14 Del. 201 | Del. Super. Ct. | 1890
This case is before us on a writ of scire facias, sued by the executors of Josiah Bochroch, deceased, to obtain execution of an alleged judgment entered in this court
No facts other than those above set forth appear of record, or otherwise, in this case. To this writ of sci.fa. in behalf of said executors the defendant pleaded mil tiel record as his sole plea, but it was agreed by the counsel for the respective parties that in this controversy any defense may be urged which could be legally presented under any plea properly pleaded in this scire facias proceeding, and as effectually as if the same had actually been duly filed therein, and that the plaintiffs may avail themselves of any matter which could be properly replied to any such plea. It is contended by the defendant that upon inspection of the record it appears thereby that the said alleged judgment,, of which the plaintiff’s seek to obtain execution, was rendered in a suit commenced by a writ of foreign attachment in which there was nothing attached, and no service of process upon, or appearance by, the defendant; that consequently the court had no jurisdiction over either the person or the property of the defendant, and therefore that said judgment is a nullity, and no valid execution can be issued thereon either against the property or the-person of the defendant. The plaintiffs, on the other hand, contend that the record discloses a judgment rendered by a court of general jurisdiction, which cannot be controverted or impeached in a scire facias proceeding, or in any collateral action, but only in a-direct proceeding to have said judgment set aside by this court which rendered it, or reversed by an appellate tribunal.
In the application of the established rule that the verity of the record and the validity of the judgment of a superior court of general jurisdiction cannot be collaterally impeached, a distinction has been observed between the want of jurisdiction and the irregular or erroneous exercise thereof. Where it appears by the record itself that the judgment of such a court has been rendered without jurisdiction either of the subject-matter or of the person of the defendant, or in actions purely or quasi in rem of his property, such
But, however courts may have differed as to whether the record may be collaterally attacked where it asserts or is silent as to jurisdictional facts, it is now established, by the overwhelming weight of authoritative adjudications, that the judgment of a domestic court of record of general jurisdiction may be impeached and be regarded as a nullity in a collateral proceeding, if want of jurisdiction of the subject-matter or of the parties, ór of the res, in an action in rem, is manifest from an inspection of the record. To hold a judgment binding when the record disclosed a want of authority over the defendant would be to impeach, rather than to sustain, the absolute verity of the record; for as the court declared in Coit v. Haven, 30 Conn., 198: “If the want of jurisdiction is apparent on the record, it can be collaterally attacked, for then the jurisdiction is not presumed, or the presumption is repelled by the record itself, and the judgment is an absolute nullity if the want of jurisdiction in fact exists.” The adjudication supporting this view are very numerous : Coit v. Haven, 30 Conn., 190; Railroad Co. v. Weeks, 52 Me., 456; Ferguson v. Crawford, 70 N. Y., 253; Brickhouse v. Sutton, 99 N. C., 103, 5 S. E. Rep., 380; Adams v. Cowles, 95 Mo., 501, 8 S. W. Rep., 711; Furgeson v. Jones, 20 Pac. Rep., 842, (Oregon supreme court, 1888); White v. Manufacturing Co., 29 W. Va., 385, 1 S. E. Rep., 572; Wall v. Wall, 123 Pa. St., 545, 16 Atl. Rep., 598, Ex parte Sawyer, 124 U. S., 200, 8 Sup. Ct. Rep., 482; Settlemier v. Sullivan, 97 U. S., 444; Galpin, v. Page, 18 Wall., 350; Freem. Judgm., § 116.
Where a judgment of a domestic court of record of general
We now proceed to the consideration of the record produced in the case before us, in order to determine whether or not the original judgment rendered therein was a nullity, as the defendant contends, for want of the jurisdiction essential to its validity, apparent upon the face of the record itself. The record primarily discloses that said judgment was rendered in a suit commenced by a writ of foreign attachment, founded upon an affidavit that the defendant was a non-resident of the State, and after the sheriff's return of nulla bona thereon. It therefore appears by the record itself that this court, when it rendered said judgment, had no jurisdiction of either the property or the person of the defendant. That it had no jurisdiction of his property is expressly shown by the sheriff's return. That it had, and could have, none of his person appears by
We must therefore conclude, in view of the legal principles and authorities heretofore referred to, that want of jurisdiction is manifest upon inspection of the record produced in this cause; that for this reason the original judgment was an absolute nullity, either as a judgment in rem or in personam; that it'could not be the basis of a valid execution or other proceeding for its enforcement; and that want of jurisdiction manifest upon inspection of the record of the judgment of a domestic court of general jurisdiction is a proper defense to scire facias or other kindred proceeding for reviving and executing such a judgment, and may be taken ad vantage of under the plea of nul tiel record.
But the plaintiff contends that, although this be so, yet since the record also shows a scire facias on this alleged judgment, a service thereof upon the defendant, and a subsequent judgment against him under said scire-facias, the defendant in the present and second scire facias cannot now take advantage of the want of jurisdiction manifest upon inspection of the record of the original
The default of the defendant to plead to the sdre facias, and show the want of jurisdiction apparent of record against the orig- . inal judgment, cannot be held to be such an admission to the con
Upon examination of all the cases cited in behalf of the plaintiff to the contrary, it will be found that in none of them was want of jurisdiction at the rendition of the original judgment urged as a defense to the sdre facias. The proceeding upon the present alias scire facias is not taken for the purpose of reviving and obtaining execution of the judgment rendered on the first scire frcias, but of the original judgment, which, according to the general current of authority, is not merely voidable, but absolutely void, and cannot be made the basis of a valid execution, nor be revived for that purpose by scire facias or any other proceeding whatsoever. Hence,
Paynter, J., concurred. Comegys, C. J., did not sit, as he was counsel in the original case.