Dozier v. Richardson, Hartsfield & Co.

By the Court.

Benning, J.

delivering the opinion.

The Court below charged the jury as follows; “ The facts recited in the order making Dozier a party, is evidence and cannot be controverted, except for fraud. If the order recites, that a scire facias was issued and served, these facts are to be taken as true.” Was this charge right?

It is no doubt true, that a judgment rendered against a man, by a Court that has jurisdiction to render it, is conclusive against him, if not obtained by fraud. But does a Court have jurisdiction to render judgment against a man who has never had notice, of the suit, and who does not appear to the suit ? Most certainly, not.

Can it get this jurisdiction, by falsely reciting, in some proceeding in the suit, that the man was notified of the suit, or that he appeared to it ? Nobody will say so.

But we have to say so, in effect, if we say, that such recitals are conclusive on the man. This must be manifest.

It follows, then, that we cannot say so.

“ A want of jurisdiction in the Court pronouncing it,” (any judgment,) “may always be set up when it is sought to be enforced, or when any benefit is claimed under it; and the principle which ordinarily forbids the impeachment or contradiction of a record, has no sort of application to the case.” Note 551 to Phill. on Ev., see cases there cited; and see the Marshalsea’s Case, 10 Coke, 76.

We think, then, that a judgment reeiting, that a party was served with process, is not conclusive, but only prima faciet evidence that he was so served. And, therefore, we think, that the charge above quoted, was erroneous. We thinky that Dozier had the right to prove, if he could, that the scire facias was not served on him, and that no one had authority to appear for him, notwithstanding any recital in the order making him a party.

Of course, we intimate no opinion as to the sufficiency of the evidence introduced by Dozier.

New trial granted.