99 Mich. 161 | Mich. | 1894
This is an action upon a judgment obtained in favor of the plaintiffs and against defendant in the common pleas division of the. high court of justice for the province of Ontario. There was no service of process on the defendant in the original suit made within the province of Ontario. A summons was served in Glad-win county, in this State.
“And the said defendant having appeared and having ■ filed and delivered a statement of defense to the action, and it having been ordered by an order of the master in chambers dated the 19th day of December, 1892, on the application of plaintiffs, that the said statement of defense should be struck out, and that the plaintiffs should be at liberty to proceed in this action as in case of default of a statement of defense.”
The plaintiffs contend that the appearance gave the court jurisdiction of the case as completely as would an actual service of process within the jurisdiction of the court. On the other hand, it is contended that the record shows that the court denied the right of the defendant to be heard, and that for this reason he is not concluded.
It is well settled that the appearance of a defendant supplies the place of personal service, and that a defendant who has appeared generally in a proceeding before a court having general jurisdiction of the subject-matter cannot afterwards be heard to question the jurisdiction of the court, when its judgment based upon such appearance is in question. See Black, Judgm. § 225; Manhard v. Schott, 37 Mich. 235; Corbitt v. Timmerman, 95 Id. 581; Cofrode v. Circuit Judge, 79 Id. 339. In the present case there was such an appearance. The jurisdiction of the Canadian court became complete.
Was the court divested of its jurisdiction by the order dismissing the statement of defense? We think not. One
The case of Windsor v. McVeigh is cited in Black on Judgments (§ 226) with the comment that — *
“This doctrine derives some support from the cases holding that opportunity to be heard is absolutely essential to the guaranty of 'due process of law/ Nevertheless, for the reasons stated in the beginning of this chapter, in defining 'jurisdiction/ we are not convinced that irregularities in the action of the court, even so gross as those mentioned, can properly be said to deprive it of all jurisdiction, and make its decision a mere nullity.”
We think, however, that it may well be said that thé action of the court in striking out the appearance of the defendant in the proceedings involved in Windsor v. McVeigh was more than an irregularity, and amounted in effect to a nullification of the previous order of the court for a citation by notice, — the only process by which the court cpuld, in the absence of an appearance, have obtained jurisdiction. We see no reason to question the correctness of the holding in Windsor v. McVeigh. But we agree with the writer of the text that, jurisdiction having been obtained, any irregularity in the action of the court, however gross, does not render the decision a nullity.
In Carolan v. Carolan, 47 Ark. 511, it was held that the rendering of a judgment by a justice of the peace without proof, or the striking out of defendants answer for want of verification, and refusing to let him defend for want of a verified answer, are not errors rendering the
The judgment of the circuit court will be reversed, and a judgment entered in this Court upon the findings in the sum of $4,639.23, with interest from the 21st day of June, 1893, and with costs of both courts.
See Howard v. Coon, 93 Mich. 442.