Where an action is brought to recover upon a judgment, the
jurisdiction of the court rendering the judgment is open to
inquiry, and the Constitutional requirement as to full faith and
credit in each state to be given to the public acts, records and
judicial proceedings of every other state does not require the
enforcement of a judgment rendered without jurisdiction or
otherwise wanting in due process of law.
A judgment rendered
in personam against a defendant
without jurisdiction of his person is not only erroneous, but void,
and is not required to be enforced in other states under the full
faith and credit clause of the Constitution or the act of Congress
passed in aid thereof, § 905, Rev.Stat.
A court which has once rendered a judgment in favor of a
defendant, dismissing the cause and discharging him from further
attendance, cannot, after the term or at a subsequent term, without
notice to the defendant, set that judgment aside and render a new
judgment against the defendant; a judgment so entered is void, and
not required to be enforced in
Page 205 U. S. 142
another state under the full faith and credit clause of the
Constitution.
In Massachusetts, the rule day when a judgment becomes final is
equivalent to the end of a term, and in that state, the rule is
that judgment is final unless set aside within the exceptions for
mistake.
Jurisdiction once lost can only be regained by some proper
notice to the other party and where, as in this case, had notice
been given of the motion to render a new judgment, defendant could
have pleaded a discharge in bankruptcy, substantial rights are
impaired, and the judgment so rendered without notice is void.
Although a mistake in regard to a judgment may be a clerical
one, it cannot be corrected after the term without notice,
especially where the condition of the parties has changed in view
of new rights acquired which render it prejudicial to enter a new
judgment.
Whatever remedies may exist as to the judgment in the state
where rendered, want of jurisdiction may be pleaded by the judgment
debtor wherever the judgment is set up against him in another
forum.
The facts are stated in the opinion.
Page 205 U. S. 146
MR. JUSTICE DAY delivered the opinion of the Court.
This is a writ of error to the Court of Appeals of the District
of Columbia to reverse a judgment of that court affirming a
judgment of the Supreme Court of the District of Columbia in favor
of the defendant in error, overruling a demurrer to the defendant's
second plea.
The action was brought on the law side in the Supreme Court of
the District of Columbia on December 1, 1903, to recover judgment
against Karrick, defendant in error, upon a judgment rendered in
the Superior Court for the County of Suffolk, Commonwealth of
Massachusetts, on November 20, 1900. Copy of the record in the
Massachusetts court is made part of the record in the Supreme Court
of the District of Columbia.
This record shows that suit was brought upon certain contracts
between the defendant in error and one Charles H. Wetmore, since
deceased, plaintiff's intestate. The defendant was personally
served with process, appeared, and pleaded to the declaration.
Trial was had to a jury, and resulted in a verdict against the
defendant. Upon his motion the verdict was set aside. Thereupon the
plaintiff filed an amendment to his declaration and another trial
to a jury was had. Upon February 21, 1894, by another verdict,
special and general, a sum of $9,169.30 was found in favor of the
plaintiff. Motion for a new trial was made by the defendant and
overruled March 3, 1894, and exceptions filed. On June 8, 1897,
more than three years after the proceedings just recited, the
action was dismissed under the general order of the court
Page 205 U. S. 147
upon the calling of the docket. Two days thereafter, June 10,
1897, the order of dismissal was stricken out and the case restored
to the docket.
On June 23, 1897, attorney for the defendant entered an order
withdrawing his appearance. On June 13, 1898, an attorney, whose
name does not appear elsewhere in the record, withdrew his
appearance. The record then shows:
"Thence the case was continued to the July sitting, 1898, when
said exceptions, having been presented to the court, were
disallowed as not conformable to the truth, the bill not properly
and correctly stating the evidence so as to fairly present the
questions of law raised by the defendant's exceptions."
Then follows:
"Thence the case was continued from sitting to sitting into the
April sitting, 1899, when, on the twelfth day of June, 1899 at a
calling of the docket under the general order of court, said action
was dismissed."
And then the entry:
"And now at this present October sitting, 1900, to-wit, on the
eighteenth day of said October, 1900, said dismissal is stricken
off and the case brought forward, the same having been dismissed
improvidently, action having been taken within one year, but not
discovered."
On November 17, 1900, there was a motion by plaintiff for
judgment on the verdict of the jury, and on November 20, 1900,
judgment was entered accordingly against the defendant for the sum
of $12,881.46 and costs.
Two pleas were filed to the declaration in the Supreme Court of
the District of Columbia -- first, the general issue
nul tiel
record; second, a special plea, wherein the defendant set out
that, on June 12, 1899, the cause against him in the Massachusetts
court was dismissed; that, under the rules of court, that dismissal
became final on the first Monday of July, 1899; that the cause
remained so dismissed for more than five terms or sittings of the
court, and until October 18, 1900; that, in
Page 205 U. S. 148
the meantime, on April 29, 1899, defendant filed his petition in
bankruptcy in the District Court of the United States for the
district of Colorado, enumerating in his schedule the debt due to
said Wetmore, and was, by the said district court, on June 23,
1899, discharged from all debts provable against him in bankruptcy,
including the debt sued on; that, subsequently to the discharge, as
aforesaid, he made inquiry of the clerk of the court in
Massachusetts as to the suit, and was informed that said suit was
no longer pending; that, relying upon this statement, he took no
steps to suggest in that court his discharge in bankruptcy; that
the action of the court in Massachusetts, restoring the case to the
docket, was without summons, citation, or notice of any kind to
him, or to anyone for him, and without his knowledge; that the
court had no jurisdiction to render the judgment sued upon.
Issue was joined upon the first plea, and to the second plea a
demurrer was filed, which was sustained by the Supreme Court of the
District of Columbia. From the order sustaining the demurrer,
special appeal was taken on January 6, 1905, to the Court of
Appeals for the District of Columbia, and on April 17, 1905, the
judgment below was reversed and the cause remanded. 25 App.D.C.
415.
On May 16, 1905, the Supreme Court of the District of Columbia
entered an order overruling plaintiff's demurrer to defendant's
second plea and, the plaintiff electing to stand on his demurrer,
judgment was entered for the defendant, and the plaintiff appealed
to the Court of Appeals of the District of Columbia.
On October 10, 1905, the case was submitted; and, on the twelfth
day of the same month, judgment below was affirmed without further
opinion.
Before taking up the case in detail, it must be regarded as
settled by previous decisions of this Court that, where an action
is brought to recover upon a judgment, the jurisdiction of the
court rendering the judgment is open to inquiry. And the
constitutional requirement as to full faith and credit in
Page 205 U. S. 149
each state to the public acts, records, and judicial proceedings
of every other state does not require them to be enforced if they
are rendered without jurisdiction, or otherwise wanting in due
process of law. This principle was so lately asserted by a decision
in this Court as to render unnecessary more than a reference to the
consideration of the subject in
Old Wayne
Mutual Life Association of Indianapolis, Indiana v.
McDonough, decided on January 7, 1907, of the
present term.
204 U. S. 8.
It is also an elementary doctrine of this Court that a judgment
rendered
in personam against a defendant without
jurisdiction of his person is not only erroneous, but void.
Pennoyer v. Neff, 95 U. S. 714. And
the same case holds that such judgment is not required to be
enforced in another state, either by the due faith and credit
clause of the Constitution or the act of Congress (Rev.Stat. § 905)
passed in aid thereof.
It is apparent from the statement of facts preceding this
discussion that the precise question to be determined is whether a
court which has once rendered a judgment in favor of a defendant,
dismissing the cause and discharging him from further attendance,
may at any time after the term, and at a subsequent term, no matter
how remote from the time of rendering judgment, without motion or
proceeding to vacate the judgment and without notice, set aside the
judgment so rendered and render a new judgment against the
defendant for the recovery of a sum of money against him.
The general principle is that judgments cannot be disturbed
after the term at which they are rendered, and can only be
corrected, if at all, by writ of error or appeal, or relieved
against in equity in certain cases. There are, it is true, certain
exceptions to the rule, within which, it is the contention of the
plaintiff in error, the present action is brought.
No contention is made in the brief or argument of counsel for
plaintiff in error that the question for decision in this case is
changed or modified because of the fact that terms
Page 205 U. S. 150
of court are abolished by statute in Massachusetts. The statutes
of that commonwealth, Rev.Laws, v. 2, 1382, § 24, provide for
"sittings" of the Superior Court at Boston, in the County of
Suffolk, for civil business, on the first Tuesdays of January,
April, July, and October. The exemplified copy of the record in
this case shows that the case was dismissed under the general order
of the court at the April sitting, 1899, on the twelfth day of
June, 1899. At the October sitting, 1900, to-wit, on October 18,
1900, the dismissal was stricken off for the reason stated, and on
November 20, 1900, the new judgment was rendered.
In
Dalton-Ingersoll Co. v. Fiske, 175 Mass. 15, the
Supreme Judicial Court recited the previous cases, holding that
terms no longer exist in the superior court, and said (p. 22):
"When we had terms the practice was to enter judgment, either on
some day in the term, upon motion, or, of course, on the last day.
Howe, Pr. 267. Since terms have been abolished, the practice is
regulated by statutes and the rules of the courts."
In the second plea, it is averred, and admitted by the demurrer,
that, under the rules of court, the dismissal became final on the
first Monday of July, 1899 -- that is, the first Monday of the
following month.
We think this rule day equivalent to the end of a term. It is
the time at which, by the rules of court adopted under statutory
power, the judgment became final, unless set aside for mistake
within the principles to be hereinafter discussed.
Pierce v. Lamper, 141 Mass. 20, was a case where a suit
had been dismissed upon the call of the docket under the same rule
under which the case against Karrick, defendant in error, was
dismissed for want of action within the year, which order should
have been followed by an entry of judgment of dismissal, in place
of which the clerk simply made a docket entry "dismissed on call."
The court held, since it was the duty of the clerk to have entered
the dismissal, it was to be deemed in law as actually entered and a
final disposition of the case; that at a subsequent term the court
had
Page 205 U. S. 151
no power to vacate it except by writ of review filed within one
year under the statute.
The doctrine that a judgment is final at the term unless set
aside within the exceptions for mistake seems fully recognized by
other decisions in Massachusetts.
Radclyffe v. Barton, 154
Mass. 159, where previous cases are cited in the opinion.
At common law, a writ of error
coram vobis brought
before the court certain mistakes of fact not put in issue or
passed upon -- such as the death of a party, coverture, infancy,
error in process, or mistake of the clerk. This writ is no longer
in use, but its objects are attained by motion.
Pickett v.
Legerwood, 7 Pet. 145,
32 U. S.
147.
As in the common law writ of
coram vobis, so in the
proceeding by motion, after a party has been dismissed from the
action by judgment, he is brought again into the court by notice of
the new proceeding.
Ferris v. Douglass, 20 Wend. 626.
A few of the cases from this Court may be noticed which support
the general proposition that, at the end of the term at which
judgment was rendered, the court loses jurisdiction of the cause.
The principle was briefly stated by Mr. Chief Justice Waite,
speaking for the Court, in
Brooks v. Railroad Co.,
102 U. S. 107:
"At the end of the term, the parties are discharged from further
attendance on all causes decided, and we have no power to bring
them back. After that, we can do no more than correct any clerical
errors that may be found in the record of what we have done."
The question underwent a full discussion, Mr. Justice Miller
delivering the opinion of the Court, in
Bronson v.
Schulten, 104 U. S. 410. On
page
104 U. S. 415,
he said:
"But it is a rule equally well established that, after the term
has ended, all final judgments and decrees of the court pass beyond
its control unless steps be taken during that term, by motion or
otherwise, to set aside, modify, or correct
Page 205 U. S. 152
them; and if errors exist, they can only be corrected by such
proceeding by a writ of error or appeal as may be allowed in a
court which, by law, can review the decision. So strongly has this
principle been upheld by this Court that, while realizing that
there is no court which can review its decisions, it has invariably
refused all applications for rehearing made after the adjournment
of the court for the term at which the judgment was rendered. And
this is placed upon the ground that the case has passed beyond the
control of the court.
Brooks v. Railroad Company,
102 U. S.
107;
St. Louis Public Schools v.
Walker, 9 Wall. 603;
Brown v.
Aspden, 14 How. 25;
Cameron v.
M'Roberts, 3 Wheat. 591;
Sibbald v. United
States, 12 Pet. 488;
United States v. The Brig
Glamorgan, 2 Curt. C.C. 236;
Bradford v. Patterson, 1
A. K. Marsh. 464;
Ballard v. Davis, 3 J. J. Marsh.
656."
In discussing the exceptions to this rule for the correction of
judgment by writ of error
coram vobis, or motion, now
substituted for the old practice, the only one which has
application here is error in the process through the default of the
clerk.
We are unable to find in the present record any clerical
mistake. The entry of action during the year upon the bill of
exceptions appears to have been duly entered upon the minutes of
the court; the clerk made no mistake about it. The court
erroneously rendered a judgment, believing that no action had been
taken, but this was not through mistake or oversight of the clerk
within the meaning of the rule. The judgment intended to be entered
by the court was in fact entered -- through misapprehension, it is
true, but nothing was left out which the court intended to make a
matter of record.
In
Hickman v. Fort Scott, 141 U.
S. 415,
141 U. S. 418,
there was a petition to correct by new findings the special
findings of fact upon which the court had rendered a judgment at a
former term, which findings, it was averred, had been omitted, some
unavoidably and others accidentally; but the application was
overruled and error was prosecuted to this Court, which,
Page 205 U. S. 153
speaking through MR. JUSTICE HARLAN, said:
"The judgment was the one the court intended to enter, and the
facts found were those only which the court intended to find. There
is here no clerical mistake. Nothing was omitted from the record of
the original action which the court intended to make a matter of
record. The case therefore does not come within the rule that a
court, after the expiration of the term, may, by an order
nunc
pro tunc, amend the record by inserting what had been omitted
by the act of the clerk or of the court.
In re Wight,
134 U. S.
136,
134 U. S. 144;
Fowler v.
Equitable Trust Co., 141 U. S. 384;
Galloway v.
McKeithen, 5 Iredell (Law) 12;
Hyde v. Curling, 10
Mo. 359."
This case from 10 Missouri was quoted with approbation also in
the case of
In re Wight, 134 U. S. 136,
134 U. S. 145,
as follows:
"A court has power to order entries of proceedings had by the
court at a previous term to be made
nunc pro tunc, but,
where the court has omitted to make an order which it might or
ought to have made, it cannot at a subsequent term, be made
nunc pro tunc."
In the case
In re Wight, this Court approved an order
of the circuit court of the United States putting in the record at
a subsequent term an order which was made at a previous term of the
court, remanding the case to the district court.
"A clerical error, as its designation imports, is an error of a
clerk or a subordinate officer in transcribing or entering an
official proceeding ordered by another."
Marsh v. Nichols, Shepard & Co., 128 U.
S. 605,
128 U. S.
615.
Of another alleged exception to the general rule of finality of
judgments, counsel for plaintiff in error says, after conceding the
general rule that jurisdiction is lost after the lapse of the term
at which judgment is rendered:
"But a well known exception to this general rule is that a
judgment of dismissal based upon a mistake or inadvertence, such as
appear in this record, can be set aside after the term, and that is
the proposition with which this Court is concerned in this case.
The reason is that jurisdiction is not lost by a
Page 205 U. S. 154
dismissal by a mistake. This is one of the exceptions to the
general rule that has been recognized in the decisions of this
Court for nearly a century."
To support this contention the case of
The
Palmyra, 12 Wheat. 1, is relied upon. In that case,
which was one in admiralty, the court found there was no final
decree in the court below, and therefore it was not appealable. The
next term of the court, a corrected transcript was adduced, showing
there had been a final decree which the clerk, through mistake, had
failed to include in the record, and the Court permitted the filing
of a new transcript. Mr. Justice Story, delivering the opinion of
the Court, said:
"The difference between a new appeal and a reinstatement of the
old appeal after a dismissal, from a misprision of the clerk, is
not admitted by this Court justly to involve any difference of
right as to the stipulators. Every court must be presumed to
exercise those powers belonging to it which are necessary for the
promotion of public justice, and we do not doubt that this Court
possesses the power to reinstate any cause dismissed by mistake.
The reinstatement of the cause was founded, in the opinion of this
Court, upon the plain principles of justice, and is according to
the known practice of other judicial tribunals in like cases."
It is to be observed, while the learned Justice, speaking for
the Court in that case, affirmed the "power of this Court to
reinstate any cause dismissed by mistake," the case had been
dismissed at the first hearing, as Mr. Justice Story distinctly
says, from a "misprision of the clerk," -- a recognized exception
to the general doctrine of conclusiveness of the judgment after the
term, and there is no indication that the correction made in that
case was made without notice to the party interested. The adverse
party was present and resisted the order, so there was opportunity
to be heard.
The
Palmyra case has been cited a number of times
since, in the course of opinions not involving the precise
proposition, to the effect that the court "may reinstate a cause at
subsequent
Page 205 U. S. 155
term, dismissed by mistake."
Sibbald
v. United States, 12 Pet. 492.
It was cited to the proposition that a court might correct
misprision of clerks.
Bank of United States v.
Moss, 6 How. 38.
In
Rice v. Railroad
Company, 21 How. 85, an opinion delivered by Mr.
Chief Justice Taney, it was held that, at common law, where a case
upon error proceedings had been dismissed for want of jurisdiction,
it could not be reinstated at a subsequent term upon a showing that
the final judgment below, for want of which the case was dismissed,
had been accidentally omitted from the record as a production of
the correct record showed.
In that case, the
Palmyra case was relied upon in
support of the motion, but the Court declined to follow it in a
common law case, and limited its application to the jurisdiction of
an appellate court in admiralty cases, which, the Chief Justice
said, was much wider than in a case at common law.
In the case of
Alviso v. United
States, 6 Wall. 458, a case dismissed for want of
citation at a former term, omitted to be returned from neglect of
the clerk, was reinstated upon the authority of
The
Palmyra; but in that case, Mr. Justice Nelson, speaking for
the Court, distinctly stated that the omission in the
Palmyra case was the error of the clerk in making out the
transcript, and there is no reference to the general authority of
the court to reinstate a case dismissed by mistake, regardless of
the character of the omission or error.
The Palmyra, like every other case, must be read in the
light of the point decided in the case, and in considering the
language of Mr. Justice Story, who spoke of the general power of
the court to reinstate a case dismissed by mistake, it is evident
that he had in mind, for he says so, that the first dismissal was
for a clerical mistake, which is a well recognized ground for
correcting judgments at subsequent terms, upon notice and proper
showing.
The plaintiff in error also cites
Phillips
v. Negley, 117 U.S.
Page 205 U. S. 156
665. That case contains an emphatic statement of the doctrine
that a judgment at law cannot be reversed or annulled after the
close of the term at which it was entered by the court rendering
the judgment, for errors of fact or law, with the exceptions which
we have heretofore noted. In that case, Negley had been sued in the
Supreme Court of the District of Columbia upon a certain order.
Negley answered, denying his liability and asserting that he signed
the order only as agent; denied also that plaintiff was the holder
of the order, or notice of nonpayment. After issue joined on the
pleas, on April 3, 1879, Negley not appearing, a jury was called,
and verdict found for the plaintiff, upon which judgment was
rendered.
On September 4, 1882, Negley filed his motion to vacate the
judgment and set aside the verdict rendered against him
ex
parte, because of irregularity, fraud, and deceit, and the
negligence of his attorney. Affidavits were filed in support of
this motion, setting forth a denial of Negley's personal liability
on the order; that he was served with process when temporarily in
Washington, being then and since a resident of Pittsburgh; that he
employed counsel and filed his defense, but received no further
notice from the fall of 1874 until July 26, 1882, when he was sued
on the judgment in Allegheny County, Pennsylvania; that plaintiff
took no notice of the plea filed in the original case until May 3,
1877; that, in the meantime, without defendant's knowledge, his
counsel had removed from Washington, leaving him without counsel,
as plaintiff and his counsel well knew, and on April 3, 1879,
without notice, and while Negley was ignorant of the proceeding,
called for a jury and procured the verdict and judgment against
him.
Other testimony was taken, and after hearing on December 2,
1882, the Supreme Court of the District set aside the verdict
because of "irregularity, surprise, fraud, and deceit," and granted
a new trial. In this Court, the judgment of the Supreme Court was
reversed for error in entertaining and granting
Page 205 U. S. 157
the motion to set aside the judgment, and the cause was
remanded, without prejudice to Negley's right to file a bill in
equity. After citing and quoting from the
Bronson case,
104 U.S.
supra, Mr. Justice Matthews, who delivered the
opinion of the Court, said:
"Although the opinion [
Bronson case] also shows that,
upon the facts of that case, the action of the circuit court in
vacating its judgment after the term could not be justified upon
any rule authorizing such relief, whether by motion or by bill in
equity, nevertheless the decision of the case rests upon the
emphatic denial of the power of the court to set aside a judgment
upon motion made after the term and grant a new trial, except in
the limited class of cases enumerated as reached by the previous
practice under writs of error
coram vobis, or for the
purpose of correcting the record according to the fact where
mistakes have occurred from the misprision of the clerk. We content
ourselves with repeating the doctrine of this recent decision,
without recapitulating previous cases in this Court, in which the
point has been noticed, for the purpose of showing their harmony.
It has been the uniform doctrine of this Court. No principle is
better settled,"
it was said in
Sibbald v. United
States, 12 Pet. 488,
37 U. S.
492,
"or of more universal application, than that no court can
reverse its own final decrees or judgments for errors of fact or
law, after the term in which they have been rendered, unless for
clerical mistakes;
Cameron v. M'Roberts, 3
Wheat. 591;
Bank of Commonwealth v.
Wistar, 3 Pet. 431, or to reinstate a cause
dismissed by mistake,
The Palmyra, 12 Wheat. 1; from
which it follows that no change or modification can be made, which
may substantially vary or affect it in any material thing. Bills of
review, in cases in equity, and writs of error
coram vobis
at law, are exceptions which cannot affect the present motion."
The case just cited is relied upon because of its reference to
The Palmyra. But the point to which that case is cited was
not involved. As we have seen, it had already been limited in
Rice v. Railroad
Company, 21 How. 85, to appeals in admiralty.
Page 205 U. S. 158
Further, that case, as we have seen, was one of clerical mistake
in making up the record.
We therefore find nothing in the previous decisions of this
Court justifying the contention of the plaintiff in error as to the
right to correct the judgment of the previous term, in view of the
character of the error sought to be corrected, and more especially
in the attempt, under the circumstances shown in this record, to
set aside a judgment of a former term, and render a new and
different judgment without notice to the party who had been
dismissed by a former judgment.
As we have seen, the question here involved pertains to a case
where no notice is given and a new and different judgment is
entered at a subsequent term. It is urged when the necessary facts
appear in the record such correction can be made without notice,
because, it is said, there is nothing to litigate. But, aside from
the fact that this proposition ignores the rule that jurisdiction
once lost can only be regained by some proper notice, the case at
bar is an illustration that such action may impair the substantial
right of a party to be heard against the rendition of a new
judgment against him. Had notice been given, the defendant could
have availed himself of his right to plead his discharge in
bankruptcy by proper proceedings for that purpose. Loveland,
Bankruptcy 783. It may be that he did not lose all right to avail
himself of the discharge in some other manner, but he had the right
to show that, in view of his discharge, the judgment in question
ought not to be rendered against him.
In
Capen v. Stoughton, 16 Gray 364, cited by plaintiff
in error, a sheriff's jury in condemnation proceedings by mistake
signed a verdict in favor of the municipal corporation instead of
the property owners. The court held this a mistake of a merely
formal and clerical kind, and
"when no action has been taken on an order or judgment, and the
rights of parties to the proceeding or those of third persons
cannot be affected unjustly by the correction of an error, the
court has power to order an action to be brought forward and a
judgment
Page 205 U. S. 159
to be vacated in order that an entry may be made in conformity
with the truth."
There is no suggestion that such action can be "brought forward"
without notice to the adverse party, or a correction made where, as
in the present case, the party has lost a valuable right in
reliance upon a judgment of dismissal.
And if it be held that the mistake in this case, though not of
the clerk, was of a clerical character, and within the rule
permitting the correction of such mistakes by the court, a point
unnecessary to decide in this case, such a correction cannot be
made after term without notice, certainly where the changed
condition of the parties in view of a new right acquired would
render it prejudicial to render a new judgment.
The plaintiff in error also relies upon the proposition that the
Massachusetts statute, Revised Laws of Massachusetts, c. 193, § 22,
provides that, if a judgment is rendered in the absence of the
petitioner, and without his knowledge, a writ of review may be
granted upon petition filed within one year after the petitioner
first had notice of the judgment; otherwise, within one year after
the judgment was rendered. But we cannot agree that this remedy
supplied the want of jurisdiction in the Massachusetts court to
render, after the term and without notice, a new and different
judgment against the defendant in error. Whatever his remedy may be
in the state courts, want of jurisdiction may be pleaded wherever
the judgment is set up against him in another forum.
We find nothing in any decision of this Court which sanctions
any different procedure, and the cases in the state courts which
hold that notice is necessary after the term before a judgment can
be set aside are numerous. Some of them will be found in the note
in the margin.
*
Page 205 U. S. 160
To sanction a proceeding rendering a new judgment without notice
at a subsequent term, and hold that it is a judgment rendered with
jurisdiction, and binding when set up elsewhere, would be to
violate the fundamental principles of due process of law as we
understand them, and do violence to that requirement of every
system of enlightened jurisprudence which judges after it hears,
and condemns only after a party has had an opportunity to present
his defense. By the amendment and new judgment, the proceedings are
given an effect against the defendant in error which they did not
have when he was discharged from them by the judgment of dismissal.
By the judgment of dismissal, the court lost jurisdiction of the
cause and of the person of the defendant. A new judgment
in
personam could not be rendered against the defendant until, by
voluntary appearance or due service of process, the court had again
acquired jurisdiction over him. As a matter of common right, before
such action could be taken, he should have an opportunity to be
heard and present objections to the rendition of a new judgment, if
such existed.
We find no error in the judgment of the Court of Appeals
overruling the demurrer to the second plea, and the same is
Affirmed.
MR. JUSTICE BREWER took no part in this case.
*
Murphy v. Farr, 11 N.J.L. 186;
Martin v. Bank of
State, 20 Ark. 636;
De Witt v. Monroe, 20 Tex. 289;
Berthold v. Fox, 21 Minn. 51;
Cobb v. Wood, 8
N.C. 95;
Hill v. Hoover, 5 Wis. 386;
Perkins v.
Hayward, 132 Ind. 95, 100;
Bryant v. Vix, 83 Ill. 11,
15;
Keeney v. Lyon, 21 Ia. 277;
Weed v. Weed, 25
Conn. 337;
Fischesser v. Thompson, 45 Ga. 459, 467.