20 Ohio St. 344 | Ohio | 1851
Lead Opinion
The proceeding in the commercial court of' Cincinnati was an action of assumpsit, brought by Reynolds to recover
The defendants then offered in evidence a copy of the record of a judgment, recovered by Reynolds against Stansbury, in the superior court of Cincinnati, at the January term, 1847, for $410.97, and offered to prove by parol, that the cause of action in that suit, and the one mentioned in the record, were the same. To this evidence the plaintiff objected. The objection was overruled by the court, and the evidence admitted.
The plaintiff then offered a record of proceedings had in the superior court of Cincinnati, showing that the judgment of Reynolds against Stansbury had been set aside at the January term of that court, 1849, on motion of the plaintiff Stansbury. This record does not show affirmatively that Stansbury had notice of the motion to set aside the judgment, nor does it show for what cause the judgment was vacated. Tne defendants objected to the admission of this record, “because not showing that Stansbury had notice of the motion, or for what cause the judgment was vacated, the court had no authority, at a subsequent term, on motion, to sot aside the judgment.” The court sustained the objection, and refused to permit this record to go in evidence; to which ruling of the court the ^plaintiff excepted. The jurj- returned a verdict for the defendant. The plaintiff has assigned for error the rulings of the court above referred to, in admitting the record of the recovery of the judgment in the superior court, and refusing to permit the record of the court setting aside that judgment to go in evidence, and also claiming that the court erred in their charge to the jury, which is set forth in the bill of exceptions. It is contended, in the first place, that the court erred in permitting the record to be given in evidence under the general issue, without notice.
In the case of Young et al. v. Black, 7 Cranch. 565, this same
In 1 Phillips’ Evidence, page 243, the author states the rule thus: “In an action of assumpsit, the defendant may either plead a judgment recovered, or give it in evidence under the general issue.”
In 1 Greenleaf’s Evidence, section 531, it is laid down as well settled that a former recovery may be shown in evidence under the general issue, as well as pleaded in bar. The plaintiff relies on the case of Inman v. Jenkins, 3 Ohio, 271. The court in that case decide that a judgment of a former recovery can not be given in evidence under the general issue, without notice. That is a circuit decision, and is, as we think, contrary to the current of authority on the subject. Indeed, so far as our examination has extended, the decisions are all on the other side. We think, then, that the commercial court decided correctly in admittingthe record under the plea of the general issue.
The next question which we propose to consider is whether ^the court decided correctly in ruling out the record showing that this judgment had been set aside by the court. And this necessarily presents the other question—whether the court could treat this record, in a collateral proceeding, as a n-ullity. This is no doubt a question of some difficulty. It is contended in the first place, on behalf of defendants in error, that the term of the court at which the judgment was entered having passed, the judgment was beyond the control of the court, and that it could not, as in this case, at a subsequent term, set it aside. The question whether’ a court has the power, on motion, to set aside a judgment entered at a previous term, for irregularity, is one that has been frequently adjudicated in this state.
In the case of Hunt et al. v. Yeatman, 3 Ohio, where the question was directly presented, the court held that the power of a court to set aside a judgment for manifest irregularity, was one that was exercised by all courts; and that the power may be ex-
The ease of Critchfield v. Porter, 518 of the same volume, was on a bill in chancery, where the complainant sought to be relieved against a judgment rendered against him, on the ground that the attorney who appeared for him and plead had no authority to act, and that ho had not been served with process. The court dismissed the bill on the ground that the complainant had a clear and ample remedy at law, by motion to have the judgment opened, although the term of the court at which it was entered had passed.
In the cases of Shelton v. Gill, 11 Ohio, 419; Sloo v. Lea, 18 Ohio, 307; and Abernethy v. Latimore, 19 Ohio, 288, the court fully recognized the same principle. The courts in New York appear to have adopted the same rule. Phillips v. Howley, 6 Johns. 129, and Morgan & Smith v. Dyer, 9 Johns. 255, are both cases in which the court held that it was ^competent for a court to open a judgment on motion, for good cause, at a term subsequent to the one at which it was rendered.
In Indiana, North Carolina, and some of the other states, the contrary rule has been established. See 7 Blackf. 334; 7 Iredell, 346. There, no doubt, is a direct conflict between the decisions on this subject. Still we must consider the rule as settled in Ohio, that a court, in a proper case, has the power, on motion, to set aside a judgment entered at a previous term. And we suppose that that power must be limited to cases where there has been irregularity in entering the judgment.
It may be proper here to remark, that all the authorities to which we have referred, as sustaining the power of the court to set aside a judgment in such a case (except that of Sloo v. Lea, 18 Ohio), are cases where the right to set aside the judgment was sought by the defendants to it.
It is not likely that the case would frequently occur in which a plaintiff would ask to sot aside his own judgment. Yet still, when the power of the court has once been established over a judgment at a subsequent term from that at which it is entered, we do not see but that a case might arise where an irregularity had crept into a judgment, without the fault of the plaintiff, where
But it is said that the record in this case does not show that Stansbury had notice of the motion to set aside the judgment; and, therefore, the court did not acquiro jurisdiction in the'matter. Now we suppose, as the proceeding was an adversary one, and one that affected the rights of Stansbury, that it was necessary he should have notice, in order to invest the court with jurisdiction. But the record does not state whether he had or had not notice. It is entirely silent on the subject.
It is a principle well established, that to support the judgment or proceedings of a court of inferior and limited jurisdiction, it is-necessary that it should be shown from the face of the record that the court had obtained jurisdiction of the person of the defendant; but that in favor of the proceedings of a court of general jurisdiction, it is presumed that it had jurisdiction of the-person of the defendant, although that fact does not appear on the record.
The judgment of the commercial court will be reversed, and the cause remanded for further proceedings.
Judge Spalding held, that notice might be presumed, not to bring the-parties into court, originally, but to uphold subsequent proceedings. (1)
) Spencer v. Brockaway, 1 Ohio, 259.
Dissenting Opinion
dissenting. I find myself unable to concur with 4ho majority of the court in the opinion pronounced in this case. The whole controversy resolves itself into a single point. Reynolds sued Stansbuxy and recovered a judgment against him for the same cause of action upon which this suit is now prosecuted. Sloo v. Lea, 18 Ohio, 307, has settled that this judgment was a good bar to this action. To avoid the effect of this bar, which was interposed by the defendant, Burch, the plaintiff offered to show that this judgment, about two years after its rendition, had been set aside, upon his motion, by the superior court, where it was recovered; and that there was, consequently, no subsisting judgment. The i’ecoi’d offered to px’ove this was rejected, because it did not appear that Stansbury had any notice of the motion, or for what cause the judgment was vacated. No written motion was filed, nor is any irregularity in entering the judgment alluded to in the order vacating it, or pretended to have existed in point of fact.
Did the ox*der nullify, the judgment? If so, the court *below erred. If the order was a nullity, the judgment was in force and a good b.ar to this action, and the court did not err in
I yield the power to the fullest extent claimed, but I insist that it shall be exercised without violating the first principles of natural justice and positive law; in other words, that it shall be done for cause, and after the parties have had an opportunity to be heard; and not arbitx*arily and behind the back of one of them.
I lay down the following propositions as indisputably correct:
1. As soon as the judgment .was rendex’ed, the parties were out of court. There was no longer any cause pending or any parties befox’o it, or within its control.
2. Each of the parties had an intex*est in the x’ecox’d that evidenced the termination of the litigation, and a right to insist that it should remain unaltered and unimpaired, except by some' other jxxdicial action of that or some other court, in pursuance of law.
3. A motion to set aside a judgment invokes judicial action, and if made after the term of its rendition, is the commencement of a judicial proceeding, having for its object the nullification of the-record in which the advex’so party is so interested.
4. To wax'rant such judicial action, the court must have jurisdiction of the cause, and the parties. If either is wanting, any order they may make is coram non judice, and void to all intents and purposes.
I shall take no time in insisting that some irregularity must be pointed out upon the x’ecord, before the court can act. It might perhaps be successfully replied, that having jurisdiction over the judgment, and a right to set it aside in a proper *case, the jurisdiction would still remain, although the power should bo exercised improperly. But the court had no jurisdiction over the party defendant in this case. He could only be brought before it by a notice, and it is not ¡pretended that any was given. If it is said that there is no statute requiring such notice, I answer that no statute authorizes judgments to be set aside upon any terms. To get such a power, you must go to the common law, and by that
In the case of Borden v. Fitch, 15 Johns. 141, Thompson, C. J., •says: “ To give any binding effect to a judgment, it is essential that the court should have jurisdiction of the person and of the subject matter; and the want of jurisdiction is a matter that may always be set up against a judgment, when sought to be enforced, or whei’e any benefit is claimed under it. The want of jurisdiction makes it utterly void and unavailable for any purpose.” And he states this doctrine to be founded upon “general principles,” and tl that to bind a defendant personally, by a judgment, when he was never personally summoned, nor had notice of the proceedings, would be contrary to the first principles of justice.”
In the case of Kinderhook v Claw, 15 Johns. 538, it was held that “ whenever magistrates proceed judicially, both the parties to the proceedings are entitled to be heard, and notice to both is indispensably requisite, notwithstanding there is no direction in the act by which the tribunal is constituted, that notice shall be given ;” and Yanness, J., says : “ This principle has been so long and so frequently settled, that it is unnecessary to cite cases in support of if.” See also Buchanan v. Rucker, 9 East, 192; Bissell v. Briggs, 9 Mass. 464. The case of the Miami Exporting Company v. Brown, 6 Ohio, 535, was a scire facias to revive a judgment. It appeared that the judgment had been rendered upon notice according to a provision ^of the charter, but the notice was not signed, nor did- it appear to have been served. Lane, J., says : “Both these facts must appear in the record, as the foundation of the jurisdiction. If they do not thus appear, the judgment is coram nonjudice.”
This question was fully considered by this court in the case of Adams v. Jeffries, 12 Ohio, 253. It was there held that “ an administrator’s sale, made under an order of court since 1824. without showing that the heirs wore parties to the proceeding, is void.” says: “The heir has a right to be a party to the proceedings which deprive him of his estate; and we are constrained to deny the jurisdiction of a court which attempts to proceed without him.” 'The judge further says: “All the cases assume that the jurisdiction' of the court is first established; and no
In the light of these authorities, it seems to me the conclusion is irresistible, that before any court can affect the interests of a party to a judgment, he must be notified, and thus brought beforo them. Without such notice, the court couldnot render a judgment against him for one cent, that would not be utterly void. Can we, on the other hand, hold that he may be deprived of an interest of hundreds of dollars, in a judgment rendered in his favor behind his back.
This power to set aside judgments wouldi ndeed be most formidable and dangerous, if it can be exercised in this manner. It may be done for causes dehors the record, and of course upon proof. But the other party has no opportunity to ci’oss-examine the witness, to introduce rebutting testimony, or to except to the opinion of the court. He is bound hand and foot, and obliged to suhmit to such case as his adversary chooses to make, however false and fraudulent it may be. If it can be done for the plaintiff,
The first mistake of the counsel for the plaintiff in error , is found in the assertion that, “for the purposes of jurisdiction, all jmrties properly in court at the commencement of the case, remain so until satisfaction of the judgment is had and entered of record.” No authority is cited in support of this position, and I venture to say none can be found. Certainly the parties can not be in court longer than the cause is, and that there is no lis pendens after the judgment, is a position too clear to require a reference to the authorities that support it.
Proceeding from this erroneous assumption, it is next contended *tbat the superior court is a court of general jurisdiction, and that it must be presumed that every step necessary to be taken-for the legal and proper exercise of the power, was duly taken before the power was exercised.
This argument is all built upon the erroneous assumption before stated—that the parties are already in court—when in fact there was no cause, and consequently no parties, in the superior court, and had not been for more than two years before they made the order in question. The true question is, can the jurisdiction. of the court over the parties be presumed, or must it be made to appear ? This question 'is answered in the cases cited from 6 and 12 Ohio. In the first, it is said the notice “ must appear in the record as the foundation of the jurisdiction ;” and in the last it is said that “ all the cases assume that the jurisdiction of the court is, first established, and no attempts are made to sustain their proceedings by intendment or presumption, until after this essential prerequisite.” I am aware that the record of a court of general jurisdiction^ need not show the specific cause of action upon which the judgment is rendered. And why ? Because their jurisdiction being general, they have a right to render judgments in all cases. But the reason ceasing, the law ceases. No court has jurisdiction over any person until he is properly notified and brought before them; and hence their jurisdiction over him must be made to appear in all cases, before they can tako one step to affect his rights and interests ; and this as well in courts of general, as of limited-
This opinion, of course, has no relation to proceedings in rem, where jurisdiction is obtained by the seizure of property; nor do I undertake to say that the notice must, in all cases, appear in the record. I say only it must be shown, before any effect can be given to the proceedings.