Eaton v. Badger , 33 N.H. 228 ( 1856 )

Fowler, J.^*

The first question in this case relates to the validity of the judgment against Horatio Hill, upon which the execution issued whereon the levy was made under which the petitioner claims title. If that judgment be void, the suit must fail.

It appears from the agreed statement of facts, that Horatio Hill resided without the State, being described in the writ as of the city of New-York; that there was no attachment of his property, and no service of the process upon him; that he never appeared in the suit, nor waived any of his rights, nor was ever in any way personally notified of the pendency of the action. Two trustees were summoned, one of whom was discharged without cost upon the back of the writ, probably before the entry of the action. The action was entered September term, 1838, and continued from term to term until March term, 1840, when the other trustee was discharged, and judgment rendered against the principal defendant, for debt and costs. The only pretence of notice to the principal is the publication of an order of notice in the New-Hampshire Statesman, in compliance with an order of court at the September term, 1838.

The writ against Hill was commenced and prosecuted solely under the provisions of the act of July 3,1829, entitled “ An Act directing the proceedings against trustees of debtors,” in force at the time. Laws of 1830, page 499. The first section of that act provides that where any person has in his possession money, goods, chattels, rights or credits of any debtor, he “ shall be deemed and taken to be the trustee of such debtor,” and process may issue against him as prescribed in the act. If the principal debtor be not an inhabitant of this State, and no personal service he made on him, the subsequent proceedings shall be the same as provided in other cases against defendants not inhabitants or residents of the State where property has been attached and no personal service made. One of these modes was by the publication of a notice in some newspaper printed in this State. Laws of 1830, page 93, sec. 14.

It is apparent, from the phraseology of this section, that where the debtor is not an inhabitant of this State, and no property is attached on the writ, and no personal service is made on him, the validity of the entire proceedings by trustee process, and the jurisdiction of the court itself, is made to depend on the fact whether or not the alleged trustee has the money, goods, chattels, rights or credits of such debtor in his possession. That fact is essential to give the court jurisdiction, when there is no service on the debtor, if no property be attached. The process is authorized only upon condition that the trustee has the funds of the debtor in his possession. If there be nothing in his hands, and no service of process upon the debtor, there is no. subject matter on which the jurisdiction of the court may be exercised, and it would follow as a matter of course that the proceedings must fail. This would be the necessary consequence, were there no other or further provisions upon the subject. But, as if to remove all possibility of doubt, the 5th section of the act of 1829 expressly provides that if there shall be found to have been nothing in the hands of the supposed trustee, he shall have judgment for his costs, “ and no further proceedings upon such process shall be had against the principal debtor, unless such debtor shall have been duly served with such process, or shall have actually appeared and answered in such suit.” Hill never actually appeared and answered in the case before us, and there can be no pretence that he was ever duly served with the process. Those words have a clear, well-defined and well-understood meaning, applicable only to the service of process in some mode prescribed by statute, entirely independent of the exceptional cases of notice ordered by the court.

The judgment against Hill in the original suit, then, under a levy upon the execution issuing, in which the petitioner claims title, was not only rendered without any-jurisdiction of the person or property of the defendant — which fact is apparent on the face of the record, and therefore void to all intents and purposes, as being illegal and wholly unauthorized — but it was rendered in express violation of the positive enactment of the very statute under which all the proceedings were had. It was not only unauthorized by law, but rendered in violation of its express provisions. Such a judgment is utterly void, a mere nullity. It is void against every body and for every purpose.

If judicial tribunals proceed to act in cases to which their authority does not extend, their proceedings are merely and absolutely void. Their want of legal authority cannot be supplied. State v. Richmond, 6 Foster 240, and authorities.

A judgment rendered by a court which has not jurisdiction, is entirely void, and may be impeached collaterally or otherwise. To such a judgment, the principle that where proceedings have been regularly commenced before a court of competent jurisdiction, they are to be regarded as valid until they are reversed or set aside on motion, if irregular, or on error or appeal, if erroneous, has no application. Morse v. Presby, 5 Foster 303, and authorities there cited.

Where a court of general jurisdiction has special and summary powers and proceedings wholly derived from statutes, not exercised according to the course of the common law, and which do not belong to it as a common law court of general jurisdiction, its judgments are to be regarded and treated like those of courts of limited and special jurisdiction, and everything necessary to give jurisdiction must appear by the record, while everything will be presumed to be without the jurisdiction which does not distinctly appear by the record to be within it. Morse v. Presby, 5 Foster 302.

If a court act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal, in opposition to them, nor any foundation for a title claimed under them. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered in law trespassers. This distinction runs through all the cases on the subject, and it proves that the jurisdiction of any court exercising authority over a subject, may be inquired into in every other court where the proceedings of the former are relied on and brought before the latter by the party claiming the benefit of such proceedings. Elliot & als. v. Piersol als., 1 Peters 340. See, also, 5 Peters 758; 13 Peters 511; 3 Howard 762; Webster v. Reid, 11 Howard 451, 452, and authorities cited.

The judgment being void, the levy and all the proceedings under it are void likewise, upon general and familiar principles. 4 Kent’s Com. 436, n. a; 4 Cowen & Hill’s Phil. Ev. 792, and authorities; Smith v. Saxton, 6 Pick. 487; Downs v. Fuller, 2 Metcalf 135; Leonard v. Bryant, 11 Metcalf 372.

The judgement and levy, therefore, upon which alone the petitioner relies to maintain his title, proving to be mere nullities, his claim to the premises described in the petition utterly fails, and it is wholly unnecessary and would be a work of supererogation to discuss and decide the many other ingeniously argued questions that might have arisen, had the petitioner established any foundation upon which to stand. The petitionee, being in possession of the premises, is not bound to show any better title until some valid claim is brought against him.

Petition dismissed.

* Chief Justice Peblet, having been of counsel, did not sit.