78 Va. 765 | Va. | 1884
delivered the opinion of the court.
In the petition for appeal several errors are assigned, but in his note of argument the counsel for the appellant confines the discussion to the single point, that the appellant was not made a party to the suit in the court below.
In the logical order of discussion it is contended by counsel for the appellees (1) that the record sufficiently shows that the appellant had been properly made a party, and (2) that even if she had not been, she is estopped by her conduct from denying it.
This is a case in which a party, under very peculiar circumstances of apparent neglect, comes forward at the last, stage of a tedious and expensive litigation to overturn and. nullify the proceedings had in a suit in a court of competent general jurisdiction. To effect this purpose several things must be observed and kept constantly in view, viz (1) That the appellant is assailing the record, and the onus is upon her to show that she was not properly made a party. (2) That it is not sufficient that she should raise a doubt as to whether she had been made a party. (3) That the record and judgment being those of a court of general jurisdiction, every presumption will be made in their favor. And (4) that in determining this question, this court, no. less than the court below, will look at the whole record.
It is contended in argument, by the counsel for the appellant, that in this case no presumptions arise in aid of the record, as in cases where the judgment of a court of general jurisdiction is attacked in a collateral proceeding;. and the annotation of authorities to Crepps v. Durden, 1 Smith’s Leading Cases, 7 Am. Ed., 1125, is relied on to sus
But however this may be, whether the annotators in the language relied on by the appellant’s counsel, as quoted
Then, on same page, the annotators say that, “ notwithstanding there are a number of cases in this country which tend more or less strongly to sustain the proposition that, as notice is essential to confer jurisdiction, the judgment will be invalid unless the record contain some entry or averment that notice was given”; citing Given v. McCarroll, 1 S. & M. 368; Steen v. Steen, 3 Cushman, 513; “and while there are others that go further and hold that judi
The rule thus established is essential to the repose and safety of society, and the inconvenience and uncertainty which would result from the establishment of a less stringent rule would greatly outweigh any possible benefits to be derived thereby. When a court of general jurisdiction (as in this case) has pronounced judgment, its adjudication should be as conclusive on the question whether a party was duly notified as on any other point necessary to a proper determination of the cause. Trimble v. Long, 13 Ohio N. S. 431.
In view of the authorities collected in the notes to Crepps v. Durden we can but concur in the clearly expressed and sound reasoning of the counsel for the appellees,-that there is nothing in the language there used to indicate that that cogent reasoning is meant to be applied only to those cases wherein the judgment of a court of general jurisdiction is attacked in a collateral proceeding, or that there is any reason for so limiting it. Every argument in favor of the judgment in the one case applies with equal force in the other. It is well said in argument by counsel for the appellees that verity is assumed for the judgments, not because it is collaterally attacked, but for reasons inherent in the nature of the tribunal whose judgment it is, and for reasons of policy so strongly expressed in the authorities cited.
We do not, however, have to look beyond Virginia for authority in support of the rule in question. In Harman v. City of Lynchburg, 33 Gratt. 43, Burks, J., delivering the opinion of this court, said: “The judgment of a court of competent jurisdiction is always presumed to be right until the contrary is shown, and,.a party in an appellate court, alleging error in the court below, must show it in the regular way, or the presumption in favor of its correct
Squared by the rule thus established, has the appellant made out her case? Has she shown that what she asserted in her petition in the court below was true? Did she do any thing to satisfy the conscience of the judge that she had no notice, that she had no day in court, that she had not been properly made a party to the suit? Clearly she did not show either. At the utmost she did no more than to raise a doubt upon the question. This was not enough. She was required by the rule to do more; she was required to prove her case; she did not do so; she did not even resort to proper proceedings to bring up from the clerk’s ofa.ce of New Kent, where the suit was brought, to the judge of the circuit court of King William, before whom the case was tried, the rule book and process book provided by law to show that causes have been regularly matured
It is true her name does not appear in the process found in the record at the date of her petition, but there may have been and presumably was an additional writ, especially for her. This often occurs in practice. The attorney, in making his memorandum for the clerk, in the beginning, may have unintentionally omitted her name, or, if not so omitted, the clerk in issuing the writ may by oversight have failed to insert her name in the writ. In either case the defect, when discovered, could only be remedied by a separate writ against her, for there can be but one original writ in any case, though there may be as many copies as necessary. It was certainly competent to supplement or cure the defect in the original in this way; the object of the writ being notice, the law would be substantially complied with. That such writ did issue seems from the record most probable.
The writ found now in the record was sued out on the 5th, and served on the 7th of October, 1878; the bill was not filed until January rules, 1879. Between these dates there were four rule days, to any one of which such sepa
Again, aside from the presumption that the case was regularly matured and heard, the fair presumption is that there was such separate writ, and that it was lost from the papers or mislaid. The file of papers passed through two clerks’ offices—the one in New Kent and the other in King William. That they have not passed unharmed is apparent from the fact that the record is incomplete in other respects; two other papers at least have come up missing— the one is the exceptions-to the report of the commissioner who took the account in the case, the other is the report of the commissioners who assigned the widow’s dower. It can with no more certainty be said that either of these papers was once a part of the record than that this missing writ was.
All the proceedings at rules in this suit were had in the circuit court of New Kent. When the case came on for hearing in the circuit court of King William, that court did not have the books in New Kent before it; but the
But it is contended by the counsel for the appellant that if any process in fact issued and was served upon her, the process book of the clerk of New Kent county will show it; and it is suggested that the appellees should show this by resort to a certiorari. This is in effect calling upon the adverse party to prove or disprove the case asserted by her. There is no more elementary or well settled general principle than that a party affirming a proposition in court, must prove his case in order to be entitled to the judgment of the court in his favor.
By her conduct, as disclosed by the record, the appellant is estopped from questioning the verity of the record. Her evident knowledge of the pendency of this suit and its object, her seeming acquiescence, and her delay and refusal to speak, though not served with notice in the regular way, makes it proper for her to remain silent now that others have acquired rights while she was standing by in silence, if not in actual acquiescence. It was not only competent for her to speak in time and be made a party if she had not been, but it was her duty. In Voorhees v. The Bank of the U. S., 10 Peters, 473, it is said: “It is among the elementary principles of the common law, that whoever would complain of the proceedings of a court, must do it in such
Several other questions are raised in the petition for appeal, but they have not been insisted on in argument. From vthe views already expressed on the main question, it must be obvious that they cannot be properly considered. Upon the vital question, Was the appellant properly before the court below and amenable to its decree ? That court, a court of competent general jurisdiction, has passed its sentence, and its jurisdiction to do so cannot be questioned under the circumstances disclosed by the record. There is no error in the decree complained of, and the same must be affirmed.
Decree affirmed.