Gilmer v. Bird, 15 Fla. 410

Gilmer v. Bird

15 Fla. 410 | Fla. | 1875

WESTCOTT, J.,

delivered the opinion of the court.

"Section 9 of the Declaration of Eights, contained in the 'Constitution of this State, provides that no person shall be deprived of life, liberty or property without due process of law. Section 2 of Article 6 of the Constitution provides that “ the style of all process shall be c The State of Florida.’ ” The term, process, as used in these two sections, has ■not the same signification. In the first it is used in a large ■and comprehensive sense. In the second it is used in its most restricted and limited sense. Says Baron Comyn, “ Process, in a large acceptance, comprehends the whole .proceeding after the original and before judgment, but gen•erally it imports the writs which issue out of any court to bring the party to answer, or for doing execution and all ■process out of the King’s Courts, ought to be in the name -of the King. It is called process because it proceeds or goes out upon former matter, either original or judicial.”

The cases in which the terms, due process of law, have been defined, are various in their nature, and the definition *422in each case has been, to some extent, controlled by the nature of the subject undergoing judicial investigation. As applied to judicial proceedings the meaning is, “ that every citizen shall hold his life, liberty, property and immunities under the protection of general rules which govern society. By due process of law is most clearly intended the general law which hears before it condemns, which proceeds upon enquiry and renders judgment only after trial.”

This clause does not prohibit the Legislature from establishing a general rule of practice by which notice of the institution of an action may be given by an attorney or party. It has never received such a construction by the courts. Where such an' enactment is general and applies to all actions and to all individuals, as is the case of the Code, such notice by an attorney is in conformity to the law of the land, and a judgment depriving a party of his property after such notice is, in.contemplation of law, a deprivation by due process of law. Whether the notice given by the attorney be process or not, it is, for the reasons given, within the power of the Legislature, so far as this clause is a ' limitation, to authorize notice to be given in this manner.

It is contended that such summons as is authorized by the Code is process within the meaning of the constitutional provision, which requires the style of all process to be “ The State of Florida;” that in this case the summons ahd no such style; that this was essential to the validity of the judgment, there having been no appearance, and that the order setting it aside as a void judgment was correct

Even if this summons was “ process ” within the meaning of the Constitution, the failure to insert the formal style required would only have been an irregularity, a misprision of the clerk, and .amendable. The style of process is its title, and the title of process in civil cases has been a subject of amendment from a very early period in English history. That a formal requirement as to process is made by the. Constitution is no more binding upon the court than if *423made by an act of the Legislature, and is equally the subject of amendment in one case as the other. 2 Pick., 594; 32 N. H., 88 ; 15 N. H., 37; 7 Ark., 536.

Under the first English statute of amendment, (14 Ed. 3-6,) if not at common law, the title of process was amendable, (8 Co., 158; 1 Com., 579,) and the justices under subsequent statutes were authorized to amend process so long as such record was before them* as well after judgment as before, and it was not the practice to reverse a judgment for such misprisions of the clerk, but they amended the process in affirmance of the judgment. These statutes are in force in this State. Thompson’s Compilation British Statutes, 13 to 40.

Our conclusion is that, even if this summons was process within the meaning of the Constitution, the defect here was merely formal; that the judgment was not void, and that if the court had any power, over the judgment at a succeeding term it was to amend the process in this matter, and that it was error to set the judgment aside. 10 Wis., 100; 2 Pick., 594; 32 N. H., 88 ; 19 N. H., 394; 12 Kan., 422 ; 35 Mo., 197; 1 Fla., 381; 8 Fla., 29 ; 6 Fla., 322.

But is a notice given by an attorney of the institution of a suit in a form similar to a summons, b.ut not issuing out of a court, a process within the meaning of the Constitu•tion? Baron Comyn, in giving the definition of the term process, says it imports the writs which issue out of any court to bring the party to answer or for doing execution. There is no definition of process given by any accepted authority which implies that any writ or method by which a - suit is commenced is necessarily process. A party is entitled to notice and to a hearing under the Constitution before he can be affected, but it is nowhere declared or required that that notice shall be only a writ issvJmg out of a court. •

In the States in which has existed a Code similar to the one under which this action was brought, we find the courts *424of last resort holding that such notice or summons need not be entitled or styled in the name of the State, although the constitutional requirement is substantially the same as ours in regulating the style of process. 12 Wis., 529; 4 Iowa, 43 ; 4 Mich., 588; 3 Penn., 99; 12 Min., 86.

The order setting aside the judgment as void is reversed.