collaterally; but, under the act of congress, the district court had no power to order a sale which should confer upon the purchaser rights outlasting the life of French Forrest (the owner). Had it done so, it would have transcended its jurisdiction." Id., 350.

So a departure from established modes of procedure will often render the judgment void; thus, the sentence of a person charged with felony, upon conviction by the court, without the intervention of a jury, would be invalid for any purpose. The decree of a court of equity, upon oral allegations, without written pleadings, would be an idle act, of no force beyond that of an advisory proceeding of the chancellor. And the reason is, that the courts are not authorized to exert their power in that way. The doctrine stated by counsel is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it. The statement of the doctrine by Mr. Justice Swayne, in the case of Cornett v. Williams, 20 Wall., 250, is more accurate. "The jurisdiction," says the justice, "having attached in the case, every thing done within the power of that jurisdiction, when collaterally questioned, is held conclusive of the rights of the parties, unless impeached for fraud."

It was not within the power of the jurisdiction of the district court to proceed with the case, so as to affect the rights of the owner after his appearance had been stricken out, and the benefit of the citation to him thus denied. For jurisdiction is the right to hear and determine; not to determine without hearing. And where, as in that case, no appearance was allowed, there could be no hearing or opportunity of being heard, and, therefore, could be no exercise of jurisdiction. By the act of the court, the respondent was excluded from its jurisdiction.


Judgment affirmed.

§ 520. Foreign discharge in bankruptcy.- When a suit is brought in a circuit court of the United States on a contract made in a foreign state, and a plea of discharge in bankruptcy in that state is set up, the plea is bad; for, so far as it attempts to discharge the contract, it is void as impairing the obligation of contracts, while so far as it discharges the person, estate or effects of the debtor it is part of the law of the remedy, and therefore does not apply when suit is brought in another state. Hinkley v. Marean, 3 Mason, 90.

§ 521. Disabilities to sue affect the party only in the country imposing them. They do not, like natural defects, adhere to the person and pass with it to distant regions, but fall off when he travels out of the jurisdiction which has imposed them. Therefore, held, that an action brought by the assignees in bankruptcy of the obligee of a bond in the name of the obligor, in the circuit court of the United States, might be maintained although the obligor was a British subject, resident in England, and had there gone into bankruptcy, by which process all his rights became vested in his assignees. Blane v. Drummond, 1 Marsh., 69.

§ 522. Void judgments.- A decision of a register and receiver of the land office, granting a pre-emption in land in which the law declares pre-emptions shall not be granted, is beyond the jurisdiction of the land office and is void. Wilcox v. Jackson, 13 Pet., 511.

§ 523. The judgment of the county court of a state is conclusive in courts of the United States, unless given on a matter on which the court has no jurisdiction. If on such matter, it is a nullity. Elliott v. Peirsol, 1 Pet., 340.

§ 524. A decree of a court upon a subject-matter over which it has no jurisdiction is void, and may be treated as of no validity when it is used in collateral proceedings. Hickey v. Stewart, 3 How., 760.

§ 525. Certain real estate in Georgia was sold during the war under partition proceedings in the state court. At the time one of the devisees, holding a vested remainder, was serving as a surgeon in the United States army. Held, that this court had jurisdiction of a bill for partition by said devisee, the proceedings in the state court being void. Cuyler v. Ferrill, 1 Abb., 169.

$526. Remedy against void judgments.— Although judgments confessed in a state court in violation of the bankrupt law are void, yet, as the judgment of a court having jurisdiction of the parties and subject-matter in controversy is binding upon every other court until it is regularly reversed, although founded upon an erroneous view of the matter in controversy, the United States courts cannot investigate the validity of the proceedings in a state court which had jurisdiction of the subject-matter, and the remedy against such judgments as may be in violation of the bankrupt law must be sought in the tribunals from which they issued. Atkinson v. Purdy, Crabbe, 551.

§ 526a. Judgment of state court.-In a suit in the federal court on a judgment of a state court, the court ruled as follows: "The subject-matter of the suit in the state court was a note which by the judgment became merged in the higher security. In this court the subject of the suit was a judgment, which was conclusive evidence of a debt due the plaintiffs, who, being citizens of New York, have a right to sue in this court on any cause of action within its cognizance. We cannot discriminate between a debt due by judgment, or in any other way; an action of debt on a judgment is not like a scire facias, which must issue from the same court which rendered the judgment." Barr v. Simpson, Bald., 543.

§ 527. Judgment of Spanish court in Louisiana.— The adjudication of a competent Spanish tribunal, having jurisdiction of the case, made in Louisiana after the cession of that territory to the United States, but before possession surrendered, and while the country was still subject to Spanish laws, is valid so far as it affects the private rights of parties thereto. Keene v. M'Donough,* 8 Pet., 308.

§ 528. A judgment of a Louisiana court, during the war of the rebellion, by which a citizen of New Orleans, who had been expelled by military authority into the Confederate lines, was deprived of his property without giving him a day in court, is wholly null. Lasere v. Rochereau,* 17 Wall., 437.

§ 529. Decision of special tribunal.- When the law has confided to a special tribunal the authority to hear and determine certain matters, the decision of that tribunal within the scope of its authority is binding upon all parties. Rector v. Gibbons, 2 McC., 286.

§ 530. The decision of the Arkansas land commission is a final adjudication and not subject to a review by the circuit court of the United States. Ibid.

§ 531. Decisions of state court not subject to review.— A bill was filed in the circuit court for Louisiana, setting forth certain proceedings in the state court under which a sale of real property was made. The bill alleged that the whole transaction was a fraud on the complainant; that the clerk of the state court was a party to the fraud, and that complainant was greatly damaged. Held, that as the state court was a court of general jurisdiction, its judgments and decrees were not subject to revision by the federal court. Nougué v. Clapp,* 11 Otto, 551. § 532. Where a state court of probate has passed upon the validity of a will, a federal court will not review that decision. Piatt v. McCullough, 1 McL., 73.

§ 533. When a state court possessing jurisdiction of the subject-matter of a suit before it, e. g., a settlement of an estate or the probate of a will in a probate court, renders a decree in the suit, this decree will not be reviewed nor will its enforcement be enjoined by the circuit court of the United States. Freeney v. First Nat. Bank of Plattsmouth, 3 McC., 625.

§ 534. The decree of a probate court is decisive on the validity of a will to pass the title to real estate in the federal courts. Tompkins v. Tompkins, 1 Story, 552.

§ 535. The federal courts have no probate jurisdiction, and must receive the sentences of the courts to which the jurisdiction over testamentary matters is given as conclusive of the contents and validity of a will. Fouvergne v. New Orleans, 18 How., 470.

§ 536. Inquiry as to jurisdiction of state court. The circuit court of the United States can examine whether a state court which has rendered a judgment had jurisdiction of the case in which it gave judgment, but cannot examine whether the judgment is erroneous or not. Sprague v. Litherberry, 4 McL., 450.

§ 587. In pleading, if a judgment of a court of general jurisdiction is shown as a bar to the action, it is presumed to have had jurisdiction of the subject-matter; but if the court investigate the question it will take judicial notice of the public laws of the state, the constitution and jurisdiction of the various courts of general jurisdiction. Pennington v. Gibson, 16 How., 74.

§ 538. When a judgment of a neighboring state is offered in evidence in a federal court, the court can inquire into the jurisdiction of the state court as to subject-matter and parties, but only so far as these are not alleged in the record. If it appears from the record that the court had no jurisdiction over the person of the defendant, the judgment will be disregarded. Lincoln v. Tower, 2 McL., 486; Westerwelt v. Lewis, id., 512; Thompson v. Emmert, 4 McL., 97.

§ 539. Concurrent jurisdiction.— When a question has been adjudicated upon by a state court having jurisdiction of the subject-matter, a federal court having concurrent jurisdic

tion of the subject-matter will not interfere, if there is no fraud or collusion in the judgment. Chaffin v. St. Louis, 4 Dill., 28.

§ 540. Jurisdiction of state court must appear.- When a state court is acting under a special and limited jurisdiction, it must appear upon the record that it has complied with all the requirements necessary to give it jurisdiction, or the federal courts will not consider its acts binding upon them. Mayhew v. Davis, 4 McL., 223.

§ 541. Record not showing jurisdiction. If a circuit court of the United States renders a decree in equity, and the record does not show the jurisdiction of the court to render such a decree, the decree, though erroneous, is not a nullity, but must stand till reversed. Kennedy v. Bank of Georgia, 8 How., 611.

§ 542. Want of service of process.-Service of process or notice is necessary to enable a court to exercise jurisdiction in a case, and if jurisdiction be taken where there has been no service of process or notice, the proceeding is a nullity, and absolutely void. But this is only where original jurisdiction is exercised, and not a decision of a collateral question in a case where the parties are before the court, e. g., an amendment. Walden v. Craig, 14 Pet., 154. § 543. A judgment of a state court is valid in a United States court, only if the state court had proper jurisdiction of the case. If judgment was rendered without notice to the defendant or appearance by him, the judgment is void. Warren Manuf. Co. v. Etna Ins. Co., 2 Paine, 503.

§ 544. A decree of dismissal of a suit in equity in the district court is a bar to a bill in equity on the same cause of action, although the pleadings do not show in the district court that the parties are citizens of different states, for the decree of the district court, though erroneous, is not a nullity, but remains in force till reversed. M'Cormick v. Sullivant, 10 Wheat., 198.

$545. Decree in admiralty.—- When suit is brought in one district court in admiralty, to enforce a decree in admiralty in another district court, the decree is conclusive, and can only be attacked for want of jurisdiction or fraud, not for error or irregularity. Otis v. The Rio Grande, 1 Woods, 280.

§ 546. Divorce.— When a court of divorce has given a judgment, after due notice to the defendant, in a case of which the jurisdiction appears on the record, this judgment is binding in all other jurisdictions. If it is reversible for error, it is reversible only in the court in which it was rendered, and the circuit court of the United States will not question its validity. Amory v. Amory, 3 Biss., 270.

§ 547. Where a sale was made under a decree of court, and subsequently on appeal from the decree it appeared that the court had not jurisdiction, the sale is invalid and cannot be supported, when attacked collaterally, by the record, because the record includes the proceedings on appeal. Galpin v. Page,* 18 Wall., 350.

§ 548. The presumptions in favor of jurisdiction indulged in favor of courts of general jurisdiction arise only as to facts concerning which the record is silent, and are limited to jurisdiction over persons within the territorial limits of the court, or within reach of its process. Hence where there is service by publication, strict compliance with the necessary forms must appear on the record. Service by publication is not a common law power, even of courts of general jurisdiction; hence the essential jurisdictional facts must appear on the record. Ibid.

§ 549. Presumption as to regularity. Where the question was whether foreclosure proceedings had been carried through the proper court, and the original papers constituting the record were lost, but evidence of the decree of foreclosure was given, as also of the other steps of the proceedings, the jury were instructed that the court was of general jurisdiction, and from the rendering of the decree, the regularity of the other proceedings was presumed, though the presumption might be rebutted. Smith v. Pomeroy,* 2 Dill., 414.

$550. Presumption — Attachment.- When a judgment is used in a collateral proceeding, if it was rendered by a court of general jurisdiction, it will be presumed to be within that jurisdiction. The fact that an affidavit upon which an attachment was issued was not copied into the record will not invalidate the judgment. Biggs v. Blue, 5 McL., 149.

§ 551. Decisions not judicial. The secretary of war has power to appoint a board of commissioners to hear and decide upon claims in a military district. The decisions of these commissioners are not judicial and the claimants may present their claims before any proper court. United States v. Adams, 7 Wall., 463.

§ 552. Decree against land in another state.-A court of one state may, if the proper parties are before it, make a valid decree affecting land in another state, and enforce it in personam; but such decree has no validity outside the jurisdiction in which it is made. Watts v. Waddle, 6 Pet., 397.

§ 553. Illegal transaction.—Investing money in the bonds of the Confederate States is an act giving aid and comfort to the enemies of the United States; and no state legislation, no

act of its convention, no judgment of its tribunals, and no decree of the Confederate government, can make such a transaction lawful. Hence it is no answer to a bill against an executor for an account, that the party invested funds which came into his hands as executor in bonds of the Confederate States, and that by the decree of the probate court this investment was approved, and he directed to pay the legatees their respective shares in those bonds. Horn v. Lockhart, 17 Wall., 570.

§ 554. Failure to object.— If the assignees of a bankrupt mortgagor, in a suit for the distribution of the surplus arising from the foreclosure of a mortgage under a state law, appear in the state court, submit to its jurisdiction, and take the chance of a decision in their favor, without objecting to its jurisdiction, they cannot raise that question, after a decision against them, on appeal to this court. The question having been prima facie within the jurisdiction and control of the state court, the objection, to be heard here, should have been raised there. Mays v. Tritton, 20 Wall., 414.

§ 555. Where a party has lost his right to prosecute.-The fact that a party has lost the opportunity of prosecuting his rights in the probate court, through not hearing of the proceedings then pending, on account of living in a secluded portion of the world, there having been no concealment nor fraud in connection with those proceedings, will not entitle such party to relief in equity. Case of Broderick's Will, 21 Wall., 503.

§ 556. Collateral attack.— Where the jurisdiction of a state court is unquestionable, and it has rendered a judgment, this judgment cannot be attacked collaterally in a proceeding in the circuit court of the United States. Forsythe v. Ballance, 6 McL., 567.

§ 557. A judgment of a state court may be impeached in a collateral proceeding in a federal court on the ground of lack of jurisdiction, and, for this purpose, allegations in the record showing prima facie facts sufficient to give jurisdiction may be shown to be false. Thompson v. Whitman, 18 Wall., 469.

§ 558. A judgment rendered without due notice to a defendant may be impeached collaterally; but a judgment which is rendered by a court of limited jurisdiction, and which does not on its face show the jurisdiction, though reversible for error, is not a nullity. Farmers' Loan and Trust Co. v. McKinney, 6 McL., 11.

§ 559. When a state court, having jurisdiction of the subject-matter and of the parties to a case, makes a decree ordering and confirming a judicial sale of property, this decree is conclusive in a collateral proceeding in a federal court. Jeter v. Hewitt, 22 How., 352.

§ 560. When a judgment of a court of superior jurisdiction is attacked collaterally for want of jurisdiction, it is not enough that the record does not show that the court had jurisdiction, but it must show that the court had not jurisdiction. Galpin v. Page, 1 Saw., 319. § 561. The decision of a state court, having jurisdiction of the parties and subject-matter of a case before it, is conclusive as to the regularity of the proceedings when the decision is brought in question in a collateral proceeding in a federal court. Cornett v. Williams, 20 Wall., 249.

§ 562. The decree of any state court may be impeached collaterally in a federal court for fraud. Rhoades v. Selin, 4 Wash., 721.

§ 563. When the jurisdiction of a court has once attached, whatever errors may subsequently occur in its exercise, the proceeding being coram judice, can be impeached collaterally only for fraud. Hence the purchaser at an administrator's sale, under a decree of the court, if the preliminary proceedings to give the court jurisdiction are correct, need not look beyond the decree. McNitt v. Turner, 16 Wall., 352.

§ 564. The decision of the land commission, upon claims founded on Mexican grants in California, is final as between the United States and the claimant, if the case was a proper one for the commission. Lynch v. Bernal, 9 Wall., 321.

§ 565. Where the jurisdiction of a state court to make a decree for partition of land appears on the record, the decree will not be impeached collaterally in the supreme court of the United States. Secrist v. Green, 3 Wall., 751.

§ 566. When it appears that the land commissioners appointed to settle private titles to land in California had jurisdiction of a claim brought before them, their decision will not be questioned collaterally in the supreme court of the United States. Beard v. Federy, 3 Wall., 489.

§ 567. When a sale of land on execution, attached on mesne process, is a step in the title of a claimant, the sale cannot be attacked collaterally except on the point of jurisdiction. The essentials of jurisdiction in such a case are, 1, the levy of the writ of attachment on the land in the manner prescribed by law. 2. If the defendant is a non-resident or absent, the publication of notice in the manner prescribed by law. If these requisites are complied with, the supreme court of the United States will not, in a collateral proceeding, inquire into errors in the proceedings subsequent to the taking of the property by attachment. Cooper v. Reynolds, 10 Wall., 315.

4. Affected by State Laws, Remedies and Practice.

SUMMARY-Causes of action peculiar to a state may be enforced in federal courts, § 568.— Suit in federal court under statute requiring suit in state court, § 569.- Cause of action in federal court not invalidated by state insolvency laws, § 570.- State statute enforced by federal court, § 571.- Common law including statute law, § 572.-Suit upon judgment of state court in face of statute, § 573.— Partition, § 574.— Federal rules of decision in law and equity, §§ 575–579.- Equity, § 580.

§ 568. A liability arising from the common law or statutes of a particular state may be enforced in any United States circuit court having jurisdiction of the parties. Dennick v. Railroad Co., § 581-584.

§ 569. Where a state statute gives a general right to recover damages for a death resulting from the negligence of a person or corporation, the federal courts may enforce such right, without regard to a proviso in the statute that the action shall be brought in a state court. Railway Co. v. Whitton, §§ 585-588.

$570. Where a non-resident plaintiff brought a suit in a state court, which suit was afterwards, in accordance with state law, homologated with insolvency proceedings against the defendant in another state court, the plaintiff was not thus precluded from suing on the same cause of action in a federal court. Hyde v. Stone, §§ 589–591.

§ 571. A cause of action against a town on account of a defective highway, though created by state statute, may be enforced in the federal court. Keith v. Rockingham, § 592.

§ 572. The judiciary act, in conferring jurisdiction upon the federal courts in suits at common law, means common law as distinguished from equity, not as distinguished from statute law. Ibid.

§ 573. A statute of Iowa forbidding the bringing of an action upon any judgment rendered by a court of that state without obtaining leave of such court is without effect in the federal court of the district. Phelps v. O'Brien County, § 593.

§ 574. The federal court in a proper case has jurisdiction to entertain a petition for partition, though this is a statute remedy, and is confined by the terms of the statute to the courts of the state. Ex parte Biddle, §§ 594, 595.

§ 575. The federal courts find their rules of decision in the local law, but derive their powers in general from the constitution and laws of the United States. Lorman v. Clarke, $596-603.

§ 576. The federal courts, being endowed with general equity powers, may enforce equitable rights however originating. Ibid.

§ 577. A statute of Michigan having given to creditors an equitable right to subject the debtor's property to the payment of his debts, the federal courts have power to enforce this right. Ibid.

§ 578. The state laws are rules of decision to the federal courts in trials at common law, but this does not apply when they sit as courts of equity. They then are governed by the general principles of equity jurisprudence. Burt v. Keyes, § 604-610.

§ 579. Though an Ohio statute declares that a fraudulent sale of property shall inure to the benefit of all creditors equally, the federal court sitting in equity, having obtained jurisdiction of the subject-matter, may declare the sale void, and proceed to give the complainant a judgment lien for the whole amount of his claim. Ibid.

§ 580. The equity jurisdiction of the federal courts is wholly derived from the constitution and laws, is the same in all the states, and is unaffected by state statutes. Strettell v. Ballou, §§ 611, 612.

[NOTES.-See §§ 613–627.]


(13 Otto, 11-21. 1880.)

ERROR to U. S. Circuit Court, Northern District of New York.

STATEMENT OF FACTS.- Action by an administratrix to recover damages for the negligence of defendant resulting in the death of the intestate. The letters of administration were granted in New York, and this suit was originally brought in a state court of that state, but was removed into the circuit court of the United States at the instance of defendant. The answer denied the negligence but admitted the killing, which took place in New Jersey. In the

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