Newcomb v. Dewey, 27 Iowa 381

Newcomb v. Dewey

27 Iowa 381 | Iowa | 1869

Cole, J.

l, jukisdicmont: verity citáis. The only question for decision is, whether the court had jurisdiction over the person of this plaintiff in the foreclosure suit, so as to foreclose his equity in the property ? It will be seen by the foregoing statement that by the demurrer the defendant admits:

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.

*3876. That plaintiff never bad notice or knowledge of the pendency of said suit, or of the decree, until a few days before the bringing of this suit.

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 *388with the protection of, or having authority to represent, his interest, notified of the proceeding. IIe has not been guilty of negligence in respect to the suit, nor of delay in asserting his rights. Upon principle, then, nothing further appearing, the judgment in the foreclosure proceeding ought not to conclude him. He ought to stand unaffected by it.

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*389cate the real merits of the case, neither may it adjudicate any other question, whether it be introductory, incidental or collateral. A judgment becomes a verity, and concludes the parties, because, and only because, the court pronouncing it had jurisdiction so to do. Now, if the court, by its judgment, may conclude parties as to its jurisdiction, it would follow that the judgment would conclusively prove the jurisdiction, and the jurisdiction would conclusively prove the judgment. Or, as Mr. Justice Maroy more forcibly states the same proposition in delivering the opinion of the court in Starbuck v. Murray (5 Wend. 148), where the action was on a judgment which stated that “ the defendant appeared to the suit,” “ the paper declared on is a record because it says you appeared, and you appeared because the paper is a record. This is reasoning in a circle. The appearance makes the record uncontrollable verity, and the record makes the appearance an unimpeachable fact. The fact which the defendant puts in issue (and the whole current of State court authority shows it to be a proper issue) is the validity of the record; and yet it is contended that he is estopped by the unimpeachable credit of that very record from disproving any one allegation contained in it. Unless a court has jurisdiction, it can never make a record which imports uncontrollable verity to the party over whom it has usurped jurisdiction; and he ought not, therefore, to be estopped, by any allegation in that record, from proving any fact that goes to establish the truth of a plea alleging a want of jurisdiction. * * * To say that the defendant may show the supposed record to be a nullity by showing a want of jurisdiction in the court which made it, and at the same time to estop him from doing so because the court have inserted in the record an allegation which he offers to prove untrue, does not seem to me to be very consistent. Under the operation of such a rule, a court could always sustain its jurisdiction if it *390had any solicitude to do so; or, rather, the party who had the benefit of its decision, and who, by the practice of most tribunals, is intrusted with making the record, would not fail to put it beyond the power of his opponent to show a want of jurisdiction.” This reasoning is sound, and has the support of many other cases. Hall v. Williams, 6 Pick. 232; Aldrich v. Kenney, 4 Conn. 280; Harris v. Hardeman, 14 How. (U. S.) 336, 340, and authorities there cited; Noyes v. Butler, 6 Barb. 613; Shelton v. Tiffin, 6 How. (U. S.) 163, 186.

8_agent’s ttority may lie shown. Another proposition relied upon or argued is as to the right of a defendant to show that the agent or attorney had n0 authority to accept service or enter am appearance. And this has been settled by this court, in favor of the right, in the case of Harshey v. Blackmarr (20 Iowa, 161), which see, and authorities there cited. Also 5 Am. Law Reg. (U. S.) 385. Nor does the fact that the real estate sold under the judgment has passed to third parties operate to defeat the right of the plaintiff to show the want of jurisdiction or of authority to accept service. See authorities last cited.

4. moktgaoe: partíes.uon ‘ It is proper to add that we were favored with a very able and elaborate argument by the learned counsel for the defendant in support of the proposition, that under our Code of 1851, under which the foreclosure judgment was rendered, as also under the Kevision of 1860, a senior mortgagee was not required to make a junior incumbrancer a party to his foreclosure proceedings; but that a sale under the seniol mortgage whether made by notice and sale out of court or under a decree of court, cut off all right of redemption by any junior incumbrancer, without making them parties or giving them any notice.

While we recognize the force of the argument made, and confess its plausibility, yet it seeks to establish a rule *391at variance with all prior decisions of this court and tlie conceded interpretation of the law by the profession, although it has never before been directly raised or decided. The well-established rule of equity courts, to the contrary of that claimed by counsel, has been so long recognized and applied, as that great confusion and evil would arise from a change at this day, greatly overbalancing any supposed advantages from the rule as claimed, and even if we thought it the better rule, which we do not, we should hesitate long before making the change.

"Weight, J., dissenting.

Reversed.