27 Iowa 381 | Iowa | 1869
1. That no process whatever was ever, in any manner, served upon this plaintiff.
2. That the plaintiff is and always has been a nonresident of the. State, and never was in the same.
3. That no service by publication, copy of petition, ór otherwise, was ever made upon this plaintiff, or attempted to be made.
4. That the only service was a pretended acceptance of service by one D. T. Newcomb.
5. That said acceptance of service was made without any authority whatever from plaintiff so to do.
That the judgment in the foreclosure suit, it being an adjudication by a court of general jurisdiction, is prima facie evidence of its own validity cannot be questioned.
That it is sufficient to sustain an action or defense without other proof, unless want of jurisdiction be affirmatively and clearly shown, must also be conceded; but the question remains, is such judgment so conclusive as to preclude inquiry into the fact of jurisdiction by the court pronouncing it? "We are relieved somewhat of the burden otherwise incurred in deciding this question, and escape not a little of the conflict of the authorities by the fact that this action in equity is not a collateral but a direct attack upon that judgment, by seeking, in the court wherein it was rendered, to set the same aside as to this plaintiff, and thus open the door for redemption by him as a junior incumbrancer.
Our constitutional guaranty, that no person shall be deprived of his property without due process of law, is no broader or surer or better understood than the common-law principle, or principle of natural justice, which lies at the foundation of our jurisprudence, that no man shall have his property taken from him by a judicial proceeding without an opportunity being given him to show why it should not be taken — that is, without a day in court.
Taking the statements of the petition as true — and they are admitted by the demurrer — -it is clear that this plaintiff did not have this opportunity afforded him by the foreclosure proceeding. He was, by the judgment in that case, deprived of his interest in the mortgaged estate without being given any opportunity to show why he should not be deprived of it. He was not served with notice, actual or constructive, nor was any person charged
But is said that the judgment itself shows that the defendant was “ duly and legally served with notice, and notified of the pendency of the suit,” and that this, being shown by the record, becomes a verity, and cannot be disputed by this plaintiff; that necessarily and in every case the court must adjudicate upon the sufficiency of the service upon the defendants, and that its decision thereon becomes conclusive upon the parties, and, like any other competent adjudication of a court, cannot be avoided by pleading or averment.
If this were true to its full extent, then it would surely follow that it is only necessary to insert in any judgment the finding by the court that the defendants were duly and legally served with process; that this, without any service or pretense of service, in fact, would conclude the parties.
We do not stop to discuss the distinction (nor to question its soundness) sometimes made between a defective service and no service. See Bonsall v. Isett, 14 Iowa, 309, and cases cited. This case, under the averments of the petition, is of the latter class.
Upon principle, it seems to us the true question is, did the court, .in fact, have jurisdiction? not, did the court decide that it had jurisdiction? If it did not, in fact, have jurisdiction, then its decision is a nullity; and it matters not what facts it finds, or what questions it decides ; unless there was jurisdiction in fact, they are all alike nullities. If without jurisdiction it may not adjncli
While we recognize the force of the argument made, and confess its plausibility, yet it seeks to establish a rule
Reversed.