Kitchen v. Strawbridge , 4 Wash. C. C. 84 ( 1821 )

WASHINGTON, Circuit Judge.

In the case of Harrison v. Rowan [supra], it was decided that a citizen of a state where the suit is brought may sue a citizen of another state, and that such a suit would be within the jurisdiction of the court, both by the terms of the constitution and of the judiciary act of 1789 [1 Stat. 73]. But if the defendant is not a resident of the state where the suit is brought, he cannot be served with process out of that state; although he would be subject to the jurisdiction of the court, in case he should happen to be served with process within that state. That the exemption from being served with process out of the state, is a privilege, and nothing more; which the defendant may waive by entering an appearance to the suit, though he was not actually served with process. In that case, Harrison resided in New Jersey, where the suit was brought, and RoMun in Pennsylvania which was a case precisely within the jurisdiction of the court; but Rowan employed a solicitor, who entered his appearance to the suit, which the court decided to amount to a waiver of this privilege. But that is a very different case from the present. Here, Kitchen was a citizen of Georgia, and Sullivan a citizen of Massachusetts, and they are so described in the declaration. Neither of the parties then were citizens of this state, where the suit was instituted, and, consequently, no consent of Sullivan, or appearance entered for him, could give jurisdiction to this court The case would not have been more favourable to the jurisdiction if Sullivan had been served with the process in this state. All the eases cited support this distinction.

2. If then there is not jurisdiction of this cause, so far as Mr. Sullivan is concerned, can the court set aside the judgment for that reason? I admit that a record implies entire verity, and that it cannot be contradicted upon a writ of error, or in a collateral action •founded on it. How far the court, in a case where the judgment is entered upon a warrant of attorney, in an amicable action, entered by agreement between the plaintiff and one of the defendants, may inquire into facts to show that the judgment was entered by fraud, mistake, or want of authority to bind a third person, not party to the agreement, and may grant relief by setting aside the judgment; is a question unnecessary now to be decided. Because in this case the suit is still open and depending in the court, the judgment quod computet being merely interlocutory, from which no writ of error will lie: and,' consequently, the proceedings are under the control of the court, and are open to amendments and corrections. The rule for setting aside the judgment against Mr. Sullivan, must be made absolute.