56 Pa. 176 | Pa. | 1867
The opinion of the court was delivered, November 14th 1867, by
It is plain that the judgment against Roberts, whether entered for want of an appearance, or in default of a plea, was unauthorized, and that it cannot be sustained if there was no service upon him of the writ or of the rule to plead, or something done that by Act of Assembly is made equivalent to service. The action was ejectment against Roberts and five other defendants, for a tract of land in Armstrong county, and the writ was returned as served upon four of the defendants and “nihil” as to Roberts and one other. From the affidavit of service, it appears to have been made by the deputy sheriff of Allegheny county. On the day on which the writ was returnable, a rule was taken on all the defendants to appear and plead on the first
Such a judgment can be given only in an ejectment brought by a vendor to enforce the specific performance of a contract to purchase land. There is nothing on the record in this case to show that this was such an ejectment. Neither in the prsecipe, nor writ, nor declaration, nor in the rule granted, nor in any affidavit even, taken and filed of record, does this fact appear, a fact indispensable to sustain a judgment against a defendant unwarned. It is undoubtedly true, that when a record complete in itself is used in another case as a ground of defence or claim, if the subject-matter of it be set forth generally, parol evidence may be adduced to show what was really adjudicated in it; but this is a very different thing from showing, by such evidence, what is necessary to confer jurisdiction, or authority to give judgment at all. Without, however, deciding at present whether a plaintiff in ejectment
It is contended by the plaintiffs below, now defendants in error, that because the language of the record is, that the judgment was entered “ on due proof of the service of the writ and publication of the rule to plead,” the judgment is right upon its face; and that as the court had jurisdiction of the subject-matter all presumptions are in its favor. The principle is freely conceded that in courts of general jurisdiction, everything is presumed to be rightly done whenever a court has jurisdiction of the subject-matter and of the parties. Whether this presumption prevails when a peculiar authority has been conferred by statute dependent for its lawful exercise upon the existence of unusual conditions precedent, we need not inquire. The very question here is, whether the court had jurisdiction over Roberts, the party defendant. This must appear affirmatively before any presumption
There is still another reason for holding that the judgment in this case against Roberts was irregular and unauthorized. It did not appear that he had notice in fact of the suit in time to appear and defend it. That this was indispensable was decided in Haslett v. Foster et al., 10 Wright 471. It was there ruled that the proviso contained in the supplementary Act of Assembly of April 13th 1858, respecting unseated or unoccupied lands, embraces also actions of ejectment brought under the 11th section of the Act of 14th April 1851, relative to actions by vendors to enforce specific performance. An earnest and elaborate argument has been submitted to us, to show that the decision made in Haslett v. Foster was a mistake. We have carefully considered the argument, and we have not been convinced by it. Even if the question were a doubtful one, the anqmaly o.f rendering a personal judgment (for ejectment is a personal as well as real action) against an individual, without actual notice to him, is so great, that doubts ought to be decisive, that the legislature intended there should be such notice by the enactment of the proviso.
For these reasons we are constrained to hold that the judgment against Roberts was erroneous. This makes it unnecessary to consider the 2d assignment of error, or the argument against the application to vacate the judgment founded upon the facts that it was not verified by affidavit, and that it did not aver the applicant had a defence against the ejectment. The difficulty of the plaintiffs is, that the court had no authority at all to give judgment against Roberts. A case was not presented in which such a judgment was legally possible.
The judgment against W. Milnor Roberts is reversed, and the record is remitted.