Foster v. Glazener, 27 Ala. 391

Foster v. Glazener

27 Ala. 391 | Ala. | 1855

CHILTON, C. J.

The proceedings in the State of Georgia, to supply evidence of the lost note, predicated, as they were, upon the ex parte affidavit of the appellant, and without notice to the appellee, cannot be assimilated to proceedings upon original attachments, where the lands or personal property of the defendant are seized, and are considered in custody of the law, in lieu of the person of the debtor; and, to that extent, are analogous to proceedings in rem. Here, the court had neither the person, nor the rem, in custody.

It is a well-settled principle of international law, that every attempt on the part of one nation or State, by its legislation, to grant jurisdiction to its courts over persons or property not within its territory, is regarded elsewhere as mere usurpation ; and all judicial proceedings, in virtue of it, are held utterly void for every purpose. This proceeds upon the known maxim, “Extra territorium jus dicenti impune non paretur.”— Story on Conflict of Laws, 449, § 539 ; 2 Vattel, b. 2, ch. 8, § 84 ; 2 Phil. Ev. (Cow. & H.’s Notes,) 2d ed., p. 907, note 637, and cases there collected. In the case before us, it does not appear from the record that the court of Georgia obtained jurisdiction of either the person or property of Glazener.

But it may be said, that the Superior Court of Georgia is one of general jurisdiction, and every intendment is to be made in favor of the jurisdiction of such court, and of the regularity of its proceedings ; that its proceedings are to be deemed valid, until its jurisdiction is disproved by the party resisting them. This proposition may be conceded, and yet the appellant can take no benelit from it, for the reason, that *397although the court is one of general jurisdiction, its powers respecting the subject-matter of adjudication are special and limited ; and in respect of such extraordinary jurisdiction, which is in derogation of the common law, and -summary in its character, the court is placed upon the same footing with a court of-special and limited jurisdiction.- — Thatcher v. Powell, 6 Wheat. R. 119-127; Phil. Ev. (C. & H. Notes), 2d ed., vol. 2, p. 906, note 687 ; Cone v. Cotton, 2 Blackf. R. 82. Whyte, J., in Eartkman v. Jones, 2 Yerg. 498, said,- — -“Where a statute prescribes a new proceeding, either unknown to the common law, or contrary thereto, the statute, so far at least as those parts of it essential to jurisdiction are concerned, must be not only proved, but shown to have been strictly pursued, or the proceeding will be a nullity.” — See 10 Wend. 75; 1 Mass. 103 ; 2 East, 221. Such, also, is the uniform doctrine' of this court, as is shown by the numerous decisions upon summary remedies, in favor of banks, &c.

By the statute law of Georgia, the Superior Court has power and authority given it “ to -establish copies of lost papers, deeds, or other writings, under such rules and precautions as are or may have been customary and according to law and equity”’ What were the rules and precautions which were customary, and which accorded with law and equity? We are not informed by this record. It is clear that no person ought to be bound by any judicial proceeding, to which he was neither a party nor privy, and against which he had no opportunity afforded him to defend. This would be against the course of the common law; and if any statute existed, contravening this provision, or any rule, authorizing the court to proceed in a matter so vitally affecting the interest of a party, without notice, or upon publication, the statute, or rule of court, should have been shown ; otherwise we must presume the common law obtains, and hold the proceeding void for want of jurisdiction of the person. We cannot, from this record, ascertain what the local law was, which prescribed the mode of procedure; and hence are unable to see that the law has been pursued. Tested by the law which we must presume applied, the proceedings are void for want of notice. Borden v. Fitch, 15 Johns. R. 141; Andrews v. Montgomery, 19 ib. 162; Bissell v. Briggs, 9 Mass. R. 467 ; Shunway v. *398Stillman, 4 Cow. R. 294-5; ib. 524. The ¡Dleadings in an action are governed by the dignity of the instrument on which it is founded. If it be a record, conclusive between the parties, it cannot be denied, except upon the plea of nul tiel record.— Mills v. Duryee, 7 Cran. 431. But we have seen that such is not the effect of this record. It is available for no purpose whatever.

It follows from what we have said, that the court below did not err in the several rulings excepted to. The defendant could show, under the general issue (nil debet), that the court had no jurisdiction to render the judgment or decree (Bissell v. Briggs, 9 Mass. R. 462 ; Stephens v. Gaylord, 11 ib. 266; 4 Cow. R. 324) ; and being allowed to go behind the record, he could plead any plea going to the consideration upon which it was predicated.

Ordinarily, a plea to a judgment of a sister State, averring that the defendant was without the jurisdiction of the court and had no notice, should go further, and state that he did not appear to the action; for, notwithstanding he may have resided out of the State where the judgment was rendered,, and have had no legal notice, he may nevertheless, by himself, or counsel, havo appeared to the action. We apprehend, however, that this applies to cases where the record shows , that the court had jurisdiction of the person. Here, the contrary is shown, unless we can presume that publication of the object of the motion to supply the lost note is equivalent-to service: which we cannot do, in the absence of proof showing such to be the law of Georgia.

It is unnecessary that we make a more specific application of the principles settled above to the rulings of the court. They were predicated upon the idea, that the record was mere waste paper ; and so we regard it. We cannot, therefore, set aside the nonsuit.

Judgment affirmed.