Whitwell v. Barbier

7 Cal. 54 | Cal. | 1857

Murray, C. J.,

delivered the opinion of the Court—Terry, J., concurring.

There can be no controversy upon the proposition that a personal judgment of a Court of general jurisdiction is invalid for the purpose of acquiring any rights under it, when it appears affirmatively on the face of the record, that the Court had acquired no jurisdiction over the person of the defendant.

There is, however, a very decided distinction between want of jurisdiction and irregularity in procuring jurisdiction. In the latter case some of the authorities speak of it as a want of jurisdiction, but when so employed it is a loose and improper use of the term.

In the one case the judgment can be attacked in any form, that is directly or collaterally, in the other only by a direct proceeding against the judgment in the Court which rendered it, or in an appellate Court upon an appeal from the judgment. The true test in such cases is, whether the omission complained of is of tlie substance of the act required to be performed. If of the substance, then the judgment is a nullity; if of form, only an irregularity.

In the case before us the judgment is attacked collaterally, upon the ground that the defendant, although served with process, was not given the time allowed by statute to appear and answer. This would have been good reason in the Court below to have quashed the writ upon motion by amicus curice; or for extension of time to appear and answer on motion of defendant, it would have been a good objection on error, arrest of judgment, or motion for new trial; but the defendant having been summoned to appear on a day certain, it cannot be said that the Court had no jurisdiction of the person, so as to make its judgment a nullity.

The cases cited to show that irregular process will not support a judgment, are, with one exception, cases where the judgment was directly acted upon. The excepted case is that of Saunders v. Raims, 10 Missouri. The judgment in that case, which was collaterally impeached, was rendered by a Justice of the Peace, a Court of inferior, limited, and special jurisdiction, and in favor of whose jurisdiction nothing can be implied, but everything necessary to confer jurisdiction must be affirmatively shown.

In all inferior Courts of the like kind, the law requires that they must strictly follow the rules which create and govern them, and that which in a Court of general jurisdiction would be a mere irregularity, absolutely deprives the former of all jurisdiction.

The case of Parsons v. Davis, 3 Cal. R., 421, was a different case from this, in the respect that the judgment which was tiiere determined to be invalid, was rendered without any service whatever upon the judgment-debtor. In such cases, where the party not only has no opportunity to answer, but is certainly ignorant of any proceeding against him, so as to avail himself of the many remedies which the law gives him, until probably he has lost them all, it would not be permitted that the judgment so obtained should be made available for any purpose.

J udgment reversed.