Summary
In Hahn v. Kelly, 34 Cal. 391, 404, [94 Am. Dec. 742], it was said that two prior cases, one of which was Forbes v. Hyde, 31 Cal. 342, relied on by appellant, was improperly decided so far as this point was concerned, on the assumption that the affidavit was a proper part of the judgment-roll.
Summary of this case from Estate of McNeilOpinion
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Appeal from the District Court, Third Judicial District, Alameda County.
This was an action to quiet title to a tract of land situate in Alameda County, and to restrain a sale thereof. The facts are as follows, to wit: On the twentieth day of January, 1857, Horace Hawes commenced an action in the District Court of the Twelfth Judicial District, for the County of San Mateo, against Wm. Carey Jones and Charles Brown, to obtain the foreclosure of a certain mortgage, before that time made by Jones in favor of Hawes, and then alleged to be due and unpaid. Such proceedings were had in the action that afterwards, on the 17th day of August of the same year, a decree was entered in the action, directing the sale of the mortgaged premises, the application of the proceeds towards the payment of the mortgaged debt, and if insufficient for that purpose, that the plaintiff have execution for the deficiency. Pursuant to this decree, the mortgaged premises in San Mateo County were duly sold, and there being a large deficit, a transcript of the judgment was filed in Alameda County, on the 17th of November, 1857, and an execution was issued to the Sheriff of the latter county, who levied upon the interest of Jones in the lands in controversy in this action, which, as admitted by the plaintiff and defendant, was one undivided one quarter in fee simple. In due course the Sheriff of Alameda County made sale of this interest to one H. P. Jones, who, on the 28th of September, 1858, after the time of redemption had expired, received a Sheriff's deed, which was immediately recorded, and shortly thereafter, H. P. Jones, for a valuable consideration, sold the lands so purchased by him to the plaintiff in this action, who entered into possession of them, and so continued in possession to the commencement of this action.
Subsequently, in March, 1866, the respondent Kelly brought an action in the Fifteenth District Court for the City and County of San Francisco, against Wm. Carey Jones, in which, on the twenty-fourth of that month, he obtained judgment, and in the following May issued execution thereon to the respondent Morse, Sheriff of the County of Alameda, who levied upon the lands in controversy in this action, and advertised the same to be sold, and was about to sell the undivided one quarter of the same as the property of Wm. Carey Jones when this action was commenced by appellant to quiet his title and to restrain the sale. The respondent Kelly answered, and when the cause came to trial, the appellant, after it had been admitted by respondent that Wm. Carey Jones was, on the seventeenth day of November, 1857, seized in fee of said one undivided one quarter part of said land, introduced in evidence the aforesaid decree in the case of Hawes v. Jones and Brown, the order of sale, sale and deed by the Sheriff to H. P. Jones, and the conveyance to appellant by the latter, and rested. The respondents then introduced in evidence, under the objections and exceptions of appellant, the remainder of what was claimed by them to be the judgment roll in that action, which, as claimed by respondents, showed that an unsuccessful attempt was made to serve Wm. Carey Jones, by publication of the summons, but that, in consequence of certain alleged defects, was a nullity, and that the decree was therefore absolutely void.
The papers thus introduced in evidence by respondents, which were additional to appellant's said evidence, consisted of the affidavit of the plaintiff, in that action, to procure an order for the service of the summons therein on the said William Carey Jones, by the publication of the same; the order of the Judge of said Twelfth Judicial District, by which it was ordered that said summons be published in the Morning Globe newspaper for three months; the affidavit of R. K. Dodge that said publication was made as ordered; the affidavit of Felix McClosky that he had served said summons personally on said Jones in Washington City, D. C., on the 12th day of March, 1857. The said affidavit of the plaintiff, and said order for the publication of the summons, when offered in evidence, were objected to by appellant as irrelevant and incompetent, because they constituted no part of the judgment roll in said action of Hawes v. Jones and Brown, and to their admission duly excepted.
The said decree in the said last named case, among other things, contained the following, to wit:
" And now at this day, to wit: the seventeenth day of August, A. D. 1857, it appearing to the Court that the summons and complaint in this cause have been duly served on the defendants according to law, and the order of the Judge of this Court, that the time for answering prescribed by law has expired, that no answer has been put in, and the default of the defendants having been duly entered, on application of the plaintiff for judgment," etc.
The trial of this cause below was by the Court without a jury. The defendant had judgment, and plaintiff appealed therefrom and from an order denying his motion for a new trial.
COUNSEL:
The judgment in favor of Horace Hawes and against Wil liam Carey Jones and Charles Brown, entered in the District Court of the Twelfth Judicial District for the County of San Mateo, on the 17th day of August, 1857, finds as a fact, and recites upon its face, " that the summons and complaint in this cause have been duly served on the defendants according to law, and the order of the judge of this Court." This judgment cannot be attacked collaterally, but the jurisdiction of the Court over the person of Jones will be presumed, unless there is evidence to the contrary on the face of the record, (Crosswell v. Byrnes, 9 John. 286; Green v. Ovington, 16 John. 55; Field v. Gibbs, 1 Pet. 155; Hoxie v. Wright , 2 Vt. 263; Nagle v. Macy , 9 Cal. 426; Irwin, Administrator v. Scribner , 18 Cal. 449; Dorente v. Sullivan , 7 Cal. 279; Cook v. Darling, 18 Pick. 393; Bloom v. Burdick, 1 Hill, 130; Whitwell v. Barbier , 7 Cal.,) even upon default, and the judgment fails to show service of process. (Foot v. Stevens, 17 Wend, 483; Hart v. Seixas, 21 Wend. 40; Cole v. Hall, 2 Hill, 625.)
The plaintiff and appellant introduced the judgment alone. This showed jurisdiction on its face. The defendants and respondents were then permitted to introduce in evidence certain documents, claimed by them to be a judgment roll, for the purpose of attacking the judgment. This was error. The judgment roll, where there is a default, consists only of the summons, complaint, proof of service, memorandum of default on complaint, and copy of judgment. The affidavit and order of publication form no part of the judgment roll. The order is, that the service be made by publication. Neither the affidavit or order constitute any part of the service; they are merely the preliminary steps. (Prac. Act. Secs. 30, 31; Vernam v. Holbrook, 5 How. Pr. 3.) If any others papers appear in what is called a judgment roll, they are superfluous, and must be disregarded. (Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How. Pr. 226; Cook v. Dickerson, 1 Duer, 679.)
If, however, it is considered that the affidavit and order for the publication of the summons properly constitute a part of the judgment roll in the case of Hawes v. Jones and Brown, yet, as the judgment in that case recites the fact of due service of the summons upon Jones, the Court, when that judgment is attacked collaterally, will, for the purpose of sustaining it, presume that other evidence besides that found in the judgment roll, and sufficient in its character, was furnished as to the fact of the service of process. (Clary v. Hoogland , 6 Cal. 685; Alderson v. Bell , 9 Cal. 315; Logan v. Hillegass , 16 Cal. 200; Lick v. Stockdale , 18 Cal. 219; Bromley v. Smith, 2 Hill, 517; State of Iowa v. Elgin, 11 Iowa 216.)
It is submitted, first, that an act occurring in judicial proceedings, though prescribed by statute, may be irregular, and yet not a nullity; second, that such an act may be a nullity, and yet the nullityof the act may not affect the validity of the judgment.
If the cause be pending in a Court of general jurisdiction, and the Court either expressly or by implication has adjudged the act valid or sufficient, and has proceeded to render final judgment, the validity of the act is no longer open to question, except by appeal, and the judgment, though erroneous, is not a nullity, and cannot be attacked collaterally. The reason is, that such Court, unlike Courts of special and limited jurisdiction, inherently has power, and from necessity is compelled to decide upon its own jurisdiction, including the regularity, validity, force, and effect of every step in the cause. " The judgment concludes all irregularities in the previous proceedings."
[Note.--Under the appropriate heads the subjoined authorities were cited in support of the foregoing propositions, which, for the sake of brevity, and because they all bear with more or less directness upon the main question decided by this Court, are presented together.--Rep.]
Cal. Prac. Act, Secs. 113, 22, 23, 203, 201, 28-31, 33.
N.Y. Code Pr., Secs. 220, 356.
Woodruff v. Fisher, 17 Barb. 225.
Morgan v. Quackenbush, 22 Barb. 76.
McGilvery v. Morehead , 2 Cal. 607.
1 Tidd's Prac. 179-90, 108, 109, 142.
Fowler v. Moreton, 2 Bos. & Pul. 48.
McKenzie v. McKenzie, 1 Term. R. 716.
Williams v. Jackson, 3 Term. R. 575.
Jennings v. Martin, 3 Burr. 1,447.
Barclay v. Hunt, 4 Burr. 1,992.
Vernam v. Holbrook, 5 How. Pr. 3.
1 Whit. Prac. P. 105, 135, 137.
Ricketson v. Richardson , 26 Cal. 149.
Phila. and Trenton Railroad Co. v. Stimpson, 14 Pet. 457.
Roche v. Ward, 7 How. 417.
Heyman v. Landers , 12 Cal. 107.
People v. Huber , 20 Cal. 81.
Blackmar v. Van Inwager, 5 How. Pr. 367.
Pragg v. Adams, 2 Salk. 674.
Steinbach v. Leese , 27 Cal. 295.
Ex Parte Bank of Monroe, 7 Hill, 178.
Cunningham v. Goellett , 4 Denio, 71.
Staples v. Fairchild, 3 Comst. 45.
Payne v. Young , 8 N.Y. 158.
McMinn v. Whelan , 27 Cal. 312.
Boswell v. Sharp, 15 Ohio, 467.
McMillen and Wife v. Reynolds , 11 Cal. 372.
Alderson v. Bell , 9 Cal. 315.
Dorente v. Sullivan , 7 Cal. 279.
Myers v. Overton, 4 E. D. Smith, 429.
Montgomery v. Tutt , 11 Cal. 190.
Pico v. Sunol , 6 Cal. 294.
Ritter v. Scannell , 11 Cal. 238.
Barnes v. Harris, 4 Comst. 375, 386.
Skinner v. Beatty , 16 Cal. 156.
McElrath v. Butler, 7 Iredell, 398.
Telford v. Marsh, 1 Iowa 586.
Rino v. Pindar , 20 N.Y. 298.
Brown v. Cady, 19 Wend. 479.
2 Am. L. Cases, 81.
Whitewell v. Barbier , 7 Cal. 63.
Polock v. Hunt , 2 Cal. 193.
Guy v. Ide , 6 Cal. 99.
Nagle v. Macy , 9 Cal. 429.
Jordan v. Giblin , 12 Cal. 100, 102.
Bromley v. Smith, 2 Hill, 577.
Voorhees v. Bank U. S., 10 Peters, 449.
Gray v. Hawes , 8 Cal. 562.
The State v. Woodliff , 2 Cal. 241.
Joyce v. Joyce , 5 Cal. 449.
Swain v. Chace , 12 Cal. 283.
Braly v. Seaman , 30 Cal. 610.
Forbes v. Hyde , 31 Cal. 342.
United States v. Aredondo, 6 Pet.
Miller v. Brinkerhoff , 4 Denio, 120.
Croswell v. Byrnes, 9 Johns. 286.
Cook v. Darling, 18 Pick. 393.
Grignon v. Astor, 2 How. 319.
Lick v. Stockdale , 18 Cal. 219.
Montgomery v. Tutt , 11 Cal. 317.
Jenks v. Stebbins, 11 Johns. 227.
Jackson v. Leek, 12 Wend. 104.
Paine v. Moreland, 15 Ohio, 435.
Cole v. Hall, 2 Hill, 626.
Grewell v. Henderson , 7 Cal. 290.
Young v. Loraine , 11 Ill. 626.
McPherson v. Cunliff , 11 S. & R. 422.
Selin v. Snyder , 7 S. & R. 166.
Rust v. Frothingham, 1 Breese, 258.
Coit v. Haven , 30 Conn. 190.
Carpentier v. City of Oakland , 30 Cal. 439.
Field v. Gibbs, 1 Pet. 155.
Richards v. Skiff, 8 Ohio St. R. 586.
Tarbox v. Hayes, 6 Watts, 398.
Clark v. McComan, 7 W. & S. 469.
Granger v. Clark, 22 Maine, 129.
Hoffman v. Coster, 2 Whart. 469.
Morris v. Galbraith, 6 Watts, 166.
Hazlett v. Ford, 10 Watts, 101.
Welch v. Sykes, 3 Gilman, 197.
Vandyke v. Bastedo, 3 Greene, 229.
Thompson v. Tolmie, 2 Pet. 165.
3 Bl. Com., B. III, Cap. XVIII, p. 280.
Hart v. Seixas, 21 Wend. 40.
Foot v. Stevens, 17 Wend. 483.
Rex v. Venables, 1 Strange, 630.
Rex v. Clegg, 1 Strange, 475.
Rex v. Clayton, 3 East, 61.
Brown v. Wood , 17 Mass. 68.
Crane v. Brannan , 3 Cal. 192.
Leese v. Clark , 28 Cal. 26.
Weyer v. Zane, 3 Ohio, 305.
Boswell v. Sharp, 15 Ohio, 464.
Bangs v. Duckenfield , 18 N.Y. 592.
Potter v. Merchants' Bank , 28 N.Y. 652.
Burgess v. Tweedy , 16 Conn. 43.
Sanford v. Sanford , 28 Conn. 6.
Gregory v. Ford , 14 Cal. 141.
Fowler v. Lee, 10 Gill. & J. 363.
Crafts v. Dexter , 8 Ala. 770.
Betts v. Bagley, 12 Pick. 572.
Porter v. Purdy , 29 N.Y. 110.
Egery v. Buchanan , 5 Cal. 53.
Telford v. Marsh, 1 Iowa 686.
Chesnut v. Barney , 12 Ill. 178.
Kipp v. Fullerton, 4 Iowa 480.
Tallman v. Ely , 6 Wis. 259.
Cox v. Thomas, 9 Gratt. 326.
Gay v. Smith , 38 N.H. 174.
Clary v. Hoagland , 6 Cal. 688.
Hammond v. Draper , 25 Vt. 349.
Allen v. Huntington, 2 Aiken, 250.
Heirs of Biggs v. Blue, 5 McLane, 148.
Smith v. Rice , 11 Mass. 514.
Gibbons v. Scott , 15 Cal. 284.
Gossat v. Howard, 10 Q. B. 453.
Broom's Legal Maxims, 851-56.
McCarthy v. Marsh, 1 Selden, 279.
Sheldon v. Wright, 1 Selden, 514.
Dyckman v. The Mayor, etc., 1 Selden, 440.
Spratt v. Spratt, 4 Pet. 393.
Borden v. Fitch, 15 Johns. 141.
Mills v. Martin, 19 Johns. 33.
Latham v. Egerton, 9 Cow. 229.
Abadie v. Carillo , 32 Cal. 172.
Crave & Boyd, for Appellant.
Horace Hawes, Wilson & Crittenden, William Hale, James McM. Shafter, and Edward F. Head, also for Appellant.
Patterson, Wallace & Stow, for Respondents.
In the action of Hawes v. Jones et al., Jones did not appear; nor was he personally served with process within the territorial jurisdiction of the Court which rendered the pretended judgment of August 17th, 1857.
The Court confessedly having failed to obtain jurisdiction of the person of Wm. Carey Jones in either of these two modes, there was but one other means by which it could do so--that was, by constructive service of its process upon him extra-territorially made.
In determining the question of jurisdiction upon such constructive service, no distinction is made between Courts of general jurisdiction on the one hand, and Courts of inferior or limited jurisdiction on the other. No presumption whatever is indulged in favor of the jurisdiction of any Court, however superior its grade, where the alleged service was other than personal, andwithin the territorial jurisdiction of the Court. (Gray v. Larrimore, U.S. Circuit Court for Cal.; People v. Huber , 20 Cal. 81.)
JUDGES: Sanderson, J. Sawyer, J., concurring specially. Shafter, J., concurring specially.
OPINION
SANDERSON, Judge
By the Court, Crockett, J., on petition for rehearing:
We have given to the petition for rehearing in this case the careful consideration which was due to the importance of the question involved, and the earnestness with which a rehearing has been requested by eminent counsel has induced us to review carefully the opinions heretofore delivered; but we see no reason to change or modify the conclusions already announced, nor does the petition for rehearing present any new phase of the legal propositions involved in the case.
We adhere to the following propositions, to wit:
1st--That the efficiency of the service must be decided upon the judgment roll.
2d--That the affidavit and the order of the Judge, directing the publication, constitute no part of the judgment roll, which, under section two hundred and three of the Practice Act, is to consist, in case the complaint be not answered by any defendant, of " the summons with the affidavit or proof of service, and the complaint, with a memorandum indorsed upon the complaint that the default of the defendant in not answering was entered, and a copy of the judgment."
3d--That the order of the Judge directing the publication and the affidavit on which it was founded constitute no part of the proof of service by publication to be annexed to and forming a part of the judgment roll. The statute distinctly declares that in case of service by publication, the proof of service shall consist of " the affidavit of the printer, or his foreman or principal clerk, showing the same, and an affidavit of a deposit of a copy of the summons in the Post Office, if the same shall have been deposited." (Practice Act, Sec. 33.) However defective the statute may be as to proof of service in such cases, it is not our province, by a system of judicial legislation, to supply its omissions. That this provision is faulty and incomplete is quite obvious, but its defects must be cured by the Legislature and not by the Courts.
Some stress is laid by counsel on the phrase " showing the same" in this section. If we comprehend the argument aright, it is that from this phrase it is to be inferred that the order of the Judge must, of necessity, constitute a part of the proof of service, and therefore go into the judgment roll, because otherwise the phrase " showing the same" would be absurd and meaningless. But it is apparent from the context as well as from the subject matter, that this phrase was intended only to require that the affidavit should show in what paper the publication was made, between what dates, and how often. The counsel insists that this, of itself, would show no service. If this be so, it is the vice of the statute, which has explicitly declared that it shall constitute the proof of service. We have no power to require other proofs than those the statute specifies.
4th--That unless the record shows to the contrary, it will be presumed that a Court of general jurisdiction had acquired the necessary jurisdiction over the parties, to support its judgment; and in this respect the record cannot be impeached in a collateral proceeding by proof aliunde .
5th--That when the judgment, as in this case, recites the fact that the defendants have been duly served with process, it is a direct adjudication by the Court upon the point, and is as conclusive upon the parties as any other fact decided in the cause, provided it does not appear affirmatively, from other portions of the record, that the recital is untrue. As, for example, if the judgment recites a due service of process, and refers, on its face, for proof of the service to the Sheriff's return on a particular summons on file in the case, as part of the judgment roll, if it appears, on inspecting the return, that the service is bad, the recital in the judgment would, in that case, appear affirmatively from the record to be untrue, and the judgment would be void. But if the judgment for proof of service refers generally to a paper or papers on file, or to a summons and Sheriff's return thereon without specifying any particular paper, summons or return, and if there be found on file papers showing a defective and void service, and nothing further appears, the law to support the judgment would presume that the Court had other sufficient proof of service than that which remains on file; and it would not in that case appear affirmatively from the record that the recitals in the judgment were untrue. The recitals would therefore be conclusive proof of service. But if the judgment recites a due service of process without specifying how the service was made or referring to any paper as proof of it, the recital is conclusive on the parties in a collateral proceeding unless, as before stated, it should affirmatively appear in some manner from other portions of the record that the recital was untrue. It is objected, however, by counsel, that such recitals have no proper place in the judgment, and ought not for that reason to be deemed conclusive, nor even prima facie proof of service. But, on examining the course of proceedings in Courts of equity in England and in most of the States of the Union, we find the usual practice has been, in entering decrees upon bills taken pro confesso, to recite the fact of service, and that the defendant is in default. But if this were not the usual practice, the recital in the judgment of the fact of service can in no manner impair its effect as an adjudication on the point. It is as conclusive in this form as if stated in a separate, interlocutory judgment, adjudicating only the fact of service.
We may remark, in conclusion, that if upon reason and authority, the questions decided in this cause were left in such extreme doubt that we might well incline to the one side or the other, considerations of public policy would impel us to solve the doubt in such manner as to promote the repose of titles held under judicial sales, rather than by technical niceties to overthrow them.
[Note.--The foregoing opinion was rendered at the January Term, 1868.]
CONCUR
SAWYER; SHAFTER
Sawyer, J., concurring specially:
I concur in the judgment, and in the reasoning of my brother, Sanderson, upon which it is sustained. I will add a word respecting the record, and for the purpose of alluding to Forbes v. Hyde , 31 Cal. 342. While the points discussed and decided in that case are correctly determined, I am satisfied that the opinion stops short of the entire truth in regard to judgments of the kind there in question. In that case, and in Braly v. Seaman , 30 Cal. 610, the parties, relying on the judgment, introduced in evidence as a part of the record and of their case, the order for publication of summons, and affidavits upon which they were based, and they were treated as parts of the record without discussion. And in Forbes v. Hyde, the order for publication, and the judgment itself, recited the affidavits as the basis upon which they rested, thus showing by direct reference, that the jurisdiction of the Court, if any attached, depended upon those affidavits, and the publication in pursuance thereof, and on nothing else. The record contained an express statement that there were no other affidavits filed. Treating the affidavits and order as parts of the record, all that was done affirmatively appeared, and as the acts performed did not effect a service, the want of jurisdiction was apparent.
In the present case the question is directly made for the first time, as to what constitutes the record within the meaning of the rule, and what facts appearing in such record disclose a want of jurisdiction. These points have been elaborately argued, and numerous authorities bearing upon the question cited. At common law " a record signifies a roll of parchment upon which the proceedings and transactions of a Court are entered or drawn up by its officers, and which is then deposited in its treasury in perpetuam rei memoriam ." (3 Steph. Com. 583; 3 Bl. Com. 24; 2 Burr. Law Dic., Tit. " Record." ) " A Court of record is that where the acts and judicial proceedings are enrolled in 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." (3 Steph. Com. 583; 3 Bl. Com. 24; 2 Burr. Law Dic., Tit. " Record." ) In Courts not of record the proceedings are not enrolled. (Ib.) The privilege of having these enrolled memorials constitutes the great leading distinction in English and American law between Courts of record, and Courts not of record, or, as they are frequently designated, superior and inferior Courts. (Ib.) " In the United States paper has universally supplied the place of parchment as the material of the record, and the roll form has, on that account, fallen into disuse; but in other respects the forms of the English records have, with some modifications, been generally adopted." (Burr. Law Dic., Tit. " Record." ) But whether in parchment or in paper, in the roll form or otherwise, this judgment roll is what is known in law as the record--the technical record --and is what is meant by Courts and law writers when they speak of records of superior Courts, or Courts of record. This technical record is the only strict and proper proof of the proceedings of the Courts in which they are preserved, and are regarded in law as proof of so absolute a nature as to admit of no contradiction. In the language of Lord Coke, " they import in themselves such incontrollable credit and verity, as they admit no averment, plea or proof to the contrary." (Coke's Litt. 260 a; 3 Steph. Com. 583; 3 Bl. Com. 24; 2 Burr. Law Dic., Tit. " Record." ) As to the history and character of the record, etc., see, also, Burr. Pr. 16, 17, 247; Steph. Pl. 25, 27, 81, 111. So inviolable is the rule regarded, that, on the issue of nul tiel record, when a record of a judgment corresponding with the plea was produced, it was held to be inadmissible to rebut this proof by showing a rule of the same Court entered in the minutes at a subsequent term setting aside the judgment for irregularity." (Crosswell v. Byrnes, 9 Johns. 290.) The Court say: " There is no doubt of the competent power in the Court to make such a rule; but the question is, whether the entry of such a rule upon the minutes is to be received as evidence against the record. It appears to be contrary to all well settled technical rules upon the subject to give the entry that effect. A record imports verity, and can only be tried by itself. The vacatur ought to be enrolled, or entered of record as much as the rule for judgment. The Court could not receive the entry on the minutes of a rule for judgment as evidence to support a plea of a former recovery, and why should an entry vacating a judgment be received to contradict the enrollment of the judgment? The maxim in this, as well as in other cases, is, that nihil tam naturale, quam quidlibet dissolvi eo modo, quo ligatur. (1 Jenk. Cent. 120.) To give an entry on the minutes that authority would destroy the certainty, order and solemnity of enrollments; and it has been frequently held that the Courts cannot regard any proceeding as a matter of record until it is enrolled." (1 Salk. 329; 1 Ld. Raym. 243; Jenk. Cent. 25; Crosswell v. Byrnes, 9 Johns. 289, 290; see, also, McKnight v. Dunlop, 4 Barb. 39, 40; Moor v. Risdell, 1 Ld. Raym. 243.) Thus the order vacating a judgment, although entered in the minutes of the Court, until enrolled, could not be given in evidence against the judgment, for, until enrolled, it constituted no part of the record--the technical record, which imports absolute verity. And this, as before remarked, is the record which Courts refer to, when they speak of matters appearing upon the record of Courts of record. When a mistake in making up the record occurs, the Court of which it is a record may, at the proper time, and in the proper mode, amend it so as to make it speak the truth. (3 Bl. Com. 24; 3 Steph. Com. 583.) But till amended, when brought collaterally in question, it cannot be impeached, even by the files and minutes of the Court, by the aid of which the record itself might be amended by the proper Court. In a general sense, all the files and minutes of the Court are often spoken of, in modern times, as the records of Courts, and this use of the term tends to lead to a confusion of ideas.
In examining questions of the kind now under consideration, it must always be borne in mind, that it is only the record, technically so called, that imports absolute verity, and is to be tried by itself-- teste meipso (see Sherman v. Story , 30 Cal. 253)--whenever its existence is called into question; that is to say, its existence and purport is to be determined by a bare inspection of the document offered as a record. But in those Courts and tribunals where the proceedings are not enrolled or recorded, as well the existence of their proceedings, as the truth of the matters therein contained, shall, if disputed, be tried and determined by a jury. (3 Bl. Com. 25.)
Records were formerly made up in the presence of the Court as the case progressed, but were subsequently prepared out of Court after the case was closed, either by the Clerk or the attorneys. (1 Burr. Pr. 247.) They consisted of the placita, memorandum, pleadings, imparlance or continuance, etc. (1 Burr. Pr. 247.) Examples of judgment records or rolls under the former system, will be found in 3 Burrill's Ap., p. 132, et seq., and in a criminal case in 4 Bl. Com. Ap. The judgment record has recently been somewhat modified by statutory provisions in some, if not all, the States; but they all, where a judgment roll is made up, contain the substance of the former rolls. Section two hundred three of the Practice Act expressly provides for a judgment roll, and prescribes what it shall contain. It omits the formal parts--the placita, memorandum, continuances and connecting links--some of which have been rendered unnecessary by changes in our proceedings, but contains all the essentials of the common law record. In the case of a default, it consists of the summons with the affidavit or proof of service, complaint with memorandum indorsed upon the complaint that the default of the defendant in not answering was entered, and a copy of the judgment. This is the technical record, which imports absolute verity and cannot be impeached collaterally, even by the files and minutes of the Court itself not forming a part of the record. This is the record which must show affirmatively a want of jurisdiction, in order to render the judgment void. Section thirty-three of the Practice Act declares what shall constitute proof of service, and this does not include either the affidavit or order for publication. They, therefore, do not constitute a part of the record, and the verity of the record cannot be impeached by them. The cases of a similar character hitherto decided by this Court were tried, argued on both sides, and decided on the assumption that the affidavits and order of publication constituted a part of the record. In this respect there was error. In this case there were two facts required to be made to appear to the Court below. One is the fact of publication of summons, and the other is that the party making the affidavit of publication was the printer, his foreman or principal clerk. The fact of publication could be proved by no other party under the statute. (Sec. 33.) But there is nothing requiring the fact that the party making the affidavit is the printer, foreman or principal clerk, to be proved by him, also, or that this proof shall be in writing. I can see no reason why that fact may not be proved by oral testimony in Court, or in any other mode recognized by law for proving other facts in the course of ordinary litigation. In the record now before us, there is an affidavit stating all the facts necessary to show a service by publication, but it does not show that the affiant was the printer, foreman, or chief clerk. If we can regard it at all, it shows a publication. If we cannot regard it, for the want of proof, that it was made by the proper party, then the worst that can be said is, that it does not affirmatively show a publication. It certainly does not affirmatively show that there was no publication. It simply does not appear affirmatively whether there was or was not a service. But the judgment itself says that it did appear " to the Court that the summons and complaint in this cause have been duly served on the defendants according to law and the order of the Judge of this Court," and thus the fact of service affirmatively appears in the record. This is a fact which the Court had jurisdiction to find, and according to the record it was found; and the record, whether correct or not, imports absolute verity, and no Court, in a collateral proceeding, can go behind it, or to the files or minutes, to impeach it. There is no inconsistency in the record. The Court exercises the same functions and the same jurisdiction in determining whether there was a service, whether personal, and the evidence is the certificate of the Sheriff, or affidavit of a party competent to serve the process, or by publication, and the evidence is by the affidavit of the printer. And I see no reason why the same presumption should not arise on the record in one case as in the other. It is a record in either case, for the statute makes it so in one case as well as in the other. And the record must be tried by itself alone. There is no new jurisdiction, either as to the person or subject matter conferred on the Court by the statute authorizing service by publication of summons. The service is made in cases involving the ordinary process of the Court. Only the mode of serving process is modified in certain cases within its ordinary jurisdiction. In some of the States a service was formerly, and, doubtless, now is, made by leaving a copy of the summons at the residence of the defendant, with some person of suitable age and discretion, or at his last known place of residence. I am not aware that any different rule of presumptions in Courts of record was applied to the record of a domestic judgment on a service of this kind, from that applied to a service upon the party himself. Yet this can no more be called a personal service than a service by publication. The only question, at last, is: was there a service in any legal mode?--and the Court has jurisdiction to determine that question. If the Court determining the question is a Court of record, the judgment record imports absolute verity, and whatever that says must be taken as true. If the record in fact does not speak the truth, the only remedy of the party is to attack it directly on appeal or in the Court of which it is a record, if under the circumstances it can be there corrected, or by some direct suit or proceeding known to the law to vacate it.
A caution is here necessary. In modern practice, in some of the States, there is no judgment roll or record made up, even in Courts of record, as in Iowa and, at one time, in Michigan. In these States perhaps the minutes and files of the Court might be regarded as the record, and possibly everything appearing therein might be considered. (Morrow v. Weed, 4 Iowa 77; Norvell v. McHenry , 1 Mich. 227.) In considering the numerous decisions in the several States, it is always necessary to understand the local law affecting the question, and this is not always stated in the opinions, or otherwise accessible. In this State we have a record, and the statute expressly provides what it shall contain.
The following authorities bear upon the questions arising in this case, and in a greater or less degree sustain the conclusion attained: Tallman v. Ely , 6 Wis. 244; Foot v. Stevens, 17 Wend. 484; Newnam's Lessee v. City of Cincinnati, 18 Ohio 323; Horner v. Doe, 1 Cart. 131; Boker v. Chapline, 12 Iowa 204; Sheldon v. Wright , 5 N.Y. 497, 517; Voorhees v. Bank of United States , 35 U.S. 449; Grignon's Lessee v. Astor , 43 U.S. 319; Richards v. Skiff, 8 Ohio St. 586; Moore v. Starks, 1 Ohio St. 369; Hart v. Seixas, 21 Wend. 45; Carson v. Pearl, 4 J.J. Marsh. 92, 94; Heirs of Biggs v. Blue, 5 McLean 149; Kipp v. Fullerton , 4 Minn. 473; Hardy v. Gholson , 26 Miss. 70; Cooper v. Sunderland, 3 Iowa 114; Morrow v. Weed, 4 Iowa 77; Potter v. Merchants' Bank , 28 N.Y. 641, 655. Also, see cases cited by appellant, and authorities cited in the cases above referred to.
The judgment should be reversed and a new trial had.
Shafter, J., concurring specially:
There are only two jurisdictional facts required or allowed by the Practice Act to be represented in the judgment roll in cases where service has been had by publication. The first is an affidavit of the fact of publication, and the second is that the person making the affidavit was the printer of the paper in which the notice was published, or his foreman, or principal clerk. If it appears affirmatively on the face of the record, in Hawes v. Jones, that either of these requirements was not complied with, then the judgment therein can be attacked collaterally on that ground. But it does not so appear. The affidavit of Dodge goes to the fact of publication, and his capacity or competency to make the affidavit is covered by the recital in the judgment that the defendant was duly served according to law. This recital imparts absolute verity, and no suggestion to the contrary can be listened to. (Alderson v. Bell , 9 Cal. 315.) In Steinbach v. Leese, the judgment contained no such recital, and one only of the two points was covered by the affidavit; and therein lies the distinction between this case and that. So far, then, from its appearing affirmatively, by the record in Hawes v. Jones, that the Court had not jurisdiction, it appears affirmatively that it had.
I concur in the judgment.
[NOTE.--These opinions were delivered at the October Term, 1867.]