Citation Numbers: 23 S.E. 976, 118 N.C. 33
Judges: AVERY, J.
Filed Date: 2/5/1896
Status: Precedential
Modified Date: 1/13/2023
The basis of the application to rehear and reverse the former ruling of this Court (
In discussing the contention that such judgments as that rendered in the special proceeding are liable to collateral attack, the Supreme Court of Texas gives its sanction to the principle upon which the former opinion in this case rests, as follows: "This [the rule that judgments cannot be collaterally impeached] cannot be universally true, because in the case of an administration upon the estate of a living man the court necessarily determines that the man is dead, and yet the man may be shown to have been alive at the time of (43) the judgment, and in such case although every step in the proceeding by which the man's estate is sold may have beentaken with the most perfect regularity, and although the purchaser buys in good faith, no title passes or can pass." Withers v. Jackson,
"Jurisdiction," said the Supreme Court of Illinois, in Thomas v. People,supra, "in the general and most appropriate sense of that term, as applied to the subject-matter of a suit, is always conferred by law, and it is a fatal error to suppose the power to decide in any case rests solely upon the averments of a pleading." Quoting from Melia v. Simmons,
In enumerating the classes of cases in which decrees of probate courts are utterly void and those where the court has jurisdiction of the subject-matter, but by some mistake issues letters testamentary irregularly or illegally, the Court of New Hampshire classified our case among those void for want of jurisdiction. "So," said the Court, "where a will is proved or letters granted, when the person supposed to be dead is still living, the powers of the courts (44) being limited to the estates of deceased persons." Morgan v.Dodge,
In the case of Scott v. McLean, supra, the only question presented was whether the alleged intestate was bound by the probate proceeding to which his heirs were parties and in which the court had found that he was dead, when he appeared in person before the court, and of course it was only adjudged that he was not estopped from denying the title of the purchaser under a decree to sell his lands for assets. But on page 43 the Court said: "The absolute nullity of administration granted upon the estate of a living person has been directly *Page 26
adjudged or distinctly recognized in the courts of many other States." The second authority cited in support of the proposition was S. v.White,
No man can put himself in the place of the sovereign and make the adjudication of a court valid by ratifying an unauthorized exercise of power by its agent when the law of the land, which is the agent's power of attorney, declares that the court has no authority to render the judgment. It was upon this principle that this Court, in S. v. White,supra, allowed the obligor upon the plea of the general issue to show that the alleged intestate of the plaintiff to whom letters of administration had been issued was alive when the letters were granted. If he was alive the subject-matter was wanting and there was no jurisdiction in the probate court. This Court may be supposed to have known that the facts in London against Railroad were not such as to make it direct authority to support this principle, but it is authority to show that the Court there (
Upon examination it will be found that this distinction has been followed by all text writers and all the appellate courts of this country that have had occasion to discuss the subject, with the single exception of the Court of New York, which rests its ruling, as has been stated, upon the peculiar provisions of the Code of that State.
This Court, in Collins v. Turner,
The distinction which seems to have been overlooked by the petitioner in this case is that, while none but parties are bound by a decree, and while the want of actual service may be waived, a judgment where there is want of jurisdiction of the subject-matter is void as to all persons, and consent of parties can never impart to it the vitality which a valid judgment derives from the sovereign State, the court being constituted by express (47) provision of law its agent to pronounce its decrees in controversies between its people. S. v. White, supra.
It seems needless to pile up other authorities to sustain the proposition that where a court rests its right to jurisdiction of the subject-matter upon a grant of power to deal with the estates of dead men, its decrees are absolutely void when the administration is by mistake upon the effects of a living person. Yet it is respectful to notice and follow the line of the argument on behalf of the petitioner, and to discuss the leading authority relied upon to support his contention. The Supreme Court of Washington rested its decision in Scott v. McNeill upon the New York case, cited for the petitioner, but the Supreme Court of the United States on appeal pronounced it, as we have stated, insufficient authority. The Court of Washington also held that the judgment was good even against the alleged intestate on his reappearance, on the ground that the probate court was required to find that a person was dead before the grant of letters, and the proceeding was therefore in effect one in rem, but this reason was also declared wholly insufficient. The Court, in Scott v. McNeill, laid *Page 28 down the proposition (p. 46) that "to give such proceeding any validity there must be a tribunal competent by its constitution — that is, by the law of creation — to pass upon the subject-matter of the suit." The Court go on to say (p. 47) that the death of the owner of an estate is "a fundamental prerequisite to the exercise by the probate court of jurisdiction to grant letters testamentary or of administration upon his estate, or to license any one to sell his land for the payment of his debts." If the death was a fundamental prerequisite to the exercise of jurisdiction, it was because, until the death (48) occurred there was no subject-matter. If there was no jurisdiction for the want of authority over the subject-matter, the decree was void, and consent or acquiescence in the decree could not impart vitality to it so as to estop any one. Grant that the precise application of the governing principle had never been made before the decision of this case, still, if a court cannot render a valid judgment without jurisdiction of the subject-matter of the action, and nothing but a valid judgment will operate as an estoppel upon any one, it would seem that this Court might safely rest its opinion upon principle without waiting to find a precedent. It is preferable always to rely rather upon a substantial reason or a fundamental principle than upon an ill-considered precedent, but, in fact, the research of counsel has not enabled them to find a single authority in conflict with the opinion which they ask the Court to modify.
The reasoning of the petition rests upon the idea that the same rule as to the binding effect of judgment is applicable where there is a defective service on some of the persons interested, as where there is a want of jurisdiction of the subject-matter; and the petition is based upon a false construction of section 364 of 1 Herman on Estoppels, where the author is treating the questions of personal service. In the succeeding section (365) the same writer explains that where there is no service at all, the judgment is void and subject to collateral attack, but "if the court to which the process is returnable adjudges the service to be sufficient and renders judgment thereon, such judgmentis not void, but only subject to be set aside by the court which gave it, upon reasonable and proper application or reversed upon appeal. The rule, therefore, deducible from the authorities (says the same author in the section referred to) may be thus stated: (49) Where jurisdiction is acquired no irregularity in the mode of exercising it can affect the judgment when collaterally attacked," etc. The foregoing quotation shows as plainly as it is possible to prove it that the author relied upon to sustain the petition to rehear was in the very section cited, discussing a finding by a court, not that it had jurisdiction of the persons of the parties when no *Page 29 service at all had been made, but a finding where the service was only apparently irregular, that there had been in fact no defect.
But the section relied upon is authority for the position that a void judgment is not protected from collateral attack and works no estoppel even on a party to the proceeding in which its purports to have been rendered. The same author (1 Herman, section 364) says that the necessary elements of a good plea of res adjudicata are not only that there should have been a final judgment between the same parties for the same cause of action, but "the principal element is that it must be a valid judgment. That is, it must be rendered by a court legally constituted, having jurisdiction of thecause and the person. Without jurisdiction there is no validity or vitalityto the judgment. In order to give validity to a judgment of a court there must be jurisdiction of the cause and of the person."
The question here is whether the judgment operated as an estoppel upon the heirs because of the declaration and finding of the court that their ancestor was dead, when he was in fact alive, and because they did not appeal from that finding and have it reversed or institute a direct proceeding to set it aside. The author relied upon, as appears from citations already made, declared that such findings are conclusive as to the fact of service, when collaterally attacked, not where there was no service and no jurisdiction of the person at all. Of course, the inference would be, if nothing further appeared, (50) that no such finding could give jurisdiction of the subject-matter because it set forth that a live man was dead, any more than would the finding that service had been had on a party, when no process had been issued against him. But Herman does not leave us to conjecture or to determine by reasoning upon principle what are his views upon this subject. In section 65 he says: "Jurisdiction isgiven by law and cannot be conferred by consent of the parties; but a privilege defeating jurisdiction may be waived if the court has jurisdiction over the subject-matter. Jurisdiction must either be of the cause, which is acquired by exercising powers conferred by law overproperty within the territorial limits of the sovereignty or of the person, which is acquired by actual service of process or personal service on defendant." This is the well-established doctrine that a person may waive the right to demand personal service of process on him because it is a question affecting only his personal rights, and the adjudication of a court that there was no irregularity in service is deemed, prima facie only, to be correct.
In stating what is essential in order to give conclusive effect to a judgment, Bigelow in his work on Estoppel, p. 57, says: "In the next place the judgment must have been valid. If for want of *Page 30
jurisdiction or for any other reason it was void, it will have no effect, though it was otherwise, as we shall see, if it was only voidable" (citing the opinion of Judge Cooley in Nixon v. Stevens,
If it were necessary numberless authorities might be added in support of the propositions: (1) That a judgment is void, not voidable, if the court has no jurisdiction of the subject-matter of the action; (2) that where a judgment is invalid for want of jurisdiction of the very subject-matter, its authority over which must be derived from a grant from the sovereign State, the assent or the (52) neglect of a person cannot confer on it the power which the State has failed to vest in it, though a person may thus waive the assertion of his rights of a purely personal nature; (3) that a judgment void for want of jurisdiction of the subject-matter cannot conclude any person, whether a party or stranger to the proceeding. This position is sustained by the authorities cited by Bigelow and referred to above, if it be necessary to cite additional authority to prove that *Page 31 there is no estoppel without jurisdiction, and that no individual can exercise the power of the government to give jurisdiction where the law does not confer it, and thereby estop himself, when every other person is left at liberty to plead in avoidance the want of authority in the court.
Upon the former hearing, as upon the rehearing, the conclusion of the court rests upon the two plain propositions, that the judgment in the special proceeding was void for want of power in the court to exercise jurisdiction over the estate of a live man, and the deduction from it that, being void, it worked no estoppel.
If additional reasons are necessary to sustain the opinion on the former hearing, the acknowledged test of the conclusiveness of a decree upon a party in such cases may be applied, and would be involved in the question whether the purchaser through whom the plaintiff claims and by reason of his privity with whom he insists that the heirs of Dixon and their assignees are concluded, would have been estopped by the finding from paying the amount of his bid (30 dollars) had he discovered before payment that Dixon was alive. Estoppels must be mutual, and in order to operate mutually in this case, the decree must have been conclusive as to the very finding insisted upon, both on Windley the purchaser and the heirs of Dixon. This is an action for possession, in which the question whether the purchase-money paid by Windley shall be restored is not (53) raised, and cannot be considered. The heirs of Dixon, who were sui juris, might have waived personal service and given the court jurisdiction of their persons, but they could no more impart the vitality which is essential to the operation of the doctrine of estoppel to a judgment rendered against a live man under authority applicable only to decedents than they could confer any other authority which the Constitution empowers the Legislature "to allot and distribute" among other courts prescribed in the Constitution, or which may be established by law. Constitution, Art. IV, sec. 12.
If it had appeared upon the record that George W. Dixon was alive when the special proceeding was instituted and when the decree of sale was granted, the judgment would have been pronounced a nullity without proofaliunds that he was not dead. There is no sufficient reason to adopt the suggestion of the petitioner and modify the proposition to this effect in the former opinion of the court.
Petition Dismissed.
Springer v. . Shavender , 116 N.C. 12 ( 1895 )
Garrison v. . Cox , 95 N.C. 353 ( 1886 )
City of Dothan v. Holloway , 501 So. 2d 1136 ( 1986 )
Kim Poo Kum v. Sugiyama , 33 Haw. 545 ( 1935 )
Jones v. Brinson , 238 N.C. 506 ( 1953 )
Clark v. . Homes , 189 N.C. 703 ( 1925 )
Reynolds v. . Cotton Mills , 177 N.C. 412 ( 1919 )
Carter v. . Lilley , 227 N.C. 435 ( 1947 )
Chamblee v. . Bank , 211 N.C. 48 ( 1936 )
Fann v. . R. R. , 155 N.C. 136 ( 1911 )
Bernhardt v. . Brown , 119 N.C. 506 ( 1896 )
Dependents of Thompson v. . Funeral Home , 205 N.C. 801 ( 1934 )
Steele v. . Insurance Co , 196 N.C. 408 ( 1928 )
High v. . Pearce , 220 N.C. 266 ( 1941 )
Batchelor v. . Overton , 158 N.C. 395 ( 1912 )
Reid v. . Reid , 199 N.C. 740 ( 1930 )
Trimmer v. . Gorman , 129 N.C. 161 ( 1901 )