granted him by the law and the courts, through the legal wrong of a clerk in omitting to discharge the duties imposed on him by law. The questions of the greatest importance and difficulty in relation to the entry of judgments, orders, and decrees nunc pro tunc are. How shall it be shown, — 1. That a judg- ment was rendered as alleged? and 2. If so rendered, what were the nature and extent of the relief given by it? During the term the proceedings are under control of the court, and no embarrassing questions can arise in relation to the exercise of its correctory powers. But after the term, upon what evidence can a motion for the entry of judgment as of some prior term be based? Upon this subject the decisions are not numerous. In most cases where the propriety of the entries came in question, the facts are stated in the reports without any intimation as to how those facts were made apparent to the court. Probably the weight of authority sustains the rule that only by some entry or memorandum on or 1 Hall V. Brown, 59 N. H. 198. § 61 ENTRY OF JUDGMENTS NUNC PRO TUNC. 80 among the records of the court can the rendition of a judgment be proved.^ It is not necessary that the record state in express terms that a judgment was en- tered. If the facts shown by it " are such as to reason- ably and fairly carry conviction that a judgment was in fact rendered, this is sufficient."' While in some of the cases in which judgments have been ordered entered nunc pro tunc it appeared that the judges rendering them had prepared written decisions, or had signed formal judg- ments or decrees, these facts were not material, except in so far as the decisions gave "the clerk surer means of correctly entering what had been adjudged." If the fact of the rendition of the judgment sufficieutl}'- appears from the minutes of the court, it may be ordered entered nu7ic pro tunc, though no written decision was filed and no formal judgment was signed by the judge, or prepared by the attorneys.^ An entry must somewhere be found and produced in court, apparently made by the authority of the court. It must be in some book or record required to be kept by law in that court. Under this rule, a decree filed among the papers in a cause, signed by the judge, when the law did not require decrees to be reduced to writing and filed, and when no part of the records showed the rendition of any decree, was considered insufficient to Avarrant its entry nunc pro tunc as the formal decree of the court.* The motion docket being a book required by law to be kept, the memoranda there made are competent evidence to show the rendition of a judgment.* So is the opinion of a judge in writing, filed among the records in a case, if the law required it to be written and filed.^ 1 Metcalf v. Metcalf, 19 Ala. 319; 54 85 Tenn. 377; Shackelford v. Levy, 63 Am. Dec. 190; Hegeler v. Henckell, 27 Miss. 125; Camoron v. Thurmond, 56 Cal. 491; Fletcher v. Coombs, 58 Mo. Tex. 22. Contra, Bobo v. State, 40 430; Draughan v. Tombeckee Bank, 1 Ark. 224. Stew. 66; 18 Am. Dec. 38; Swain v. =* Wittenv. Robison, 31 Mo. App. 525. Naglee, 19 Cal. 127; Hyde v. Curling, » Estate of Cook, 77 Cal. 220; 11 10 "Mo. 359; Witten v. Robison, 31 Am. St. Rep. 267. Mo. App. 525; Gibson v. Choteau, 45 * Hudson v. Hudson, 20 Ala. 364; Mo. 171; 100 Am. Dec. 366; Herringz;. 56 Am. Dec. 200. Cherry, 75 Ala. 376; Robertson v. * Yonge v. Broxson, 23 Ala. 684. Pharr, 56 Ga. 245; Cadwell v. DuUag- « State v. Mayor of Mobile, 24 Ala. ban, 74 Iowa, 239; Carter v. McBroom, 701. 81 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 62 § 62. Evidence to Base Entry on. — But assuming the evidence to be competent for the purpose for which it is offered, and to show the rendition of some judgment, the question then to be determined is, Does it siiow with suffi- cient clearness what that judgment was? and if not, may its obscurity be removed by the use of other means of proof? The entry by a judge in his docket, "Jury and verdict for plaintiff, and fifteen per cent damages," taken in connection with the papers on file, was adjudged to afford no sufiicient data for judgment nunc -pro tunc, be- cause the verdict may have been for less than the amount claimed by the plaintiff.^ The memoranda on the trial docket of the orphans' court, as follows: "Joshua Morris, heir of A. Metcalf, use of J. W. Williamson, v. Adams. Judgment on demurrer. Leave to amend granted on payment of costs of the term. Costs paid by S. T. Roach, attorney. Ordered to appoint auditors, Benjamin Wald- ing, Mathew Johnson, and Daniel Johnson. Ordered that they report instanter. Auditors' report in the hands of administrator, $469.82," — were held not to sustain a nunc pro tunc decree, on account of their not showing the pres- entation of any accounts, the amounts received or paid out, the name of the administrator, nor whether the set- tlement was partial or final.'^ The words on motion docket, "Oct. Term, 1841, — Nonsuit," with lines drawn across the names of the plaintiff and defendant, according to the custom when a case was stricken from the docket, all done, confessedly, by the presiding judge at the time, authorize the entry of a judgment nunc pro tunc.^ In Missouri, an entry nunc pro tunc cannot be sustained, if the court must, as to some essential fact, have acted either ■upon the recollection of the judge or upon evidence not found in the records or quasi records in the cause;* but an order granting a motion may be entered nunc pro tunc, 1 Dickens v. Bush, 23 Ala. 849. ♦ Blize v. Castilo, 8 Mo. App. 290; * Metcalf V. Metcalf, 19 Ala. 319; 54 Belkin v. Rhodes, 76 Mo. 643; Gamble Am. Dec. 190. v. Daugherty, 71 Mo. 599; Atkinson r. » Short V. Kellogg, 10 Ga. 180. Atchisou etc. R. R. Co., 81 Mo. 50. Jddq. I. — 6 § 62 ENTRY OP JUDGMENTS NUNC PRO TUNC. 82 if it appears from the files of the court that the motion was made and what its purpose was, and from a recital in an order of court that the motion had been granted.^ In Indiana, an entry nunc pro tunc must be sustained by something in addition to parol evidence or the recollec- tion of the judge. Therefore an order cannot be made after the expiration of a term of court stating that time was granted in that term for the filing of a bill of excep- tions, when there is no record to sustain it.^ The courts of Alabama, whose reports are wonderfully prolific in cases involving the power to enter judgments nunc pro tunc, have viewed such entries with unfounded alarm, and have seen the dangers arising from their encouragement, through some exaggerating medium. These courts are severe in their condemnation of the practice of assisting the record memoranda by parol evidence. An entry on the docket, "Estate of Solomon Perkins, deceased," "Final settlement," "Settlement made," accompanied by proof of the terms of the decree from memoranda made by the attorney on the back of the account, and by the testimony of the judge that he pronounced an oral decree in con- formity with the memoranda, having been used with success upon the hearing of a motion to have a decree ordered entered in conformity with the proof of its ren- dition, the action of the court was reversed upon appeal, the appellate court saying: "If we can hold this sufficient, there is no telling where we ought to stop. If a judge can refresh his memory by writings made by a third person, and prove the terms of his decree in that way, it is the same in principle as allowing the terms of any judgment, verdict, or decree to be established altogether by oral testimony; and this would be a very dangerous precedent, and going much further than any of our decisions war- rant."* The extreme position here taken is the logical * Hansbrough v. Fudge, 80 Mo. 307. verdict of a jury in favor of plaintiff, * Schoonover v. Reed, 65 Ind. 313; signedby its foreman, does not author* Nye V. Lewis, 65 Ind. 326. ize the entry of judgment nunc pi'O ^ Perkins v. Perkins, 27 Ala. 479. tunc, there being no entry in any record The fact that a paper is among the to show the rendition of judgment; files in a case, purporting to be the Herring v. Cherry, 75 Ala. 376. 83 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 63 result of the general rule frequently announced and more frequently violated, that a record can only be amended by some matter of record. Chief Justice Gibson, more than twenty years ago, said: "The old notion that the record remains in the breast of the court only till the end of the term has yielded to necessity, convenience, and common sense." ^ § 63. Parol Evidence as Basis of. — Whether the "old notion " has yielded so far as to authorize the entry of a judgment as of some prior date, when there is no record evidence of its rendition at such date, is doubtful; but the fact of the rendition of a judgment being made evident by the record, a decided preponderance of authority au- thorizes the court to proceed in its subsequent investiga- tions with the aid of oral as well as of written evidence. Were the rule otherwise, the power of courts to furnish relief, made necessary by the negligence or inadvertence of their clerks, would be so restricted in its operation as to be of little or no utility. The instances where, in the absence of the formal entry of judgment, the records show the final determination with accuracy and completeness are few in number. Our attention should not be so riveted upon the possible evil which might occasionally arise from establishing by parol the terms of some unre- corded adjudication as to make us oblivious to the more probable evil of refusing to protect the interests growing up under actual adjudications, which, though confessedly existing, have not been reduced into the most authentic form. Courts have a continuing power over their records not affected by the lapse of time. Should the record in any case be lost or destroyed, the court whose record it was possesses the undoubted power, at any time afterward, to make a new record. In doing this, it must seek infor- mation by the aid of such evidence as may be within its reach, tending to show the nature and existence of that which it is asked to re-establish. There is no reason why * Khoada v. Commonwealth, 15 Pa. St. 272. § 63 ENTRY OF JUDGMENTS NUNC PRO TUNC. 84 the same rule should not apply, when, instead of being lost, the record was never made up, or was so made up as to express a different judgment than the one pronounced by the court. Hence the general rule that a record may bo amended, not' only by the judge's notes, but also by any other satisfactory evidence.^ " But we think it clear upon the authorities that the court may make such amendments upon any competent legal evidence, and that they are the proper judges as to the amount and kind of evidence requisite in each case to satisfy them what was the real order of the court." ^ "Each court must necessarily be the proper judge of what it has decided and adjudged, and when it orders an amendment of the record, the presumption of other courts must necessarily be that it does not undertake to order its clerk to record what it never had decided."* "Whether there was a mistake in the record was a question of fact to be established as any other fact in a court of justice by proper evidence. For this purpose the letter of the chief justice, the entries on the docket-books, and the testimony of the witnesses who heard the decision announced in open court, were all admissible." ^ Such evidence as is compe- tent to amend a record ought to be competent to supply one. For a court in interfering with an existing record, whose inaccuracy is not evident from other matters of record, moves upon more doubtful ground than in con- ducting investigations when no matter of record needs to be modified or overthrown. In Massachusetts, the record of a judgment was completed after the lapse of twenty years, and the proposition affirmed that the amount of evidence for that purpose is within the discretion of the court.* The evidence in this case was oral. In another 1 IMatheson's Adm'r v. Grant's « Weed v. Weed, 25 Conu. 337; Hoi- Adm'r, 2 How. 263; Clark v. Lamb, lister v. Judges District Court of Lu- 8 Pick. 415; 19 Am. Dec. 332. cas County, 8 Ohio St. 201; 70 Am. 2 Frink v. Frink, 43 N. H. 508; 80 Dec. 100. Am. Dec. 172. ' Rugg v. Parker, 7 Gray, 172; 9 * Petition of Inhabitants of Limerick, Gray, 209. 18 Me. 183. 85 ENTRY OP JUDGMENTS NUNC PRO TUNC. § 63 instance the entry seems to have been ordered upon mo- tion, supported by an affidavit.^ In several other cases, the reception of parol evidence has been sanctioned, for the purpose of showing the nature of the judgment alleged to have been rendered;^ and in one the fact of the rendi- tion of the judgment as well as the relief granted was established only by parol evidence.^ Perhaps the most extreme case upon this side of the question and the one going the furthest to sustain nunc pro tunc entries is that of Wight, Petitioner, 134 U. S. 136. In that case the petitioner sought his release on habeas corpus, and his im- prisonment was justified under a judgment of a district court of the United States. Before this judgment was rendered, the case had been certified to a circuit court of the United States, and was, so far as the records disclosed, pending in the latter court when the judgment was ren- dered in the former, and if such were the fact, the judg- ment of the district court was void. When the attention of the circuit court was called to the state of its records, it, on the 30th of September, 1889, " upon its own motion based upon its own recollection of the facts of the mak- ing of the order," on the twelfth day of March, 1889, re- manding the case to the district court, directed such order to be entered nunc pro tunc as of the day last named, and the order being so entered, it then appeared therefrom that the cause had been remitted to the district court and that it had jurisdiction over Wight at the time it passed judgment against him and directed his imprisonment. In the report of the case it is not shown that any evidence whatever was oflPered that any order had been made on the twelfth day of March remanding the case to the district court. The judge, in directing the nunc pro tunc entry, professed to act wholly on his recollection, and while there is no occasion in this instance to doubt the accuracy of ' Doe V. Litherbery, 4 McLean, 442. 555; Davis w. Shaver, 1 Phill. (N. C.) 18; * Burnett v. State, 14 Tex. 455; 6.') 91 Am. Dec. 92; Aydelotte v. Brittain, Am. Dec. 1.31; State v. McAlpin, 4 29 Kan. 98. Ired. 140; Johnson v. Wright, 27 Ga. " Bobo v. State, 40 Ark. 224. § 64 ENTRY OF JUDGMENTS NUNC PRO TUNC. 86 such, recollection, and it was probably not disputed by the prisoner, yet we cannot view this precedent otherwise than with alarm. If a judge is to act wholly on his recol- lection, and is not even required to give evidence of it as if he were a witness, by what method can one injured by a nunc pro tunc entry obtain a review of the action of the court? and by what means can an unscrupulous judge, should one ever be elevated to the bench, be prevented from entering nunc pro tunc judgments which were never before rendered ? The court, in making its decision, acted chiefly upon a statement of the law upon this subject made by Mr. Bishop in section 1160 of the first volume of his work on criminal procedure, and that section may be so construed as to support the action of the court. The authorities, however, which Mr. Bishop cites do not, any of them, necessarily sustain the position which the supreme court of the United States understood him to maintain, and some of them were decisions of the supreme court of Missouri, a court which has uniformly refused to act except upon some matter of record. Of the cases cited the most relevant was Bilanshy v. State, 3 Minn. 427. An examination of that case reveals that no final judgment had been rendered, and that the court proceeded on the ground that, until final judgment, all proceedings are in fieri and subject to amendment, and in the case before the court the counsel for the defendant did not deny that the pro- posed amendments were necessary to make the record speak the truth. There is nothing in the report of the Minnesota case to show whether or not the amendments were supported by the records, and certainly nothing to in- dicate that the judge acted on his recollection and in the absence of all evidence. § 64. Practice in Obtaining Nunc pro Tunc Entries. — The circumstances in which nunc pro tunc entries become necessary or proper are so varied that rules of practice applicable to all cases cannot be formulated. Doubtless 87 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 65 all courts have the right and are under the duty to make their records speak the truth and the whole truth, whether the parties to the action or any other person wishes them to do so or notj and a court may therefore direct a nunc pro tunc entry on its own motion, as was done in Wight's case, 134 U. S. 136.^ Any person having rights depend- ent upon or affected by a judgment may call the atten- tion of the court to the failure of its clerk to enter it, and ask that the entry be made as of the day when the judg- ment was rendered.^ The proceedings on application to enter judgment nunc pro tunc are summary, and not re- quired to be supported by pleadings.^ The practice in some courts seems to require the moving party to give notice of his motion to his adversary,^ and certainly this is very proper when the entry is not required to be made as a matter of course, and where the motion is supported by other evidence than the records or quasi records of the court. If the moving party wishes to use the entry, when procured, to affect the rights of one not a party to the action, he should be notified of the motion. If he does not appear to have had notice of the rendition of the judgment, nor of the motion to enter it nunc pro tunc, he may sometimes escape the effect of the entry .^ The more usual practice is to proceed ex parte to order entries re- quired to complete the record, especially where the court acts solely upon matters of record.'* § 65. Termination of Jurisdiction. — In Ohio, it has been decided that if, after the rendition of a judgment, and before the entry thereof, the jurisdiction of the court over that class of cases is withdrawn, the court as to them 1 Crim V. Kessing, 89 Cal. 478. •= Fuqua v. Carriel, 1 Minor, 170; 12 2 Estate of Cook, 77 Cal. 220; 11 Am. Dec. 46; Allen w. Bradfonl, .3 Ala. Am. St. Rep. 267; Reid w. Morton, 119 281; 37 Am. Dec. 689; Stokes v. Shan- Ill. 118; Crimu Ke.ssing, 89 Cal. 478. non, 55 Mi.ss. 583; Naber.s ?'. Meredith, 3 Urbaniski v. Manns," 87 Ind. 585. 67 Ala. 333; Long v. Stallord, 103 *Berthold». Fox, 21 Minn. 51; King N. Y. 274; Portis v. Talbot, 33 Ark. V. Burnham, 129 Mass. 598. 218; Estate of Cook, 77 Cal. 220; 11 * Koch V. Atlantic and Pacific R. R. Am. St Rep. 267; Crim v. Kessing, Co., 77 Mo. 354. 89 Cal. 478. § 66 ENTRY OF JUDGMENTS NUNC PRO TUNC. 88 ceases to exist, and cannot enter its judgment nunc pro tunc} The correctness of this decision may well be doubted. The case seems to us to be one where the cor- rectory powers of the court could have been employed in the furtherance of justice, without any infringement of the law. The jurisdiction of the court over the case had been completed by hearing and determining the issues involved^ and by granting appropriate relief. What remained to be done after the withdrawal of jurisdiction, either in giving effect to the judgment or in correcting or completing the records, the court had power to do by virtue of its general jurisdiction, and its continuing power over its records. In considering whether there was an omission of some- thing from its records which ought not to be omitted, the court was not in the exercise of the same kind of jurisdic- tion exercised by it in trying the cause; nor was the jurisdiction over the records necessarily dependent upon the continuance of jurisdiction over the subject-matter of the suit. Where an action was brought under a statute, and judgment rendered, which was delayed by the pen- dency of a motion for a new trial, during which the stat- ute was repealed, judgment was entered as of a time when the statute was in force,*^ § 66. Rights of Third Persons.— The entry of judg- ments or decrees nunc pro tunc is intended to be in fur- therance of justice.' It will not be ordered so as to affect third persons who have acquired rights without notice of the rendition of any judgment.* Generally, such condi- tions will be imposed as may seem necessary to save the interests of third parties, who have acted bona fide and without notice; but if such conditions are not expressed 1 Ludlow V. Johnson, 3 Ohio, 553; 15 Am. Dec. 614; Miller v. Wolf, fi3 17 Am. Dec. 601). Iowa, 233; Smith v. Hood, 25 Pa, St. * Springfield t). Worcester, 2 Cush. 52. 218; 64 Am. Dec. 692; Bank of New- 3 Hemininc v. Batchelor, 23 Week, burgh v. Seymour, 14 Johns. 219; Rep. 398; 33 L. T., N. S., 16; 44 L. J. Koch v. A. & P. R. R. Co., 77 Mo. 354; Ex. 54. Ninde v. Clark, 62 Mich. 124; 4 Am. * Gaipiu V. Fishburue, 3 McCord, 22; St. Rep. 823. 89 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 67 in the order of the court, they are, nevertheless, to he con- sidered as made a part of it by force of the law. The public are not expected nor required to search in unusual places for evidences of judgments. They are bound to take notice of the regular records, but not of the existence and signijfication of memoranda made by the judge, and upon which the record may happen to be afterwards per- fected.^ The expression so frequently made that a nunc pro tunc entry is not to affect the rights of third persons must not be understood as signifying that effect must be denied to such an entry in all cases where third persons have acquired interests. Courts in determining whether or not to amend or perfect their records are controlled by considerations of equity. If one not a party to the action has, when without notice of the rendition of the judgment or of facts from which such notice must be imputed to him, advanced or paid money or property, or in other words, has become a purchaser or encumbrancer in good faith and upon a valuable consideration, then the subse- quent entry of such judgment nunc pro tunc will not be allowed to prejudice him. Otherwise its effect against him is the same as if it had been entered at the proper time.^ § 67. Effect of. — When a judgment has been entered nibnc pro tunc, and is offered in evidence in another action or proceeding, it will be presumed to have been entered regularly and upon competent and sufficient evidence.^ With the exception pointed out in the previous section, a judgment entered nunc pro tunc must be everywhere re- ceived and enforced in the same manner and to the same extent as though entered at the proper time. Though an execution may have issued, and proceedings under it cul- » Hays T. Miller, 1 Wash. 163; Jor- * Leonard v. Bronghton, 120 Ind. dan V. Petty, 5 Fla. 326; McCormick 536; 16 Am. St. Rep. 347; Tapley v. V. Wheeler, 36 111. 114; 85 Am. Dec. Goodsell, 122 Mass. 176. 388; Graham v. Lynn, 4 B. Mon. 17; *Estateof Cook, 83 Cal. 415; Allen t7. 39 Am. Dec. 493; Acklen v. Acklen, Sales, 56 Mo. 28; Belkin v. llliodes, 76 45 Ala. 609. ^io- 6^:3; Bryan v. Streeter, 57 Ala. 104. § 68 ENTRY OF JUDGMENTS NUNC PRO TUNC. 90 minated by the sale of property, when there was nothing on the record to support it, yet the omission was one of evidence, and not of fact, and the evidence being supplied in a proper manner, full force and effect will be given to the fact as if the evidence had existed from the beginning.* Where, however, the entry of judgment nunc pro tunc is not occasioned by the negligence of the clerk in not enter- ing a judgment duly rendered, but by the death of a party after the cause was submitted and before its decision, then the only object of the entry is to relieve the judg- ment from the apparent error of having been given after the death of a party. For most purposes, the effect of the judgment is not different from what it would be had it not been entered nunc pro tunc, because until its rendition no proceedings could be taken for its enforcement. There- fore the statute of limitations does not commence to run against an action upon it until the date of its actual ren- dition.^ § 68. Must be Based on Previous Act of the Court. — It must be observed that the entire purpose of entering judgments and decrees as of some prior date is to supply matters of evidence, and not to supply or modify matters of fact. The failure of a court to act, or its incorrect action, can never authorize a nunc pro tunc entr3^ If a court does not render judgment, or renders one which is imperfect or improper, it has no power to remedy any of these errors or omissions by treating them as clerical misprisions.^ » Graham v. Lynn, 4 B. Mon. 17; 39 ^ Gray v. Brignardello, 1 Wall. 627; Am. Dec. 493; Davis w. Shaver, 1 Phill. Petition of Inhabitants of Limerick, (N. C.) IS; 91 Am. Dec. 92; Rugg v. 18 Me. 183; Hyde v. Curling, 10 Mo. Parker, 9 Gray, 209; Burnett t). State, 359; Gibson v. Chouteau, 45 Mo. 171; 14 Tex. 455; 65 Am. Dec. 131; Bush 100 Am. Dec. 366; Fetters v. Baird; V. Bush, 46 Ind. 70; Barker v. Stow, 70 Mo. 389; Woolridge v. Quinn, 70 20 Blatchf. 185; Tapley v. Goodsell, Mo. 370; Cassidy v. Woodward, 77 122 Mass. 176. Iowa, 355; Garrison v. People, 6 Neb. =* Borer v. Chapman, 119 U. S. 587. 274. 91 AMENDING JUDGMENTS. § 69 CHAPTER IV. AMENDING JUDGMENTS. § 69. During term. § 70. Correcting judgment after term. § 71. Ameniiiug judgment entry. § 72. Data for, in the United States. § 72 a. Notice of application. § 73. Time within which amendments may be made. § 74. Eifect of amendments as against parties and strangers. § 74 a. Discretion of court in amending judgments. § 69. During Term. — " During the terme wherein any judiciall act is done, the record remaineth in the brest of the judges of the court, and in their remembrance, and therefore the roll is alterable during that terme, as the judges shall direct; but when the terme is past, then the record is in the roll, and admitteth no alteration, aver- ment, or proof to the contrarie." ^ Of the law thus laid down, the only part remaining unshaken to the present time is, that during the term the proceedings remain in the breast of the judges. Not only do the records during that time remain subject to the revision of the court, but the judgment itself may be altered, revised, or revoked, as well as amended in respect to clerical errors and mat- ters of form.^ ' Co. Lit. 260 a; 3 Bla. Com. 407. Memphis v. Brown, 94 U. S. 715; 2 Barrel! v. Tilton, 119 U. S. 637; Green v. Pittsburgh etc. R. R. Co., 11 Alabama G. L. Ins. Co. v. Nichols, 109 W. Va. 685. But in Grant ?;. Schmiilt, U. S. 232; Wolmerstadt v. Jacobs, 61 22 Minn. 1, it was held that the com- lowa, 372; Ryon v. Thomas, 104 Ind. mon-law rule authorizing the judge to 59; Goddard v. Ordway, 101 U. S. 745; set aside, correct, or modify his judg- State V. Dougherty, 70 Iowa, 439; ment at any time during the term was Moore v. Taylor, 1 Idaho, N. S., 630; inapplicable to the system of practice Morgan v. Eggers, 127 U. S. 63; Burch in that state; that "the control of the V. Scott, 1 Bland, 112; Dane's Abr., c. court over causes coming before it 146, art. 5, sec. 11; Stahl v. Webster, (except where retained by the statute, II 111. 511; De Castro v. Richardson, and except the necessary control over 25 Cal. 49; Obenchain v. Comegys, 15 its records which every court has) ter- Ind. 496; Robinson v. Comm'rs, 12 miuates with the entry of judgment "; Md. 1.32; Lane w. EUinger, 32 Tex. 369; and therefore that the only mode in Palsgrave v. Ross, 2 L. C. Jur. 95; which a judgment could be modified Richardson v. Howk, 45 Ind. 451; or vacated was by appeal, or by United States v. Harmison, 3 Saw. 556; motion for a new trial. § 70 AMENDING JUDGMENTS. 92 § 70. Correcting Judgments. — As a general rule, no final judgment can be amended after the term at which it was rendered. The law does not authorize the correction of judicial errors under the pretense of correcting clerical errors. To entitle a party to an order amending a judg- ment, order, or decree, he must establish that the entry as made does not conform to what the court ordered.^ Thus if a solicitor inadvertently omits from a decree some clause which he intended to insert, and presents the decree to the judge, who adopts it as the judgment of the court, this is no ground for an amendment, for the facts do not show that the court intended to pronounce any different decree from the one prepared by the solicitor; and to change the record would be equivalent to exercising a revisory power over the judgment itself by the same authority that pronounced it.^ The following amend- ments have been declared improper, because correcting or revising judicial action, or supplying the want of it, rather than correcting clerical errors or supplying clerical omis- sions: Changing a judgment against plaintiff for costs to a judgment against the person for whose benefit plaintifi" in his official capacity as clerk of the court brought the action;^ correcting an alleged error in the mode of com- puting interest;^ allowing interest when the judgment as first entered did not allow any;^ showing that the court was of the opinion that plaintiff" ought to recover costs, notwithstanding the smallness of his recovery;^ changing a iGarlington v. Copeland, 32 S. C. 26 Mo. App. 541; Boyd v. Platner, 5 57; Ross V. Ross, 83 Mo. 100; Moore v. Mont, 226. State, 63 Ga. 165; Becker v. Sauter, 89 ^ Forquer v. Forquer, 19 111. 68; 111. 596; Botkin v. Comm'rs, 1 Ohio, Bac. Abr., tit. Amendments, etc., 375; 13 Am. Dec. 630; Bramlett v. F; Scroggins's Adm'r v. Scroggins, 1 Pickett, 2 A. K. Marsh. 10; 12 Am. J. J. Marsh. 362; Powell's Appellate Dec. .350; Balis v. Wilson, 12 Mart. Proceedings, 387; Dor sey v. Dorsey, 37 rd to amend it is not impaired by the fact that an appeal has been taken/ and has resulted in an affirmance of the judgment.^ § 74. Effect of Amendments. — The observations in the preceding chapter, upon the effect of the entry of judgments nunc pro tunc as of the date of their rendition are equally applicable where such entry is not of a whole judgment, but is only a partial modification of it. When the entry is amended it is merely perfected evidence of what, in contemplation of law, existed from the time judgment was pronounced, and for most purposes the judgment will be given effect as if no error or omission had occurred in its original entry .^ All persons who were not parties to the action, and who have acquired in- terests based upon the existing state of the record, acting in good faith, and being purchasers for valuable consid- erations, without notice, actual or implied, of the exist- ence of the matters, evidence of which has been supplied by the amendment, are not prejudiced thereby,^ unless they have been accorded a hearing and the court has de- termined that they have no such equities as entitle them to be exonerated from the effect of the amendment.^ Generally, the effect of an amendment of a judgment or execution is to support proceedings already taken under Pollard V. King, 62 Ga. 103; Brooks v. Dreyfus v. Tompkins, 67 Cal. 339; Stephens, 100 N. C. 297; Sanders v. Conway v. Day, 79 Ind. 318. Contra, Williams. 75 Ga. 283; Ecker v. New Werborn v. Pinnev, 76 Ala. 291. Windsor Bank, 64 Md. 292; Ex parte ^ ^dams v. Wiggins, 23 Fla. 13; Henderson, 84 Ala. 36. Griffiths v. Sears, 112 Pa. St. 523; 1 Exchange Bank v. Allen, 68 Mo. King v. Burnham, 129 Mass. 598. 474; Freel v. State, 21 Ark. 226; Dow * Auerbach v. Gieske, 40 Minn. 258; V. Whitman, 36 Ala. 604; Attorney. Duffey v. Houtz, 105 Pa. St. 96; Col- General V. White, Biinb. 283; Rew v. man v. Watson, 54 Ind. 65; Indiana Barker, 2 Cow. 40S; 14 Am. Dec. 515, B. & W. R'y Co. v. Bird, 116 lud. and note; Richardson v. Mellish, 3 217; 9 Am. St. Rep. 842; Kemp v. Bmg. 346; 11 Moore, 119; 7 Barn. & Cook, 18 Md. 130; 79 Am. Dec. 681; C. 819; LadieaS. M. Co. v. Smith, 78 McCormick v. Wheeler, 36 111. 114; Ala. 108; Exchange Bank v. Allen, 68 84 Am. Dec. ,388; Legon's Adm'r v. Mo. 474; Bmns v. State, .35 Ark. 118; Rogers, 12 Ga. 281; Perdue v. Brad- Sparrow V. Strong, 2 Nev. 362; Sey- shaw, 18 Ga. 287. mour V. Thomas, 81 Ala. 250. ^ Remick v. Butterfield, 31 N, H. » Roussett V. Boyle, 45 Cal. 64; 70; 64 Am. Dec. 316. 105 AMENDING JUDGMENTS. § 74 a it.* In Texas, however, this result does not follow; and if a sale has taken place under a judgment, its subsequent amendment will not aid the purchaser.^ An amendment having been directed by the court, its action cannot be reviewed or avoided collaterally.^ Upon an order being made to amend a judgment, it should be carried out, either by the erasure or interlineation of the original entry, until it correctly expresses the judgment rendered, or by the vacation of such entry and making a new entry nunc pro tunc of the judgment which the court finds was the one actually rendered in the first instance.* § 74 a. Discretion of the Court. — The expression fre- quently occurs in the decisions that a court exercises a discretionary power or authority in amending or refusing to amend its records, and that its action will not be re- viewed in the appellate courts.^ These expressions are probably misleading. In determining questions of fact, the action of trial courts is usually conclusive, and the higher courts rarely interfere with a verdict or decision supported by any competent evidence. If there is a rea- sonable doubt, upon the evidence, whether a judgment entry ought to be amended or not, the action of the court whose record it is in allowing or refusing the amendment, like its decision of any other question of fact respecting which the evidence is conflicting, is finah But surely it is not true that a court has an arbitrary discretion to amend or to refuse to amend its records. Every litigant must necessarily, unless he has forfeited it in some man- ner, have the right to have the final judgment and all other proceedings in the action correctly entered, and when correctly entered, to have such entry remain un- 1 Freeman on Executions, sec. 71 a. * Jones v. Lewis, 8 Irerl. 70; 47 Am. « Morris v. Balkham, 75 Tex. Ill; Dec. .330; McDowell v. McDowell, 92 16 Am. St. Rep. 874; McKav v. Paris N. C. 227; King v. State Bank, 9 Ark. Excli. Bank, 75 Tex. 181; 16 Am. St. 185; 47 Am. Dec. 739. Rep. 884. " Blown v. McCune, 5 Sandf. 224; » HainiltoD v. Seitz, 25 Pa. St. 226; Austin v. Jordan, 5 Tex. 130; Colin v. 64 Am. Dec. 694. Scheuer, 115 Pa. St. 178. § 74 a AMENDING JUDGMENTS. 106 altered; and any action of the court impairing or denjdng this right should be subject to correction by appeal or by some other revisory proceeding; and that it is so subject is attested by the numerous decisions cited in this and the preceding chapter, all of which should be regarded as mere impertinences of the appellate courts, if the dis- cretion of the lower courts is not a legal discretion to be exercised in conformity to well-settled principles of law. 107 THE RECORD, OR JUDGMENT ROLL. § 75 CHAPTER V. THE RECORD, OR JUDGMENT ROLL. § 75. Origin. § 76. Verity. § 77. The postea. ' § 78. What constitutes the roll. § 79. What does not. § 80. Provisions of the codes. § 81. Construction of the code provisions. § 82. la California and Nevada. § 83. Construction in California. §84. Interlocutory judgments. § 85. New^ trial has record of its own. § 86. States where no record is made up. § 87. Want of, does not affect judgments. § 88. In chancery. § 89. Replacing lost rolls. § 89 a. Chancery cannot replace. § 89 b. Supplying omissions in the record. § 75. Origin. — The judgment roll, or record, is so in- separably connected with the judgment itself as to require some notice in this work. In the primitive stages of our common law the pleadings were oral. The litigants appeared in court, and there carried on their legal alterca- tions, the plaintiff stating the grounds which, in his opin- ion, entitled him to the interposition of the court; and the defendant resisting those statements, by denying either their sufficiency in law or their truthfulness, or by showing some fact depriving them of their ordinary force and effect. The process of statement and counter-state- ment continued until the court understood the point of difference, or in other words, until an issue was formed. During all this time an officer of the court was in attend- ance charged with the duty of making brief memoranda of the respective allegations of the parties and of the acts of the court upon a roll of parchment. Parchment was so early and so constantly used for this purpose that it came to be regarded as an essential and indispensable §§ 76, 77 THE RECORD, OR JUDGMENT ROLL. 108 part of the record. The manner and time in which the record was made up occasioned the use of words of the present tense, as the "plaintiff complains" and "brings suit," the defendant "comes and defends" and "prays judgment," "the jury come and say," and "the judgment of the court is, that it is considered." These words con- tinued in use when }Sj more modern practice the record became a subsequent instead of a contemporaneous me- morial. § 76. Verity. — The record was kept in formal language, with great care and precision. Its formality and precision, together with its contemporaneous character, gave it great authenticity. It became exclusively admissible evidence of the matter properly included in it, and of such "un- controllable credit and verity as to admit of no averment, plea, or proof to the contrary." ^ It became a mark of distinction to the class of courts in w^hich it could be kept, and furnished the basis for a line of decisions which enhanced the dignity and importance of courts of record, and gave to their judgments and proceedings a, 'prima facie credit and respect never accorded to those of courts not of record. The verity of a record applies to its date, and therefore evidence is not admissible to show that the date of the judgment as it appears in the judgment-book and docket is incorrect.^ § 77. The Postea. — After the pleadings were written instead of oral, the record was continued. If an issue of fact was made by the pleadings, it was referred to some appropriate method of trial. The record was then made up, consisting of the placita, brief statement of the nature of the action, a transcript of the allegations of facts, time of appearance, the various acts of the court, and the award of trial. Fifty-three cases were brought to the »Adams«.Betz, 1 Watts, 425; 2(i Am. " pgrgugon v. JLumler, 25 Minn. Dec. 79; Buck v. Holt, 74 Iowa, 294; 183. Winchester v. Thayer, 129 Mass. 129. 109 THE RECORD, OR JUDGMENT ROLL. § 78 supreme court of Illinois at one term, all of which were considered as liable to reversal, for containing no placita. This deficiency, it w^as held, could not be supplied by- reference to bills of exceptions appearing in the record; because, without the placita, there was nothing to show any authority in the court to render judgment nor to make a bill of exceptions.^ The history of the case after this is called the postea. It shows the day of trial, before whom the trial took place, the appearance or default, the summoning and the choice of the jury, and their verdict. The record was made compact and continuous by "con- tinuances," or entries of the adjournment of the cause from time to time, by which the parties were temporarily dismissed and a day fixed for their subsequent appearance. After the return of the record with its postea, the case being ready for judgment, the allowance of the proper ojSicer may be obtained, expressing generally that judg- ment is given and in whose favor. This is called "sign- ing judgment," The next step is to put the judgment on record. If no trial has been had, a record is now made up for the first time. But if trial has been had, the whole proceedings, though already made up, are again entered on a roll of parchment. This proceeding is " entering the judgment." Though nominally the act of the court, the duty of seeing it done in proper form devolves upon the prevailing party. This last roll is deposited in the treasury of the court, and is known as the "judgment roll," and is also frequently styled "the record." ^ § 78. Of What Composed. — The verity conceded to the judgment roll applies to nothing which it is not the duty of the clerk to record.* Nothing can be made a matter of record by calling it by that name, nor by inserting it 1 P, M. L. Co. V. Chicago, 56 III. 386, 387; Co. Lit. 60 a; Burrill's Law 3Q4 Diet, and Bouvier's Law Diet., tit. ^ In relation to the matters con- Record, tained in the three preceding sections, ^ Douglas v. Wickwire, 19 Conn. consult Stephen's Pleading, 25, 111; 489; Hahn v. Kelly, by Sawyer, J.; Burrill's Practice, 12, 16; 3 Bla. Com. 34 Cal. 391; 9i Am. Dec. 742. § 78 THE RECORD, OR JUDGMENT ROLL. 110 among the proper matters of record.' It is therefore exceedingly important to understand what is or is not a part of the judgment roll; what imports absolute verity; what will be considered in proceedings in the nature of writs of error; and precisely what has authority to speak for or against the judgment in a collateral proceeding. While the record is, in general terms, a history of the proceedings, many things done in the progress of a case are not necessarily nor ordinarily matters of record. It is to be regretted that the courts have been contented with peremptorily excluding many papers claimed to be parts of the record, but have rarely attempted to specify or de- scribe those matters which possess an indefeasible claim to a place in the judgment roll. In Virginia the question, What is a common-law record? was answered thus: " It is the writ for the purpose of amending by, if necessary," all the pleadings, ** papers of which profert is made or oyer demanded," papers submitted to the court by bills' of ex- ceptions, demurrers to evidence, or special verdict, and such papers as are inseparably connected with those so submitted, and the several proceedings at the rules or in court until the rendition of the judgment. These, and no other, are to be noticed by the court.^ In the case of papers of which oyer is demanded, the rule laid down above must be limited to those instances where the record shows oyer to have been granted by the court or conceded by the party .^ And the instrument will become part of the record if oyer be granted or conceded, though it be unsealed, and therefore not a paper of which oyer can be properly demanded.^ Oyer of an instrument does not in- clude oyer of an alleged assignment, nor will it make such assignment matter of record.^ The writ or summons is 1 Nichols V. Bridgeport, 27 Conn. » Cummins v. Woorlruff, 5 Pike, 116; 459; Kitchens v. Hut°chins, 44 Ga. 620; Clark v. Gibson, 2 Pike, 109; Hanly v. Al.bot V. Hachman, 2 Smedes & M. Real Estate Bank, 4 Pike, 598. 510; Treat v. Maxwell, 82 Me. 76; * Russell v. Drummond, 6 Ind. Simmons v. Harris, 7 Baxt. 204. 216. * MaudeviUe v. Perry, 6 Call, 78. ^ Crary v. Ashley, 4 Pike, 203. Ill THE RECORD, OR JUDGMENT ROLL. § 79 probably a part of the judgraent roll/ but on this subject the authorities disagree.^ § 79. Matters not of Record. — No general definition has been attempted by which to determine what are not matters of record. In one case the rule is stated as with- out exception that " no act in pais of any party to a suit can be made any part of the record except by bill of exceptions." * In another case, " all intermediate pro- ceedings of an informal, collateral, and, so to speak, acci- dental and uncertain, character, not involving directly the merits of the case, but rather appertaining to modes of proceeding," are specified as forming no part of the judg- ment roll.* Among the matters which are not (unless made so by bill of exceptions or by consent, or by order of court) matters of record are all matters of evidence, written or oral,^ including note,* bond,' or mortgage® filed in the case, and upon which suit is brought; an agreed statement of facts* not in nature of special verdict; all motions,^" including motions to quash the writ," to amend the pleadings, for extensions of time, for continuances, for bonds, for prosecution, for bills of particulars;''^ pleas stricken from the files ;'^ notices of motions;" affidavits of claimants;'^ bonds for trial of rights of property;'® affidavits in relation to conduct of jurors ;'' all affidavits taken during ' Montgomery v. Carpenter, 5 Pike, ' Cromie v. Van Nortwick, 56 HI. 264; Kibble v. Butler. U Sinedes& M. 353. 207. Pleadings and process are indis- ^ Kirby v. Wood, 16 Me. 81. pensable jjarts of the judgment roll: » Bank of Va. v. Bank of Chillicothe, Vad V. Iglehart, 69 111. 332; Stevisoa 16 Ohio, 170. V. Earnest, 80 111. 513. " United States v. Gamble, 10 Mo, 2 Childs V. Risk. 1 Morris, 439; Hays 457; Abbee v. Higgins, 2 Iowa, 535; V. McKee, 2 Blackf. 11. Christy's Adm'r v. Myers, 21 Mo. 112. 3 Kibble V. Butler, 14 Smedes & M. i' Hinton v. Brown, 1 Blackf. 429. 207. "^ Nichols v. Bridgeport, 27 Conn. * Nichols V. City of Bridgeport, 27 459. Conn. 459. " Walker v. Wills, 5 Pike, 166; » Lovell V. Kelley, 43 Me. 263; Cun- Kelly v. Matthews, 5 Pike, 223; Chris- D'ngham v. Mitchell, 4 Kand. 189; man v. Melne, 6 Iiid. 487. Clark r. Gibson, 2 Pike, 109; Cole v, '* Rich v. Hathaway, 18 III. 548. Driskell, 1 Blackf. 17. '^ Kibble v. Butler, 14 Smedes & M. s.Starbird v. Eaton, 42 Me. 5G9; 207. Storer v. White, 7 Mass. 448; Pierce v. »« Kirksey v. Bates, 1 Ala. 303. Adams, 8 Mass. 383. " Mauu v. Russell, 11 ill. 586. § 80 THE RECORD, OR JUDGMENT ROLL. 112 tlie progress of the cause;' memorandum of costs;'^ power of attorney to confess the judgment, and affidavit in rela- tion to the death of the maker thereof;^ report of judge of proceedings at the trial, reasons for his opinion in render- ing judgment or in deciding application for a new trial;'* rulings of the court upon the admission of evidence; the instructions to the jury; statement of facts made by the judge for the purpose of taking the advice of the appellate court;'' and a ruling of the court upon an application to strike out a portion of the pleadings.® § 80. Statutes. — In several ot the states the matters constituting the judgment roll are specified by statute. In most cases, however, the specification is sufficiently general and indistinct to create a necessitj^' for judicial construction. In New York, "the clerk, upon entering final judgment, must immediately file the judgment roll, which must consist, except where special provision is otherwise made by law, of the following papers: The sum- mons; the pleadings, or copies thereof; the final judgment and the interlocutory judgment, if any, or copies thereof; and each paper on file, or a copy thereof, and a copy of each order which in any way involves the merits or necessarily affects the judgment. If judgment is taken by default, the judgment roll must also contain the papers required to be filed, upon so taking judgment, or upon making application therefor, together with any report, decision, or writ of inquiry and return thereto. If judg- ment is taken after a trial, the judgment roll must contain the verdict, report, or decision; each offer, if any, made as prescribed in this act, and the exceptions or case then on file."^ In Wisconsin the following papers are attached together and filed, and constitute the judgment roll: 1 Bluzzard v. Phebus, 35 Ind. 284. * Nichols v. City of Bridgeport, 27 2 Valentine v. Norton, 30 Me. 194; Conn. 459. McArthur v. Starrett, 43 Me. 345. « Feely v. Shirley, 43 Cal. 369; 3 Hodges V. Ashurst, 2 Ala. 301; ISIoore v. De Valle, 28 Cal. 174; A. Magher v. Howe, 12 111. 379. Nev. & S. Canal Co. v. Kidd, 43 Cal. * Coolidge V. Inglee, 13 Mass. 50; 181. Cathcart v. Commonwealth, 37 Pa. St. ' N. Y. Code Civ. Proc, sec. 1237. 108. 113 THE RECORD, OR JUDGMENT ROLL. § 81 "1. In case the complaint be not answered by any de- fendant, the summons and complaint, or copies thereof; 23roof of service, and that no answer has been received; the report, if any; and a copy of the judgment. 2. In all other cases, the summons, pleadings, or copies thereof; and a copy of the judgment, with any verdict or report; the offer of the defendant, exception, case; and all orders and paj)ers in any way involving the merits and necessarily affecting the judgment." ^ The statute of Oregon^ corresponds substantially with that of Wis- consin in this respect, except that in cases where answer is filed, the roll, in addition to the matters enumerated, in the Wisconsin code, must contain the proof of service, all orders relating to a change of parties, and instead of " all orders and papers," all journal entries, or orders in- volving the merits or necessarily affecting the judgment. In Ohio, Nebraska, Dakota, and Kansas, the clerk is required to make a complete record of every cause from the petition, process, return, pleadings, reports, verdicts, orders, judgment, and all material acts and proceedings of the court; but if items of account or copies of papers attached to the pleadings be voluminous, the court may order an abbreviation, or a pertinent description thereoA^ Except in Kansas, he is forbidden from recording the evidence.^ In Georgia, the clerk must record in a well- bound book, within six months after the final determina- tion of each cause, all proceedings relating thereto;* in Alabama, a statute, otherwise similar in this respect, ex- cepts from the record subpoenas, affidavits for continuance, commissions to take testimony, evidence, and the execu- tion.^ § 81. Construction of Codes. — These statutes have not done much toward answering the question. What is the ' Wis. Code, sec. 19L sec. 446; Dakota Code, sec. 402; Kan. * Or. Code, sec. 272. Code, sees. 415-418. 2 Ohio Code, sec. 390; Neb. Code, * Ga. Code, sec. 256. * Ala. Code. sec. 767. JUDG. L— 8 § 82 THE RECORD, OR JUDGMENT ROLL. 114 record? After enumerating the matters obviously indis- pensable to every judgment roll, — after being precise where precision had already been attained, — they employ terms whose signification is as unlimited as are the confines of space; whose application to the practical affairs of men must be as diverse as are the temperaments and the intel- lects of the judges by whom the application happens to be made, — who shall be able to determine with unerring ac- curacy what " proceedings and acts of the court are mate- rial"? w^hat "papers, orders, or journal entries necessa- rily aflFect the judgment and involve the merits of the action"? Some of the matters excluded from the judg- ment roll under these statutes, and w^hich, though included by the clerk as parts of the record, will be disregarded by the courts, are, motions, and the papers on which they are founded, together with the ruling of the court thereon;' matters of evidence, oral or written,^ including notes ^ and mortgages* filed in the case, and constituting the cause of action, and proof of the filing of lis pendens; " memoranda of costs and notice of adjustment;" the affidavit requisite to authorize the taking of property in replevin;^ affidavit and order of arrest;^ proof of service when the defendant has answered or demurred;^ bill of particulars ;'*' pleadings amended or demurrer abandoned;" opinion of the judge;'^ affidavit used in support of a niotion;^^ minutes made by the judge upon the trial docket.^'* § 82. In California and Nevada. — In California and Nevada, the law providing for the judgment roll is dis- tinct and specific. The matters which may properly be inserted in it are so clearly enumerated as to leave no 1 Cornell v. Uavis, 16 Wis. 686; « Cor win v. Freeland, 2 Seld. 560. Demming v. Weston, 15 Wis. 236. » Smith v. Holmes, 19 N. Y. 271. 2 Cord V. Southwell. 15 Wis. 211. ^° Kreiss v. Seligmau, 8 Barb. 439. 5 Reid V. Case, 14 Wis. 429. ^' Brown v. Saratoga R. R. Co., 18 * Cord V. Southwell, 15 Wis. 211. N. Y. 495. * Manning v. McClursT, 14 Wis. 350. ^'' Tliomas v. Tanner, 14 How. Pr. ^ S. & S. Plank Road Co. v. Thatcher, 426. 6 How. Pr. 226. ^^ Backus v. Clark, 1 Kan. 303; 83 ' Kerrigan v. Ray, 10 How. Pr. Am. Dec. 437. 213. 1* Pennock v. Monroe, 5 Kan. 578. 115 THE RECORD, OR JUDGMENT ROLL. § 83 necessity for doubt. Section 670 of the Code of Civil Procedure, recently adopted in the first-named state, re-enacts section 203 of the Practice Act, with one addi- tion, that of the proof of service of summons when the answer has been filed. It enacts that the judgment roll shall consist, — 1. If no answer is filed by any defend- ant, of the complaint, summons, affidavit, or proof of service, memorandum of default, and copy of the judg- ment; 2. In other cases, of summons, proof of service, pleadings, verdict of jury, or finding of the court, com- missioner, or referee, bills of exception taken and filed, copies of orders sustaining or overruling demurrers, copy of the judgment and of orders relating to change of the parties. In Nevada, the roll, in the event of no answer being filed, is made up of the same materials as in California; in all other cases, it consists of nothing but the summons, pleadings, copy of judgment, and of any orders relating to a change of the parties.^ § 88. Construction. — In California it has been deter- mined by a majority of the judges of the supreme court, Justices Sanderson and Sawyer dissenting, that an answer stricken out is nevertheless entitled to a place in the judg- ment roll. '' The phrase ' struck out,' as applied to a pleading, is figurative only. An order sustaining a de- murrer to a pleading defeats or suspends, for a time, its legal effect in the action; and a successful motion to strike out an answer does no more. In either event, the plead- ing, as a document, remains in official custody." Such was the reasoning of the majority of the court. The minority said, with at least equal reason, " After the an- swer was stricken out, the document remained on the files as a part of the history of the case; but it was no longer, in legal contemplation, a pleading in the case." ^ In two 1 Nev. Stats. 1869, p. 228, sec. 205. ^ Abbott v. Douglass, 28 Cal, 298, Cost bill is not part of the judgment 299. roll: Kelly v. McKibbea, 54 Cal. 192. §§ 84, 85 THE RECORD, OR JUDGMENT ROLL. 116 cases (Braly v. Seaman, 30 Cal. 610, and Forbes v. Hyde, 31 Cal. 342), the decisions were founded upon the assump- tion that in cases where no answer was filed, and the de- fendant was served by means of publication, the affidavit on which the order of publication was based, and also the order itself, were parts of the judgment roll. These de- cisions, so far as they affected this matter, were made upon the concession of counsel in the case, and without the consideration of the court. Neither the order nor the affidavit belongs in the judgment roll, and both will be disregarded if j^ut there. The affidavit showing the fact of publication of summons in a newspaper, and the de- posit of summons and complaint in the post-office, being " proof of service," must be attached to the roll.' The affidavit and notice upon which a motion was made,^ and an order submitting a demurrer taken under advisement,^ and the ruling of the court in striking out an answer,^ are not parts of the record. § 84. Interlocutory Judgments. — " The statute does not expressly provide that an interlocutory judgment shall constitute a portion of the judgment roll; but as such judgments often determine the rights of the respective parties, there is a manifest propriety in inserting them in the judgment roll. We are of the opinion that an inter- locutory judgment comes within the meaning of the stat- utory requirement that the judgment shall constitute a portion of the judgment roll."^ §85. New Trial. — The position which proceedings to obtain a new trial occupy in relation to the judgment roll is very different under our practice from that which they occupied toward the judgment roll at common law. iHahn v. Kelly, 34 Cal. 391; 94 ^ Dimick v. Campbell, 31 Cal. Am. Dec. 391; Sharp v. Daugney, S3 238. Cal. 505; Galpin v. Page, 1 Saw. 321; ^ Anderson v. Fisk, 36 Cal. 625. but this decision was reversed by the * Feely v. Sliirley, 43 Cal. 369. supreme court in Galpin v. Page, 18 '" Packard v. Bird, 40 Cal. 378. Wall. 350; 1 Cent. L. J, 491. 117 THE RECORD, OR JUDGMENT ROLL. § 86 There the motion for a new trial was made and disposed of before the judgment was entered. It therefore found its appropriate history in the same place with all the other proceedings taken prior to making up the record. But when the motion is made after the entry of the judgment, or though made before, is disposed of after, then it must possess a record of its own, independent of the judgment roll. The result of this is, that while the judgment roll passes out of the " breast of the judge and beyond his control by lapse of the term," the record of the new trial still remains in fieri, and will so remain, unaffected by the adjournment of the term, and susceptible of alteration and amendment, until the motion is finally granted or denied.* § 86. States where No Record is Made up. — In some of the states no record is made up, none being required by law.^ In these states the files and journal entries prob- ably stand in place of the record, and are entitled to sim- ilar verity.^ In other of the states, as in Pennsylvania and Maryland, the keeping of records fell into great con- fusion and neglect. For a long period of time, little more w^as done by the prothonotaries, in most of the courts of these states, than to make such memoranda as would guide them is issuing executions, and as would have enabled them to draw up a formal judgment roll. Judg- ments, supported only by these informal memoranda, were, however, admitted in the highest courts. The loose practice, it was thought, had prevailed so long and so uni- versally, had been so thoroughly acquiesced in by bench and by bar, and had been made the foundation on which so many private interests of great extent and variety were based, that the adjudications sufiiciently though infor- mally attested by it ought not to be ignored; that while the entries and memoranda gave data from which a rec- ' Spanagel v. Bellinger, 34 Cal. 476. 1 Mich. 227; Lothrop v. Southwortb •^ Morrow v. Weed, 4 Clarke, 77, 127; 5 Mich. 436. 66 Am. Dec. 122; Norwell v. McHenry, * Thayer v. McGee, 20 Mich. 195. §§ 87-89 THE RECORD; OR JUDGMENT ROLL. 118 ord as teclmical and prolix as any ever drawn in the court of king's bench could be readily constructed, they ought to be regarded as competent and satisfactory evi- dence of the judgment, and of such other judicial pro- ceedings as were necessary to support it.^ § 87. Want of Judgment Roll. — " The judgment does not depend upon the performance of the clerical duty of making up the judgment roll, or preserving the papers."^ The papers constituting the roll are therefore proper evi- dence, and will support an execution, though they have never been attached together.^ In New York, the rule that omissions in the roll do not invalidate the judgment has been applied where the omission consisted of the original summons,* of an order of reference,^ of the copy of verdict,^ of the answer of defendant.^ § 88. In Chancery, all the proceedings, including the evidence, are either written or required to be reduced to writing. It is said, therefore, that everything so reduced to waiting becomes a part of the record, and, as such, will be investigated by the appellate court.^ § 89. Replacing Lost Records. — The rule that the record imports absolute verity, and is exclusively admis- sible evidence of the matters properly incorjDorated in it,^ 1 S. P. Co. V. Sickles, 24 How. 333; Allen, 443; 79 Am. Dec. 797; Com- Cromwell v. Bank of Pittsburg, 2 monvvealth v. Hatfield, 107 Mass. 231. Wall. .Jr. 569. The opinion of Jus- * Hoffnvng v. Grove, 18 Abb. Pr. 14, tice Grier in the last-named case is 142. exceedingly interesting. It presents, ^ Martin v. Kanouse, 2 Abb. Pr. in a graphic and somewhat humor- 390. ous style, the history of judicial ^ Cook v. Dickerson, 1 Duer, 679. records in Pennsylvania, the brevity ' Renouil ?i. Harris, 2 Sandf. 641. with which they were entered, the * Ferris v. McClure, 40 111. 99; Smith little importance attached to their v. Newland, 40 111. 100. preservation, and finally, the worthy ' The rule that a judgment must be character and eccentric orthography proved by the record doubtless yields of the prothonotaries. when it must either be proved in some ■■^ Lick V. Stockdale, 18 Cal. 219; other way, or denied effect. In an Tutt V. Couzins, 50 Mo. 152; Galpin action on a judgment rendered in an- V. Page, 1 Saw. 309; Bridges v. other state, after the existence and Thomas, 50 Ga. 378; Craig v. Alcorn, loss of the judgment roll is established 46 Iowa, 560. its contents may be proved by parol ^ Sharp V. Lumley, 34 Cal. 611; evidence: Bailey v. Martin, 1)9 Ind. Newman's Lessee v. Cincinnati, 18 103. See alsoRuby v.Vau Valkeuberg, Ohio, 323; McGrath v. Seagrave, 2 72 Tex. 459. 119 THE RECORD, OR JUDGME>;T ROLL. § 89 might occasion inucli mischief, if the courts did not pos- sess and exercise a power, unaffected by lapse of time, to replace whatever may have been defaced, lost, or destroyed by accident, negligence, or v\''antonness. The making up of a new roll was ordered as a matter of course, in England, thirty years subsequent to the filing of the old one/ In New York, a new nisi prius record was allowed to be filed, and a postea indorsed thereon, the applicant showing by affidavit that, six years before, a verdict had been taken and judgment thereon given, and that the nisi prius record and issue roll could not be found.^ In other states, the power of courts of record to supply, on proper proof, their own lost or destroyed records is affirmed to exist, inde- pendent of any statute, by virtue of their inherent powers *'to minister ample justice to all persons according to law";^ and such statutes as are enacted upon the subject are treated as cumulative, and therefore do not impair the power otherwise residing in the courts.'* The practice in proceedings invoking this power should be by motion in the court whose record it is proposed to restore/ The plaintiff in the motion should give reasonable notice to the adverse party of the time and place wdien and where the application will be made,^ accompanied by a copy of the matter he proposes to have enrolled as and for the lost record, and also accompanied by a copy of the affida- vits intended to be used at the hearing. The defendant in the motion should have an opportunity of appearing and using counter-affidavits. If it appears to the court, at the hearing, that the record is lost or defaced, and what its contents were, it may then order a new roll to be made corresponding to the old one. The matter thus substi- 1 Doucrlas V. Yallop, 2 Burr. 722. 8 Ohio St. 201; 70 Am. Dec. 100; 2 Jackson v. Hainmoncl, 1 Caines, Friuk v. Frink, 43 N. H. 508; 80 Am. 49(5 Dec. 189; Dubois v. Thoma.s, 14 S. C. 30. ^ Keen v. Jordan, 13 Fla. 327; Gam- * Busli v. Lisle, 8(5 Ky. 504; Lilly v. mon V. Knudson, 46 Iowa. 455; Gari- Larkin, 6G Ala. 110. bal
  • . Basey, 85 Doan V. Holly, 27 Mo. 256. See also Ind. 543; Nicholson v. Nicholson, 113 Hughes V. Wood, 5 Duer, 603, note. Ind. 131. If the judgment be void for want of ^ McEvers v. Markler, 1 Johns. Caa. jurisdiction, the court will set it aside 248. JUDG. I. — 10 § 102 VACATING JUDGMENTS. 146 same state, a third of a century later, an application based on an irregularity, in giving too short a notice of an inquisition on a writ of inquiry, made after lapse of two special terms, was refused, because "as this was an at- tempt to deprive the plaintiff of his judgment on the ground of a mere irregularity, the defendant would be held to the strictest rules of proceeding, and having been guilty of laches in making his motion, he was not entitled to be heard." * This decision has been indorsed in Wis- consin, by holding that a short notice being suflQcient to put a party upon inquiry, he must ascertain whether his adversary proceeds to judgment upon it; that a motion to set aside such judgment, there being no pretense of merits, must be made at the same term, unless he can show some good cause for his delay; and that where defendant waited more than two months, and until the expense of advertising real estate for sale had been incurred, he waived the irregularity.^ The defendant must not, ac- cording to some of the authorities, take any step in the case after the irregularity occurs, or it will be deemed a waiver. Thus where an appeal was taken because no notice of the motion for judgment was served, and the appellate court declined to interfere, on the ground that the appropriate remedy was by motion to vacate the judg- ment, and the defendant then applied in the court where judgment was rendered to have it set aside, the taking of the appeal was deemed to be such a proceeding as pre- cluded him from taking advantage of the irregularity.' It is said in England that the true rule is, that if there be an irregularity, the party suffering by it is not bound to have it set aside in any specific time; that he may reason- ably presume that his adversary, discovering the error, will abandon the defective proceeding. But if the ad- versary take one step more, showing that he has not • Nichol3 V. Nichols, 10 Wend. 560. ' Jenkins v. Eaterly, 24 Wis. * Etna Life Insurance Co. v. McCor- 340. mick, 20 Wis. 265. 147 VACATING JUDGMENTS. § 103 abandoned liis process, then the movement to have the irregularity set aside must be commenced.' An infant having confessed judgment by attorney, and permitted it to stand until six years after coming of age, the court held that his application to vacate it came too late.^ If the ground of the motion is, that the court did not have jurisdiction of the defendant, and that the judgment is therefore void, the court will act irrespective of lapse of time, if it finds that the facts are such as to sustain the motion.^ § 103. Notice of Application. — During the term at which a judgment was rendered, the power of the court over it is so absolute that it may vacate it on its own motion, and whether on its own motion or not, without requiring notice to be given to the party to be affected by its order.* At the close of the term, the parties are dis- missed sine die, and can no longer be regarded as being in court. Proceedings taken after that time, to set aside a judgment, must therefore be upon notice to all the parties affected,^ and the order of a court acting in the absence of such notice will be reversed upon appeal.® Notwithstanding the retainer of an attorney ordinarily terminates with the entry of final judgment, a motion to vacate the judgment may be served on him, and when so served, gives the court jurisdiction to dispose of the motion.' 1 Fletcher v. Wells, 6 Taunt. 191. Coleman v. McAnulty, 16 Mo. 173; * Kemp V. Cook, 18 Md, 130; 79 57 Am. Dec. 229; Burnside v. Ennis, Am. Dec. 681. 43 Ind. 411; Bajourine v. Ramelli, 34 * Vilas?;. Plattsburgh etc. R. R. Co., La. Ann. 554. Hence if property has 123 N. Y. 440; 20 Am. St. Rep. 771; been sold under the judgment, the Feikert v. Wilson, 38 Minn. 341; court, before hearing a motion to vacate Thompson v. Thompson, 73 Wis. 84; it, will require notice to be given the Stocking V. Hanson, 35 Minn. 207; purchaser: Molloy v. Batchelder, 69 Wharton v. Harlan, 68 Cal. 422; Mo. 503; Hettrick v. Wilson, 12 Ohio Koonce v. Butler, 84 N. C. 221; ante, St. 130; 80 Am. Dec. 337; Nuckolls v. sec. 88. Irwin, 2 Neb. 60. * Rich V. Thornton, 69 Ala. 473; « Vallejo v. Green, 16 Cal. 160. Desrihes v. Wilmer, 69 Ala. 25; 44 ' Branch v. Walker, 92 N. C. 87; Am. Rep. 501; Lake v. Jones, 49 Ind. Lee v. Brown, 6 Johns. 132; Doane v. 297. Glonn, 1 Col. 454; Beach v. Beach, * Lane v. Wheless, 46 Miss. 666; Dakota (1889). §§ 104, 104 a VACATING JUDGMENTS. 148 § 104. Conditional Vacation. — Where the circuit court made an order setting aside a judgment upon payment of the costs which had accrued, the neglect of plaintiff's counsel to insist upon their payment impliedly waived the condition upon which the judgment was to be vacated, and he could not therefore proceed upon the judgment as still in force.^ In Alabama, an order that a cause stand dismissed unless plaintiff, within one hundred and twenty days, answer certain interrogatories is not considered a final order. It was said that the matter still remained in the control of the court; that it was competent for the court at a subsequent term to modify or vacate the order; that the order could not become effective until the hap- pening of the contingency was judicially ascertained at the next term.'^ The courts of the same state hold that an order setting aside a judgment upon payment of costs is a conditional order, dependent upon the payment being made, and that it may be set aside at any subsequent term prior to the compliance with its condition.^ In this opin- ion they are probably in error.* § 104 a. The Entry of a Second Judgment may follow the vacation of the first in proper circumstances. The party in whose favor a judgment has been entered irregu- larly may, after it has been vacated, proceed as if it had never been rendered, and in due time and upon proper proceedings obtain a valid judgment.' But the entry of a second judgment has been held not to operate as a vaca- tion of the first. In a case arising in Nebraska, the record showed the entry of two judgments in the same action at different dates. Speaking of this state of facts, the court said: "But as there can be but one final judgment in a ' Ransom v. City of New York, 20 must comply with the condition, or How. 581. the grant of relief is inoperative: Haxt- 2 Ex parte McLendou, 33 Ala. man v. 01 vera, 49 Cal. 101. 276. * Dana v. Gill, 5 J. J. Marsh. 242; * Willis V. Bank of Mobile, 19 Ala. 20 Am. Dec. 255; Johnson v. Taylor, 141. And generally, if relief be granted 3 Smedes & M. 92. upon certain conditions, the party * Moore v. Haskina, 66 Miss. 496l 149 VACATING JUDGMENTS. § 104 b cause, we have the question, Which is the judgment in the case? That seems to be not a very difficult question. When a judgment is once entered of record it must stand as the judgment until it is vacated, modified, or disposed of by some means provided b}'' law; entering additional judgment entries is not one of them. A ca e brought regularly into court is presumed to be attended at regular terms of court by the attorneys having it in charge; and all proceedings of the court in reference to them, in the absence of fraud, wnll be binding on the parties, whether present or not. But when judgment is entered they may cease their attention. The further proceedings in the case, by petition to vacate or modify the judgment, or on error to this court, must be on proper notice, provided by statute."^ § 104 b. The Effect of an Order Vacating a Judgment may be considered, — 1, With reference to the persons against whom the order is sought to be asserted; and 2. With reference to the causes on account of which the order was entered. So far as third persons are concerned, it seems clear that their acts, done by authority of a judgment which was not void, but voidable only, may be justified under the judgment, notwithstanding its subse- quent vacation, except when they have been given notice of the motion, and the court, after giving them an oppor- tunity to be heard, has determined that it should be set aside, notwithstanding their interests may be affected.^ With the parties to the suit this rule is not always ap- plicable; and whether it is applicable or not depends on the causes producing the vacation. The judgment may have been regularly and properly entered, and its subse- quent vacation may have been in the exercise of mercy toward the defendant. In such case, as the plaintiff has been guilty of no neglect or misconduct, he may no doubt 1 Nuckolls V. Irwin, 2 Neb. 60. * Schinidtt v. Niemeyer, 100 Mo. See, however, Laae v. Kingsberry, 11 207. Mo. 402. § 104 b VACATING JUDGMENTS. 150 justif}^ all his acts done under the judgment before it was set aside. But where the order of vacation is made because of some fault or misconduct of the plaintiff in procuring the original judgment, a different rule may be invoked. "If the judgment or execution has been set aside for irregularity, the party cannot justify under it, for that is a matter in the privity of himself and his attorney; and if the sheriff or officer, in such case, join in the same plea with the party, he forfeits the benefit of his defense. The sheriff or officer, however, may justify under an irregular judgment as well as an erroneous one, for they are not privy to the irregularity; and so as the writ be not void, it is a good justification, however irregular, and the purchaser will gain a title under the sheriff." ^ The case of a judgment set aside for irregularity differs maCte- riall}'- from that of one reversed upon appeal. In the lat- ter case, the error for which the judgment is ultimately avoided is imputed to the court, and the parties are not left without protection for the acts which they have done, based upon the judgment, and upon their confidence in the correctness of the decision of the court. But a judg- ment obtained irregularly, and against law or the practice of the court, is tainted with vices liable to result in its destruction, and for which the party practicing the irregu- larity is alone responsible. When, on account of these vices, the judgment is vacated, the party guilty of the irregularity seems to be as completely without any means of justification as though no judgment had ever been entered.'^ » Tidd's Practice, 1032. Dec. 229; Turner v. Felgate, 1 Lev. 95; 2 Young V. Bircher, 31 Mo. 139; Allen v. Huntington, 2 Aiken, 249"; 1& Simpson v. Hornbeck, 3 Lans. 54; Am. Dec. 702; Nelson v. Guflfey, 131 Barker v Braham, 3 Wils. 3G8; Cole- Pa. St. 273. man v. McAnulty, 16 Mo. 173; 57 Am. 151 VACATING JUDGMENTS UNDER STATUTES. § 105 CHAPTER VII. OF VACATING JUDGMENTS UNDER STATUTES, ON ACCOUNT OF MISTAKE, INADVERTENCE, SURPRISE, OR EXCUSABLE NEGLECT. § 105. Summary of statutes. § 106. Discretion is subject to review. § 107. Party recovering may move to vacate. § 108. Affidavit of merits. § 109. May contradict the record, but not the affidavit of merits. § 110. New motion may be regarded as continuation of an old one. § 111. Lenience of the New York courts. § 111 a. Fraud and perjury. § 112. Neglect of attorney or agent. § 113. Mistake. § 114. Excusable neglect. § 115. Inexcusable neglect. § 115 a. Surprise, unavoidable casualty, and misfortune. § 105. Summary of Statutes. — The authority of the courts over regular judgments has, in several of the states, been extended beyond the term in certain cases specified by statutes. The most liberal of these statutes authorize "the court, at its discretion, and on such terms as may be just, at any time within one year after notice thereof, to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect."^ In other states this provision has been substantially copied, except that the period in which an aggrieved party is authorized to apply for relief is computed from the rendition of the judgment instead of "from notice thereof."^ In several of the states a judgment may in a specified time, though the term has passed, be relieved from "for unavoidable casualty or misfortune preventing the party from defending or prosecuting," or for "fraud * Sanborn and Berryman's Wis. Rev. « Cal. Code Civ. Proc, sec. 473; Ind. Stats., sec. 2832; N. Y. Code, sec. 724; Rev. Stats., ed. 1881, sec. 396; N. C. Idaho Rev. Stats., ed. 1887, sec. 4229; Code Civ. Proc, 274; Nov. Rev. Stats., Pier ». Millerd, 6:nVis. 33; Vt. Stats., ed. 1885, sec. 3217; Col. Code Civ. ed. 1880, sec 1422. Proc, 75; Dakota Code Civ. Proc, 143. § 105 VACATING JUDGMENTS UNDER STATUTES. 152 practiced by the successful party in obtaining the juflg- ment."^ The statutes of these states further provide that the proceeding shall be by petition and summons, and that the judgment shall not be vacated unless it be first adjudged that there is a valid defense or a valid cause of action. Where the application for relief is sought by motion, and the statute does not otherwise provide, notice of the motion may be served on the attorney of the adverse party, who, notwithstanding a judgment apparently final has been entered, must be regarded as authorized to repre- sent his client in all proceedings begun within the time limited by statute.^ In Vermont, the county court may set aside a judgment of a justice of the peace, recovered against a party who was prevented from appearing by reason of " fraud, accident, or mistake."^ In Connecticut, relief may be had on account of mistake, accident, or other reasonable cause.^ The statutes referred to in this section do not supersede the necessity for moving for a new trial in cases where a trial has been had, at which the par- ties seeking to have the judgment vacated were properly represented.^ If they were represented at the trial, they can obtain relief only by an application made in conform- ity with the rules of procedure provided by law in reference to new trials. But if they were not at the trial, or were not represented there, on account of some mistake or excusable neglect, then their remedy is not by application for a new trial, but by an application addressed to the discretion of the court, and made under the statute authorizing relief to be granted from judgments rendered against a party through "his mistake, in advertence, or excusable neglect."^ These statutes must be regarded as limiting the cases in which relief can be granted to applications made within the time, and for some of the causes specified in the stat- ' Ark. Dig. Stats., ed. 1884, sec. =* Vt. Rev. Stats., ed. 1863, p. 334, 3909; Ohio Rev. Stats., ed. 1890, sec. * Coun. Gen. Stats., ed. 1888, sec. 5354; Kan. Comp. Laws, ed. 1885, sec. 1126. 4382; McClain's Iowa Stats., ed. 1888, * Hobbs v. Comm'rs, 122 Ind. 180; sec. 4383. McCullock v. Doak, 68 N. C. 267. 2 Merriam v. Gordon, 17 Neb. 325. « McKiuley v. Tuttle, 34 Cal. 239. 153 VACATING JUDGMENTS UNDER STATUTES. § 105 ute/ provided the relief is sought upou some of the grounds mentioned in such statutes. If, however, the motion is to vacate a judgment because irregularly entered, it may be granted, although not made within the time named in these statutes.'^ Neither do these statutes preclude a party, in a proper case, from obtaining relief in equity, after the time for applying for relief under these statutes "has elapsed, provided proper reasons are shown for not making such application.'" Nor do these statutes apply to motions made during the term at which the judgment was entered.* A judgment will not be vacated on motion of a stranger to the cause, to enable him to be made a party to the action.^ Error of law is no ground for relief under these statutes.^ While these statutes designate a time within which application must be made for relief, the proceedings thereunder are equitable in character, and the delay of the moving party after he had notice, actual or implied, of the judgment against him may jus- tify the court in denying relief on the ground of his laches, though his motion was made or his petition filed within the time named in the statute.^ But in Iowa, the maxim is proclaimed that " laches will not be imputed in the exercise of a legal right within the time prescribed by statute";^ and hence it was determined that whosoever brings his action or motion within the year cannot be barred of his rights on the ground of laches in not sooner seeking relief.^ In many instances, where service of process is constructive, and the defendant had no actual notice thereof in time to defend, he may doubtless obtain relief under the statutes already referred to. In several of 1 Gerrish v. Johnson, 5 Minn. 23. * Spaflford v. Janesville, 15 Wis. 474; * Cowles V. Haynes, 69 N. C. 406; Landou v. Burke, 33 Wis. 453. Ladd V. Stevenson, 1 12 N. Y. 325. ' Jonet v. Mortimer, 29 La. Ann. 3 Coates u. Chillicothe Bank, 23 Ohio 206; Williams v. Williams, 70 N. C. St. 415; Darst v. Phillips, 41 Ohio St. 665; Bradford v. TJoit, 77 N. C. 72; 514; Lumpkin v. Snook. 63 Iowa, 515; Altinau v. Gabriel, 28 Minn. 132; Bi- District Township v. White, 42 Iowa, rech v. Frantz, 77 Ind. 199. 608; Bond v. Epley, 48 Iowa, 600. ^ Independent School District w, *McCullock V. Doak, 68 N. C. Schreiner, 46 Iowa, 172. 2G7. ^ Indei)en(leiit School District t;. ^ Smith V. Newbern, 73 N. C. 303. Schreiner, 46 Iowa, 172. § 105 VACATING JUDGMENTS UNDER STATUTES. 154 tlie states, however, special provision has been made by- statute for this cLass of cases, and where the service was by publication only, the defendant is allowed a specified time, either after the date of the judgment or after notice thereof, within which to appear and make an application to have the judgment opened and to be let in to defend. In some of these statutes the time given is five years, while in others it is a much shorter period. Notice of the defendant's application must be given to the adverse party, and the defendant must show that he had no actual notice of the pendency of the action in time to appear and make his defense. On complying with the conditions oj^the statute, the moving party secures an absolute right to have the judgment opened, which the court has no discretion to deny;^ but if he omits to do any act required of him, his motion will be denied.^ Under some of the statutes, the rights of bona fide purchasers cannot be preju- diced by ^proceedings to open the judgment and to be let in to defend.' Under the statute of Iowa declaring that "when a judgment has been rendered against a defendant or defendants served by publication only, and who did not appear, such defendants, or any one or more of them, or any person legally representing him or them, may, at any time within two years after the rendition of the judgment, appear in court and move to have the action retried," it was held that one who claimed to have suc- ceeded to the interest of the defendant during the pen- dency of the action was not entitled to have the judgment opened.* There are also statutes in force in some of the states authorizing the setting aside, on application made within a time designated, of a judgment rendered against a defendant in his absence, upon his complying with the 1 Savage v. Aiken, 14 Neb. 315; Al- 278; Kinney v. O'Bannon, 6 Bush, 692; bright V. Warkentin, 31 Kan. 442; McLean v. McLean, 84 N. C. 366. Ohio Rev. Stats., ed. 1890, sec. 5355; ^ Satterlee v. G-ruhb, 38 Kan. 234. McClain's Iowa Stats., ed. 1888, sec. ' Ohio Rev. Stats., ed. 1890, sec. 4087; Idaho Rev. Stats., ed. 1887, sec. 5356. 4229; Frankoviz v. Smith, 35 Miun. * Parsons v, Johnson, 66 Iowa, 455. 155 VACATING JUDGMENTS UNDER STATUTES. § 106 conditions in such statutes enumerated.^ The courts are unable to agree upon what constitutes absence Avithin the meaning of these statutes. On the one side it is insisted that if a defendant is not physically present at the trial, he is necessarily absent and entitled to the benefit of the statute;^ while on the other side it is held that when a defendant has been personally served with process, or has entered his appearance in the action, he is brought into court, and cannot thereafter be regarded as absent therefrom so as to entitle himself to be relieved from the judgment.^ § 106. Discretion is Subject to Review. — Under tbe uniform construction given to these statutes, the signifi- cation of the words " at its discretion " has been materially limited. The " discretion " here referred to is not "the power of acting without other control than one's own judgment." " It is not a mental discretion, to be exercised ex gratia, but is a legal discretion, to be exercised in con- formity to law.* If the power of the court were discre- tionary in the ordinary sense of that term, the practice would necessarily be as varied as are the different tem- peraments of judges; and even in proceedings before the same judge, would as probably be shaped by the per- sonal pleasures or annoyances of the several occasions in which he happened to act as by those unvarying rules which, whenever applied to identical circumstances, pro- duce identical results. But the power of the court is nevertheless to be liberally exercised.^ These statutes are remedial in their character, intended to furnish a simple, speedy, and efficient means of relief in a most worthy class of cases. An order of the court vacating a judgment » Strine v. Kignsbaker, 12 Neb. 52; 122; James v. Townsend, 104 Mass. Covart V. Haskius, 39 Kan. 571; Riloy 367; Smith v Brown Ub Mass 41b. V. Hale, 146 Mass. 465. * Bailey v. Taaffo^ 29 Cal. 422; John- 2 Covart V. Haskins, 39 Kan. 571. son v. Eldred, 13 Wis. 482; Powell v. » Riley V. Hale, 146 Mass. 465; Weith, 68 N. C. 342. Strine v. Kaufman, 12 Ncl). 423; ' Roland v. Kreyenhagen 18 Cal. Matthewsou v. Moultou, 135 Mass. 455; Mason v. McNamara, 57 HI. 274. § 106 VACATING JUDGMENTS UNDER STATUTES. 156 entered by default will not be disturbed by the appellate court, except in case "of gross abuse of the discretion of the court." ^ Both orders granting and orders denying applications under these statutes are subject to review upon appeal;^ but onl}^ in extreme cases is the action of a trial court likely to be reversed. If the moving party makes a clear and unquestionable showing that he has a good defense or cause of action on the merits, of the benefit of which he has been deprived without fault on his part, the court has no discretion to deny him relief, and should it do so, its action will be set aside, and proper relief ordered by the appellate court.* On the other hand, if the facts are disputed, the finding of the lower court will be treated as conclusive on appeal;* and even when the facts are not questioned, its action will not be re- versed, except it clearly appears that its discretion has been abused,^ or arbitrarily exercised.^ If it appears proper to the trial court to grant relief, it may also exer- cise a sound discretion as to terms and conditions upon which it will be granted. It may omit all conditions,^ or may impose any condition whatever not savoring of a capricious or arbitrary use of its powers. Thus in a proper case, the defendant, as a condition of having judg- ment against him opened or set aside, may be required to confine his evidence to a particular, ground of defense,^ or to consent to the appointment of a receiver,® or to stip- ulate not to bring an action against parties who have acted under the judgment,^" or to pay all costs accrued up to the date of its vacation," or to deposit money in court ' Howe I). Independence Co., 29 Cal. Waggoner, 82 N. C. 173; Parsons 72; Merritt v. Putnam, 7 Minn. 493. Bank v. Wentworth, 28 Kan, 183; ^ Haight V. Green, 19 Cal. 113; Mul- Brophy v. J. M. Brunswick and Balke holland v. Heyneman, 19 Cal. 605; 29 Co., 2 Wyo. 86. Cal. 422; Hill v. Crump, 24 Ind. 291. « Pry v. Hannibal & St. J. R. R. Co., * Craig V. Smith, 65 Mo. 536; Cleve- 73 Mo. 123. land V. Hopkins, 55 Wis. 387; Cleve- ' Ryan v. Mooney, 49 Cal. 33. land V. Burnham, 55 Wis. 598; Hag- * Houston Township and Fire Ins. gerty v. Walker, 21 Neb. 596. Co. v. Beale, 110 Pa. St. 321. * Weil V. Woodward, 104 N. C. 94; ^ Exley v. Berryhill. 36 Minn. 117. Wernet's Appeal, 91 Pa. St. 319. " Young v. Bircher, 31 Mo. 136; 77 ^ Smith V. Black, 51 Md. 247; Kerch- Am. Dec. 638. ner v. Baker, 82 N. C. 169; Hiatt v. " Howe v. Coldren, 4 Nev. 171. 157 VACATING JUDGMENTS UNDER STATUTES. §§ 107, 108 to pay so mucli of the claims sued upon as he admits to be due/ The imposition of this last condition seems to us to be, in ordinary circumstances, an abuse of discre- tion, because it may require the defendant, in order ta escape from an unjust demand, to pay another but just demand which he is without pecuniary liability to dis- charge. In two instances, the imposing of a condition that defendant should give a bond with sureties for the payment of such judgment as might ultimately be recov- ered against him was, decided to be an abuse of discretion.^ § 107. Party Recovering may Move to Vacate. — The literal meaning of the words employed in these statutes has been further modified by judicial construction. The statute says the court may relieve a party from a judg- ment " taken against him." But a party in whose favor a judgment has been rendered has been decided to be within the meaning, but not within the words, of the stat- ute, on the ground that the law, being of a remedial char- acter, must be liberally construed.^ Such a party, however, though nominally prevailing, may lose part of his de- mand. To that extent he would be entitled to an appeal; and it is no far-fetched construction to say that he is, therefore, within the words as well as within the meaning of the statute. § 108. Affidavit of Merits. — These statutes are to be employed only in furtherance of justice, and never for th© purpose of enabling a party to raise some technical objec- tion. Even where the statute does not so expressly direct, no judgment will be opened unless it is shown to be un- just. "Every consideration of expediency and justice is opposed to the opening up cases in which judgment by default has been entered, unless it be made to appear prima facie that the judgment as it stands is unjust."* In ' Magoon v. Callahan, 39 Wis. 141. » Montgomery v. Ellis, 6 How. Pr. » Brown v. Brown, 37 Minn. 128; 32G. Union Bank v. Benjamin, 61 Wis. * Parrottu Den, 34 Cal. 79; Thatcher 512, V. Haun, 12 Iowa, 303; Wooster Coal § 108 VACATING JUDGMENTS UNDER STATUTES. 158 all cases an affidavit of merits must be made and filed, except where it appears that the court had never acquired jurisdiction over the moving party, and that its judgment against him is void;^ but in this class of cases he is en- titled to relief independently of these statutes.'' Where the affidavit to open a default stated that, after a careful examination, the attorneys are of the opinion that they have a good legal defense to the complaint, the judgment was not set aside, because the matter shown appeared to be of a technical character;' and for aught that appeared to the contrary, the judgment might be perfectly consist- ent with fair dealing. A verified answer has been held not to obviate the necessity for an affidavit of merits. The reasoning upon which this view is based is, that while an answer might he true, and the matters set forth in it might, upon their face, seem to form a sufficient defense to the complaint, yet they might be affected by other matters in avoidance, well known to the defendant, but which he was under no obligation to state in his answer; that in order to authorize the interposition of the court, something more ought to be required than an ex- hibition of facts which, if neither explained nor avoided, would present an obstacle to plaintiff's recovery; that to bring a case completely within the statute, it must appear prima facie that the defendant, in addition to having an answer to the complaint, has a defense which is sufficient and meritorious when viewed in all the light which can be thrown upon it by all the facts involved in the action.* We see, however, no sufficient- reason for denying to a verified answer the effect of an affidavit of merits, provided its contents are such as must be regarded as sufficient when found in an affidavit of merits." In some of the Co. V. Nelson, 4 U. C. P. 343; Mulhol- ^ ^^f^^ ggc. 98. Ian V. Scoggin, 8 Neb. 202; Anderson ' People v. Rains, 23 Cal. 127. V. Beebe, 22 Kan. 768: Niagara Ins. * Jones v. Russell, 3 How. Pr. 324; Co. V. Rodecker, 47 Iowa, 162; Bank Mowry v. Hill, 11 Wis. 146. But the of Statesville v. Foot, 77 N. C. 131; rule has, in Wisconsin, been changed Mauney v. Gedney, 88 N. C. 200; by statute: See Town of Omrou. Ward, l5raper v. Bishop, 4 R. I. 489. 19 Wis. 232. ^ Dobbins v. McNamara, 113 Ind. ^ Huebner v. Farmers' Ins. Co., 71 64. Iowa, 30. 159 VACATING JUDGMENTS UNDEK STATUTES. § 108 states a motiou to set aside a judgment and to be let in to defend must be accompanied by a verified answer,^ As to tlie contents of the affidavit of merits, the practice differs essentially in different states. The more reasonable, in our judgment, is the one which requires the moving party to disclose his cause of action or ground of defense with such particularity as enables the court to determine whether or not it is good and sufficient on the merits.^ The other and less defensible practice substitutes the moving party and his counsel for the court and accepts their judgment as conclusive,^ and requires his affidavit to show that he " has fully and fairly stated the case to his counsel," and that after such statement he is advised by his counsel and believes that " he has a good, full, and perfect defense to the action upon the merits." An affi- davit showing that defendant had stated " his defense" is insufficient, because it does not show that he has disclosed all the material facts affecting the action, nor what mat- ters in avoidance of his defense exist. It should show that he had stated " the case." * An affidavit that defend- ant had fully stated the facts of the case to his counsel has been held insufficient; it should declare that he has fully and fairly stated such facts.® It is not indispensable that the affidavit of merits be made by the defendant per- sonally. His attorney may make it.^ Where the affidavit is made by some person other than, the defendant, it should appear that such person is acquainted with the facts he attempts to make known to the court.' An affi- 1 Spencer v. Thistle, 13 Neb. 227; MVoodvvard ». Backus, 20 Cal. 137; Cleveland v. Burnham, 55 Wis. 598. Burnham v. Smith, 11 Wis. 258; Bern- ■■^ Lamb v. Nelson, 34 Mo. 501; Fos- stein v. Brown, 23 Neb. 64. ter u. Martin, 20 Tex. 118; Roberts?;. * Burnham v. Smith, 11 Wis. 258; Corby, 86 III. 182; Castlio v. Bishop, Nickerson v. California R. R. Co., 61 51 Mo. 162; Railway Co. v. Gates, 23 Cal. 268. Ind. 238; Goldsberry v. Carter, 28 Ind. * Morgan v. McDonald, 70 Cal. 69; Frost v. Dodge, 15 Ind. 139; Slagle 32. V. Bodner, 75 Ind. 380; Contreras v. *' Francoviz v. Smith, 35 Minn. 278; Haynes, 61 Tex. 103; Crossman v. Jean v. Hennessy, 74 Iowa, 348. Wohlleben, 90 111. 537; Williams v. ' Hitchcock v. Hcrzur, 90 111. 543; Kessler, 82 Ind. 183; Jaeger v. Evans, Baker v. Knickerbocker, 25 Kan. 46 Iowa, 188; Palmer v. Rodgers, 70 28S; Woodworth v. Coleman, 57 Vt. Iowa, 381. 368. § 109 VACATING JUDGMENTS UNDER STATUTES. 160 davit by the attorney that from an examination of the defendant's case, so far as he has been able to examine it, he verily believes it is better than plaintiff's, is therefore insufficient. It does not show that the attorney knows what the defense is; nor whether the examination was meager or thorough. Neither does he state that the de- fendant had fully and fairly stated the case, and " what, in view of such statement, is his professional opinion touching the defense." But this omission in an affidavit made by an attorney is immaterial; for the statements of the defendant, incorporated into an affidavit made by another person is nothing " but hearsay, and therefore entitled to no weight." * Under these statutes, the courts discriminate against defenses of a technical character, re- garding them as not " on the merits." There is no very safe and unquestionable test by which defenses good and sufficient under the laws of the state may be recognized as meritorious or non-meritorious; and perhaps the courts would do best to treat with equal forbearance all defenses which are sufficient in law, unless they are assailed upon some clear ground of equitable jurisdiction. Therefore the defense of the statute of limitations has been treated as " on the merits," so as to entitle a judgment to be opened to permit it to be interposed;'^ while on the other hand the defense of usury ^ and of the statute of limita- tions* have been held to be defenses which the court might, in the exercise of its discretion, refuse to open a judgment to entertain. § 109. May Contradict the Record, but not the AflB- davit of Merits. — In applications under these statutes the parties are at liberty to contradict tlie record, and to es- tablish, by any competent evidence, the truth of the facts upon which their claim to relief is based.* But the hear- 1 Bailey v. Taaffe, 29 Cal. 422. * Sheets v. Baldwin, 12 Ohio, 120; ^ Ellinger's Appeal, 114 Pa. St. 505; Newsom's Adm'r v. Ran, 18 Ohio, 240. Mitchell V. Campbell, 14 Or. 454. * McKinley v. Tuttle, 34 Cal. 235; ^ Hazelrigg v. Wainright, 17 Ind. Mosseaux v. Brigham, 19 Vt. 457; 215. Gay v. Graat, 101 N. G. 206. 161 VACATING JUDGMENTS UNDER STATUTES. §§ 110, 111 ing of evidence is confined to the question, whether the judgment has been taken through the inadvertence, mis- take, surprise, or excusable neglect of the defendant. The applicant is not required to make more than such a prima facie showing of merits as arises from his own affidavits. The code did not intend that there should be two trials of the merits. Therefore the defendant is not required to prove his defense, as he would at the trial, nor can his affidavits of merits be controverted.^ § 110. New Motion Treated as Amendment of an Old One. — In Wisconsin, an application granted in the lower court was dismissed in the supreme court for want of an affidavit of merits, without prejudice to a new motion. But during the time involved in determining the first motion, the period in which the statute authorized an application for relief expired. A new motion was, how- ever, at once made, and was opposed on the ground that it came too late. Whereupon it was adjudged to be sub- stantially a continuation of the old motion, in the nature of an amendment of the papers on which that motion was founded; and being otherwise meritorious and in confor- mity to the practice, it was granted.^ § 111. Lenience of New York Courts. — These statutes surely were not designed to confer upon the same court both an original and an appellate jurisdiction over the same cause; ^ nor yet to allow a party, once having an ample opportunity to present his defense or cause of ac- tion, to re-present it at some future time, with such other features as a more mature reflection happened to suggest. Yet there are cases scarcely reconcilable with any other theory. They have chiefly, if not exclusively, been deter- ' Pratt V. Keils, 28 Ala. 390; Fran- Ind. 81; Brestor v. Galvin, 62 Ind. cis V. Cox, 33 Cal. 323; Hill v. Crump, 352; Joerns v. Le Nicca, 75 Iowa, 705. 24 Ind. 271; Gracier u. Weir, 45 Cal. ^Butler v. Mitchell, 17 Wis. 52. 53; Bank v. Harrison, 4 U. C. P. See also Howell v. Harrell, 71 N. C. 331; Wooster Coal Co. v. Nelson, 4 161. U. C. P. 343; Buck v. Havens, 40 ' Greer v. Mayor of New York, 4 Ind. 221; Beatty v. O'Connor, 106 Rob. (N. Y.) 675. JUDG. I. — 11 §111 VACATING JUDGMENTS UNDER STATUTES. 162 mined in a state where judgments seem to be regarded, not as inviolate and enduring testimonials, but as tempo- rary structures, to be torn down, remodeled, or rebuilt whenever the builders feel competent to improve the ori- ginal workmanship or design. Thus in one case, a judg- ment in all respects regular, and resulting from a trial in which there was no pretense of any want of opportunity to defend, and at which both parties were represented by counsel, was set aside because of an error of the court in estimating the value of a life estate. The defendant w^as a municipal corporation, whose counsel was an elective oflBcer not under its control. This counsel was obliged to attend to a vast amount of business, and could not, there- fore, devote much attention to any particular case. These w^ere the reasons upon which the court justified its inter- position. In another case, the action was for an amount due under a contract for work upon the streets. Judg- ment was obtained, the defendant being properly in court, and contesting plaintiff's right to recover part of his de- mand. The defendant was afterward relieved from a portion of the judgment, on the ground that a misappre- hension existed betw^een plaintiff and defendant, in mak- ing the original contract, by reason of which neither had assented to the contract as understood by the other.^ The mistake of counsel in conducting the case, arising out of his ignorance of the law, was the only ground upon which relief from another judgment was granted. The prin- ciples which, in the opinion of the court, should be ap- plied to the case were indistiuctly defined as follows: " There may be a case so novel and peculiar in its nature, in which it is so palpable that actual injustice may and probably has been done, and wdiere there are no other means of relief, that the court will feel bound to relieve the party from the consequence of the inadvertence and mistake of his counsel, although it arose from a misap- prehension of the law or rules of practice, if that can be ' Pettigrew v. Mayor of New York, 17 How. Pr. 492. 163 VACATING JUDGMENTS UNDER STATUTES. § 111 a done without prejudice to the rights of the parties; by which is meant, without any loss to them, other than such as may necessarily result from establishing what may be shown to be the rights of the party applying." ^ § 111 a. Fraud Practiced in Obtaining a Judgment is sometimes specified in the statutes as one of the grounds which entitle an innocent and injured litigant to have it vacated.^ Even if this ground were not specifically enu- merated in the statute, it would generally be available to the injured party on the ground that it had occasioned the rendition of a judgment against him by surprise, or mistake, or under circumstances which, as to him, might well be deemed excusable neglect. A very serious ques- tion arises, whether the fraud for which a judgment may be vacated under these statutes includes, in any case, the willful perjury of the successful litigant at the trial. In a comparatively recent case which was heard in the supreme court of Kansas on two or three separate appeals, that tribunal concluded that a judgment wholly unjust, and procured by the willful perjury of the plaintiff*, ought to be vacated, although the defendants did not show "unavoidable casualty or misfortune, preventing them from defending the original action."^ "A party," said the court, "is never required to exercise more than rea- sonable and ordinary diligence in preventing a fraud from being perpetrated upon him, and fraud vitiates everything it touches. Of course, a defendant failing to defend cannot have the judgment vacated on account of any innocent mistake or want of recollection on the part of the plaintiff or other witness, nor even on account of the perjury of the other witnesses, provided the plaintiff" himself is wholly guiltless. Nor can he have the judg- ment vacated on account of any mistake or error on the ' Levy ?'. Joyce, 1 Bosw. 622. 7 Kan. 254; Baldwin v. Sheets, 39 ^ Indepen Sharon v. Sharon, 79 Cal. 633. » Sharon v. Terry, 13 Saw. 387. 183 VOID JUDGMENTS. § 120 country in which they are situate, ''authorizing them to hear and determine causes betAveen parties, and to carry their judgments into effect." ' Jurisdiction over the sub- ject-matter is a condition precedent to the acquisition of authority over the parties, and is conferred by the " au- thority which organizes the court, and is to be sought for in the general nature of its powers, or in authority spe- cially conferred," The jurisdiction of a court over a particular question or subject-matter is generally depend- ent on the act of the parties, or of some of them. Though either the constitution, the statute, or the common law, or all combined, confer upon courts authority to hear and determine causes, they are not ordinarily authorized to act unless some petition or complaint, oral or WTitten, is presented to them and relief sought from them because of the matters stated therein. Jurisdiction over the person is obtained by service of process within the jurisdiction of the court, or in some other manner authorized by law, as by the voluntary appearance of a party during the progress of a cause. Jurisdiction over the res "is obtained by its seizure under process of the court," ^ and, as we shall hereafter see, is sometimes conceded to exist tliough no seizure is made, as where process is served construc- tively, by publication or otherwise.* § 120. Jurisdiction over the Subject-matter. — A judg- ment pronounced by a tribunal having no authority to determine the matter in issue is necessarily and in- curably void, and may be shown to be so in any colhiteral or other proceeding in which it is drawn in question.* A criminal information in the court of common pleas, or a common recovery or writ of riglit in the king's bench, 1 Withers v. Patterson, 27 Tex. 49] ; Ponce v. Underwood, ^5 Ga. TOl ; Lyles 83 Am. Dec. 64.3. v. Bolls, 8 S C. 258; Western U. T. ^ C. oper V. Reynolds, 10 Wall. 308. Co. v. Tavlor, 84 Ga. 408; Beverly w. »Po.< sec. 120a. Burke, 9 Ga. 440; 54 Am. Dec :^5 ; * Gilliland v. Seller's AdmV, 2 Ohio S\vii:garfc v. Hather, 4 Scam. 8()4; .^» St. 2-23; Morse v. Presby, 5 F..st. 21)9; Am. Dec. 418; St. Louis & h. C. ( o Eaton V Badger, 3.3 N. H. 228; Wams- v. Sandoval C. Co., 1 1 1 HI. 32; Frankel ley V. Robiusou. 28 La. Ann. 793; ». Satterfield, 19 Atl. Kop. 898 (Del). g 120 VOID JUDGMENTS. 184 would be simply void, and could not even be pleaded in justification by the officer of the court who executed it.^ When a tribunal has not jurisdiction over the subject- matter, no averment can supply the defect; no amount of proof can alter the case. As power over the subject-matter is given by law, nothing but an additional grant from legislative authority can extend that power over a class of cases formerly excepted; and neither the acquiescence of the parties, nor their solicitations, can authorize any court to determine any matter over which the law has not au- thorized it to act.2 The grant of jurisdiction must proceed from competent authority. Where a court acts under and by virtue of a certain act, and such act is unconstitutional, its judgments are void. The jurisdiction resting on the act, and the act resting on no sufficient support, both, must fall.^ Jurisdiction, being conferred by the laws of a state or country, is necessarily confined within the terri- torial limits in which such laws are operative. Lands and other property situate in another state or country are not within the jurisdiction of the courts of this state, and cannot be directly aff'ected by their judgments.* If, how- ever, the court has jurisdiction of the action and the par- ties, and is competent to give part of the relief granted, its judgment, so far as within its powers, is valid. There- fore a judgment enforcing a mechanic's lien may, on the 1 Moore v. Houston, 3 Serg. & R. Ann. 97; Irwin's Succession, 33 La. 169; Williamson's Case, 26 Pa. St. 9, IS; Ann. 63; Reed v. Wright, 2 G. Greene, Case of the Marshalsea, 10 Coke, 68, 15. Tn Dower v. Johnson, 9 Rep. 329, 7(3. 100 U. S. 158, the supreme court of ^ Dicks V. Hatch, 10 Iowa, 380; the United States declared void a State V. Fosdick, 21 La. Ann, 258; judgment of one of the courts of Lou- Mora V. Kuzac, 21 La. Ann. 754; isiana, rendered against an officer in Moore v. Ellis, 18 Mich. 77; Damp v. the military service of the United Town of Dane, 29 Wis. 419; Richard- States, for injuries resulting from the son V. Hunter, 23 La. Ann. 255; Pea- execution of orders issued by him as body V. Thatcher, 3 Col. 275; Fleisch- such officer, on the ground that the man v. Walker, 91 111. 318; Block v. courts of an invaded nation have no Henderson, 82 Ga. 23; 14 Am. St. Rep. jurisdiction to compel the officers and 138; Burnley r. Cook, 13 Tex. 586; 65 so diers of the invading army to ac- Am. Dec. 79; Stanton v. Ballard, 133 count to them civilly or criminally. Mass. 465; Home Ins. Co. v. Morse, 2J * Wimer v. Wimer, 82 Va. 890; 3 Wall. 451. Am St. Rep. 126; Lindley r. C'Reilly^ » In re Fourth Drainage Dist., 34 La. 50 N. J. L. 636; 7 Am. St. Rep. 802. 185 VOID JUDGMENTS. § 120 law conferring the lien being adjudged unconstitutional, be treated as valid as a personal judgment against the defendant.^ It is essential that the jurisdiction of the court over a subject-matter be called into action by some party and in some mode recognized by law. A court does not have power to render judgment in favor of one as plaintiff if he has never commenced any action or pro- ceeding calling for its action,'^ nor has it, as a general rule, power to give judgment respecting a matter not sub- mitted to it for decision, though such judgment is pro- nounced in an action involving other matters which have been submitted to it for decision and over which it has jurisdiction.' A petition or complaint must be filed in the court whose action is sought, or otherwise presented for its consideration in some mode sanctioned by law. If it is filed in one court and there dismissed, and the plain- tiff thereupon changes the file-marks so as to make it appear to have been filed in another court and at a later date, but without changing its caption or other contents, it still remains a petition to the court to which it was ori- ginally presented, and does not invest the other court with any jurisdiction over the subject-matter of such peti- tion.* It is not, however, essential to the jurisdiction of the court that the complaint in action be filed within the time required by law,* nor by a person entitled to main- tain the action. Hence a judgment in partition is valid though the plaintiff, while he was a proper party defend- ant, was not entitled to maintain the action.* The rule that a judgment is absolutely void if pronounced by a court not having jurisdiction of the subject-matter is equally applicable whether the judgment proceeded from a court of general or of special, of foreign or of domestic, jurisdiction, and whether the judgment is questioned • Koppket>. Dyer, 80 Mich. 311. Blackstnck, 83 Va, 232; 5 Am. St. « Dunlap V. Soutlierlin, 63 Tex. .38. Rep. 262. 3 Mnnily v. Vail, 3t N. J. L. 41S; * Jordan v. Brown, 71 Towa, 421. Eeynolds v. Stockton, 43 N. J. Eq. * Uildreth v. H:irnev. 62 Iowa, 420. 211; 3 Am. St. Rep. 3U5; Seaiastcr v. * iiced v. Reed, 107 N. Y. 045. § 120 VOID JUDGMENTS. 186 directly or co^^ate^all3^ But courts not having jurisdic- tion over a subject-matter may, when an improper case is attempted to be litigated before them, determine their own want of jurisdiction, and, as incident to that deter- mination, may render judgment for costs.* Instances of want of jurisdiction over the subject-matter are found more frequently in probate proceedings than elsewhere. If the statute of a state governing the settle- ment and distribution of the estates of deceased persons makes no provision concerning the estates of persons who died prior to the passage of such statute, then an at- tempt to administer on one of the last-named estates is a usurpation of authority over a subject-matter not within the 'jurisdiction of the court, and the proceedings are therefore invalid.^ So if a probate court should make an order for the sale of property situate in another state than the one in which the order is made, this would also be an assumption of authority over a subject-matter not within the jurisdiction of the court, and would be void.^ This rule has been held to be applicable even where personal property, though in another state at the death of its owner, was subsequently brought within the state where the order was made.* Courts of probate have no power to grant letters of administration, nor letters testamentary, on the estate of a living person. Letters may be granted, under a mistake of fact, upon the supposition that the tes- tator or other person is dead. The case is nevertheless one in which the court has no jurisdiction. If he who was supposed to have died is in fact living, all probate sales and other proceedings are void, and can have no ' King V. Poole, 36 Barb. 242; First Congresational Society, 4 West Gorinly v. Mcintosh, 22 Barb. 271; Coast Rep. 421; (56 Cal. 105. Jordan ?\ Dennis, 7 Met. 590; Blair u. ^ Novvler v. Coit, 1 Ohio, 519; 13 Cunimings, 39 Cal. 667; Burke v. Jack- Am. Dec. 640; Salmond v. Price, 13 son, 2-2 Ohio St. 268. Ohio, 368; 42 Am. Dec. 204; Watts v. ■^Downer v. Smith, 24 Cal. 114; Waddle, 6 Pet. 389; Wills v. Cowper, Coppincrer v. Rice, 33 Cal. 408; Grimes 2 Ohio, ]-J4; Latimer v. R. R. Co., 43 V. Norris, 6 Cah 621; 65 Am. Dec. 545; Mo. 10.1; 97 Am. Dec. 378; Price v. Adams v. Norris. 23 How. 353; Tevis Johnson. 1 Ohio St. 390. V. Pitcher, 10 Cal. 465; McNeil v. * Varner v. Bevil, 47 Ala. 286. 187 VOID JUDGMENTS. § 120 effect on his title.^ Grants of letters of administration were formerly judged to be void unless the deceased did in fact die intestate.^ Surrogate and probate courts are usually limited in their jurisdiction to a specified class of cases. Thus it is generally required that a man's estate be settled in the county where he resided at the time of his death. If it appears that letters testamentary or of administration were granted in a county in which the de- ceased did not reside, the whole proceedings must be regarded as void.^ How and in what circumstances this fact may be made to appear are questions to which diverse answers may be found in the authorities. Undoubtedly the records of the court may be inspected. If they show the non-residence of the deceased, they are competent evi- dence of their own invalidity. If they fail to assert any- thing about the residence, either in the averments of the petition or in the findings of the court, we should judge this to be fatal. In every case it ought to appear, prima facie, that the court has jurisdiction over the estate. * Duncan v. Stewart, 25 Ala. 408; 60 the appointees of the court in the Am. Dec. 527; Griffith v. Frazier, 8 same position as if the decree never Cranch, 9; Fisk u. Norvel, 9 Tex. 13; existed. On the contrary, all acta 58 Am. Dec. 128; Jochumsen v. Suf- done in the due course of administra- folk Sav. Bank, 3 Allen, 87; Withers tion, while such decrees remained in r. Patterson, 27 Tex. 496; 86 Am. Dec. force, must be held entirely valid": 643; Beckett v. Selover, 7 Cal. 215; 68 Redtield on Wills, pt. 2, p. 109; Bige- Am. Dec. 237. But a majority of the low v. Bigelow, 4 Ohio, 138; 19 Am. court of appeals of New York declared, Dec. 597; Kittredge v. Folsom, 8 in Rodfirigas v. East River Sav. Inst., N. H. 98; Ward v. Oakes, 42 Ala. ^25; 63 N. Y. 460, 20 Am. Rep. 555, that a Jennings v. Moses, 38 Ala. 402; grant of administration upon the es- Broughton v. Bradley, 34 Ala. 694; 73 tate' of a living person was not void; Am. Dec. 474; Brock v. Frank, 51 Ala. but see a further decision in the same 91. But one who deals with an execu- case, 76 N. Y. 316; 32 Am. Rep. 309. tor is not protected if he has notice of !* Holyoke v. Haskins, 5 Pick. 24; 16 the existence of a later will than the Am. Dec. 372; Brock v. Frank, 51 Ala. one admitted to prohate: Gaines v. De 91; Kane v. Paul, 14 Pet. 39; Griffith la Croix, 6 Wall. 720. V. Frazier, 8 Cranch, 24. This rule is * Beckett r. Selover, 7 Cal. 215; 68 believed to be obsolete in the United Am. Dec. 237; Haynes v. Moeks, 10 States. In its stead we have adopted Cal. 110; 70 Am. Dec. 703; Harlan's the rule that a grant of administration. Estate, 24 Cal. 182; 85 Am. Dec. 58; made by a court having jurisdiction of Moore v. Pliilbrick, .32 Me. 102; 52 the subject-matter and of the particu- Am. Dec. 642; Munson v. Newson, 9 lar case, while it remains unrevoked, Tex. 109; Cutts v. Haskins, 9 Mass, cannot be regarded as void. "Nor 543; Holyoke v. Haskins, 5 Pick. 20; can the recall or the repeal of the ap- 9 Pick. 259; 16 Am. Dec. 372; Good- poiatmeut be fairly regarded as placing rich v. Pendleton, 4 Johns. Ch. 549. § 120 a VOID JUDGMENTS. 188 Usually a petition is presented to the court or judge, in which the facts authorizing the assumption of jurisdiction in the particular case are stated. The duty of the court or judge is to investigate and determine the truth of these jurisdictional allegations. Its subsequent grant /of letters implies that these allegations have been, found to be true. Hence in a case where a probate court has, upon a peti- tion asserting the essential jurisdictional facts, and after notice to the parties in interest, given in the manner pre- scribed by law, granted letters testamentary or of admin- istration, the proceedings cannot be avoided collaterally, in the majority of the states, by proof that the deceased did not die within the jurisdiction of the court.^ Any other rule would lead to the most embarrassing results. The residence of a deceased person can be determined only by hearing parol evidence. Different judges may reach opposite conclusions from the same evidence. The parties in interest may at separate times produce different evidence on the same issue. If, after a court had heard and decided the issue concerning the residence of the de- ceased, the question remained unsettled to such an extent that it could be relitigated for the purpose of avoiding all the proceedings of the court, no person would have the temerity to deal with executors or administrators. § 120 a. Jurisdiction over the Person of plaintiff or complainant is acquired by his suing out some writ or presenting to the court a petition or complaint; or, in other words, by his voluntarily submitting his cause to its decision. The defendant may also give the court jurisdiction by his voluntary action, as where he appears by his answer, or in some other mode recognized by law.^ » Irwin V. Scribner, 18 Cal. 499; bott, 27 Vt. 581; 65 Am. Dec. 214; Lewis V. Dutton, 8 How. Pr. 103; Burdett v. Silsbee, 15 Tex. 615; Monell Andrews v. Avery, 14 Gratt. 236; 72 v. Demiison, 17 How. Pr. 422; Abbott Am. Dec. 355; Warfield's Estate, 22 r. Coburn, 28 Vt. 663; 67 Ain. Dec. 735; Cal. 51; 83 Am. Dec. 49; Sutton v. Rarborg »\ Hammond, 2 Har. & G. 42. Sutton, 13 Vt. 71; Fisher r. Bassett, 9 See also Riley v. McCord, 24 Mo. 265; Leigh, 119; 33 Ain. Dec. 227; Barrett Wight v. Wallbaum, 39 111. 554. V. Garney, 33 Cal. 530; Dnggs v. Ab- « Letuey v. Marshall, 79 Tex. 513. 189 VOID JUDGMENTS. § 120 a If he does not do so volnntarily, then, hefore the court can rightfully exercise jurisdiction over him, it must be authorized to require him to appear before it and submit to its judgment in the action or proceeding, and its process requiring such appearance must be issued and served upon him in substantial compliance with the law. As a general rule, the authority of the courts of every state or nation is restricted to the territory of such state or nation, and they have no power to require persons not within such territory to appear before them. Therefore, any personal judgment which a state court may render against one who did not voluntarily submit to its jurisdiction, and who is not a citizen of the state, nor served with process within its borders, no matter what the mode of service, is void, because the court had no jurisdiction over his person.^ To this rule there is this apparent exception: If a court has jurisdiction over an action and the parties thereto, with power to render, and it in fact does render, a valid judgment therein, from which the losing party has a right to appeal, such process as may be required to prosecute an appeal to the appellate court may be served on a non-resident respondent, and if so served, the judg- ment of the appellate court based thereon is valid.^ All persons residing or being within a state are subject to the jurisdiction of its courts, whether their residence is temporary or permanent; so that process served upon them within its territory is as effectual to confer jurisdic- 1 Ewer V. Coffin, 1 Cush. 23; 48 Eliot v. McCormick, 144 Mass. 10; Afn. Dec. 587; Lovejoy v. Albee, 33 Eastman v. Dearborn, 63 N. H. 304. Me. 414; 54 Am. Dec. 630; Martia v. Silver v. Luck, 42 Ark. 268; Pennoyer Cobb, 77 Tex. 544; Latimer v. Union v. Neff, 95 U. S. 714; Hall r. Williams, Pac. R'y Co., 43 Mo. 105; 97 Am. Dec. 6 Pick. 2.32; 17 Am. Dec. 356; Fol-er 378; Paxton v. Daniell, 23 Pac. L. Rep. v. Columbian Ins. Co., 99. Mass. 267; 441 (Wash.); Cudabec v. Strong, 67 96 Am. Dec. 747; Price v. Hickok, 39 Miss. 705; Kimmarle v. Houston etc. Vt. 292; McEwen r. Ziinmer, 38 -Mich. R. R. Co., 76 Tex. 686; Barrett v. Mc- 7()5; 31 Am. Rep. .••!.32; Lntz v. Kelly, AUister, 33 W. Va. 738; De Meli v. 47 Iowa, 307; Smith v. Eaton, 36 Me. De Meli, 120 N. Y. 485; 17 Am. St. 298; 58 Am. Dec. 746; Hart v. San- Rep. 6.52; Sowders v. Edmunds, 76 som, llOU. S. 151. Ind.123; Shepard w.Wriyht, 113N. Y. '^Nations v. Johnson, 24 How. 682; Mickey v. Stratton, 5 Saw. 475; 195. § 120 a VOID JUDGMENTS. 190 tion on a court as if tliey were citizens/ unless they are ambassadors, other public ministers, or consuls or vice- consuls of a foreign nation, in which event the jurisdiction of the national courts is exclusive, and though they appear in such courts in response to process served upon them, and answering the complaint, proceed to trial upon the merits, they may at any time avoid the judgment by suggesting that the court did not have jurisdiction over them.^ The place of residence of a foreign minister or ambassador is not regarded as a part of the state for the purpose of conferring jurisdiction on the state courts over him, his diplomatic attendants, or his family or servants, all of whom are exempt from the jurisdiction of the state.' All property within a state is subject to the jurisdiction of its courts,^ and they have the right to adjudicate the title thereto, to enforce liens thereupon, and to subject it to the payment of the debts of its owners, whether resi- dents or not. It must be confessed that it is somewhat difficult, upon principle, to reconcile this statement with the rule that a court has no jurisdiction over persons who are neither citizens nor residents of the state whose tri- bunal it is. This difficulty has been solved by regarding as quasi proceedings in rem all actions or proceedings the direct object of which is to affect the title,® or to enforfte liens upon property, or to make it contribute to the satis- faction of such judgment as may be recovered. There- fore a judgment in partition,^ or setting aside a conveyance 1 Mowry v. Chase, 100 Mass. 79; * Sturgis v. Fay, 16 Ind. 429; 79 Sturgis V. Fav, 16 Inrl. 429; 79 Am. Am. Dec. 440; United States v. Fox, Dee. 440; Downer v. Shaw, 22 N. H. 94 U. S. 315; Arndt v. Griggs, 116 277; Murphy v. Winter, 18 Ga. 600; U. S. 151; Castrique v. Imrie, L. R. 4 March v. Eastern R. R. Co., 40 N. H. H. L. 414. 548; 77 Am. Dec. 732; Molvneux v. * Applegate v. Lexington etc., 117 Seymour. 30 Ga. 440; 76 Am. Dec. 662; U. S. 2G6; Loaiza v. Superior Court, 85 Alley V. Caspari, 80 Me. 234; 6 Am. Cal. 11; 20 Am. St. Rep. 197; Young v. St. Rep. 178. Upshur, 42 La. Ann. 362: 21 Am. St. 2 Miller v. Van Loben Sels, 66 Cal, Rep. 381; Hee fitter v. Elizabeth Oil 341; Boers v. Preston, 111 U. S. 256. Co.. 112 U. S. 301. ^ United States »). Benner, Bald. 234; "Williams v. Westcott, 77 Iowa, Ex parte Cabrera, 1 Wash. C. C. 232; 332; 14 Am. St. Rep. 287; Wunstel v. Uni;ed States v. Lafoutauie, 4 Crauch Landry, 39 La. Ann. 312; Taliaferio tv C. C. 173. Butler, 77 Tex. 578. 191 VOID JUDGMENTS. § 120 a as fraudulent/ or for specific performance of a contract to convey real estate,^ or condemning lands in the exercise of the right of eminent domain,'^ or foreclosing liens, or de- termining conflicting claims to real estate and quieting title thereto/ is valid even against non-residents, though based upon constructive service of process. So where an action is to enforce a pecuniary liability, and during its pendency the property is levied upon under a writ of attachment issued therein, whether by taking it into the actual possession of the attaching officer or not, and the defendant is a non-resident constructively served with process, the judgment against him is so far valid that it may be enforced by the sale of the property attached, though in all other respects it is inoperative.* In actions of this class, as authorii^ed by the statutes in most of the states, though property is attached, the service of process, by publication or otherwise, is essential to confer juris- diction to enter judgment, and a judgment without such service is void.® In all cases in which a defendant does not voluntarily appear, service of process upon him in some mode authorized by law is indispensable, and if it appears, even in a collateral proceeding, that any judg- ment has been rendered against one who has neither voluntarily appeared nor been served with process, it must be treated as void.^ ' Adams v. Cowles, 95 Mo. 501; 6 e.SO; Easterly v. Goodwin, 35 Conn. Am. St. Rep. 74; Lane v. Innes, 43 273; 95 Am. Dec. 3'J7; Johnson v. Minn. 136. Dodge, 19 Iowa, 106; Payne v. Wither- ^ Boswell's Lessee v. Otis, 9 How. spoon, 14 B. Mon. 270; Stone v. 330; Felchv. Hooper, 119 Mass. 52. Meyers, 9 Minn. .SOS; 86 Am. Dec. 3 Hilling V. Kaw Valley R. R. Co., 101; Freeman v. Alderson, 119 U. S. 130 U. S. 559. 1S5. * Arndt v. Grigcrs, 134 U. S. 316; ^ Great W. M. Co. v. Woodmas etc. Watson V. Ulbricli, 18 Neb. ISO; Cloyd Co., 12 Col. 46; 13 Am. St. Rep. 204; V. Trotter, 118 III. 391; Essig v. Lower, Barber v. Morris, 37 Minn. 194; 5 Am. 120 Ind. 239; Perkins v. Wakeham, 86 St. Rep. 836. Cal. 580; 21 Am. St. Rep. 67; Ven- ' Fanner d. Hafley, 38 La. Ann. 232; able V. Dutch. 37 Kan. 515; 1 Am. St. Boyd v. Roane, 49 Ark. 397; Earl v. Rep. LT)0; Bennett v. Fenton, 41 Fed. Cureton, 13 S. C. 19; Condry ?'. C'liesh- Rep. 2Si. ire, 88 N. C. 375: Dorr v. Rohr, 82 "Anderson v. GofiF, 72 Cal. 65; 1 Va. 359; 3 Am. St. Rep. 106; Gre<,'ory Am. St. Rep. 34; Eastman v. Wad- v. Stetson, 133 U. S. 579; Cassidy v. leigh, 65 Me. 251; 20 Am. Rep. 695; Woodward, 77 Iowa, 355; Duncan v. Tab!erw. Mitcliell, 0"/ Miss. 437; Love- Gerdiiie, 59 Miss. 550; Arthur v. la- joy V. Albee, 33 Me. 414; 54 Am. Dec. rael, 15 Col. 147. § 120 a VOID JUDGMENTS. 192 If there are two or more defendants, there is no author- ity to enter judgment against all until all have been served, unless it can be found in the provisions of some statute in force in the state; ^ and though there is such a statute in existence, before judgment affecting one not served can be validated by it, it must appear that the action or pro- ceeding in which it was rendered was prosecuted under and in conformity to such statute.^ If a partnership is doing business in a state or country of which some of its members are non-residents, there is no doubt that upon service of process upon the resident defendants a judg- ment may be entered which will bind them personally and be enforceable against the partnership assets found within the jurisdiction of the court.* It has been contended that a statute authorizing judgment to be entered against a partnership, or against persons jointly indebted, on ser- vice of process on some only of the persons jointly liable, enforceable ag'ainst those served and against the joint property of all, is unconstitutional, on the ground that it deprives those not served of property without the process of law. That a judgment cannot be given any effect against a partner or other joint debtor personally must be conceded in all cases where it clearly appears that pro- cess has not been served upon him, and he has not volun- tarily appeared in the action. It will not support a levy made on his individual property nor an action against him to obtain another judgment, nor will it even stop the running of the statute of limitations.'* It is also doubtful whether, in case the defendants are joint debtors merely, a judgment against all, based upon personal service upon some only, can be enforced against property which they own as co-tenants, so as to deprive a defendant not served, ^Gaiennie v. Akin, 17 La. 42; .% Cal. 389; Hamilton r. Rogers, 67 Mich. Am. Dec. 604; Hall v. Lanning. 91 135. U. S. 166; Landsbreg v. Bullock, 79 ^ Winters v. Means, 25 Neb. 241; 13 Mich. 278; Proctor v. Lewis, 50 Am. St. Rep. 489; Leese v. Martin, L. Mich. 329; Junkansw. Bergin, 64 Cal. R. 13 Eq. 77; Gunzberg v. Jacobson, 203. 39 Mioh. 80. •^ Davidson v. Knox, 67 Cal. 143; * Tay v. Hawley, 39 Cal. 95; Bruea Garden S. & M. L W. v. Davidson, 73 v. Bokee. 4 Deuio, 56; 47 Am. Dec. 239. 193 VOID JUDGMENTS. § 120 a of his share or interest in such property; but as to a part- nership, it is competent for the legislature of a state to authorize a judgment to be entered against it upon service of process upon any one or more of the partners, enforce- able against the partnership property and the individual property of the partners so served.^ Various questions may arise as to whether facts claimed to constitute an alleged appearance, or service of process, are sufficient to bring the defendant within the jurisdic- tion of the court. We cannot undertake to here state fully what will be deemed an appearance by a defendant nor what a sufficient service of process upon him. It has been held that the fact that one was made a party defend- ant on his own motion did not authorize the entry of his default without any farther notice or process;^ that a motion to set aside judgment and for leave to plead, if denied, left the question of jurisdiction just as it was be- fore;^ and that the overruling of a motion for a new trial cannot cure a default void for want of jurisdiction, unless it appears that the motion was made or authorized by the defendant.-* It is obvious that any proceeding taken by a defendant for the purpose of obtaining relief from a judg- ment, on the ground that it was rendered against him without first acquiring jurisdiction over him, and any ap- pearance made professedly for a special purpose, ought not to be held to give the court jurisdiction over the de- fendant, except to the extent of hearing and determining the question which he specially presents to it for con- sideration. As a general rule, the jurisdiction of courts in an action is confined to the parties thereto, and must be procured in some mode sanctioned by law. Though there are rights and causes of action arising out of or connected 1 Patten v. Cunnington, 63 Tex. 6G6; ^ pagan v. Barnes 14 Fla. 53. Burnett v. Sullivan, 58 Tex. 5S5; ' «lo»4 ^- P'f ^f %, ^^ ^^O; 357. Johnson V. Lough, 22 Minn. 203; * Martmu Cobb, i7 lex. 544; God- Harker v Brink 24 N. J. L. 333; frey v. Valentine, 39 Mum. 336; 12 Sugg V. Thornton, 132 U. S. 524. Am. St. Rep. 657. JUDQ. I. — 13 § 120 b VOID JUDGMENTS. 194 with the action before the court, it has not, unless author- ized by statute, power to compel the attendance of persons before it by notice or citation, and to give such judgments against them as might be proper in an action instituted against them and conducted in conformity with the law governing such action. Hence where one who had be- come a surety on the bond of a purchaser at a judicial sale was upon motion and notice brought before the court, and a judgment thereupon entered against him, it was ad- judged to be void because not in conformity to established modes of procedure.* § 120 b. Jurisdiction over Corporations. — A corpora- tion, for the purposes of a suit, is a person, and, like a natural person, may be either resident or non-resident. Its residence is in the state under whose laws it was cre- ated,^ and there it may be served with process in such mode as the laws of the state prescribe.^ As long as a corporation confines its- business to the state of which it is by law a resident, the courts of other states can exer- cise no jurisdiction over it, except to the same extent as over other non-residents. If its officers go into another state, they do not take it with them, and service of process upon them there cannot confer upon its courts jurisdiction to render a judgment against it which can be enforced elsewhere, but may probably operate as a constructive service, sufiicient, in connection with the attachment of its property within the state, to support a judgment enforce- able out of the property so attached.* So far as a foreign ^ Anthony v. Kasey, 83 Va. 33S; 5 ble principal to whom it can be de- Am. St. Rep. 277; Thurman v. Mor- livered. For a discussion of the ques- gan, 79 Va, 367. tion upon what agents of a corporation ^ Railway Co. v. Whitton, 13 Wall, process against it must be served see 270; St. Clair v. Cox, 106 U. S. 350; note to Hampson v. Weare, 66 Am. Western U. T. Co. v. Dickinson, 40 Dec, 119. Mo. 444; 13 Am. Rep. 295. * Peckhamr. North Parish, 16 Pick. » New Albany & S. R. R. Co. v. Til- 286; Latimer v. U. P. R'y, 43 Mo. 105; ton, 12 Ind. 3; 74 Am. Dec. 195. The 97 Am. Dec. 378; State v. Ramsey service of process must necessarily be Dist. Ct., 26 Minn. 234; McQueen v. upon the officers and other agents of a Middletln M. Co., 16 Johns. 5. corporation, because there is no taiigi- 195 VOID JUDGMENTS. § 120 b corporation has or claims property within a state, we doubt not that its courts may authorize actions affecting the title to or enforcing liens against such property, to the same extent as if the corporation were a non-resident natural person. A corporation, like a, natural person, may voluntarily subject itself to the jurisdiction of a court, either by commencing an action therein or by ap- pearing in an action against it, without objecting to the jurisdiction of the court, and having done so, is bound by the judgment to the same extent as a natural person, whether the court could have rightfully exercised juris- diction against its objections or not/ If a corporation is authorized by the laws of a state, other than that of its creation, to do business in the for- mer, and to there have the same privileges and exercise the same powers as in the state of its creation, and it avails itself of the privileges and exercises the powers thus conceded, it consents to the assumption by the courts of the former state of jurisdiction over it in proceedings arising out of transactions within its territory;^ and we apprehend that if a corporation engages in business in another state than that of its creation, even in the ab- sence of any express authorization by law, its courts may acquire jurisdiction over such corporation by service of process on its resident agents in the mode provided by the local laws.^ In many of the states, statutes have been enacted by which foreign corporations are forbidden to do business therein unless they first designate some offi- cer or agent upon whom service of process against them may be made. If a corporation, pursuant to such statute, ' Pierce v. Equitable L. A. Soc, 145 Hannibal R. R. v. Crane, 102 111. 254; Mass. 146; 1 Am. St. Rep. 433; North Bawknight v. L. S. & G. M. Co., 55 M. R. R. Co. V. Akers, 4 Kan. 388; 9G Ca. 195; Merriwether v. Bank of Ham- Am. Dec. 183; March v. Eastern R. R. burg. Dud. (Ga.) 36; Hartford C. F, I. Co., 46 N. H. 548; 77 Am. Dec. ^:^2. Co. v. Carriage, 40 Ga. 670; Moulin v. ''■ Baltimore & O. R. R. v. Gallahue's Insurance Co., 24 N. J. L. 24; Colorado Adm'r, 12Gratt. 655; 68 Am. Dec. 254; I. W. v. Sierra Grande M. Co., 15 Col. Railroad Co. V. Harris, 12 Wall. 65. 499; 22 Am. St. Rep.; Milk Co. v. 3 Lafayette Ins. Co. v. French, 18 Brandenburgh, 40N. J. L. 112; Newby How. 404; Mineral Point R. R. v. v. Colt's Firearm Co., L. K. 7 Q. B. Keep, 22 III. 9; 74 Am. Dec. 124; 293. § 120 C VOID JUDGMENTS. 196 designates such officer or agent, service of process upon him is effectual to give the courts of such state jurisdic- tion over it, and a judgment suj)ported b}'' such service is as valid as if rendered by the courts of the state of which the corporation is a resident, upon due service of process on it there;* and even where a foreign corporation does business in a state without complying with its statute re- quiring the designation of an agent on whom service of process can be made, it will probably not be permitted to urge its non-observance of the law for the purpose of avoiding the jurisdiction of the courts of the state.^ To entitle a judgment rendered against a corporation in a state of which it is not a resident to full faith and credit in another state, it must appear by the record either that the corporation voluntarily submitted itself to the juris- diction of the court, or was doing business within the state; and in the latter contingency, the corporation will be permitted to attack and avoid the judgment by show- ing that the person on whom process was served as its officer or agent was not such, or did not occupy such re- lation to it as authorized process against it to be served upon him.* § 120 c. Judgments Void because the Court Exceeded its Jurisdiction. — It is very easy to conceive of judgments which, though entered in cases over which the court had undoubted jurisdiction, are void because they decided some question which it had no power to decide, or granted some relief which it had no power to grant, and yet it will probably not be possible to formulate any test by which to unerringly determine whether the action of the court is in similar cases void, or erroneous only. If a court grants relief which, under no circumstances, it has any authority to grant, its judgment is to that extent void; 1 Lafayette Ins. Co. v. French, 18 Co., 25 N. J. L. 67; 64 Am. Dec. How. 404; Ex parte Schollenberger, 96 412. U. S. 369; Goodwin v. Colorado M. & ^ Hagerman v. Empire Slate Co., 97 I. Co., 110 U. S. 1; St. Clair v. Cox, Pa. St. 534. 106 U. S. 350; Capen v. Pacific M. L ^ gt. Clair v. Cox, 106 U. S. 350. 197 VOID JUDGMENTS. § 120 C as where it orders a donation out of the public treasury,* or enters judgment for an amount greater than it is au- thorized to give judgment for in any event,^ or where, on a conviction in a criminal prosecution, the court sentences the defendant to undergo a punishment different from or in excess of that which it is authorized to impose for the offense of which he was convicted.^ So it has been held that a judgment rendered by a justice of the peace against a prosecuting witness for costs, when there was no finding that the prosecution was instituted without probable cause or through malicious motives, is void for want of power in the justice to enter such judgment.^ In some instances courts have undertaken to decide questions not involved in the suit or action before them, and to grant relief therein; and their judgments have been assailed for that reason, and to the extent which they departed from the matters embraced within the record they have been de- nied effect. Where a creditor instituted an action, alleging that he had loaned money, relying on a promise that he should be given a mortgage as security therefor upon certain land, and that the borrower had conveyed such land, in trust, for himself and his wife for life, with re- mainder to his children, and asked that the trust be declared void with respect to his claim, and the court, proceeding beyond the prayer of the bill, annulled the deed as between the trustee and the cestuis que trust, and thereby attempted to destroy the estate of the latter, it was held that this part of its decree was void.* In a later > Bridges v. Clay Co. Supervisors, be adjudged belongs; 2. The proper 67 Miss. 252. parties must be present; and 3. The » Feiliett v. Engler, 8 Cal. 76. point decided must be, in substance » Ex parte Lange, 18 Wall 163; post, and efifect, within the issue. That a sec 625. court cannot go out of its appointed ♦Little V. Evans, 41 Kan. 578. sphere, and that its action is void with * Munday v. Vail, 43 N. J. L. 418, respect to persons who are strangers In this case the court said: "Jurisdic- to its proceedings, are propositions tion may be defined to be the right to established by a multitude of authori- adjudicate concerning the subject- ties. A defect in a judgment arising matter in the given case. To consti- from the fact that the matter decided tute this there are three essentials: was not embraced within the issue has 1. The court must have cognizance of not, it woulil seem, received nuich the class of cases to which "the one to judicial consideration. And yet I § 120 C VOID JUDGMENTS. 198 case in the same state, the doctrine of the case last cited was reaffirmed, and the general rule promulgated that "a judgment or decree which is not appropriate to any part of the matter in controversy before the court cannot have any force." ^ Where a widow brought suit for the sole purpose of having her dower assigned to her, and the court, after assigning it of its own accord, directed the sale of the residue of the land for division among minor heirs, the decree of sale was adjudged void.^ A statute of the state of Missouri authorized a statutory foreclosure of mort- gages and a judgment for the sale of the premises and a personal judgment against the mortgagor. A court of general jurisdiction at law and in equity, proceeding un- der this statute, rendered against the vendee of the mort- gagor a foreclosure, and also a personal judgment. This personal judgment, in an elaborate opinion, was held to be void, on the ground that, in addition to having juris- diction over the subject-matter and of the person, the court must be authorized to give the kind of relief which its judgment assumes to grant.' In most of the cases cited, the judgment or decree disposed of a subject-matter cannot doubt that, upon general prin- such a case the court would have acted ciples, such a defect must avoid a within the field of its authority, and judgment. It is impossible to concede the proper parties would have been that because A and B are parties to a present; the single but fatal flaw hav- suit, that a court can decide any mat- ing been the absence from the record ter in which they are interested, of any issue on the point determined, whether such matter l)e involved in The invalidity of such a decree does the pending litigation or not. Persons, not proceed from any mere arbitrary by becoming suitors, do not place rule, but it rests entirely on the ground themselves for all purposes under the of common justice. A judgment upon control of the court, and it is only a matter outside of the issue must, of over those particular interests which necessity, be altogether arbitrary and they choose to draw in question that unjust, as it concludes a point upon a power of judicial decision arises. If, which the parties have not been heard; in an ordinary foreclosure case, a man and it is upon this very ground that and his wife being parties, the court the parties have been heard, or have of chancery should decree a divorce had the opportunity of a hearing, that between them, it would require no the law gives so conclusive an effect to argument to convince every one that to matters adjudicated." 8uch decree, so far as it attempted to >■ Reynolds v. Stockton, 43 N. J. Eq. affect the matrimonial relation, was 211; 3 Am. St. Rep. 305. void; and yet the only infirmity in such ^ Seamster r. Blackstock, 83 Va. 232; a decree would be found, upon analysis, 5 Am. St. Rep. 262. See also Anthony to arise from the circum-stance that the v. Kasey, S3 Va. 33S; 5 Am. St. Rep. pomt decided was not within the sub- 277; Wade v. Hancock, 76 Va. 620. stance of the pending litigation. In ^ Fithian v. Monks, 43 Mo. 502. 199 VOID JUDGMENTS. § 121 not included in the action or proceeding, and granted relief not germane to that there sought. A more difficult question arises when, in an action to recover a sum of money, or the possession of real or personal property, the court gives judgment for a sum in excess of that prayed for in the complaint or shown to be owing by its allega- tions, or for the possession of property different from or in excess of that described in the complaint. As to such excess, there has been no pleading or process seeking to recover it or notifying the defendant that it was claimed of him. Nevertheless, it has been assumed, rather than decided, that a judgment larger than the complaint justi- fied, or for more than specified in the writ, cannot be avoided collaterally.' § 121. Loss of Jurisdiction. — A tribunal having un- doubted jurisdiction of a cause at a certain stage may lose such jurisdiction at some subsequent stage of the pro- ceedings. This frequently happens when a judgment has been pronounced in the appellate court upon appeal. The judgment of the superior court in this case cannot be varied in the original tribunal,^ nor examined for any other purpose than to carry it into effect, nor reviewed for error apparent, nor intermeddled with, further than to settle so much as has been remanded.^ Neither can the lower court do anything to prevent the immediate execu- tion of the judgment of the appellate court.* So if in an action pending in a state court the proper petition is filed and proceedings taken to require its removal to the national courts, the jurisdiction of the state court is divested, and its subsequent action, should it take any, is ' Gillit V. Truax, 27 Minn. 528; 7 Met. 415. But of course the juris- Chaffee v. Hooper, 54 Vt. 513. diction of the trial court cannot be ^ McKinney v. Jones, 57 Wis. suspended or destroyed by an attemp- 301 ted but invalid appeal: Brady v. Burke, 3 Ex parte Sibbald v. U. S., 12 Pet. 90 Cal. 1. 488; M< Clanahan's Heirs v. Hender- * MarysviUe v. Buchanan, 3 Cal. son's, 1 T. B. Mon. 261; McArthur v. 212; McMillan v. Richards, 12 CaJ. Dane, 61 Ala. 539; Boyuton v. Foster, 468. 121 VOID JUDGMENTS. 200 coram non judice.'' If the statute requires regular terms to be held for the trial of causes, the court in the intervals between those terms is, for the purpose of conducting trials, in the same condition as though its authority over the case were entirely withdrawn. It is no longer a court. Judicial powers cannot be conferred upon it by consent of the parties, and any judgment rendered upon a trial had in pursuance of such consent is void,^ and is so wanting in even the color of judicial authority that it will not be reversed upon appeal.^ If the same district is composed ' Steamship Co, v. Tugman, 106 U, S. 118; Railroad Co. v. Koontz, 104 U. S. 14. Contra, Johnson v. Brewers' F. I. Co., 51 Wis. 570. 2 State Nat. Bank v. Neel, 53 Ark. 110; 22 Am. St. Rep. 185; Garlick V. Dunn, 42 Ala. 404; Kimports v. Rawson, 29 W. Va. 487; Brumley V. State, 20 Ark. 77; Gahisha v. Butterfield, 2 Scam. 227; Ex parte Osborn, 24 Ark. 479; Hernandez v. James, 23 La. Ann. 483; Dodge v. Coffin, 15 Kan. 277; Dixon v. Judge Fifth Dist., 26 La. Ann. 119; Earls v. Earls, 27 Kan. 538; Filley v. Cody, 4 Col. 109; Francis v. Wells, 4 Col. 274; Bruce v. Doolittle, 81 111. 103; Laughin V. Peckham, 66 Iowa, 121; Marshall v. Ravisies, 22 Fla. 583; Balm v. Nunn, 63 Iowa, 641; King v. Green, 2 Stew. 133; 19 Am. Dec. 46; Davis v. Fish, 1 G. Greene, 406; 48 Am. Dec. 387. 2 Wricks V. Ludwig, 9 Cal. 175; Nor- wood V. Kenfield, 34 Cal. 333; Doss v. Waggoner, 3 Tex. 515; Leclair v. Glo- benski, 4 L. C. Rep. 139. In the ab- sence of any statute providing to the contrary, the term is lost unless the judge appear at the appointed time and open court, and all subsequent proceedings are void: People v, San- chez, 24 Cal. 17; People v. Bradwell, 2 Cow. 445. The presence of the judge is also indispensable to the con- tinuation of a term properly opened. Thus in a case in Illinois, the judge, having held the term until a certain day, adjourned it till the next day. He then left, authorizing, so far as he could, the clerk and sheriff to open and adjourn court, from day to day, until another judge arrived. But when this action was called in ques- tion, the supreme court of the state held that "the judge had no power to authorize the ministerial officers of the court to exercise judicial powers, even in opening and adjourning the court," and that, as a consequence, the term expired on the first day of the judge's absence: Wight v. Wall- baum, 39 111. 554. If special terms are authorized to be held after the giving of certain notice, a trial had and judgment entered at such a term, but in the absence of the required no- tice, is certainly so irregular as to be set aside on appeal, and is probably void: Oram v. Riley, 16 Cal. 186. In the cases cited, declaring proceedings void because ti-ansacted at a time or place where the court was not author- ized to transact business, the facts rendering the action coram non judice seem to have appeared on the record or to have been admitted by the par- ties. But a question of some difficulty may arise where the record does not show whether the judgment was en- tered in term or not. The general presumptions indulged in favor of the proceedings of courts of general juris- diction ought, so far as they are con- cerned, to make a prima facie case in favor of those proceedings in all cases, and to shield them from all collateral attacks in those states where, as in California, jurisdictional presumptions seem to be sacred. In Tennessee the objection was made on appeal that while the court appeared to have been opened at the proper place at the first day of the term, it was no- where shown where its subsequent sessions were held. But the objec- tion was overruled, because it was presumed by law that the court Avas held where it first met, until the cou- 201 VOID JUDGMENTS. §121 of different counties, a trial in one of the counties on the commencement day of a term in another county, though sanctioned by the written stipulation of both parties, is coram non judice} A judge in one district may preside in another district in place of the judge of the latter district. trary was shown: Smith v. State, 9 Humph. 10. In regard to a case where the records of the court failed to disclose what adjournments were made after opening the term, the su- preme court of North Carolina said: "The term of a court is, in legal con- templation, as one day; and although it may be open many days, all its acts refer to its commencement, with the particular exceptions in which the law may direct certain acts to be done on certain other days. It is ^seldom necessary that the day of any proceed- ing should appear in making up the record, distinct from that of the be- ginning of each term, although a min- ute may be kept of each day's doings. Nor is it necessary that there should be adjournments from day to day, after the term is once opened by the judge; nor, if there should be, that they should be recorded, in order to pre- serve the authority of the court to perform its functions. The court may in fact not adjourn during the whole term, but be always open; though, for the convenience of suitors, an hour of a particular day, or of the next day, may be given them for their attend- ance. If the record state the time of doing an act, as the statement is unnecessary, so it is harmless sur- plusage, unless the day be beyond the period to which the term legally ex- tends": State V. Martin, 2 Ired. 122. In New York it is said that a court will be presumed to have continued open until its adjournment is shown: People V. Central City Bank, 53 Barb. 412. Language employed by Chief Justice Wallace of California in the matter of the application of Bennett, 44 Cal. 84, on hahens corpm, goes far toward asserting that a judgment en- tered in vacation, without either trial, argument, or submission, is valid. He said: "The principal objection made for the petitioner, as we uodorstand it, is, that the cause here was tried in chambers, and not in open court; and it is said that there is no authority to try a cause except in open court. Bat even if this be so, we do not see that it would follow that a judgment ren- dered in a cause which had been tried at chambers would, for that reason, necessarily be void in the absolute sense. The district court unques- tionably had jurisdiction of the sub- ject-matter and of the parties litigant. Had the court itself rendered the judg- ment in question in open session at a regular term, without trial, without proof, and even without submission of the cause for decision, such judg- ment, however erroneous, would not be held void upon a mere collateral attack. To maintain that it would, would be to ignore the obvious dis- tinction between a total want of au- thority upon the one hand, and the erroneous exercise of the conceded au- thority upon the other." And speak- ing of the power to enter judgment in vacation, the judge, in the same opin- ion, says: "It is a power, too, which is no more dependent upon or affected by the fact of trial had, or trial not had, than if the judgment had been entered in term time by the court. The hearing of proofs, the argument of counsel, — in other words, the trial had, — or the absence of any or all these, neither confer jurisdiction in the first instance, nor take it away after it has once fully attached." 1 Bates V. Gage, 40 Cal. 183; Gregg V. Cooke, Peck, 82. But in Iowa, by statute, a trial commenced with a bona fide expectation of being finished be- fore the close of the term may be prosecuted until its close, though it reaches into the succeeding term : State V. Knight, 19 Iowa, 94. In some of the states, judgment may, by consent, be signed in vacation, and ordered entered as of ensuing term: Hervey v. Edmunds, 68 N. C. 243; or tried in vacation and entered in term time: Roy V. Horsley, 6 Or. 382; 25 Am. Rej). 537. See also Morrison v. Citi- zens' Bunk, 27 La. Ann. 401. § 121 VOID JUDGMENTS. 202 But this does not authorize two judges to hold separate courts in the same district at the same time. Therefore an order made by a judge presiding out of his district, at a time when the judge of the district where the order is made is also holding court therein, is void; and no one can be punished for contempt of court in disobeying such order.^ In many of the states a judgment by virtue of statute authority may be entered in vacation.^ If in a cause the court orders that " upon filing of proofs and testimony as taken by the court commissioner the case be submitted to the court and decided at chambers, and the decision and judgment be entered as of this term of the court," and the court thereafter considers such testi- mony after the adjournment of the term, and enters its judgment in vacation, such judgment is not void. The order amounted to a submission in praesenti. Such sub- mission having been made in term time, the court w\as authorized to enter judgment thereon in vacation.^ While the general statement is sometimes made that a judgment, to be valid, must be rendered at the time and place author- ized by law,* we have not been able to discover any de- cision, in which the question was involved, holding that a judgment rendered by a court sitting at a place other than that designated by law is void. On the contrary, so far as the question has been judicially considered, judg- ments have been protected from collateral assault on that ground, and it may fairly be inferred from the decisions made that a court may, when necessary, hold its session and pronounce judgment at places other than those ap- pointed by law\^ In Wisconsin " the failure of a justice > People V. O'Neil, 47 Cal. 109. ing a jiidgment is not judicial, it may » Phelan v. Giiuelnn, 5 Col. 14. ordinarily be performed in vacation as * Ex parte Bennett, 44 Cal. 85. well as in term time: Iliff v. Arnott, Statute authorizing cases to be taken 31 Kan. 672; Sieber v. Frink, 7 Col. under advisement does not warrant 148; Earls v. Earls, 27 Kan. 538; their entry in vacation: Wilson v. Manitowoc County v. Sullivan, 51 Rodewold, 61 Miss. 228; and it has Wis. 115. been held that a judgment entered in * State v. Roberta, 8 Nev. 239; Dal- vacation, withoutthejudgeseeingorap- ton v. Libbey, 9 Nev. 192; Cooper v. proving it, is void, though pronounced American Cent. Ins. Co., 3 Col. 318. during the term: Mitchell w. St. John, ^ Le Grange v. Ward, 11 Oliio, 257; 98 Ind. 598. But as the duty of enter- Herndon v. Hawkins, 65 Mo. 265. 203 VOID JUDGMENTS. § 121 of the peace to enter in his docket the place as well as the time to which a cause pending before him is adjourned divests his jurisdiction and renders all subsequent pro- ceedings void." ^ When an action is finally determined by the entry of final judgment and the lapse of the term, the court, for most purposes, has exhausted its jurisdiction over it, and is in the same condition with respect to both the subject- matter and the parties as if no action had been begun. Therefore if after final judgment, or after an order setting aside a homestead or confirming a judicial sale, the court proceeds to enter another judgment, or to disturb the order setting aside the homestead or confirming the sale, its action is void, unless its jurisdiction has been con- tinued by some motion or proceeding appropriate for that purpose.^ It is now settled that a court may, in eflfect, abdicate its jurisdiction over the parties by refusing to hear them after they have been regularly brought into court, as where it orders their answer to be stricken out because they refused to take an oath of loyalty, and judg- ment thereafter rendered by it is void.' A very remark- able decision upon the question of loss of jurisdiction during the pendency of an action is one that affirms that the continued existence of plaintiff's right to recovery is essential to the continuance of the jurisdiction of the court over the subject-matter, and therefore if he, after bringing suit, accepts payment of the demand sued upon, but subsequently takes judgment therefor, it is void, be- cause the subject-matter of the action has been extin- guished by its payment." But this decision is based upon a mistaken conception of the subject-matter of the action. It is not the existence of a cause of action which constitutes the subject-matter, but the allegation of such existence. The allegation may be found on judicial investigation to 1 Witt V Henge, 58 Wis. 244. Windsor v. McVeigh, 93 U. S. » State «. Railroad, 16 Fla. 708; Fob- 274 sett V. McMahan, 74 Tex. 546. * Two Rivers Mfj^. Co. v. Beyer, 74 s Heury v. Carson, 96 lad. 412; Wis. 210; 17 Am. bt. ilcp. 131. § 121 VOID JUDGMENTS. . 204 be false; but this is not equivalent to a finding that there is no subject-matter of the action, and, instead of demon- strating that the court cannot proceed further, makes it incumbent upon it to pronounce final judgment. The discharge of a cause of action by payment after the com- mencement of a suit can no more divest the jurisdiction of the court than the payment of the same cause of action before suit was brought could have made it impossible for the court to entertain the action and to require the de- fendant to appear in response to its process. The complete exercise of jurisdiction over a subject- matter may exhaust the jurisdiction, not only of the court so exercising it, but of another court possessing concur- rent jurisdiction over the same subject-matter. Thus if in the progress of the administration of an estate in the probate court of a county certain lands of a decedent are authorized to be and are sold, the sale confirmed, and a conveyance made to the purchaser, the jurisdiction of the court over such lands is clearly exhausted. They become the property of the purchaser, and cannot again be sub- ject to administration during the continuance of his life and ownership. If the district court of the county also possesses probate jurisdiction, and subsequently assumes authority over the estate of the same decedent, and orders the same lands to be sold, and they are in fact sold to a purchaser having no knowledge of the former proceed- ings, such sale is void, because the former sale completely exhausted all probate jurisdiction over the lands, and the latter sale was a mere unauthorized assumption of author- ity over the property of a living person.^ If a probate court appoints an executor or administrator, it cannot, while he continues in office, appoint another. Its juris- diction is exhausted. Its further grant of letters is void.^ Neither can it appoint another administrator after an estate has been fully administered upon and distributed ' Lindsay v. JaEFray, 55 Tex. 62G; ^ Griffith v. Frazier, 8 Cranch, 9; Smith V. Woolfolk, 115 U. S. 143. Flinu v. Chase, 4 Denio, 90. 205 VOID JUDGMENTS. § 122 to the heirs.' Where a statute forbade the "administration upon the estates of persons who had been dead for more than twenty years, a grant of administration in defiance of the statute was adjudged void.^ If notice is given that a petition for the sale of lands will be presented at a time specified, and it is not then presented, the persons inter- ested in opposing it may regard it as abandoned. The court has no authority to hear it without giving a new notice.' But if the failure to present the application arises from the fact that the term of court is not opened, no pre- sumption of abandonment can be indulged. The petition may, it has been held, be presented at the next term, with- out any new notice.* § 122. Courts of Record and Courts not of Record. — If in the examination of a judgment it is satisfactorily ascertained that the court whose sentence it is had juris- diction over the subject-matter of the action, and was, at the rendition of its judgment, authorized to act as a court^ the next inquiry will be, whether the court was empow- ered to determine the rights of the parties over whom it assumed to act. The first question to be considered is, wdiether the judgment was rendered by a court of general or of special jurisdiction. There is no well-defined test by which to determine in all cases whether a court be- longs to the one class or to the other. But all courts in- vested with a general common-law jurisdiction, in law or in equity, are, when exercising such jurisdiction, prop- erly included in the first class; while all such courts as are erected upon such principles that their judgments must be disregarded until proceedings conferring juris- diction are shown belong to the second class.® These classes are frequently designated as courts of record and ' Fisk V. Norvel, 9 Tex. 13; 58 Am. Am, Dec. 243. See also fiost, sec. Dec. 128. 52G. « Wales V. Willard, 2 Mass. 120. * Hanks v. Neal, 44 Miss. 224. « Turney v. Turney, 24 111. 625; Gib- ' Harvey v. Tyler, 2 Wall. 328; son V Roll 30 111. 172; S3 Am. Dec. Kempe's Lessee r. Kennedy, 5 Cranch, 181; Morris t>. Hogle, 37 HI. 150; 87 185. § 122 VOID JUDGMENTS. 206 courts not of record. Courts of record having authority over the subject-matter are competent to decide upon their own jurisdiction, and to exercise it to final judgment, without setting forth upon their records the facts and evidence upon which their decision is based. Their rec- ords are absolute verities, not to be impugned by averment or proof to the contrary.^ A court may possess powers of a limited and subordinate character, and yet not be a court of special or limited jurisdiction in the sense that it ought to certify everything precisely.^ "The use of the words 'superior' and 'inferior,' or 'lim- ited' and 'general,' however apt they may have once been, are less so at this time and place, and their duties, in view of our system and mode of procedure, would be better performed by the terms 'courts of record' and 'courts and tribunals not of record.'"^ "A court of record is that where the acts and judicial proceedings are enrolled on parchment for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and supereminent authority that their truth is not to be called in question."* The circuit, district/^ and territorial courts of the United States are courts of record, and so are the orphans' courts in Pennsylvania and Ala- bama,® and the probate courts in Arkansas, Minnesota,' Missouri,* California,^ Ohio,^^ Vermont,'^ and South Caro- lina.'^ Prior to 1858 the probate court in California was ' Grignon's Lessee v. Astor, 2 How. ^ Johnsoa v. Beazley, 65 Mo. 250; 319;Rexv. Carlile, 2Barii. &Adol. 367; 27 Am. Rep. 276; Camden tj. Plain. 91 Molins V. Werly, 1 Lev. 76; Cole t;. Mo. 117; Rowden v. Brown, 9. Mo. Green, 1 Lev. 309; Bowsse v. Canning. 429. ton Cro. Jac. 244. ® Luco v. Commercial Bank, 70 Cal. « Peacock v. Bill, 1 Saund. 74. 339; McCauley v. Harvey, 49 Cal. 497. * Halm V. Kelly, 34 Cal. 391; 94 Am. In this state the jurisdiction formerly Dec. 742. exercised by the probate court is now * 3 Steph. Com. 583; 3 Bla. Com. 24. vested in the superior court. The * Page V. United States, 11 Wall, alcalde's court, which existed in this 268; Reed v. Vaughan, 15 Mo. 137; 55 state while it belonged to Mexico, was Am. Dec. 133. one of general jurisdiction: Braly v. 6 Musselman's Appeal. 65 Pa. St. Reese, 51 Cal. 447. 485; Lex's Appealj" 97 Pa. St. 289; i" Shroyer v. Richmond, 16 Ohio St. Teach v. Rice, 131 U. S. 293. 455. ' Dayton v. Mintzer, 22 Minn. 393; " Doolittle v. Helton, 28 Vt. 819; 67 Osborne v. Graham, 30 Ark. 67; Apel Am. Dec. 745. V. Kelsey, 52 Ark. 341; 20 Am. St. '^ Turner v. Malone, 24 S. C. 398; Rep. 183. Angell v. Angell, 14 R. L 541. 207 VOID JUDGMENTS. § 123 a court of limited jurisdiction, and its proceedings were required to show the facts conferring upon the court its authority to act.^ The judgments of justices of the peace are favored with the same presumptions as though they were pronounced in courts of record, in the states of Pennsylvania,^ Connecticut/ Vermont/ Tennessee/ Missis- sippi,^ and Texas.^ § 123. Special Powers. — The jurisdiction exercised by courts of record is, in many cases, dependent upon special statutes conferring an authority in derogation of the com- mon law, and specifying the manner in which such au- thority shall be employed. The decided preponderance of adjudged cases upon the subject establishes the rule that judgments arising from the exercise of this jurisdic- tion are to be regarded in no other light, and supported by no other presumptions, than judgments pronounced in courts not of record. The particular state of facts necessary to confer jurisdiction will not be presumed; and if such facts do not appear, the judgment will be treated as void.^ The supreme court of the United States has laid down the rule that when a statute prescribes the manner in which the rights conferred by it are to be pursued, and the powers delegated by it are to be exer- cised in a special and summary manner, the proceedings 1 Grimes v. Norris, 6 Cal. 621; 65 6 Wheat. 119; Striker v. Kelly, 7 Hill, Am. Dec. 545; Haynes v. Meeks, 10 24; Deuning v. Corwin, 1 1 Wend. 647; Cal. 110; 70 Am. Dec. 703. Ludlow v. Johnson, 3 Ohio, 553; 17 i' Billings V. Russell, [23 Pa. St. 189; Am. Dec. 609; Mitchell v. Runkle, 25 62 Am. Dec. 330; Clark w. McComman, Tex. Supp. 132; Adams v. Jeffries, 12 7 Watts & S. 469. Ohio. 253; 40 Am. Dec. 477; Cone v. 3 Fox V. Hoyt, 12 Conn. 491; 31 Am. Cotton, 2 Blackf. 82; Earthman v. Dec. 760. Jones, 2 Yerg. 493; Barry v. Patter- nVright V. Hazen, 24 Vt. 143. son, 3 Humph. 313; Wight v. Warner, * Turner v. Ireland, 11 Humph. 1 Doug. (Mich.) 384; Gunn v. Howell, 447. 27 Ala. 663; 62 Am. Dec. 785; Chicago « Stevens v. Mangum, 27 Miss. 481. & N. W. R. R. Co. v. Gait, 23 N. E. ^Heck V. Martin, 75 Tex. 469; 16 Rep. 425 (111.); Brown v. Wheelock, 75 Am. St. Rep. 915; Holmes v. Buckner, Tex. 385; Graham v. Reynolds, 45 Ala. 67 Tex. 107; Williams v. Ball, 52 Tex. 578; Emlmry v. Conner, 3 N. Y. 511; 603; 36 Am. Rep. 730. 53 Am. Dec. 325; Cooper v. Sunder- « Shivers y. Wilson, 5 Har. & J. 130; land, 3 Iowa, 114; 66 Am. Dec. 52; 19 Am. Dec. 497; Foster v. Glazener, Goodwin v. Sims, 86 Ala. 102; 11 Am. 27 Ala. 391, 663; Thatcher v. Powell, St. Rep. 21. § 123 VOID JUDGMENTS. 208 of the court will be considered as of the same character as the proceedings of courts not of record; but when the statute confers new powers and rights, to be brought into action by the usual form of common-law or of chancery practice, the proceedings and judgments of the court will have all the characteristics of the proceedings and judg- ments of courts of record.* The doctrine that the judgments of courts of record are of any less force, or are to be subjected to any closer scru- tiny, or that they are attended with any less liberal presumptions, when created by virtue of a special or statutory authority, than when rendered in the exercise of ordinary jurisdiction, has been repudiated in some of the states;^ and the reasons sustaining this repudia- tion have been stated with such clearness and force as to produce the conviction that the doctrine repudiated has no foundation in principle, however strongly it may be sustained by precedent. In the first place, it is shown that the discrimination between courts of record and courts ' Harvey v. Tyler, 2 Wall. 342. If cial powers by special statute, and the facts necessary to confer jurisdic- such special powers are exevcis&d. jiidi- tion are shown to exist, a judgment daily, that is, according to the course cannot be collaterally attacked, though of the common law and proceedings rendered by a court in the exercise of in chancery, such judgment cannot be a special statutory authority: Secombe impeached collaterally. V. R. R. Co., 23 Wall. 108; McCahill "3. But where a court of general V. Equitable Life Ins. Co., 26 N. J. Eq. jurisdiction has conferred upon it spe- 531. The question whether and when cial and summary powers, wholly de- the judt,'ments of courts of general rived from statutes, and which do not jurisdiction may be treated as of no belong to it as a court of general juris- greater dignity than those of courts of diction, and when such powers are not special and limited jurisdiction was exercised according to the course of very elaborately considered by the the common law, its action being supreme court of the United States in ministerial only, and not judicial, in Galpin v. Page, IS Wall. 350. From such case its decision must l3e regarded a full review of the recent decisions, and treated like those of courts of the court of appeals of Virginia deter- limited and special jurisdiction, and mined that there might be extracted no such presumption of jurisdiction therefrom "the following general legal will attend the judgment of the court, propositions of universal application: — But in such cases tlie facts essential to " 1. When a court of general juris- the exercise of the* special jurisdiction diction acts withiu the scope of its must appear on the face of the rec- general powers, its judgments will be ord": Pulaski Co. v, Stuart, 28 Gratt. presumed to be in accordance with its 879. jurisdiction, and cannot be collaterally ^ Falkner v. Guild, 10 Wis. 572; impeached. Hahn v. Kelly, S4 Cal. 391 ; 94 Am. Dec. "2. So, also, when a court of general 742; Newcomb's Ex'rs v. Newcomb, 13 jurisdiction has conferred upon it spe- Bush, 544; 26 Am. Rep. 222. 209 VOID JUDGMENTS. § 124 not of record "is founded upon considerations of the wis- est policy, which are obvious to all. Courts of record are presided over by men of experience and learned in the law, assisted by counsel also of experience and learn- ing, who, in the discharge of their duties to their clients, necessarily act as advisers of the court. Their proceedings are conducted with solemnity and deliberation, and in strict conformity with established modes, with which long experience has made the court and bar familiar, and above all, they are taken down and made a matter of record at or about the time they transpire. Of inferior courts, as a general rule, none of these things can be affirmed." In the second place, it is shown that none of those reasons upon which the discrimination between different courts rests tends to justify any discrimination between different pro- ceedings conducted by the same court; that whether a court proceeds according to the "course of the common law," or according to some authority conferred and some course prescribed by a statute, it is, in either case, pre- sided over by the same judge, assisted by the same coun- sel and officers, and conducted with the same wisdom, caution, and solemnity. In either case its proceedings are equally matters of record, and equally subject to fixed and well-understood laws. And finally, it is suggested that, as no reason has been given for regarding the same tribunal with different degrees of consideration, accord- ing to circumstances which seem not to affect its claims to crur confidence, therefore all its adjudications, though arising out of the exercise of lawful jurisdiction conferred at different times, or from different but equally competent sources, should be subjected to similar rules and indulged with equal presumptions.^ § 124. Presumption in Favor of Jurisdiction. — If it is ascertained that the judgment or decree under examina- tion was rendered by a court of record in the exercise of 1 See opinion of Sanderson, J., in Habn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742. JUDG. I. —14 § 124 VOID JUDGMENTS. 210 its ordinary jurisdiction over the subject-matter in litiga- tion, the next fact to be determined is, whether the court had jurisdiction over the person against whom the judg- ment has been obtained. The preponderance of authori- ties shows that in a collateral proceeding this fact must be determined by an inspection of the matters contained in what, at the time of entering the judgment, constituted the record or judgment roll. Any other paper which happens to be on file in the case, and improperly attached to the record, must be disregarded. The record, however, may be silent upon the subject of jurisdiction. It may fail to show whether the proceedings taken to bring the defendant within the authority of the court were sufficient or insufficient; or, for aught that appears by the judgment roll, no attempt may have been made to perform some act essential to jurisdiction. "Nothing shall be intended to be out of the jurisdiction of a superior court but that which expressly appears to be so." ' Hence, though the existence of any jurisdictional fact may not be affirmed upon the record, it will be presumed upon a collateral attack that the court, if of general jurisdiction, acted cor- rectly and with due authority, and its judgment will be as valid as though every fact necessary to jurisdiction affirmatively appeared. The decisions to this effect are very numerous.^ If a statute required a certain affidavit ' Gosset V. Howard, 10 Q. B. 453; Skillinan v. Greeawood, 15 Minn. 102; Guilford v. Love, 49 Tex. 715; Goar v. Arnold v. Nye, 23 Mich. 286; Smith Maranda, 57 Ind. 339. v. Pomeroy, 2 Dill. 414; Adams v. Jef- 2 Withers u. Patterson, 27 Tex. 491; fries, 12 Ohio, 253; 40 Am. Dec. 477; 86 Am. Dec. 643; Holmes w. Campbell, Palmer v. Oakley, 2 Doug. (Mich.) 433; 12 Minn. 221; Spaulding v. Baldwin, 47 Am. Dec. 41; Hering v. Chambers, 31 Ind. 376; Evans v. Ashby, 22 Ind. 103 Pa. St. 172; Coit w. Haven, 30 15; Butcher v. Bank of Brownsville, 2 Conn. 190; 79 Am. Dec. 244; Weaver Kan. 70; 83 Am. Dec. 446; Reynolds v. Brown, 87 Ala. 533; Woodhouse v. V. Stansbury, 20 Ohio, 344; 55 Am. Filbatis, 77 Va. 317; Stahl v. Mitchell, Dec 459; Bushw, Lindsey, 24 Ga. 245; 41 Minn. 325; Horan ?;.Wahrenberger, 71 Am. Dec. 117; Hahn v. Kelly, 34 9 Tex. 313; 58 Am. Dec. 439; McCor- Cal. 391; 94 Am. Dec. 742; Calkius v. mick v. Webster, 89 Ind. 105; Reinig Packer, 21 Barb. 275; Prince ?;. Griffin, v. Hecht, 58 Wis. 212; Cummisky v. 16 Iowa, 552; Grignon's Lessee v. As- Cummisky, 109 Pa. St. 1; Tunell v. tor, 2 How. 319; Cox v. Thomas, 9 Warren, 25 Minn. 9; Exchange Bank Gratt. 323; Wells v. Waterhouse, 22 u Ault, 102 Ind. 322; Wilkins w. Tour- Me 131; Ely v. Tallmau, 14 Wis. 28; tellott, 42 Kan. 176; Kenney v. Greer, Potter V. Mechanics' Bank, 28 N. Y. 13 111. 432; 54 Am. Dec. 439. 656; Kelsey v. Wyley, 10 Ga. 371; 211 VOID JUDGMENTS. § 124 to be filed or a certain fact to be found prior to the rendi- tion of judgment, it will be presumed, in the absence of any statement or showing upon the subject, that such affidavit was filed ^ or such fact found.^ One acting in a court of record as attorney in fact for a party will be pre- sumed to have satisfied the court of his authority to act, and the proceedings cannot be collaterally attacked be- cause the proof of such authority does not appear in the record.^ A case decided at an early day in New York seemed to be in opposition to the current of authorities on the subject of the presumptions which attend the proceed- ings of courts of record w^hen called in question col- laterally.* The opinion in this ca^e, so far as it placed proceedings of "superior" courts upon the same footing with those of "inferior" courts, was soon after overruled.* A few other cases are reported which do not seem to be entirely consistent with the rule upon this subject.® But it was reserved to the court deciding the case of Sieen v. Steen, 25 Miss. 513, to exhibit an extraordinary miscon- ception of the law, by the use of the following language: "It is also a fixed rule on this subject that the record of the judgment must show upon its face that the court did have jurisdiction of the person. Unless it so appears, the judgment is a nullity, for it will not be presumed that the court had jurisdiction unless the record shows that fact." The courts of the states of Kansas and Missouri seem to be following close in the wake of those of the state of Mississippi. In a case in the first-named state, the plaintiff's title depended upon a certain judgment, sale, and sheriff's deed. In attempting to prove his title, 1 Dean v. Thatcher, 32 N. J. L, 470; * Foot v. Stevens, 17 Wend. 483. Newcomb's Executor v. Newcomb, 13 * Gwin v. McCarroU, 1 Sinedes & M. Bush, 544; 26 Am. Rep. 222. 351; Clineu Gibson, 23 Iiul. II; Glide- 2 Thornton v. Baker, 15 R. I. 553; well v. Spaugh, 26 Ind. 319. liut the 2 Am. St. Rep. 925. recent Indiana decisions indulge pre- 5 Pillsbury w. Dugan, 9 Ohio, 117; sumptions in support of the judgments 34 Am. Dec. 427. of courts of record in extrt;mc cases: * Dennine v. Corwin, 11 Weud. O'Brien v. St:ite, 1'_'5 Ind. 38; Auder- 648. sou V. VVilsou, 100 Ind. 402. § 125 VOID JUDGMENTS. 212 he showed first that the files of the case were all burned, and next produced a journal entry of the judgment. This entry contained the statement that the defendant had been duly served by publication in a newspaper which it specified. Upon these facts the court determined that " until it appears, not merely that the papers are gone, but also that there is no secondary proof of their contents, there is no presumption, even in favor of a court of gen- eral jurisdiction, from the existence of one part of a record, that the remainder would, if produced, contain the facts necessary to give the court jurisdiction."^ In a very recent decision in the state of Missouri, we find the gen- eral rule announced that " if the w^hole record, taken to- gether, does not show that the court had jurisdiction over the defendant, then the judgment would be a nullity."^ § 125. No Presumption against the Record. — Pre- sumptions in favor of proceedings of courts of record are indulged only in relation to those jurisdictional matters concerning which the judgment roll is silent. But no presumptions in support of the judgment are to be allowed in opposition to any statement contained in the record- If an act is stated in the roll to have been done in a specified manner, no presumption arises that, at some future time, the act was done in a better or more efiicient manner. If it appears that the process was served in a particular mode, no other and difi'erent service can be presumed. To indulge such a presumption would be to contradict the record, which imports absolute verity. When, therefore, the record shows that certain steps were taken to procure jurisdiction, and the law does not con- sider those steps sufiicient, the judgment will be regarded as void, for want of jurisdiction over the defendant.^ And where the record shows that the court was not in ' Hargis v. Morse, 7 Kan. 417. tine, 39 Minn. 336; 12 Am. St. Rep. « Howard v. Thornton, 50 Mo. 291. 657; Clark v. Thompson, 47 111. 25; s Barber v. Morris, 37 Minn. 194; 5 95 Am. Dec. 457; Hahn v. Kelly, 34 Am. St. Rep. 836; Godfrey v. Valeu- Cal. 391; 94 Am. Dec. 742. 213 VOID JUDGMENTS. ' § 126 session on a particular day, a proceeding cannot be sup- ported, at least in Missouri, by parol evidence that the court was in fact in session and transacting business on the day designated, " but that by mistake in writing up the records they failed to show the fact." ^ § 126. Defects in Process or the Service thereof. — There is a difference between a want of jurisdiction and a defect in obtaining jurisdiction. At common law the defendant was brought within the power of the court by service of the brevia, or original writ. In this country the same object is accomplished by service of summons, either actual or constructive, or of some other process issued in the suit; or by the voluntary appearance of the defendant in person or by his attorney. From the mo- ment of the service of j)rocess, the court has such control over the litigants that all its subsequent proceedings, however erroneous, are not void. If there is any irregH ularity in the process, or in the manner of its service, the defendant must take advantage of such irregularity by some motion or proceeding in the court where the action is pending. The fact that defendant is not given all the time allowed him by law to plead,^ or that he was served by some person incompetent to make a valid service, or any other fact connected with the service of process, on account of which a judgment by default would be reversed upon appeal, will not ordinarily make the judgment vul- nerable to a collateral attack.' In case of an attempted ' Ange V. Corby, 70 Mo. 257. v. Fullerton. 4 Minn. 473; Cole v. But- ^ Ballinger v. Tarbell, 16 Iowa, 491; ler, 43 Me. 401; Hendrick v. Whitte- 85 Am. Dec. 527; McAlpin v. Sweet- more, 105 Mass. 23; Drake v. Duve- ser, 76 Ind. 78; Estate of Newman, 75 nick, 45 Cal. 455; Lane v. Innes, 43 Cal. 213; 7 Am. St. Rep. 146. Contra, Minn. 136; Schobacher v. Germantown Johnson v. Baker, 88 111. 98; 87 Am. F. M. Co., 59 Wis. 86; Hume p. Con- Dec. 293. duitt, 76 Ind. 598; McCormick v. 3 Whitwell V. Barbier, 7 Cal. 54; Webster, 89 Ind. 105; Dutton v. Hob- Dorente V. Sullivan, 7 Cal. 279; Smith son, 7 Kan. 196; Myers v. Davis, 47 V. Bradley, 6 Smedes & M. 485; Iowa, 325; Sims v. Gray, 5 Rep. 504 Moomey v. Maas, 22 Iowa, 380; 92 Town of Lyons i;. Cooledgc, 89 111. 529 Am. Dec. 395; Peck v. Strauss, 33 Cal. De Tar v. Boone Co., 34 Iowa, 488 678; Myers v. Overton, 2 Abb. Pr. Pope v. Hooper, 5 Rep. 72; Sao. Sav- 344; Hunter i;. Lester, 18 How. Pr. 347; ings Bank v. Spencer, 53 Cal. 737. Haughey v. Wilson, 1 Hilt. 259; Kipp " A distinction is to be made betweea § 126 VOID JUDGMENTS. 214 service of process, the presumption exists that the court considered and determined the question whether the acts done were sufficient or insufficient. If so, the conclusion reached by the court, being derived from hearing and deliberating upon a matter which, by law, it was author- ized to hear and decide, though erroneous, cannot be void. When in a proceeding by attachment the ground required by the statute for the issuing and execution of the process has been laid, and the process has been issued and executed, the jurisdiction of the court is complete. If the subsequent proceedings do not conform to law, the judgment may be reversed. When there has been an in- sufficient publication, or an entire failure to publish, the proceedings are not so invalidated as to be made void.' A service of process defective in giving four days' notice, when the law required five daj'^s' notice, is nevertheless sufficient to support the judgment of a justice of the peace.^ In proceedings in personam, a judgment is undoubtedly void if it is shown that the party against whom it was rendered did not appear in the action and that process was not served upon him;' but it is not indispensable to the jurisdiction of the court that either the process or its a case where there is no service what- in which the courts have, in other re- ever, and one which is simply defective spects, been loath to accord any favors or irregular. In the first case, the to records suffering from symptoms of court acquires no jurisdiction, and its jurisdictional infirmity: Christian v. judgment is void; in the other case, if O'Neal, 46 Miss. 669; Harrington v. the court to which the process is re- WofFord, 46 Miss. 31;, Campbell v. turnable adjudges the service to be Hays, 41 Miss. 561. sufficient, and renders judgment there- ^ Martin v. Hall, 70 Ala. 421; Paine'a on, such judgment is not void, but Lessee v. Moreland, 15 Ohio, 435; only subject to be set aside by the Beech v. Abbott, 6 Vt. 5S6; Matter of court which gave it, upon seasonable Clark, 3 Denio, 167; Williams v. Stew- and proper application, or reversed art, 3 Wis. 773; Drake on Attach- upon appeal ": Isaacs v. Price, 2 Dill, ments, sees. 447, 448. 351. A judgment is not void because ^ Balliuger v. Tarbell, 16 Iowa, 492; rendered before or after the return day 85 Am. Dec. 527. named in the summons. It is only ^ Freeman u. Alderson, 11917. S. 188; liable to be vacated for irregularity: Elliot v. McCormack, 144 Mass. 11; Glover v. Holman, 3 Heisk. 519; West St. Clair v. Cox, 106 U. S. 353; Flint V. Williamson, 1 Swan, 277. The rule R. S. Co. v. Roberts, 2 Fla. 102; 48 that defective service of process does Am. Dec. 178; Capehart v. Cunning- not render the judgment liable to sue- ham, 12 W. Va. 750; Anderson v. cessful collateral attack has been fre- Hawhe, 115 111. 33; Horner v. State quently enforced in Mississippi, a state Bank, 1 Ind. 130; 48 Am. Dec. 355. 215 VOID JUDGMENTS. § 126 service should be in all respects regular. We therefore proceed to consider what defects, either in the process or its service, are sufficient and what insufficient to over- throw the judgment. In many of the states, their stat- utes declare what the summons or other process designed to bring defendant into court shall contain, and some- times these statutory provisions have been deemed man- datory, and judgments declared void for non-compliance therewith. Thus in Colorado, a summons was adjudged to be fatally defective, and the judgment based thereon void, because of the omission to state in such summons, as required by statute, "the cause and general nature of an action," and because it notified defendant that judgment would be taken against him for a sum designated, when it should have informed that the plaintiff would " apply to the court for the relief demanded in the complaint";^ but even in this state it is conceded that a literal compli- ance with the statute is not necessary, and the omission of some of the words w^hich it directs the summons to contain not fatal to the judgment.^ The objects to be accomplished by process are to advise the defendant that an action or proceeding has been commenced against him by plaintiff, and warn him that he must appear within a time and at a place named and make such defense as he has, and in default of his so doing, that judgment against him will be applied for or taken in a sum designated, or for relief specified. If the summons actually issued accom- plishes these purposes, it should be held sufficient to confer jurisdiction, though it may be irregular in not containing other statements required by the statute. If, on the other hand, it is wanting in these essential particulars, it will generally fail to give the court jurisdiction.^ In Iowa, a judgment was held void because the name of the plaintiff", as shown by the summons, was Pike, when in fact, and according to the complaint, it was Hike;* and in Idaho a 1 Atchison, Topeka etc. R. R. Co. v. ^ Pickering v. State, 106 Ind. 228. Nicholla, 8 Col. 188. " Newman v. Bowers, 72 Iowa, 2 Kimball v. Castagnio, 8 Col. 525. 465. § 126 VOID JUDGMENTS. 216 like conclusion was announced because defendants were named in the alternative, as A, B, C, or D.' The general rule is, that if process is amendable it is not void, and will support a judgment,^ unless it is not sufficient to warn defendant of an action against him, and when and before what court he must make his defense.^ Therefore a judgment will, when collaterally attacked, be supported by process though it contains a statement that " plaintiff will take judgment for a sum named," when the statute requires it to state that "the plaintiff will apply to the court for the relief demanded in the complaint";* or directs defendants "to appear on the first Monday, 1877, of the next term of the court to be holden at Carthage," when the court referred to held terms at the place designated, the time of commencement of which was fixed by law;^ or declared that the plaintiff would apply to the court for the relief demanded in the complaint, when it should have stated that plaintiff will take judgment for a sum specified in the summons;® or because the summons was not at- tested by the seal of the court,^ or did not show where the defendants should appear.^ In an action to foreclose a lien, if the summons refers to the petition on file, the fact that it does not state that a money judgment is sought is not fatal to such judgment if rendered.^ So far as a personal service of summons is concerned, it seems to us that it should be deemed suflficient to support a judgment when collaterally attacked that the summons was delivered to the defendant under such circumstances as to advise him that it was intended as a service of process upon him. A judgment was, however, declared void in Kentucky because the action was in the name of a sheriff, though he had no pecuniary interest * Alexander v. Leland, 1 Idaho, ^ Miller w. Zeigler, 3 Utah, 17. N. S., 425. ' Boyd v. Fitch, 71 Ind. 306. 2 Baker v. Thompson, 75 Ga. 164. ^ Hollingsworth v. State, 111 Ind. 3 Kitsmiller v. Kitchen, 24 Iowa, 289. 163. 9 Blair v. Wolf, 72 Iowa, 246; York * Keybers v. McComber, 67 Cal. 395. v. Boardman, 40 Iowa, 57. * Jasper Co. v. Wadlow, 82 Mo. 172. 217 VOID JUDGMENTS. § 126 therein, and the service of process was made by liim.^ That a copy of the summons given to the defendant was incorrect, and designated the amount which the phiintiff sought to recover as less than that named in the original writ cannot render a judgment by default based thereon void.^ A defect in the form of a return made by an officer serving a summons is not sufficient to avoid the judgment, especially if it appears from other evidence that the service was properly made.* A service of process before an action is commenced,* or upon a person other than the defendant,^ or upon an employee of a corpora- tion,^ when the law requires it to be upon its general agent, or the acceptance of its service by one not authorized to do so,^ is not in law any service at all, and a judgment thereon is void. Because a court has no jurisdiction to compel the ap- pearance of a non-resident personally, but may by service of its process constructively or beyond the state acquire jurisdiction over his property which is attached in the action, sufficient to authorize it to render a judgment to be enforced out of such property, the service of the sum- mons and the levy of the attachment are both essential to the support of the judgment,^ unless the statute author- izes a proceeding so clearly in rem that judgment may be pronounced upon seizing the property, and without at- tempting to serve the summons. It is further essential that the cause of action on which the attachment issued should be sustained. Plaintiff cannot, by taking out an attachment and levying it upon the property of a non- resident, and the constructive service of process on him, entitle himself to a judgment enforceable out of such property, if the cause of action on which he recovers is 1 Knott V. Jarboe, 1 Met. (Ky.) 505. « Great West etc. Co. v. Woodmaa 2 Bassett v. Mitchell, 40 Kan. 549; etc. Co., 12 Col. 46; 13 Am. St. Rep. Hale V. McComas, 59 Tex. 484. 204 ^ Schee V. Granger, 78 Iowa, 101. ' Finney v. Clark, 84 Va 354 * South Bend P. Co. v. Manahan, 62 « Segar v. Muskegon etc. Co 81 Mich 143. Mich. 344; Stuart i>. Aiidersou, /O lex. ^ Heffuer v. Gunz, 29 Minn. 108. 58S. § 127 VOID JUDGMENTS. 218 not the one upon which he procured the attachment, nor one upon which any writ of attachment was authorized to be issued.^ And, generally, it appears proper to limit the effect of process to the claims and causes of action of which it gives notice; and where a complaint is filed, an attachment levied, and process issued and constructively served, all founded upon and referring to a particular cause, of action, the plaintiff has no right to thereafter amend his complaint by setting forth a different cause of action, and then to take judgment based upon the levy of attachment and the service of process, founded on the original complaint; and such judgment, if so taken, is probably void.^ § 127. Constructive Service of Process. — Under the fourteenth amendment to the constitution of the United States, declaring that no state shall "deprive any person of life, liberty, or property without due process of law," it is manifest that a state cannot authorize a judgment against a defendant without giving him some opportu- nity to show that it is unjust; that what is due process of law is a question for the determination of the national courts; and that such determination as they have made, or shall hereafter make, respecting it must be followed by the state courts.' As yet we have no very precise judicial definition of due process of law, and must therefore apply such general definitions as have been given. " It is suf- ficient," said the supreme court of the United States, " to observe here that by due process is meant one which, fol- lowing the forms of law, is appropriate to the case and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an 1 Mudge V. Steinhart, 78 Cal. 34; 12 » Belcher v. Chambers, 53 Cal. 635; Am. St. Rep. 17. Pennoyer v. Neff, 95 U. S. 714; Stuart 2 Stuart V. Anderson, 70 Tex. 588; v. Palmer, 74 N. Y. 183; 30 Am. Rep. McRee v. Brown, 45 Tex. 507; Morri- 289; Davidson v. New Orleans, 96 son V. Walker, 22 Tex. 20. U. S. 97. 219 VOID JUDGMENTS. § 127 opportunity to be heard respecting the justice of the judg- ment sought. The clause in question means, therefore, that there can be no proceeding against life, liberty, or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights." ' It is, perhaps, not essential that the service of process and the opportunity to be heard occur before the formal entry of judgment, if the parties affected thereby, notwithstanding its entry, retain the right to resist and prevent its enforcement whenever it is sought to be used against them or their property.^ The service of process need not be personal. To require it to be personal in all instances would be to deny justice in all cases where the party from whom it was due ab- sented or concealed himself, or otherwise eluded the agents of the law. Each state may, doubtless, provide the mode in which the process of its courts may be served,^ provided the parties against whom it issues are not de- prived of " an opportunity to be heard respecting the jus- tice of the judgment sought." Therefore citizens and residents of a state may, if its laws so provide, be served with process by the publication thereof, or by leaving it at their usual place of abode, or in such other mode as the legislature deems proper under the circumstances of the case, if it appears probable that it will advise them of the proceedings against them and afford them an oppor- tunity to defend.^ It is true that on such service no per- 1 Hagar v. Reclamation Dist., Ill Cush. 183; Henderson v. Stanford, 105 U. S. 708; Hurtado v. California, 110 Mas3. 104; Morrison v. Underwood, 5 U. S. 516. Cush. 52; post, sec. 120 a; Otis v. Dar- 2 Flint River Steamboat Co. v. Fob- gan, 53 Ala. 178; Burman v. Common- ter, 5Ga. 194; 48 Am. Dec. 248; Hagar wealth, 1 Ducr, 210. In the only V. Reclamation Dist., Ill U. S. 701. case in which, so far as we are aware, 3 Welch V. Sykes, 3 Gilm, 197; 44 tlie question has directly presented Am. Dec. 689. itself for decision, it was decided that, * Thouvenin v. Rodrigues, 24 Tex. as to residents upon whom process 468; Hurlburt v. Thomas, 55 Conn, could be personally served, it was be- 181; 3 Am. St. Rep. 43; Happy v. yond the power of the legislature to Mosher, 48 N. Y. 313; Rockwell v. authorize service by publication. The Nearing, 35 N. Y. 202; Beard v. Beard, action was to foreclose a mortgage, 21 Ind. 321; Orcutt v. Ranncy, 10 and in determining it, the court said 127 VOID JUDGMENTS. 220 sonal ju(3gment can be rendered against one not a citizen or a resident of the state; but this result does not follow (Bardwell v. Collins, 44 Minn. 97; 20 Am. St. Rep. 547): "The only remain- ing question, therefore, is, whether it is competent tor the legislature to authorize such service in such a-ctions upon residents of the state personally present, and capable of being found and personally served, within its juris- diction. Is such service ' dae process of law ' ? In determining this ques- tion, it becomes important, first, to consider the character of an action to foreclose a mortgage. It is not an action in rem, but an action in per- sonam. It is true, it has for its object certain specific real property against which it is sought to enforce the lien of the mortgage; and in that sense it partakes somewhat of the nature of a proceeding in rem, but not differently, or in an}'' other sense, than do actions in ejectment, replevin, for specific per- formance of a contract to convey, to determine adverse claim to real estate, and the like. The rights and equities of all parties interested in the mort- gaged premises are to be adjusted in the action, which proceeds, nob against the property, but against the persons; and the judgment binds only tliose who are parties to the suit, and those in privity with them: Whalley v. El- dridge, 24 Minn. 358. Next, it is not only an action in personam, but is also strictly judicial in its character, pro- ceeding according to the due course of common law, like any other ordinary action cognizable in courts of equity or common law. These facts are impor- tant for the reason that what would be due process of law in one kind of pro- ceeding might not be such in another, for reasons that will be alluded to hereafter. No court has ever at- tempted to give a complete or exhaust- ive definition of the term 'due process of law,' for it is incapable of any such definition. All that can be done is to lay down certain general principles, and apply these to the facts of each case as they arise. Mr. Webster, in his argument in the Dartmouth College case, gave an exposition of the worda 'law of the land,' and 'due process of law,' which has often been quoted by the courts with approval, viz. : ' The general law, which hears before it condemns; which proceeds upon in- quiry, and renders judgment only af ,er trial.' In judicial proceedings, 'due process of law ' requires notice, hear- infT, and judgment. It does not mean, of course, the general body of the law, common and statute, as it was at the time the constitution took effect; for that would deny to the legislature the power to change or amend the law in any particular. Neither, on the other hand, does ' the law of the land' or ' due process of law' mean anything which the legislature may see fit to declare to be such; for there are cer- tain fundamental rights which our system of jurisprudence has always recognized which not even the legisla- ture can disregard in proceedings by which a person is deprived of life, liberty, or property; and one of these is, notice before judgment in all judi- cial proceedings. Although the legis- lature may at its pleasure provide new remedies or change old ones, the power is nevertheless subject to the condition that it cannot remove certain ancient landmarks, or take away certain funda- mental rights which have been always recognized and observed in judicial procedures. Hence it becomes im- portant, in determining what kind of notice would constitute 'due process of law ' in any judicial proceeding affecting a man's property, to ascertain what notice has always been required and deemed essentially necessary in actions or proceedings of that kind, according to that system of jurispru- dence of which ours is derivative. In proceedings in rem, as in admiralt}', and the like, where the process of the court goes against the thing, which is in the custody of the court, and is technically the defendant, and persons are not made parties to the suits, but come in rather as interveners, it is not essential to the jurisdiction that the persons having an interest in the thing to be affected by the judgment should have personal notice of the proceeding, or in fact any other notice than such as is implied in the seizure of the thing itself. There are other proceedings in the nature of proceedings in rem, many of them not strictly judicial, and none of them proceedings according to the 221 VOID JUDGMENTS. §127 from the mode of serving process, but from the fact that he is not personally within the jurisdiction of the state, course of common law, — siich as the probate of wills, administratioa on the estates of deceased persons, the exercise of the right of eminent domain, the exercise of the power of taxation, — which affect property rights, but in which personal notice to persons interested in the subject or object of the proceedings has never been deemed necessary. Some form of substituted service of notice, as by publication, has always, from consid- erations of public policy or necessity, been deemed appropriate to such pro- ceedings, and hence, as to them, ' due process of law.' But we think that, from the earliest period of English jurisprudence down to the present, as well as in the jurisprudence of the .United States, derived from that of England, it has always been considered a cardinal and fundamental principle that, in actions in personam proceeding according to the course of common law, personal service (or its equiva- lent, as by leaving a copy at his usual place of abode) of the writ, process, or summons must be made on all defendants resident and to be found within the jurisdiction of the court. We do not mean that the term ' pro- ceeding according to the course of the common law,' as used in the books, is to be understood as meaning, neces- sarily and always, personal or actual service of process; for although service by publication is of modern origin, there has always been some mode by which jurisdiction has been obtained at common law by something amount- ing to or equivalent to constructive service, where the defendant could not be found and served personally. But what we do mean to assert is, that the right to resort to such constructive or substituted service, in personal actions proceeding according to the course of the common law, rests upon the necessi- ties of the case, and has always been limited and restricted to cases where personal service could not be made because the defendant was a non-resi- dent, or had absconded, or had con- cealed himself for the purpose of avoid- ing service. As showing what means were resorted to as amounting or equiv- alent to constructive service, and how strictly it was limited to cases of neces- sity by both courts of common law and courts of chancery, reference need only be had to 3 Blackstone's Commenta- ries, 283, 444. As a substitute for the means formerly resorted to in England in such cases, most of the American states have adopted service of the pro- cess or summons by publication. But we have found no statute, except the one now under consideration, which has assumed to authorize such a mode of service, and have found no case where its validity has been sustained by the courts, except as to defendants who could not be found within the juris- diction, either becaiise of non-resi- dence, or because they had absconded, or concealed themselves to avoid the service of process. We think this will be found true in every instance, from the earliest decisions on the subject down to the latest utterance of the supreme court of the United S bates, in Arndt v. Griggs, 134 U. S. 316, in which that court took occasion to set at rest some misapprehensions as to the scope of their previous decision in Hart v. Sansom, 110 U. S. 151. We think it would be a surprise to the bench and the bar of the country if it should be held that process or sum- mons in ordinary civil actions might be served on resident defendants, present and capable of being found within the jurisdiction of the court, merely by publication in a newspaper. The dangers and abuses that would arise from such a practice are too ap- parent to require to be named or even suggested. So radical a departure is this from the uniform and well-estab- lished ideas of what constitutes due process of law in such cases that, al- though this act has been on the statute- books for twenty-four years, we doubt whether one lawyer in twenty is aware of its existence; and we have yet to hear of any case, except the present, where any one has ventured to act upon it. It is, in our judgment, be- yond the power of the legislature to disregard so fundamental iind long- established a principle of our juris- prudetice. Service l)y pul)lication, under such circumstancus, i.s not 'due process of law,' and therefore any § 127 VOID JUDGMENTS. 222 and cannot by any means be required to appear in its courts. In many of the decisions upon the subject, statutes au- thorizing the service of process by publication against non-residents have been construed as in opposition to the course of proceedings at common law; and a strict com- pliance with all the material directions of the statutes has been required to appear upon the face of the record, in order to impart validity to the judgment.^ A publication made in the absence of any law authorizing it is the same in effect as no publication. A judgment based upon it is void.^ The same result follows when the publication was made without any affidavit or order of court to support it,^ or when, though there is an order of court, there is noth- ing upon which to base it, as where such order could only be made upon a verified complaint, and the complaint is not verified.* "The general presumption indulged in support of the judgments and decrees of the superior courts is, however, 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. Whenever it appears, either from inspection of the record or by evidence outside of the record, that the defendants were, at the time of the al- leged service upon them, beyond the reach of the process of the court, the presumption ceases, and the burden of establishing the jurisdiction over them is thrown upon statute assuming to authorize it is un- Zacharie v. Bowers, 1 Smedes & M. constitutional. It would be of little 584; 40 Am. Dec. Ill; O'Rear v. use to cite authorities upon a subject Lazarus, 8 Col. 608; Hebel v. Amazon which has been so much and so often Ins. Co., 33 Mich. 400; Bryan v. Mc- discussed in its many phases, as each Dowell, 15 Lea, 581. case must be determined upon its own ^ HoUingsworth v. Barbour, 4 Pet. facts, and hence the decided cases 466; Shields v. Miller, 9 Kan. 390. would ordinarily be ia point only by ^ People v. Mullan, 65 Cal. 396; way of analogy. See, however, BroM^n Murphy v. Lyons, 19 Neb. 689; Peo^Dle V. Board of Levee Comm'rs, 50 Miss. v. Greene, 74 Cal. 400; 5 Am. St. Rep. 468." 448; Chase v. Kavnor, 78 Iowa, 449; 1 Hallett V. Righters, 13 How. Pr. Hyde v. Redding, 74 Cal. 493. 43; Boyland v. Boyland, 18 111. 552; * Frisk v. Reigelman, 75 Wis. 499; Brownfield v. Dyer, 7 Bush, 505; 17 Am. St. Rep. 98. 223 VOID JUDGMENTS. § 127 the party who invokes the benefit or protection of its judgments and decrees. So, too, the presumption ceases when the proceedings are not in accordance willi tl;ie course of common law." ' Constructive service by publi- cation in a case where the defendants are beyond the ter- ritorial limits of the court by virtue of an order made and enforced by the military authorities in time of war, and are not allowed to return, is a mere idle ceremony. It can by no possibility afford to defendants an opportunity of making a complete defense or of appearing in court and attending to their interests. A judgment based upon it is void.'^ But a party who voluntarily entered the con- federate lines to engage in hostilities against the United States, and who, on that account, was not able to return, cannot urge a condition of facts resulting from his own wrong as a valid objection to proceedings against him as an absentee.' But in quite a number of cases, the same presumptions have been applied to judgments based upon constructive service as to those based upon actual service. The position is taken that presumptions of regularity are applicable to the proceedings of courts of record, not be- cause of the particular means which those tribunals hap- pen to employ, under the authority of the law, for the purpose of acquiring jurisdiction over the defendant, but because of the high character of the courts themselves; and that this character is essentially the same in all cases, irrespective of the methods employed in the service of process. Therefore the fact that the affidavit required by law to precede and authorize the order for publication does not appear from the record will not make the judg- ' Judge Field in Gray v. Larrimore, 117 U. S. 255, shown in the latter 2 Abb. 542; and in Galpin v. Page, 18 part of this section. Wall. 350; 3 Saw. 93; Neff v. Pen- •' Dean v. Nelson, 10 Wall. 158; noyer, 3 Saw. 274; Belcher v. Cham- Lassere v. Rocherean, 17 Wall. 437; bers, 53 Cal. 635; 9 Rep. 40. We know Earle v. McVeigh, 91 U. S. 503; not how to reconcile the language of Dorr v. Rohr, 82 Va. 359; 3 Am. St. the court, in Galpin v. Page, quoted Rep. 106. above, with its more recent utterances * Ludlow v. Rimsey. 11 Wall. 581; in Applegate v. L. & C. Co. Min. Co., Foreman v. Carter, 9 Kan. 681. § 127 VOID JUDGMENTS. 224 merit vulnerable to collateral attack.' Constructive ser- vice, though not employed in the manner now generally authorized by statute, was nevertheless well known to the common law and to the chancery practice at an early 23eriod.^ It is therefore " a proceeding according to the course of common law."^ The tendency of recent decisions is to strengthen the position that the orders and proceedings of courts of gen- eral jurisdiction, where process is constructively served, are supported by the same presumptions as where the court proceeds upon personal service, and can no more be avoided for mere errors or irregularities than can its other orders and judgments.* The authorities upon this side of the question have apparently received an unex- pected accession from the supreme court of the United States. From the language employed by that tribunal in the case of Galpin v. Page, already quoted in this section, we understood it to be firmly committed to the doctrine that when it appeared that the defendants were served with process by publication, no jurisdictional presump- tions could be indulged in favor of the judgment, but its language is now limited in its application to cases in which it does not appear that the court made any order justifying such publication. On the other hand, if it is shown that the court ordered such service, its judgments are supported b}^ the same presumptions as in other cases, unless the statute requires that evidence of some jurisdic- tional fact shall appear by record and it does not so ap- pear. The question upon which doubt yet remains is as to what the court understands to be a requirement that a ^ Nash V. Church, 10 Wis. 312; Law- v. HoUoway, 55 Iowa, 179; Quarl v. ler's Heirs v. White, 27 Tex. 250; Abbett, 102 Ind. 2.33; 52 Am. Rep. Gemmell v. Rice, 13 Minn. 400; New- 662; Williams v. Morehead, 33 Kan. comb's Ex'rs v. Newcomb, 13 Bush, 609; Spillman v. Williams, 91 N. C. 544; 26 Am. Rep. 222. 483; Williams v. Hudson, 93 Mo, 524; 2 3 Bla. Com. 283, 444. Oswald v. Kempmann, 28 Fed. Rep. 5 Hahn v. Kelly, 34 Cal. 417; 94 36; Stuart v. Anderson, 70 Tex. 588; Am. Dec. 742. Adams v. Cowles, 95 Mo. 501; 6 Am. * Fanning v. Krapfl, 68 Iowa, 244; St. Rep. 74. Dowell V. Lahr, 97 Ind. 146; Everhart 225 VOID JUDGMENTS. §127 jurisdictional fact shall appear by the record. If it means that when the statute declares that an affidavit or other writing shall be filed to procure an order of publication, and that some written evidence shall be presented to the court of the publication as ordered, that these affidavits or other writings are, wiiether made so by statute or not, indispensable parts of the record, so that when they are not found in the record, the existence of jurisdiction is disproved, little has been gained by the decision referred to. If, on the other hand, it means that, ex- cept as to matters which the statute has expressly re- quired to be a part of the record or judgment roll, the court must always presume that jurisdiction was obtained, where the record does not rebut such presumption, then this decision is an important aid to the ultimate estab- lishment of the rule that judgments of courts, based upon constructive service of process, are supported by the same presumptions as if such service were personal.^ There ^ Appelgate v. Lexington and Carter County Min. Co., 117 U. S. 255. In this case the statute under which the proceeding resulting in the judgment in question had been conducted au- thorized the court to appoint a day for the absent defendants to enter their appearance in the suit, and required that a copy of its order should be pub- lished "in the Kentucky Gazette or Herald, and continued for two months successively, and shall also be pub- lished on some Sunday, immediately after divine service, in such church or meeting-house as the court shall direct, and another copy shall be posted at the front door of said court-house." In support of the judgment, extrinsic evidence was offered of the publication of the Qrder in the Kentucky Gazette,- in nine successive weekly issues of that paper, commencing December 12, 1798, and ending February 7, 1799; but there was no evidence of the pub- lication of the order in church or its posting at the door of the court-house. Proceeding to determine the case, after stating these facts, the court said: "But the record contained no proof of the publication and posting of the notice as required by the statute, JUDQ. 1.-15 and it is insisted by the defendants in this case that the record itself must show the publication and posting of the notice as required by law, other- wise the jurisdiction of the court does not appear, and its decree is abso- lutely void. While it must be con- ceded that, in order to give the court jurisdiction over the persons of the defendants, all the steps pointed out by the statute to effect constructive service on non-residents were neces- sary, yet it does not follow that the evidence that the steps were taken must appear in the record, unless, in- deed, the statute expressly or by im- plication requires it. The court which made the decree in the case of Clark v. Cotdiling was a court of general juris- diction. Therefore every presumption not inconsistent with the record is to be indulged in, in favor of its jurisdic- tion: Kempe's Lessee v. Kennedy, 5 Cranch, 173; Voorhees v. Bank of the United States, 10 Pet. 449; Grignon V. Astor, 2 How. 319; Harvey v. Tyler, 2 Wall. 328. It is to be presumed tliat the court, before making its de- cree, took care to see that its order for constructive service, on which its riglit to make the decree depended, had §127 VOID JUDGMENTS. 225 are decisions indicating that when a statute requires the hVm. Nye, therefore, was the unauthorized act of 23 Mich. 286; Martin v. Judd, CO 111. the party, and appeared affirmatively 78; Bunton v. Lyford, 37 N. H. 512; to be invalid and ineffectual." 75 Am. Dec. 144. « Birber v. Morris, 37 Minn. 191; 5 * Fitdd v. Gibl)s. 1 Pet. C. C. 155; Am St Rep. 8'Mi. Biker w. StonebraUer's AdmV, .34 Mo. •■'Allison V. Thomas, 72 Cal. 502; 1 175; Reed v. Pratt, 2 Hill, G4; Hoff- Am. St. Rep. 829; Shenamio.ih V. mire ?;. Hoffmire, 3 Edw. Ch. 174: Am. R. R. Co. V. Ashl)y's Trustees, Sti Va. Ins. Co. v. Oakh^y, 9 Paige, 490; .38 232; 19 Am. St. Rep. 891; Newm-in's Am. Dec. 501; Carpentier j;. Oakland, Estate, 75 Cal. 213; 7 Am. St. Rep. 30 Cal. 439; Han-dton v. Writ'lit, .37 14li; Fisk v. Reigeluian, 75 Wia. 499; N. Y. 502; Browu v. Nichols, 42 N. Y. § 129 VOID JUDGMENTS. 228 to determine whether they are in the majority, or not; but we think that with respect to cases in which process has not been served in any mode, and jurisdiction rests entirely upon the appearance of an attorney on behalf of defendant, the rule which permits him to collaterally avoid the judgment, by proving that such appearance was without his authority or knowledge, is gaining adherents and destined to obtain the ascendency.^ But even where the authority of the attorney to appear is, after judgment, an open question, and the judgment is liable to be treated as a nullity upon showing that the attorney acted without authority, the judgment may be validated by a subsequent recognition of the attorney's acts, such, for instance, as paying him for his services in the action in which the judgment was entered.^ Where a warrant of attorney has been given to confess judgment, and the plaintiff engages an attorney to act under such warrant, the case is very different from that of an ordinary appearance. If the warrant is insufficient, the defendant is not bound by the judgment.^ § 129. Default. — The record may show that the judg- ment was entered by the clerk, upon the default of the defendant. The clerk has no judicial functions. The statute directs the judgment. The clerk acts as the agent of the statute in writing out and filing its judgment among the records of the court. If the law did not au- thorize its agent to act, the judgment is without any 26; Wandling v. Straw, 25 W, Va. Am. St. Rep. 204; Shelton v. Tiffin, 6 692; St. Albans v. Bush, 4 Vt. 58; 23 How. 163; Green v. Green, 42 Kaa. Am. Dec. 246; Newcomb v. Peck, 17 654; 16 Am. St. Rep. 510; Reber v. Vt. 302; 44 Am. Dec. .340; Abbott v. Wright, 68 Pa. St. 471; Brinkman v. Dutton, 44 Vt. 546; « Am. Rep. .394; Sliatter, 23 Kan. 528. In New York, Everett v. Warner Bank, 58 N. H. though an appearance by an attorney 340. cannot be questioned collaterally, the ^ Barker v. Spencer, 61 Tex. 155; defendant is permitted to show that Kepley i\ Irwin, 14 Neb. 300; Hess v. the alleged appearance was a forgery: Cole, 23 N. J. L. 125; Reynolds v. Ferguson v. Crawford, 70 N. Y." 253; Fleming, 30 Kan. 106; 46 Am. Rep. 26 Am. Rep. 589. 86; Bodurtha v. Goodrich, 3 Gray, 5U8; ^ Ryan v. Doyle, 31 Iowa, 53. Shumway v. Stillman, 6 Wend. 453; ^ Merchants' etc. Bank v. Boyd, 3 15 Am. Dec. 374; Great West etc. Co. Denio, 257; Merchants' etc. Bank v, V. Woodmaa etc. Co., 12 Col. 46; 13 St. John, 5 Hill, 497. 229 VOID JUDGMENTS. § 130 authority, and is therefore void. Thus where several defendants were sued upon a joint liability, and a portion summoned to answer tlie complaint, tlie clerk, not being so authorized by law, entered judgment by default against those who were summoned, and in default the judgment was declared to be void.^ Judgment for costs entered by the clerk in the absence of a cost bill is also void.^ A judgment by default, entered within the time prescribed for the defendant to appear in a justice's court, is void in Missouri.^ The service of notice of a motion to dissolve an attachment on account of irregularity, made by the defendant's attorney, is not such an appearance as will support a judgment by default.* If, however, in a case where the authority of a clerk to enter judgment is un- doubted, he errs in the performance of his duty, as by making the entry for too large a sum, his action is not void, but only erroneous.^ §130. Findings of Jurisdiction. — It may happen, when that part of the record containing the evidence of service shows an insufl&cient service, that other parts of the record, and especially the judgment, disclose the fact that the matter of jurisdiction has been considered and determined by the court. The conclusion or finding upon this subject may appear by recitals stating that de- fendant has been cited to appear, or that he has entered his appearance, or that his default for not appearing has been duly entered. These findings are as conclusive upon the parties, in all collateral proceedings, as any adjudica- tion of the court can be. It must be presumed that they were supported by sufficient testimony, not set forth in the record. Thus though the return upon a summons against A B certifies a service of such summons upon C D, and the judgment states that A B has been sum- » Kelly V. Van Austin, 17 Cal. 5C4; France v. Evans, 90 Mo. 74; Williams Junkans v. Bergin, Hi Cal. 20.S. v. Bower, 20 Mo. (iOl. « Cliapin V. Broilnr, 16 Cal. 403. * Gliddea v. Packard, 28 Cal. 649. » Howard v. Clark, 43 Mo. 344; * Boud v. Pacheco, 30 Cal. 630, § 130 VOID JUDGMENTS. 230 moned, the record is not necessarily contradictory. The error in the service of process may liave been corrected by service of the summons on the proper person. And since the statement to this effect is made by the court, it will be conclusively presumed that it acted upon ample evidence and with due deliberation before making such statement; and the judgment will be impregnable to any collateral assault.^ ■ A finding or recital showing that the court had jurisdiction is, in the vast majority of the states, not disputable when a judgment based thereon is drawn in question collaterally.^ The same rules and presump- tions attach to proceedings in a court of general jurisdic- tion in California to enforce the payment of taxes as to proceedings in any other class of actions. A recital in the decree "that all owners and claimants of the property above described have been duly summoned to answer the complaint herein, and have made default in that behalf," is sufhcient to bind all claimants of the property in suit. The fact that the summons as served by publication omitted the name of one of the defendants, to whom the property was assessed, is not fatal to the decree; because from the above recital it must be presumed that the court had sufficient proof of the service of such defendant, though it does not appear in the judgment roll.^ In some of the cases already cited in this section, the effect of jurisdictional findings was carried to its utmost limit, and further, perhaps, than is justified by the more recent ad- judications. The recital in the judgment of the due ser- iHahnt). Kelly, 34Cal.391;94 Am. St. Rep. 497; Farmers' Ins. Co. v. Dec. 742; Qaivey v. Baker, 37 Cal. Highsmith, 44 Iowa, ,330; E,hodes v. 465; McCauley v. Fulton, 4 Pac. L. Gunn, 35 Ohio St. 387; Harris v. Mc- Rep. 170; 44 Cal. 355; Dunham v. Clanahan, 11 Lea, 181; Wilcher v. Wilfong, 69 Mo. 355; Blaisdell v. Pray, Robertson, 78 Va. 602; Dunham v. 68 Me. 269. Wilfong, 69 Mo. 355; Heck v. Martin, ■' Weir V. Monahan, 67 Miss. 434; 75 Tex. 669; 16 Am. St. Rep. 915; Hartman v. Ogborn, 54 Pa. St. 120; Schee v. La Grange, 78 Iowa, 101; 93 Am. Dec. 679; Hall v. Lowther, 22 Treadway v. Eastburn, 57 Tex. 209; W. Va. 570; Dufour v. Camfranc, 11 Edwards t>. Moore, 99 N. C. 1; Davis Mart. 607; 13 Am. Dec. 360; Goodwin v. Robinson, 70 Tex. 394; Ex parte Ah V. Sims, 86 Ala. 102; 11 Am. St. Rep. Men, 77 Cal. 198; 11 Am. St. Rep. 263. 21; Moffittw. Moffitt, 69111. 641; Brick- ^ p^gjiy „, Lancaster, 39 Cal. 354; house V. Sutton, 99 N. C. 103; 6 Am. Branson v. Caruthers, 49 Cal. 375. 231 VOID JUDGMENTS. § 130 vice of process ought unquestionably to prevail over any inference to be drawn from the fact that the other parts of the record fail to show when or in what manner the process was served.^ Generally, the recital of jurisdiction or of service of process contained in the judgment will be construed in connection with the whole record, and will be deemed to refer to the kind of service shown by the other parts of the record. Hence if one part of the rec- ord shows that process was served constructively, as by the publication thereof, a personal service will not be pre- sumed, because in the judgment the court adjudges " that service of notice has been made upon said defendant,"^ especially where an affidavit is found among the papers on file showing that the residence of the defendant was unknown, and could not be ascertained. In Kansas, "a finding of notice is at best but prima facie evidence of notice. If an attempt at notice appears in the record, the finding, if a general one, refers to and is limited by such attempted notice. If that be fatally defective, there is no presumption of notice in any other or better way.'" In Illinois, the general recital or finding of notice or of service of process is, as we understand the decisions in that state, conclusive as against any evidence not contained in the record,* but is disregarded when from the whole record it appears to be untrue, or when the record discloses the evidence upon which the recital was based, and further, that such evidence overthrows rather than supports the recital.® The recitals or findings of jurisdiction may affirm, in general terms, the service, or due service, of process, with- out indicating that the attention of the court has been specially called to the kind of service made, or that it has 1 Rumfelt V. O'Brien, 57 Mo. 569; Mnlvey w. Gibbons, 87 111. 307; Barnett Bannon v. People, 1 111. App. 496. v. Wolf, 70 111. 76; Harris v. Lester, ^ May field v. Bennett, 48 Iowa, 80 111. 307. 194. "Barnett v. Wolf, 70 111. 76; Scn- 3 Mickel V. Hicks, 19 Kan. 578; 27 iehka v. Lowe, 74 111. 274; Turner v. Am. Rep. 161. Jenkins, 79 111. 228; Bauuou v. People, * Andrews v. Bernhardi, 87 111. 3G5; 1 111. App. 49(i. § 131 VOID JUDGMENTS. 232 probal)!}^ based its finding upon other evidence than that disclosed by the record. In such cases it is not reason- able that the general statement should prevail over the evidence contained in the record. It should rather be construed as referring to and founded upon it; and if the service shown by it is not such as will support the judg- ment, it should be treated as void, notwithstanding the general statement in the judgment that process has been duly served.^ § 131. Jurisdictional Inquiries Confined to the Rec- ord. — We have hitherto assumed that the question of the jurisdiction of a court of record over the parties to any domestic judgment must, in all collateral proceedings, be determined by the record; and that the answer to this question is not, except in some direct proceeding insti- tuted against the judgment, to be sought from any extra- neous proof. This doctrine seems to be the natural and unavoidable result of that stamp of authenticity which, from the earliest times, was placed upon the "record,'' and which gave it such "uncontrollable credit and verity that no plea, proof, or averment could be heard to the contrary." Proceeding undoubtedly from the reliance which, in the primitive stages of practice, was placed on the official memorials of the proceedings of courts, and supported by the rule that the best evidence ought always to be heard, to the exclusion of all inferior evidence, this doctrine has received the indorsement of the courts of last resort in more than a majority of the states of this Union. The principles on which it rests are clearly and ably stated by Gholson, J., in Callen v. Ellison, 13 Ohio St. 446, 82 Am. Dec, 448, in the following language: "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 ' Settlemier v. Sullivan, 97 U. S. v. Cow, 83 Ind. 417; Hobby «;. Bunch, 444; Cheely v. Clayton, 110 U. S. 708; 83 Ga. 1;20 Am. St. Rep. 301 ; Adams v. Cloud V. Pierce (Jity, 8(5 Mo. 357; Ooau Cowles, 95 Mo. 501; Am. St. Rep. 74. 233 VOID JUDGMENTS. § 131 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 tlie evi- dence, must be 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 act 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 de- mand for which process has been instituted, either with or without inquiry into the fact whether such process had been served. That there should be no inquiry that a judgment by default should be rendered without inquiry into the fact whether the process has been served on the defendant, cannot, with any propriety, be claimed. If, then, the inquiry should be made, wiiat effect is to be given to the determination or decision? Is it 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 alleo-ation and proof that the party in truth had no notice g 131 VOID JUDGMENTS. 234 or opportunity to be heard? Here arises a conflict be- tween principles of policy, which require the former con- clusion, 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. As to the judgments of courts of general jurisdiction, 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 no- tice is required, and an impartial tribunal established to ascertain and determine whether it has been given. Nor can it properly be said that such a tribunal has juris- diction because it has so decided. Its decision is bind- ing because it w^as 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, require that the decision should be regarded, while it remains on the record unimpeached and unre- versed. In the case of Lessee of Fowler v. Whiteman, 2 Ohio St. 270, 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, can- not be impeached.' The finding in that, and in the pre- vious cases there referred to, was upon the question of notice." In this case from which this quotation is made the records stated that "defendants, by George Collins, Esq., their attorney, came into court, and by virtue of his power of attorney filed in this court confessed judgment for the defendants," etc. It was claimed that the power of attor- ney found among the records did not appear to be exe- cuted by some of the defendants, and that other of the defendants were married women, incapable of executing such power. But the court held tliat this power, though found among the papers in the ca-e, was no part of the record; that the object of filing the power was not to 235 VOID JUDGMENTS. § 131 furnish means to render the judgment void, "hut to fur- nish the parties affected by the judgment ready means to apply to the court itself to correct any irregularity or er- ror"; and that no such application having been made, the judgment must be regarded as valid. The rule that evidence will not be lieard in a collateral proceeding, for the purpose of avoiding a judgment, is thus defended in the case of Coit v. Haven, 80 Conn. 199; 79 Am. Dec. 244: "But the counsel for the defendants urge the extreme hardship to which a party may be sub- jected, if he may not deny and disprove the service of the writ, when he can clearly show that in fact no service was ever made on him, and that he never had notice of the suit in any form, and never heard of the judgment against him until it was made the ground of an action. They say, with great emphasis, — and the argument is cer- tainly a forcible one, — Can it be that a clerk of a court may fabricate a record, or an officer make a false return of service, and yet there be no escape for one who is thus by a judgment in the suit made heavily indebted, or found guilty of a wrong, when in fact he is perfectly innocent, or never owed the debt, and could show it clearly if he had a chance? Will a court, they ask, because it has a general jurisdiction, protect and give effect to such a fraud? It will not be denied, and has not been on the argu- ment, that when a court has jurisdiction its record speaks absolute verity, because it is the record of the court's doings; and being a court of final jurisdiction, there must be an end to the matter in dispute, if it be possible to reach that end at all. And it is so necessary that confi- dence should be reposed in courts of a high character, as well as in the records of such courts, that on the whole, and in view of all the considerations affecting the subject, it is the only safe rule to give the decisions of courts of general jurisdiction full effect so long as they remain in force, rather than to leave them open to be attacked in every way and on all occasions. Being domestic judg- § 132 VOID JUDGMENTS, 286 ments, tLey can, if erroneous, be reviewed by proceedings instituted directly for the purpose, and reversed on error, or by a new trial; and if the danger is imminent and special, relief can be temporarily, if not finally, obtained by application to a court of equity. Any other rule with regard to judgments of such courts would be attended in its application with very great embarrassment, and would be very dangerous in its general operation. The general good clearly requires, and has therefore established the rule, that domestic judgments of courts of general jurisdic- tion cannot be attacked collaterally.'* If the record of a domestic court of general jurisdiction declare notice to have been given, such declaration cannot be contradicted by plea or proof, because, for reasons of public policy, the records of such courts are presumed to speak the truth, and can be tried only by inspection.^ "It is not to be denied that a court of superior jurisdiction may so make a record in a case where in fact it has no jurisdiction that the validity of the judgment cannot be questioned collaterally."^ The fact of jurisdiction appear- ing on the record, it cannot be controverted. Any other matter determined by the court might as well be disputed as this.'^ § 132. Silence of the Record. — A large proportion of the decisions denying the right to collaterally impeach a judgment or decree for want of jurisdiction over the party against whom the determination has been made have ' Selin V. Snyder, 7 Serg. & R. 166; v. Lefevre, 58 Miss. 639; Swift v. Farr v. Ladd, 37 Vt. 156; Eastman v. Meyers, 37 Fed. Rep. 37; Westerwelt Waterman, 26 Vt. 494; Lyles w. Rob- v. Lewis, 2 McLean, 511; Riley v. in'jon, 1 Biil. 25; Aultman v. McLean, Waugh, 8 Cush. 2-20; Borden v. State, 27 Iowa, 129; Penobscot R. R. Co. v. 11 Ark. 519; Delaney v. Gault. 30 Weeks, 52 Me. 456; Hotchkiss v. Cut- Pa. St. 63; Galpin v. Page, 1 Saw. ting, 14 Minn. 537; Morgan v. Bur- 318; Miller zj. Ewing, 8 Smedes & M. nett, 18 Ohio, 535; Segee v. Thomas, 3 421; Wright v. Weisinger, 5 Smedes Blatchf. 11; Harman v. Moore, 112 & M. 210; Riggs w. Collins, 2 Biss. 268; Ind. 221. Peyroux v. Peyroux, 24 La. Ann. 175; * Dequindre v. Williams, 31 Ind. 444. McCreery v. Fortson, 35 Tex. 641. ^ Pugh V. McCue, 86 Va. 475; Probably this rule does not prevail in Starnes v. Hadnot, 42 La. Ann. 360; New York: Ferguson v. Crawford, 70 People V. Harrison, 84 Cal. 607; Rigby N. Y. 253; 26 Am. Rep. 589. 237 VOID JUDGMENTS. § 132 been pronounced where the service of process appeared distinctly or by necessary implication upon the record. The authorities, however, all concede that the mere fact that the record is silent respecting the existence of some jurisdictional fact cannot create the presumption that such fact did not exist. On the contrary, its existence will be presumed.^ The only question is, whether the presump- tion may be overcome by extrinsic evidence. The pre- ponderance of the decisions upon this question supports the doctrine that " it is a matter of no consequence whether the jurisdiction of the court affirmatively appears upon the judgment roll or not; for if it does not, it will be conclusively presumed.'"^ In a recent case it is said: " We concur fully in the doctrine of the numerous cases cited for plaintiff, where it is held that a domestic judg- ment of a court of record of general jurisdiction, proceed- ing according to the course of the common law, cannot be impeached by the parties to it, where a want of jurisdic- tion is not apparent upon the record, while it remains neither annulled nor reversed."^ It is a familiar principle that the judgment or decree of a court of general jurisdic- tion cannot be collaterally questioned, except for want of authority over the matter adjudicated upon.^ Fraud in procuring a judgment cannot be shown by the parties to ' Pope V. Harrison, 16 Lea, 82; Fer- Mo. 309; Williams v. Haynes, 77 Tex. guson V. Teel, 82 Va. 690; Oavanaugh 283; 19 Am. St. Rep. 752: Littleton v. V. Smith, 84 Ind. 380; Nye v. Swan, Smith, 119 Incl. 230; Crim v. Kessing, 42 Minn. 243; Treat v. Maxwell, 82 89 Cal. 478; Cassady v. Meller, 106 Me. 76; Clyburn v. Reynolds, 31 S. C. Ind. 69; Wdkerson v. Schoonmaker, 91; Horner v. State Bank, 1 Ind. 130: 77 Tex. 615; 19 Am. St. Rep. 803. 48 Am. Dec. 355; Fogg v. Gibbs, 8 » Pratt w. Dow, 56 Me, 81; Granger Baxt. 464; Acklen v. Goodman, 77 t. Clark, 22 Me. 128; Fitch v. Boyor, Ala, 521; Evans W.Young, 10 Col. 316; 8 Rep. 185; Turrell v. Warren, 25 3 Am. St. Rep. 583; Luco v. Commer- Minn. 9. cial Bank, 70 Cal. 339; Adams v. * Yaple v. Titus, 41 Pa. St. 202; Cowles, 95 Mo. 501; 6 Am, St. Rep. Shawhan v. LofiFer, 24 Iowa, 217; Cook 74; Benefield v. Albert, 132 111, v. Darling, 18 Pick. 393; Stephenson g65_ V. Newcomb, 5 Harr. (Del.) 150; Crafts 2 Sharp V. Brunnings, 35 Cal. 528; v. Dexter, 8 Ala. 767; 42 Am. Dec. Mitchell >\ Meuley, 32 Tex. 4()0; Hahn 666; Cox v. Tliomas's Adm'r, 9 Gratt. V. Kelly, .34 Cal. 391; 94 Am. Dec. 742; 323; Finneran v. Leonard, 7 Allen, 54; Lawler's Heirs v. White, 27 Tex. 2.50; 83 Am. Dec. 665; Blythe v. Richards, Coit V. Haven, 30 Conn. 190; 79 Am. 10 Serg. & R. 260; 13 Am. Dec. 672; Dec. 244; McClauahan v. West, 100 Bragg v. Lorio, 1 Woods, 209. § 133 VOID JUDGMENTS. 23S such judgment, in any collateral proceeding.* An offer being made to prove that the defendant, at the time of entering judgment, was but two years old, and that no ser- vice of process had been made upon him, the court said: " The record in this case is not silent. It recites that due notice had been given. This is a finding of the court, and, being shown by a record importing absolute verity, can- not be contradicted."^ An action was commenced against a person upon judgment rendered for costs of suit in a case wherein he was plaintiff. He offered to prove that he did not authorize the act of the attorney who instituted the former suit. It was held that while the judgment re- mained of record he was bound by it, and could only be relieved by some direct application.^ If the judgment or decree is silent upon the subject of the service of sum- mons, and the service shown by the return upon the sum- mons is not such as will give the court jurisdiction, no doubt the judgment is void.* This, however, does not present a case wherein the record is silent, but rather illustrates the proposition that while one part of the rec- ord is silent another part may bear witness to a jurisdic- tional infirmity, destructive of the life and validity of the judgment. § 133. Cases Admitting Parol Evidence. — Other courts, however, have been deeply impressed by the apparent violation of natural justice involved in condemning a party who has had no opportunity of presenting his de- fense, — no notice that any of his rights or interests were in jeopardy. Yielding, through a tenderness for the spe- cial and unavoidable injustice occasionally done to liti- gants, they have, in a measure, overlooked the interest of the community as a whole; and rather than sacrifice the 1 Carpentier v. Oakland, :?0 Cal. 4H9; ^ V^^ard v. Barber, 1 E. D. Smith, Smith ?>. Smith, 22 Iowa, 516; People 423; St. Alhaiis r. Bush, 4 Vt. 58; V. Downing, 4 Sand. 189; Blauchard ?;. 2.3 Am. Dec. 246: Finneran i\ Leon- Webster, 62 N. H 467. ard, 7 Allen, 54; S3 Am. Dec. 665. 'Richards v. Skiff, 8 Ohio St. * Swearengen v. Gulick, 67 111. 208; 5S6. Baunon v. People, 1 111. App. 496. 239 VOID JUDGMENTS. § 133 individual for the safety of the community, they have jeopardized the best interests of the community to secure the safety of the individuah To the end that each citizen may feel assured that no injury can be done him in the courts without his notice, actual or constructive, they have impaired public confidence in judicial authority; they have made the title to a large class of property pre- carious and unstable, by taking away the uncontrollable verit}' of the record, and substituting for it the intermina- ble uncertainties of parol evidence; and instead of allow- ing parties who have acquired title at judicial sales to rest secure in the presumption that courts of record always " act by right," those parties have been required, often without notice of the intended attack, to defend proceed- ings occurring many years previous, and apparently free from vice or infirmity. The principles which it is thought are sufficient to sup- port the practice of leaving the question of jurisdiction over the parties always open to dispute on collateral pro- ceedings are, that the high and uncontrollable verity of the record never attaches until the court has obtained jurisdiction of the person of the defendant, as well as of the subject-matter of the action; that in the absence of the fact of jurisdiction over the parties, there is no power competent to make a record; that the thing offered as a record may be nothing but an unauthorized paper; that the law contemplates, upon reasons of natural justice, that no man shall be deprived of any of his rights of person or property without an opportunity of being heard; that whenever the judgment of any tribunal is about to be used in any proceeding, whether direct or collateral, it is incumbent on the court wherein it is ojffered to inquire into the jurisdiction of the court rendering the judg- ment; and that no court can bring a party within its power by virtue of false findings and recitals.* It is iGoiuly?.. Hall, 30 111. 109; Web- win v. Kiminel, 16 Al)b. Pr. 353; 1 ster V. Rei