Blanton v. Carroll , 86 Va. 539 ( 1889 )

Lacy, J.,

delivered the opinion of the court.

This suit was by bill in chancery against Nancy T. Blanton and her children, William D. Blanton and others, to subject their real estate in the hill named to the lien of a judgment recovered against B. W. L. Blanton and Haney T. Blanton, in 1867, by the appellees. The suit was instituted at Jaw, upon the bond of the said B. W. L. Blanton and H. T. Blanton, for $761 08. The original writ or summons was issued against B. "W. L. Blanton alone, and served by the sheriff upon him only, as appears by the original summons copied in the transcript, here seen and inspected by this court. Judgment was rendered against “ the defendants,” and, both names appearing to the bond and being set forth in the declaration, a writ of fieri facias was issued in June, 1870, but this was never delivered to any officer, and upon it, therefore, there was no return. In June, 1880, a writ of scire facias was sued out to revive the judgment. The summons in the chancery suit to enforce this judgment was not served upon the said Haney T. Blanton, and in the progress of the cause, the appellants, the children of the said Haney T. Blanton, filed their bill, and obtained an injunction, which is not copied in the record. A bill was subsequently filed by the same parties, and an injunction obtained. But at the hearing at the April term, 1888, the circuit court dissolved the injunction, and decreed the sale of the real estate of Haney T. Blanton to satisfy the judgment recovered against her, without notice or other process. From this decree the case was brought to this court by appeal.

It is conceded that if in fact no°process was served upon the said Haney T. Blanton, and that if she had no notice of the proceedings against her before judgment was rendered, the circuit court acquired no jurisdiction of her person; that the judgment was void, and may be disregarded wherever attacked, whether collaterally or otherwise. But the claim of the judgment creditor is that, as the circuit court is a court of general jurisdiction, its jurisdiction will be presumed in favor of its judgment, and that its record cannot he assailed collaterally. It is true that everything will be presumed in favor of the judgments of courts of general jurisdiction unless plainly beyond the jurisdiction of the tribunals from which they emanate, which appears upon the face of the record itself: as when the subject-matter affected is without the jurisdiction of the court.; as when the circuit court should render judgment upon a note for the payment of a sum under $20, or against a defendant who appears by the record not to have been served with notice of the proceedings, and to have been proceeded against, without legal process. When the record shows in any court, whether supei’ior or inferior, that the court has proceeded without notice, any presumption in its favor is at an end, and it may not only be reversed as erroneous, but be impeached and set aside collaterally as void. Foster v. Glazener, 27 Ala., 391; Moore v. Starks, 1 Ohio St., 369; Hollingsworth v. Barbour, 4 Pet., 475. The rendition of a judgment against a party not before the court in any way will be as utterly void as •though the court had undertaken to act when the subject-matter was not within its cognizance. Borden v. Fitch, 15 Johns., 121. This is the rule with reference to all courts, with only this difference: that the jurisdiction of a superior court will be presumed until the contrary appears, whereas an inferior court, and those claiming under its authority, must show' that it had jurisdiction. Propst v. Meadows, 13 Ill., 157. An interesting case upon this question is the case of Underwood v. McVeigh, 23 Gratt., 409. See, also, Lancaster v. Wilson, 27 Gratt., 624; Fairfax v. City of Alexandria, 28 Gratt, 16; Connolly v. Connolly, 32 Gratt, 657; Gray v. Stuart, 33 Gratt, 351. In this case the original process is filed, and the return thereon, and from these it appears that, the said Haney T. Blanton was not included in either. This is sufficient to reverse the decree complained of. There are several other assignments of error equally fatal to the pretensions of the appellees. However, as this is fatal, and cuts at the root of their claim, and renders the judgment relied oá void—a mere nullity—it is not necessary to consider them at length. It is, however, claimed by the appellees that no notice was given of the intention of the appellants to appeal, and that the appeal should be dismissed under section 3457 of the Code of Virginia. But an inspection of the record shows that the decree complained of was rendered before the said section had the force of law, and the said section, subsequently enacted, has no application to this appeal. ~We are, therefore, of opinion to overrule this motion. And the decree complained of appearing to be erroneous, for the reasons stated above, the same is reversed and annulled.

Decree reversed.