In a suit in the District Court of the United States for the
Western District of Texas, a transcript of a record of the High
Court of Errors and Appeals and the Chancery Court for the Northern
District of the State of Mississippi was properly allowed to be
offered as conclusive proof of the value of certain slaves, and of
the amount of their annual hire until given up.
The laws of Mississippi provide that where a case is carried up
to an appellate court and the defendant in error is a nonresident
and has no attorney of record within the state, notice shall be
given by publication in a newspaper of the pendency of said cause,
which the appellate court shall then proceed to hear and
determine.
These directions having been complied with, the jurisdiction of
the appellate court was complete and the plea, in Texas, of
nul
tiel record properly overruled.
The American and English cases upon this point examined.
The decree of the court was also properly allowed to go to the
jury as evidence of the value of the hire of the slaves after its
rendition, evidence having also been offered at the trial of the
value of such hire at that time.
The case having been on the chancery side o� the court and
transferred thence to the law docket, a bill of exceptions does not
bring into this Court for revision any errors alleged to have been
committed when it was on the chancery side.
Page 65 U. S. 196
All the facts in the case, and also the proceedings of the court
below, are set forth in the opinion of this Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
This case comes before the Court upon a writ of error to the
District Court of the United States for the Western District of
Page 65 U. S. 197
Texas. It was a petitory suit commenced by the present
defendants, and was founded upon a certain final decree rendered at
the April term, 1854, by the district chancery court, held at
Carrollton, in the State of Mississippi, for the Northern District
of that state. Among other things, the petitioners allege that
Nancy A. Johnson then Nancy A. Alvis, and a minor, by her next
friend, brought a suit by bill of complaint in that court against
the present plaintiffs to recover three slaves belonging to her,
together with hire for the same for a specified time; that she
subsequently intermarried with James Johnson who was admitted with
her to prosecute the suit; that the cause was afterwards submitted
to the court for a final hearing, and a decree entered dismissing
the bill of complaint at the cost of the petitioners. They also
allege that they prosecuted a writ of error to the high court of
errors and appeals in that state, and that the decree of the
district court of chancery was there reversed, and a decree entered
in their favor. That decree, as set forth in the petition, shows
that the appellate court was of the opinion that the slaves in
controversy were the property and separate estate of the
first-named complainant. Wherefore it was considered by the court
that the decree of the vice chancellor ought to be reversed, and it
was so ordered, adjudged, and decreed, and the court proceeding to
pronounce such a decree as the subordinate court should have
rendered, entered a decree that the complainants do have and
recover of the respondents the slaves then in controversy, for the
sole and separate use and right of the first-named complainant, and
requiring the respondents to restore the slaves and deliver the
possession of the same to the said complainant, or her authorized
agent. It is also recited in the decree that the court was of the
opinion that the complainant was entitled to recover hire for the
slaves from the time they were taken from her possession by the
respondents. To carry out the directions of the court, it was
further ordered, adjudged, and decreed that the cause be remanded
to the subordinate court and that an account be taken of the hire
of the slaves, and for such other and further proceedings as may be
required in the premises. After the mandate went down, the cause
was sent to a commissioner
Page 65 U. S. 198
to carry into effect the directions of the appellate court. He
made a
brk:
report showing that on the fourth day of February, 1854, the
reasonable hire for the slaves amounted to the sum of twenty-two
hundred dollars; and he also reported that the hire of the slaves
was reasonably worth two hundred dollars per annum. That report was
confirmed by the court, and on the fourteenth day of April of the
same year a decree was entered in favor of the complainants that
they do have and recover of the respondents the said sum of
twenty-two hundred dollars with interest, and also that they do
have and recover of the respondents at the rate of two hundred
dollars per year for the hire of the slaves, from the date of the
report until they shall be surrendered up according to the decree
in the cause. As a part of the decree, it was also ordered and
directed that execution issue, as at law, for the amount awarded to
the complainants, together with the costs of suit. Plaintiffs also
allege in their petition or declaration, that those decrees or
judgments were in full force, and that they have never in any
manner been annulled, reversed, satisfied, or discharged, either in
whole or part. Process was duly served upon the defendants in this
case, and on the fifth day of December, 1854, they appeared and
made answer to the suit. From the minutes of the clerk it would
seem that the suit was entered, in the first place, as a suit at
law, and it was certainly so treated by the defendants in their
first answer. Those proceedings, however, are of no importance in
this investigation, because the record states that on the fourth
day of December, 1856, the cause was docketed on the chancery side
of the court, and on the second day of June, 1857, the defendants
again appeared and filed their answer to the petition, without
objection to the transfer which had been made of the cause. To that
answer the plaintiffs excepted on various grounds, and after a full
hearing the exceptions were sustained, and the answer was stricken
out by the order of the court. Both parties again appeared before
the court, sitting in chancery, on the 11th day of June, 1857,
when, as the record states, "upon motion, and merits examined by
the court, it was ordered that the cause be transferred to the law
docket." No objection was
Page 65 U. S. 199
made to that order by either party, and for aught that appears
to the contrary, the transfer was made by consent. Leave was
subsequently granted to the plaintiffs to amend their petition, and
on the twenty-sixth day of January, 1858, they filed an amendment
to the same, alleging that they were citizens of the State of
Tennessee, and that the defendants were citizens of the State of
Texas. They also alleged in their amended petition, that the slaves
in controversy were of the value of three thousand two hundred
dollars, and prayed judgment in their favor for the recovery of the
slaves, and in default of the delivery of the possession of the
same, they also prayed judgment for their value, and "for general
relief."
Exceptions were filed by the defendants to the amended petition,
but the exceptions were overruled by the court. At the same time
the defendants filed an additional answer to the petition, denying
all the allegations and charges therein contained, and also pleaded
the statute of limitations in two forms, as set forth in the
transcript. Afterwards, on the sixth day of February, 1858, the
defendants had leave to plead
nul tiel record to the
respective decrees set forth in the plaintiffs' petition. On that
issue the court found for the plaintiffs, and overruled the plea,
and the parties went to trial upon the plea denying all the
allegations and charges contained in the plaintiffs' petition, and
upon the pleas setting up the statute of limitations. To support
the issue on their part, the plaintiffs introduced duly certified
copies of the two records and decrees set forth in their petition,
and proved by competent witnesses the value of the slaves at the
time of the trial. By that testimony it appeared that one of the
slaves was of the value of eight hundred dollars, and that the
other two were each of the value of nine hundred dollars.
Defendants offered to prove that they removed from Mississippi on
the twentieth day of January, 1850; that they became citizens of
Texas, and were domiciliated there on the twenty-first day of
February of that year, and that they had ever since resided there
as citizens of that state. That testimony was excluded by the court
upon the objection of the plaintiffs, and the defendants excepted
to the ruling. They offered no other evidence, and under the
Page 65 U. S. 200
instructions of the court the jury returned their verdict for
the plaintiffs. At the trial, the defendants requested the court to
instruct the jury that:
1. The transcript from the record to the High Court of Errors
and Appeals, and the Chancery Court for the Northern District of
the State of Mississippi is not evidence sufficient to entitle the
plaintiffs to recover.
2. That that portion of the decree of the chancery court fixing
the hire of the negroes at two hundred dollars a year, from and
after the date of that decree, is no evidence of the value of the
hire of said negroes, and unless the plaintiffs have introduced
some evidence independent of that record proving the value of the
hire, the jury cannot allow hire from the date of the judgment
rendered by the vice chancellor.
But the court refused so to instruct the jury, and did instruct
them that the record was conclusive proof that the title of the
slaves was in the plaintiffs, and of the value of their hire up to
the fourth day of February, 1854, as shown by the record, and the
jury were also instructed to return a verdict in favor of the
plaintiffs for the additional hire, at the rate of two hundred
dollars per annum from the date of the decree. Instructions were
also given to the jury as to the other matters of claim set forth
in the petition, but inasmuch as they are not now made the subject
of complaint, we shall pass the exceptions over without remark
except to say that they are evidently without merit.
On this state of the case, three questions are presented for
decision:
1. It is insisted by the plaintiffs in error that the court
erred in charging the jury that the record offered in evidence was
conclusive proof as to the title of the slaves in controversy, and
of the value of their hire to the date of the decree. That theory
is based upon certain facts which are apparent in the record of
that suit, and the question is raised both by the instructions
given to the jury and by the refusal of the court to charge as
requested. It appears from the record of the suit that the bill of
complaint was filed in the District Chancery Court for the Northern
District of Mississippi on the twenty-sixth
Page 65 U. S. 201
day of November, 1846, and that the respondents entered their
appearance on the twenty-third day of November, 1847, and made
answer to the suit. Testimony was taken on both sides, and the
respondents continued to prosecute their defense to the suit until
the eleventh day of April, 1850, when, upon final hearing, the bill
of complaint was dismissed at the cost of the complainants.
Respondents' attorney then withdrew his appearance, but the record
states that the complainants, on the same day, prayed an appeal,
which was granted, upon their giving bond for costs in ninety days,
"and by consent it is agreed" that the appeal be taken directly to
the high court of errors and appeals. Complainants, however, failed
to prosecute the appeal within the appointed time, and consequently
were obliged to prosecute the appeal by writ of error. It is not
now questioned that a writ of error, under the circumstances of the
case, was the proper process, by the law of that state, for the
removal of the cause into the appellate court, but it is insisted
that the subsequent decrees are void because the respondents were
not legally notified of the pendency of the writ of error. Personal
service was not made on either of the respondents, and they never
appeared in the appellate court. On the contrary, it appears that
the attorney of the complainants, on the eighteenth day of January,
1852, filed an affidavit in the cause, that the defendants in error
were not residents of the state, and that they had no attorney of
record on whom process could be served. Provision, however, is made
by the law of that state for service by publication in cases of
this description. By the Act of the twenty-ninth of January, 1829,
it is provided that
"Whenever a cause shall be removed to the supreme court by writ
of error, and the court is satisfied that the defendant in error is
a nonresident, and has no attorney of record within this state, it
shall be the duty of said court to cause notice of the pendency of
said cause to be published for three weeks in some public
newspaper, the first of which shall be at least three months before
the sitting of the next term of the court in which the case is
pending, within this state, on proof of which publication the court
shall proceed to hear and determine said cause
Page 65 U. S. 202
in the same manner as if process had been actually served upon
the said defendant."
Hutchison's Dig. 931.
That regulation, by a subsequent act passed on the second day of
March, 1833, is made applicable to the high court of errors and
appeals, and it was conceded at the argument that the publication
was made under that provision. On the filing of the affidavit
showing that the defendants in that suit were nonresidents of the
state, it was ordered by the court that unless they appeared on the
third Monday of October, 1853,
"the court will proceed to hear and determine the cause in the
same manner as if process had been actually served, and it was
further ordered that a copy of the order be published in a certain
public newspaper published at the capital of the state, once a week
for three weeks."
Publication was accordingly made, as appears by the decree in
the cause, and on the twenty-third day of January, 1854, the decree
was entered reversing the decree of the subordinate court, and the
question is whether the notice was sufficient to give the appellate
court jurisdiction of the case and the parties. That the
subordinate court had full jurisdiction is admitted. Both of the
respondents appeared in that suit, and litigated the merits for the
period of three years. From the evidence in the case, it appears
that they got possession of the slaves in Tennessee in violation of
the rights of the first-named complainant, and removed them to the
State of Mississippi. Suit was brought against them in a
subordinate court of the latter state, and after three years'
litigation, and when they had succeeded in dismissing the bill of
complaint, they removed to Texas, carrying the slaves with them,
although they knew the complainants intended to seek a revision of
the decree in the appellate court. All of the equities of the case
are therefore with the present defendants. Where a court has
jurisdiction, it has a right to decide every question which occurs
in the cause, and whether its decision be correct or otherwise, its
judgment, until reversed, as a general rule, is regarded as binding
in every other court. Whenever the parties to a suit, and the
subject matter in controversy between them, are within the regular
jurisdiction of a court of equity, the decree of that
Page 65 U. S. 203
court is to every intent as binding as would be the judgment of
a court of law. Accordingly, it was held by this Court in
Pennington v.
Gibson, 16 How. 65, that in all cases where an
action of debt can be maintained upon a judgment at law to recover
a sum of money awarded by such judgment, the like action may be
maintained upon a decree in equity, provided it is for a specific
amount, and that the records of the two courts are of equal dignity
and binding obligation. Had the decree, therefore, been rendered in
the subordinate court before the appeal, the right of the
plaintiffs below to recover in this suit would have been beyond
question, unless there is some other error in the record. courts of
general jurisdiction are presumed to act by right, and not by
wrong, unless it clearly appears that they have transcended their
powers.
Gregnon's Lessee v.
Astor, 2 How. 319;
Voorhees
v. Bank of the United States, 10 Pet. 449. Notice
to the defendant, actual or constructive, however, is essential to
the jurisdiction of all courts, and it was held by this Court in
Webster v.
Reid, 11 How. 460, that when a judgment is brought
collaterally before the court as evidence, it may be shown to be
void on its face by want of notice to the person against whom it is
entered. Numerous cases also are cited by the counsel of the
present plaintiffs, applicable to the judgments or decrees of a
court exercising original jurisdiction, which assert the general
rule that no man shall be condemned in his person or property
without notice and an opportunity to make his defense. And some of
them go much further and lay down the rule as applicable to the
inception of the suit that notice by publication is insufficient to
support the judgment in any jurisdiction except in the courts of
the state where it was rendered.
Boswell's Lessee v.
Otis, 9 How. 350;
Oakley v. Aspinwall, 4
Comst. 513. None of these cases, however, precisely touch the
question under consideration. Personal service was made upon the
defendants in this case by due process of law in the court of
original jurisdiction, and the question here is whether a party
duly served with notice in a subordinate court after he has
appeared and answered to the suit and secured an erroneous judgment
in his favor, may voluntarily
Page 65 U. S. 204
absent himself from the jurisdiction of the appellate tribunal
so as to render it impossible to give him personal notice of an
appeal, and still have a right to complain that notice was served
by publication pursuant to the law of the jurisdiction from which
he has thus voluntarily withdrawn. We think not. To
brk:
admit the proposition would be to deprive the other party of all
means of removing the cause to the appellate tribunal, and would
enable a party who knew he had wrongfully prevailed in the court
below to secure the fruits of an erroneous judgment by defeating
the jurisdiction of the appellate court. Actual notice ought to be
given in all cases where it is practicable, even in appellate
tribunals; but whenever personal service has been rendered
impossible by the removal of the appellee or defendant in error
from the jurisdiction, service by publication is sufficient to give
the appellate tribunal jurisdiction of the subject and the person,
provided it appears in the record that personal notice was given in
the subordinate court and that the party there appeared, and
litigated the merits of the controversy. Contrary to the views of
the counsel for the present plaintiffs, we think there is some
distinction between the notice required to be given to an appellee
or defendant in error and the service of process in the original
suit. A writ of error is said to be an original writ, because at
common law it was issued out of the court of chancery, but its
operation is rather upon the record, than the person. Under the
Judiciary Act, says Marshall, C.J., the effect of a writ of error
is simply to bring the record into court and submit the judgment of
the inferior tribunal to reexamination. It does not in any manner
act upon the parties; it acts only on the record, by removing the
record into the supervising tribunal. Suits cannot, under the
Judiciary Act, be commenced against the United States, and yet
writs of error, accompanied by citations, have uniformly issued for
the removal of judgments recovered in favor of the United States
into this Court for reexamination. Such cases are of daily
occurrence, and the judgments are here reversed or affirmed, as
they are with or without error, and it has never been supposed that
the writ of error in such cases, though sometimes
Page 65 U. S. 205
involving large amounts, was a suit against the United States.
Plainly, therefore, there is a distinction between a writ of error
and the original suit. According to the practice in this Court, it
is rather a continuation of the original litigation than the
commencement of a new action, and such, it is believed, is the
general understanding of the legal profession in the United States.
Cohens v.
Virginia, 6 Pet. 410;
Clark
v. Matthewson, 12 Pet. 170.
No rule can be a sound one which, by its legitimate operation,
will deprive a party of his right to have his case submitted to the
appellate court, and where, as in this case, personal service was
impossible in the appellate court through the act of the defendant
in error, it must be held that publication, according to the law of
the jurisdiction, is constructive notice to the party, provided the
record shows that process was duly served in the subordinate court,
and that the party appeared and litigated the merits. Constructive
notice, says Mr. justice Baldwin in
Hollingsworth v.
Barbour, 4 Pet. 475, can only exist in the cases
coming fairly within the provisions of the statutes authorizing the
courts to make orders for publication, and providing that the
publication, when made, shall authorize the courts to decree.
Regina v. Lightfoot, 26 Eng.L. & Eq., 177.
As stated by this Court in
Harris v.
Hardeman, 14 How. 339, a judgment upon a proceeding
in personam can have no force as to one on whom there has
been no service of process, actual or constructive, and who has had
no day in court or notice of any proceeding against him. Judgment
in that case had been rendered without any sufficient notice,
either actual or constructive, and of course it was held to be
irregular; but the opinion of the court clearly recognizes the
principle that constructive notice in certain cases may be
sufficient to bind the party. Every person, as this Court said in
the case of
The Mary,
9 Cranch 444, may make himself a party to an admiralty proceeding
and appeal from the sentence, but notice of the controversy is
necessary in order to enable him to become a party. When the
proceedings are against the person, notice is served personally, or
by publication,
Page 65 U. S. 206
but where they are
in rem, notice is served upon the
thing itself. Common justice requires that a party, in cases of
this description, should have some mode of giving notice to his
adversary, and where, as in this case, the record shows that the
defendant appeared in the subordinate court and litigated the
merits there to final judgment, it cannot be admitted that he can
defeat an appeal by removing from the jurisdiction, so as to render
a personal service of the citation impossible. On that state of
facts, service by publication, according to the law of the
jurisdiction and the practice of the court, we think, is free from
objection, and is amply sufficient to support the judgment of the
appellate court.
Mandevillev.
Riggs, 2 Pet. 489;
Hunt
v. Wickliffe, 2 Pet. 214.
2. It is insisted, in the second place, by the counsel of the
plaintiffs that the court erred in allowing the decree to go to the
jury as evidence of the value of the hire of the slaves
subsequently to the fourth day of February, 1854. That theory
overlooks the fact that testimony had been introduced by the
present defendants showing the value of the slaves at the time of
the trial, and that the decree was to be taken in connection with
the parol testimony showing that the slaves were still living and
in the possession of the parties originally charged with their
abduction. No evidence had been offered by the defendants, and, in
view of the circumstances, we think the charge was correct and that
the prayer for instruction was properly refused.
3. While the cause was pending on the chancery side of the
court, on motion of the plaintiffs, the court struck out the answer
of the defendants, and it is now insisted that the action of the
court in that behalf was erroneous. All we think it necessary to
say in reply to this objection is to remark that the cause was
subsequently transferred to the law docket without objection, and
that a bill of exceptions does not bring into this Court any of the
prior proceedings for revision. Whatever may be the practice in the
state courts, counsel must bear in mind that there is a broad
distinction between a suit at law and a suit in equity, and must
understand that this Court cannot and will not overlook that
distinction.
Page 65 U. S. 207
The judgment of the district court is affirmed, with
costs.