opinion of Mr. Justice Curtis, as is manifest from a consideration of the head-notes to the case in his edition of the supreme court reports; for he professed to limit his head-notes to the exact points considered and actually decided by the court. Nor did the court consider it precisely the same as that in Comstock v. Crawford, 3 Wall. 403; or as that in the very late case of Mohr v. Manierre, 101 U. S. 425. Nor the same point as that decided in Erwin v. Lowry, 7 How. 180, that the jurisdictional fact of citizenship determined in the national courts cannot be collaterally inquired into; that the determination of that jurisdictional fact is conclusive. The court, therefore, does not intend to touch these cases, nor the principles established by them.

Where, then, is the line of division? I apprehend it will be found by examining the case of Thompson v. Whitman, and the line of cases. cited and commented on in that case, and comparing them with the other line of decisions cited in this decision, which were carefully avoided by the court in its opinion. It will be found, on such examination, that after a cause of action has arisen-after the cause of action is complete-something must always be done by the court, through its executive or ministerial officers, or somebody else on behalf of the court, to give the court jurisdiction, either of the person, or, in a proceeding in rem, of the thing; such as serving a summons in a cause at law, or subpoena in chancery, upon the person within the state, giving a notice in some prescribed place, mode, or form, or seizing the thing. To get jurisdiction of the person, he must not only be served with process, but he must be served within the territorial jurisdiction of the court, as within the same state. In such case service within the state is the jurisdictional fact to be performed by, and upon the authority of, the court, through its ministerial officers, or other agencies of the court appointed by law. In some states, as in New York, the service may be by private parties; but they act by the authority and on behalf of the court. In matters in rem there must be a seizure, and often some notice given to the parties in interest by the court in some prescribed mode. In such cases the seizure and notice are jurisdictional facts subsequent to, and wholly independent of, the cause of action, and of all pre-existing jurisdictional facts not depending upon the action of the court or its appointed agencies. In Thompson v. Whitman the offence was complete when the vessel engaged in gathering oysters within the waters of New Jersey contrary to the statutes of that state. But the cause of action and forfeiture being complete, it was necessary to seize the

vessel within the boundaries of the county over which the court had jurisdiction, to give jurisdiction to the court. The seizure within the county was the jurisdictional fact, and this was an act to be performed by the court, or, on its behalf, through the agencies appointed. by law. The jurisdictional fact was an act to be performed to get jurisdiction of the thing, in all respects analogous to the service of summons within the state in order to acquire jurisdiction of the person, or the levy of an attachment upon the property in an attachment suit in order to get jurisdiction of the property. And this is the class of cases cited as authorities and commented on by the court in Thompson v. Whitman; and those acts to be performed by or on behalf of the court, in order to acquire jurisdiction of the person or thing, the class of jurisdictional facts that may be questioned collaterally under this authority and those cited, even though the court must have passed upon those facts. Webster v. Reid, 11 How. 456; D'Arcy v. Ketchum, 11 How. 172; Harris v. Hardeman, 14 How. 334; Knowles v. Gas-light Co. 19 Wall. 61; Pennoyer v. Neff, 95 U. S. 714; and Thompson v. Whitman, are fair examples of this class. So, also, where it is only necessary to compare the record with the law, to see that the record shows a want of jurisdiction on its face, the record is not conclusive. In such cases there is no re-examination of issues of fact determined in the case. Such a case is Elliot v. Piersol, cited by the court. Whenever the court undertakes to acquire jurisdiction over parties or things, through the acts of officers or other lawfully-appointed agencies, performed by its authority or on its behalf, it must see that the proper acts have been duly performed; and whether they have been performed or not, under the decision referred to, may be inquired into collateraly.

But there is another class of cases where there is a complete cause of action or proceeding existing, and the parties interested present all the facts the necessary pre-existing jurisdictional facts, as well as the others constituting the cause of action-by alleging them in a petition, complaint, bill, or, in the case of the state, in an indictment or other proper pleading, and ask an adjudication upon them; and when the opposing party has had due notice by proper proceedings, to acquire jurisdiction of the person, the court is required to act upon the allegations and proofs, and determine the facts. The action of the court in determining the facts in such cases, the court having properly performed its part to get jurisdiction of the person or the thing, is the exercise of jurisdiction; and the determination and adjudication upon the allegations and proofs of the facts upon which the

court is so required to act, is conclusive upon a collateral attack, and I understand the authorities cited in this opinion to sustain that proposition, even though some of the pre-existing facts alleged are of a jurisdictional character. If the line thus indicated in these two classes of decisions is not the true one between disputable and conclusive determinations and adjudications of jurisdictional facts -and there must be some line-then I confess I am not able to say where it should be drawn, and I shall leave it to the supreme court, when a proper occasion arises, to definitely and sharply locate it. If the line between inconclusive and conclusive adjudications of jurisdictional facts is to be further advanced in the direction of the latter, I shall leave it to that tribunal to make the advance. I certainly shall not be the one to take the first step. If, however, the supreme court should make the advance, I shall obediently follow, but I fear with "unequal,"-non passibus æquis,-certainly with reluctant steps. In my judgment the community ought to be entitled to rely with some confidence upon the solemn adjudications of the superior courts of the country, and I, for one, am unwilling to take the lead in judicial action that must, in the nature of things, largely exaggerate that very general lack of confidence in the sanctity, inviolability, and validity of the judicial records of even our superior courts, which it is notorious now so widely prevails, largely depreciating the value of all titles to property resting upon judicial sales and proceedings, at least on this side of the continent.

Counsel cites section 766, clause 16, of the Oregon Civil Code, relating to disputable presumptions, as controlling the case. The only observation I have to make upon that provision of the statute is that this is not a case of presumption, but of an actual adjudication of a fact upon proper allegations and proofs-a case of res adjudicata.

I regret that there is no appeal, as the point involved is one that ought to be authoritatively determined, and the question forever set at rest. But the statute expressly limits the recovery in such cases. to $5,000, and that sum is, therefore, the utmost amount that can be in controversy. Or. Civ. Code, § 367.

Upon the views expressed, the petition for rehearing must be denied, and it is so ordered.

FORSYTH and another v. VAN WINKLE and others.

(Circuit Court, D. Indiana. November 26, 1881.)

1. EJECTMENT-NEW OR SECOND TRIAL AS A MATTER OF RIGHT UNDER THE STATE CIVIL CODE.

In proceedings to recover possession of real property under the Civil Code of Indiana, no one not concluded by the judgment is entitled, under the Code, (section 601,) to have the judgment vacated, and a new trial granted as matter of right, upon payment of costs, etc. Such right is limited to the party against whom the judgment is entered, his heirs, assigns, or representatives.

2. PLEADINGS-LAPSUS CALAMI-JUDGMENT-TEST OF-RECORD.

Where an amended complaint is filed, before answer, against a single defendant in substitution of a complaint originally filed against several defendants, upon which amended complaint trial and judgment are had, the mere mistaken or careless use of the plural "defendants" in the subsequent pleadings, and in the judgment for costs, does not conclude any one save the single defendant to the amended complaint. The judgment is to be tested by the whole record.

McDonald & Butler, for plaintiffs.

C. P. Jacobs, for defendants.

GRESHAM, D. J. The plaintiffs, Caroline M. Forsyth and Jacob Forsyth, her husband, commenced their action of ejectment in this court on the twenty-fifth of July, 1874, against Sylvaas P. Van Winkle, Richard Robinson, Charles Rose, James Lanagan, and John A. Smale, to recover possession of a large amount of real estate in Lake county, Indiana. Process was duly served on all the defendants.

On the seventeenth of December, and before appearance to the action, the plaintiffs filed, against the defendant Smale only, a separate complaint, embracing part of the lands described in the original complaint, and at the same time filed a separate complaint against the defendant Rose, embracing another part of the lands described in the original complaint. After these separate complaints were filed,—on the twentieth of January, 1875,—no answers having yet been filed to any of the complaints, the court ordered "that the said complaint against Smale stand as the complaint in this action, and that the complaint against Rose be docketed as a distinct and separate action," which was done.

To this complaint Smale filed a demurrer, which was overruled. On the thirtieth of June, 1876, it appears from the record that the "defendants" were ruled to answer. On the fourteenth of November, Smale answered the amended and separate complaint against him, and the general denial was filed for the defendants. The case was then put at issue on the special answer of Smale by a reply in general denial. The cause was heard before the court on stipulation of counsel, and the record shows that on the sixth of June, 1879, judgment was rendered for the plaintiffs against John A. Smale for the recovery of the land described in the amended complaint, and against all the

defendants for costs. On the seventeenth of March, 1880, on motion filed the day previous, an order was entered vacating the judgment, and granting a new trial under the statute as of right, the costs having been paid, and the death of defendant Smale was suggested. On the seventeeth of May, 1881, the plaintiffs entered a special appearance by counsel who had not heretofore appeared in the case, and moved the court to set aside the order vacating the judgment and granting the new trial, among other reasons because

(1) The motion for a new trial was not made by John A. Smale, nor by his heirs, assigns, or representatives, he being the only defendant against whom a judgment of ejectment was rendered, and that Smale had died between June 6, 1879, and March 16, 1880, to-wit, in September, 1879; (2) that the motion for a new trial does not disclose that any judgment in ejectment had been rendered.

It is urged, in opposition to the motion by counsel now for the first time appearing for defendants, that Smale's co-defendants occupy such a relation to the issue which was tried by the court as to be affected by the judgment, and that, therefore, they are within the letter and spirit of the statute, which allows the unsuccessful party a new trial as matter of right; that the application for a new trial was made for the benefit of Smale's heirs as well as his co-defendants; that the statute is remedial and should be liberally construed; and that the motion to vacate comes too late.

Section 601 of the Code provides

That the court rendering the judgment, at any time within one year thereafter, upon the application of the party against whom the judgment is rendered, his heirs or assigns or representatives, and upon the payment of all costs, and of the damages if the court so direct, shall vacate the judgment and grant a new trial.

Section 602 provides

That if the application for a new trial is made after the close of the term at which the judgment is rendered, the party obtaining the new trial shail give the opposite party 10 days' notice thereof before the term at which the action stands for trial.

After all the defendants had been served with process, and before any of them had appeared to the action, the plaintiffs filed an amended or separate complaint, embracing only part of the lands described in the original complaint, against the defendant John A. Smale alone. Shortly after this was done the court ordered that the amended complaint should thereafter stand as the complaint in the case. The controversy was thus limited to one between the plaintiffs and the defendant Smale, so far as the lands described in the amended complaint were concerned. No issue was tendered by the amended complaint to any one but Smale, and no rights of his co-defendants in the original complaint to the land described in the amended com