Winship v. Conner
42 N.H. 341
N.H.
1861
Check Treatment
Bellows, J.

On the evidence reported, must the court regard Napoleon B. Conner as dead; and if so, will it, notwithstanding, render a judgment in this case ?

First, as to the proof of his death. He formerly lived at Henniker, was married, had difficulty with his wife, and in April, 1843, left this part of the country, and has never returned, leaving his wife, father and friends at Henniker. He occasionally wrote to his friends here, from the West, and mostly from the state of Hlinois, until 1849; since which he has not been heard of.

In Smith v. Knowlton, 11 N. H. 191, it is held that evidence that a party has not been heard of for the term of seven years rebuts the presumption of the duration of life. See cases cited by Parker, C. J.; and so is Forsaith v. Clark, 21 N. H. 409; 1 Greenl. Ev., sec. 41, and notes and cases cited; Matthews on Pres. Ev. 291; 2 Stark. Ev. 457; 3 Stark. Ev. 1120; 2 C. & H.’s Phill. Ev. 489, note 381; Newman v. Jenkins, 10 Pick. 515.

*345But, it is contended, that to give rise to such a presumption, the party must be absent from his home and usual place of abode — the place where he was expected to be — for seven years. If this were so, the longer he was absent the stronger would be the proof that he had changed his domicil, and, therefore, the proof that he was absent from home would be diminished. But the cases do not sustain this distinction, neither do we perceive any solid foundation for it, and none such is suggested in McConnell v. Knight, 5 Johns. Ch. 264, nor in Smith v. Moulton, or Forsaith v. Clark, before cited.

On the evidence reported, the presumption, then, is that Napoleon B. Conner is dead, and was so when this suit was brought. Will the court, then, render a judgment ?

In Taylor v. Harris, 3 B. & P. 549, it was held that where a verdict was rendered, after the death of the defendant, and judgment entered upon it, the judgment will be set aside, on application to the court; although, if he die after the first day„of the term at which the cause is tried, it will not be set aside, as the proceedings are referred to the first day of 'the term. Freland v. Champneys, 4 Taun. 884. After the death of a defendant pending a suit, all proceedings are stayed till his executor or administrator is made a party. Ela v. Rand, 4 N. H. 54. In Parker v. Badger, 26 N. H. 466, after the death of the defendant and a decree of insolvency, a motion was made to enter up judgment as of a previous term, before his death, so save an attachment. The decision was that “ the court had no jurisdiction to determine the merits of the action, or to order any disposition of it except its discontinuance.” And it is difficult to see how any other rule can be applied, when the party defendant was dead before the suit was commenced. In Smith v. Moulton, 11 N. H. 191, it was held that a judgment in a suit where the sum demanded in damages was not sufficient to give jurisdiction, was void, and, therefore, it was no answer to the present *346suit that by such void judgment the defendant here had been charged as trustee. The court say that the former suit would have been dismissed, upon a motion calling the attention of the court to it. ' So when no damages are demanded, as in 2 N. H. 322. In Wild v. Sands, 2 Str. 718, the court refused to enter up judgment on an old warrant of attorney, it appearing that the defendant was dead. The same doctrine is laid down in Chancy v. Needham, 2 Str. 1081, although a judgment had been entered up upon an affidavit, sworn to the day before, that the defendant was living; and the court refused to disturb it, although it was shown that the defendant died on the evening of the day judgment was entered, the judgment being as of the first day of the term.

As a general rule, the want of such jurisdiction over the persons of parties, as is usually acquired by the service of process or notice, renders the proceedings void. Bell, J., in State v. Richmond, 26 N. H. 241; aud so is Smith v. Knowlton, before cited. In Harris v. Hardeman, 14 How. 334, it is decided that a court may set aside a judgment of a former term, rendered on default of a defendant who had no notice of the action. Such a judgment being merely void, the court has power summarily to declare it to be inoperative, and to stop all proceedings under it. In this case, the authorities are examined, and the conclusion reached, that judgments, rendered without notice to the defendant, are merely void.

Applying these principles to this case, we think that, as it appears before us, the defendant must be presumed to have been dead before the commencement of the suit, and, therefore, no valid judgment can be rendered. It is familiar to all, that on the suggestion of the death of the defendant, pending the suit, all proceedings must stop, until his representative is summoned in, and this even when the action by law survives; and it is for the plain reason that there is no party before the court. The case *347where the defendant was dead before the commencement of the suit is much stronger, inasmuch as, in addition to the want of a party, there has been no notice. To render a judgment under circumstances that would render it a nullity, and that would be vacated on motion, would not, we think, be warranted by the law of the land. If the fact of the death of the defendant was clearly shown, the duty of the court to dismiss the suit, upon the matter being shown, would not be disputed; and in this case, we are bound, on this evidence, to presume his death. That he may, nevertheless, be living, is true, but until that is made to appeal’, we have before us no party and no jurisdiction, to render a valid judgment. If it ivere a matter addressed to the discretion of the court, we should hesitate to render a judgment that maybe used, and is, proba bly, designed to be used, in such way as to be a clo1 d upon the title of Mrs. Marsh. Indeed, it is by no means clear that, in any subsequent proceedings on such a judgment, the rendering it might not be some evidence that the parties were then living, so as, at least, to shift the burden of proof, and operating like the grant of administration or the probate of a will, which are evidence of the death.

It is, also, objected that Sally H. Marsh has no right to appear and move the dismissal of the suit, but to say nothing of her having been already admitted, it is sufficient that the death is made to appear by suggestion of counsel, acting as amicus curice to prevent abuse.

The action must, therefore, be dismissed.