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Vol. IV.)

Newcomb's HEIRS v. NEWCOMB.

(No. 8.

.

the judgment in which to appear, file an answer, and move for a retrial. Under the Act of 1815, authorizing proceedings against unknown heirs, it was provided that, before the issuing of process, or making an order of warning (which was by publication) against such heirs, the complainant should file in the clerk's office with his or her bill an affidavit that he or she did not know the names of such heirs. In the case of Hines v. Oldham, reported in 3d Monroe, page 266, the lessor of the plaintiff, in an action of ejectment, offered as evidence in support of his title a decree of the Grayson circuit court, together with a conveyance made to him by the commissioner of the lands in controversy. It was objected to by the defence, on the ground that the proceedings under which the decree was obtained were against the unknown heirs of White, and Ramey, a non-resident, and there was no affidavit annexed to the bill as required by the statute.

This court said on the appeal in that case : “ The affidavit was expressly required by the statute, and the want of it would have been fatal on demurrer. The distinction between the legal effect of a void judgment or decree, and of one merely erroneous, is founded in good reason, &c., but by what criterion we may distinguish the one class of decrees from the other is not so clear. It may, however, be laid down as a general rule, that, wherever the court rendering the judgment has not jurisdiction, or, if rendered against a person in his absence, without having the warning which the law requires, the decree or judgment shall be void ; but if the court has jurisdiction, and the person against whom the judgment has been rendered has appeared, or has had the warning which the law requires to authorize the judgment in his absence, the decree or judgment, however defective in other respects, will be erroneous merely, and not void for the want of an affidavit,” &c.

The same principle was recognized in the case of Benningfield v. Read, 8th B. Mon. 102. The warning order was there regarded as the summons, and by section 90 of the Code, already cited, it is expressly declared to be such. We cannot perceive the distinction attempted to be made between a proceeding under the statute of 1815, and a proceeding under the Code. The remedy or character of process and service is in each case prescribed by statute. In the case of Brownfield v. Dyer, reported in 7 Bush, it appeared from the record that the order of warning made was not authorized by the Code. It was, in fact, no warning, as was clearly shown from an inspection of the record itself. The record disclosing a want of jurisdiction, it was held that the judgment was void. In the cases of Green's Heirs v. Breckenridge, 4th B. Mon., and Blight: Heirs v. Hanks, 6th Ibid., the records disclosed a want of jurisdiction, and no presumption will be indulged contrary to the facts the record itself develops. The case of McLaughlin v. Ball (MS. opinion) is the only authority of this court conflicting with the views here presented. The warning order in that case was made by the clerk, a mere ministerial officer. The question was involved in a direct appeal, and while the proceeding was erroneous, we are not inclined to say that it was void for the want of an affidavit.

In the case of Long v. Montgomery, 7th Bush, it appeared from the record that the sheriff's return was indorsed executed, without any signature, and although the judgment recited that the party appeared, this

Vol. IV.)

Newcomb's HEIRS v. NEWCOMB.

[No. 8.

a

court held, no doubt from the exhibition of the officer's return, that the recital was merely formal, and determined the judgment void. In the absence of any summons in the record, with such a recital as that the party appeared, or was duly served, and a judgment, such a judgment would not be determined void in a collateral proceeding; and if considered as error, can be remedied only by an appeal. In the case of Hahn v. Kelly, 34 California, 319, we find this language in regard to presumptions in favor of judgments rendered by courts of general jurisdiction : “Not universally, but frequently, we find the words superior courts accompanied by the phrase, proceeding according to the course of the common daw.”. What does this phrase mean? Does it operate as a limitation on the rule? Does it mean that when a superior court is proceeding according to the rules and practice of the common law, its jurisdiction will be presumed, but when it is proceeding according to the rules and practice prescribed by the statute, its jurisdiction will not be presumed, but must be shown ? Does it mean that the same court is superior or inferior according to circumstances ? That it is superior when it works according to the common law, and inferior when it works according to the statute law? If it does, what is the reason upon which the distinction is founded ? There is no force in the suggestion that the court is exercising a general power when obtaining jurisdiction by actual service, and a limited or special power when doing so by constructive service. The distinction is not as to the power, for the power is the same in both cases, but merely as to the mode of exercising it. The reasoning for indulging a presumption in the one case applies with like force to the other.

The proceedings of the courts of this state are not conducted according to the course of the common law, but regulated by the Code of Practice, and, in regard to judgments of courts of general jurisdiction within the state, the same presumptions must be indulged in, whether the judgment or proceedings follow the common law or are regulated by statute, unless the statute prescribes a different rule for determining the validity of the judgment. For the reasons given, we cannot concur with the court below that the absence of the affidavit from the record renders the judgment void. The presumption is, that the warning order was entered by the court as provided by the Code.

The question more difficult of solution than all others made in this case, comes from the second objection taken by counsel for the appellee to the validity of the judgment of divorce. Was the appellee amenable to constructive service when confined in an asylum in a distant state by her husband, and at the time under his control? And is parol evidence admissible in this collateral proceeding to establish these facts, for the purpose of avoiding the effect of the judgment ? That she was in the asylum in obedience to his command, in actual confinement, without the power or even will to resist at the time the warning was entered and the judgment rendered, is an admitted fact. It must be conceded that the husband was influenced by no improper motive in placing his wife in this asylum, but, on the contrary, much of his time and fortune were contributed in the effort to relieve his wife from her unfortunate mental condition, and, when it was ascertained that she was in a state of incurable insanity, he still continued, out of his abundant means, to furnish everything neces

Vol. IV.)

NEWCOMB's HEIRS v. NEWCOMB.

(No. 8.

sary to alleviate as far as possible her mental and physical suffering. Considerations of this sort, however, cannot control the decision of the questions before us. The principle governing this case cannot be regulated by the good or evil intent of her husband, or by the mental condition of his unfortunate wife.

Recognizing the general doctrine that judgments of courts of general jurisdiction are not the subject of an attack in a collateral proceeding, it becomes necessary to determine whether this rule, or the reasons upon which it is based, is to be applied to the case before us. The rule had its origin from motives of public policy, sustained, as all the authorities conduce to show, by the additional reason that the party aggrieved has every opportunity afforded him for redress if wrong has been committed. He may appeal, move to set aside the judgment, or for a new trial, so long as the court rendering the judgment has any control over it. He may file his petition to review the judgment, or a petition for a new trial. Such proceedings the policy of the law requires he shall adopt, and will not permit collateral attacks upon such judgments, when they may be offered as evidence or relied on as the final termination of the rights of the parties. We have already adjudged that upon the face of the record in this collateral proceeding it must be presumed that the appellee has had her day in court in the action for a divorce.

The représentatives and devisees of the husband are now relying on the judgment rendered in that action as a bar to the appellee's recovery. Will she be allowed to show in this proceeding that the record is false and the judgment void?

That an order of warning in certain cases cannot be made so as to render the judgment valid, although all the proceedings on the face of the record appear proper, is now well settled. In the case of Dean v. Nelson (reported in 10th Wallace, 158), Dean had obtained a judgment foreclosing a mortgage executed by Nelson and wife. Some stock owned by Nelson and wife in a gas company was purchased by Dean at the sale made under the judgment. Nelson was proceeded against as a nonresident by an order of publication, and at and before the time he was warned to appear and answer he was within the Confederate lines — had been expelled from the State of Tennessee (where the judgment was rendered) by the military commander, and forbidden, by a published order, from returning. He had no opportunity of making any defence, and was prevented by the military order from coming within the federal lines. At the close of the war Nelson and wife instituted an action against Dean to recover the stock. Dean pleaded as a bar the judgment obtained upon the order of publication in the action against Nelson as a non-resident. Nelson's petition was dismissed, and, on an appeal to the supreme court the judgment was reversed. That court said : “ The publication (the warning) was a mere idle form; the defendants could not lawfully see or obey it. As to them the proceedings were wholly void and inoperative." From the report of that case there seems to have been no direct attack upon the judgment by any amended pleading, and the case heard alone upon the bill, answer, and proof.

This case was followed by the case of Lasen v. Rochreal, reported in 17th Wallace. Lasen was expelled by a military order from his home in

Vol. IV.)

NEWCOMB's HEIRS v. NEWCOMB.

[No. 8.

heard."

us.

New Orleans, and whilst absent the appellee foreclosed a mortgage upon Lasen's property and had it sold. After Lasen’s return to New Orleans he instituted an action against the purchaser and others to vacate the judgment, and the court dismissed his petition. On an appeal, the supreme court said: “It is contrary to every principle of natural justice that any one should be condemned as to person or property without being

Quoting from Dean v. Nelson: “ They could not lawfully see or obey the summons. As to them, the proceedings were wholly void and inoperative. The case thus condemned is substantially the case before

Other cases might be cited sustaining the doctrine that no one can be deprived of his personal or property rights without being first heard. Such a plain principle of natural justice requires no authority to support it. In the cases referred to, it is true that the judgments were assailed by a direct proceeding, except the case of Dean v. Nelson. Adjudications are not wanting, however, sustaining the doctrine that parol evidence may be admitted in collateral proceedings assailing judgments of superior courts. That whenever a right is asserted under such a proceeding the facts showing the judgment void may be established by proof denying the verity of the record. Upon investigation, it will be found that a large

a majority of those cases have reference to judgments rendered in other states, - that is, where parties are attempting to enforce the judgment of a tribunal rendered in a state other than that in which the judgment is being assailed. Such was the case of Starbuck v. Murray, reported in 5 Wendell, 148, and regarded as a leading case on the subject. The judgments of one state, when sought to be enforced in another state, are not regarded as domestic judgments; and when the jurisdiction of the court to render such a judgment is assailed, that question (of jurisdiction) is always open to inquiry. It is only when the jurisdiction of the court in another state is not impeached, either as to the subject matter or the person, that the record of the judgment is entitled to full faith and credit. Thompson v. Wutman, 18 Wallace; Story on the Conflict of Laws. We are not disposed to apply such a doctrine to domestic judgments. . The safer rule is to require the party to appeal, apply for a new trial, or file his petition to vacate the judgment.

By an act of the legislature, approved March 9, 1869, the Code of Practice was amended as follows: " That section 445 of the Civil Code of Practice shall not apply to judgments granting a divorce, so far as the divorce itself is involved, nor shall section 373 apply thereto. Section 373 of the Code permits a party, where grounds for a new trial are discovered after the term at which the verdict or decision was entered, to file a petition for a new trial. This is limited to three

years. Section 445 of the Code allows a defendant against whom a judgment is rendered, upon constructive service, to appear in court at any time within five years and move to have the action retried. Section 16 of the Civil Code denies the defendant the right of an appeal to this court from the judgment granting a divorce. So the appellee in this case, by reason of the Act of March 9, 1869, is denied the right to petition for a new trial; is denied the right (if a non-resident) to appear within five years and move to retry the case; and, by section 16 of the Code, has no appeal. When she appears in court, and, by petition, asks for a new trial, the law forbids it; when she

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Vol. IV.]

NewcomB's Heirs v. NEWCOMB.

(No. 8.

a

asks an appeal it is denied her; and, lastly, when the judgment she desires to assail is interposed to divest her of what she claims to be her right of property, she is told that parol evidence is inadmissible to show that a domestic judgment is void. Can such a case be brought within the rule by reason of public policy? The defendant denied a hearing ? The most important relation in life severed by means of a void judgment, and the party wronged without remedy ? In such a case, the reasoning of the court in the case of Starbuck v. Murray, supra, might well apply. No rule will be allowed to violate every principle of natural justice by depriving the sane or insane of the rights of person or property without a hearing. Every one whose rights are to be affected by a judicial proceeding must have his day in court. This is one of the fundamentals of the law, and when a judgment has been rendered without citation or summons, there must be some remedy afforded the party complaining.

It is argued by counsel for the appellants that the Act of 1865, creating additional grounds for a divorce, is a law within itself, and that no service on the appellee or citation was necessary. This position is not tenable. The act is only an amendment to the original statute on the subject giving additional causes for a divorce, and providing additional safeguards for the protection of the defendant. It does not profess to change the practice in civil cases, nor prescribe any other mode of getting the defendant before the court than is found in the Civil Code. The action for a divorce is a civil proceeding. A civil action is commenced by filing, in the office of the clerk of the proper court, a petition, and causing a summons to be issued. Whatever might have been the practice before the adoption of the Code, it is now the settled rule; and we know of no exception, that whenever it is necessary to make one a party defendant to an action, it is equally as necessary to have him before the court by an appearance or the service of process, actual or constructive.

Under our present practice, no guardian ad litem can be appointed for an infant until he is served with process, nor can one be appointed to defend for a lunatic until he is served. The Code of Practice makes no provision in regard to lunatics, except those who have been judicially ascertained to be of unsound mind. Prior to the adoption of the Code, judgments have been sustained against infants without service, where a guardian ad litem had been appointed, and so in regard to lunatics where there had been a service on the committee. The committee had the care and custody of the infant's property, and for that reason, doubtless, the practice prevailed.

It is further insisted by counsel that, as the institution of marriage more deeply affects the state than the rights of individual parties, and as the rights growing out of that relation are subject always to be changed or destroyed by the sovereign will, the state is the controlling party in interest, and the safeguards provided by law for the protection of the defendant, and particularly the helpless and inoffensive, indicate clearly that the decree of divorce is to be regarded as the expressed sovereign will, and cannot be disturbed or annulled except by the consent of the parties as provided by the statute. That for this reason an appeal is denied, and a new trial refused in such cases. When the present Constitution of Kentucky was adopted, the legislative department of the government was divested of that exercise of sovereignty by which the institution of mar

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