1. Where in suits brought in a state court to settle an alleged
co-partnership between the plaintiffs and a deceased partner, the
supreme court of the state decided that there had been no
sufficient service on an infant defendant who had succeeded to an
undivided interest in the property of the deceased partner, and
consequently that the lower court had had no authority to appoint a
guardian
ad litem for such infant, and therefore reversed
a decree directing a sale of the property of the deceased, such
adjudication is the law of the case, and is binding upon the
circuit court of the United States in an action brought by a
grantee of the heirs of the deceased against a purchaser at a sale
under such decree.
2. A superior court of general jurisdiction, proceeding within
the general scope of its powers, is presumed to have jurisdiction
to give the judgments it renders until the contrary appears; and
this presumption embraces jurisdiction not only of the cause or
subject matter of the action in which the judgment is given, but of
the parties also. The rule is different with respect to courts of
special and limited authority; their jurisdiction must
affirmatively appear by sufficient evidence or proper averment in
the record, or their judgments will be deemed void on their
face.
3. The presumptions which the law implies in support of the
judgments of superior courts of general jurisdiction only arise
with respect to jurisdictional facts, concerning which the record
is silent. When the record
Page 85 U. S. 351
states the evidence or makes an averment with reference to a
jurisdictional fact, it will not be presumed that there was other
or different evidence respecting the fact or that the fact was
otherwise than as averred.
4. The presumptions indulged in support of the judgments of
superior courts of general jurisdiction are also limited to
jurisdiction over persons within their territorial limits and over
proceedings which are in accordance with the course of the common
law.
5. The tribunals of one state have no jurisdiction over the
persons of other states unless found within their territorial
limits.
6. When, by legislation of a state, constructive service of
process by publication is substituted in place of personal service
and the court upon such constructive service is authorized to
proceed against the person of an absent party, not a citizen of the
state nor found within it, the statutory provisions must be
strictly pursued.
7. Where special powers conferred upon a court of general
jurisdiction are brought into action according to the course of the
common law -- that is, in the usual form of common law and chancery
proceedings, by regular
process and personal service, where a personal judgment or
decree is asked, or by seizure or attachment of the property where
a judgment
in rem is sought, the same presumption of
jurisdiction will usually attend the judgments of the court as in
cases falling within its general powers. But where the special
powers conferred are exercised in a special manner, not according
to the course of the common law, or where the general powers of the
court are exercised over a class not within its ordinary
jurisdiction upon the performance of prescribed conditions, no such
presumption of jurisdiction will attend the judgment of the court.
The facts essential to the exercise of the special jurisdiction
must appear in such cases upon the record.
8. The law imputes to an attorney knowledge of defects in legal
proceedings for the sale of property taken under his direction.
9. The title of an attorney purchasing property at a judicial
sale decreed in proceedings in which he acted as an attorney falls
by the law of California with the reversal of the decree directing
the sale, independent of defects in the proceedings, and
conveyances after such reversal pass no title as against a grantee
of the original owner of the property.
Philip Galpin brought an action against Lucy Page for the
possession of certain real property situated in the City of San
Francisco. The case was tried by the court by the stipulation of
the parties without the intervention of a jury. Both parties
claimed title to the premises from the same source, Franklin C.
Gray deceased, who died in the City of New York, in July, 1853,
intestate, possessed of a large property
Page 85 U. S. 352
in California, both real and personal. Of the real property the
premises in controversy were a portion. The deceased left surviving
him a widow Matilda, of whom a posthumous child was born in
December afterwards, named Franklina. By the statute of California,
the entire estate of the deceased vested in the widow and child in
equal shares.
The plaintiff asserted title to the demanded premises through
conveyances authorized by the Probate Court of the City and County
of San Francisco, which administered upon the estate of the
deceased. The defendant claimed title under a purchaser who bought
at a commissioner's sale had under a decree of the district court
of the state rendered in an action brought to settle the affairs of
an alleged co-partnership between the deceased and others. It was
admitted that the plaintiff acquired the title unless it had
previously passed to the purchaser at the commissioner's sale. It
was therefore upon the validity of the decree in the district court
and the consequent sale and deed of the commissioner that the
present case was to be determined.
The action in which that decree was rendered arose in this
wise:
In February, 1854, William H. Gray a brother of the deceased,
brought a suit in equity in the district court of the state (which
embraced at the time the City of San Francisco) against Joseph C.
Palmer and Cornelius J. Eaton, who had been appointed
administrators of the estate of the deceased, and against the
widow, Matilda, and James Gray, the father of the deceased. In his
bill the complainant alleged that a co-partnership had existed
between himself and the deceased which embraced commercial business
in which the latter was engaged and the purchase and sale of real
estate; that the co-partnership business was carried on, and the
titles of the real property purchased were taken in the individual
name of the deceased, but that the complainant was interested in
all its business and property to the extent of one-third. The
object of the suit was to have the affairs of the alleged
co-partnership settled, and to obtain a decree awarding one-third
of its property to the complainant.
Page 85 U. S. 353
The allegation of the bill that a dormant and universal
co-partnership had existed between the complainant and the deceased
was without any just foundation in fact, for, as hereinafter
mentioned, it was afterwards held by the supreme court of the state
to be unsupported by the evidence in the case.
The bill omitted to make the child, Franklina, a party, and
accordingly, in June following, a supplemental or amendatory bill
was filed by the complainant, referring to the original bill and
stating the birth of the child, that she was entitled to share in
the estate of the deceased, and that she was absent from the state,
a resident with her mother in Brooklyn, in the State of New York
and praying that she might be made a party defendant, that a
guardian
ad litem might be appointed for her, and that the
complainant might have the same relief prayed in the original
bill.
Subsequently an order was made by the court directing service of
the summons upon the new defendant by publication. It was preceded
by a recital that it appeared to the satisfaction of the court that
the defendant resided out of the state and that she was a necessary
party to the action. It was not stated in the order in what way the
facts recited appeared. It seemed probable that the court might
have acted upon the statements of the supplemental complaint. The
statute of the state which authorizes constructive service by
publication is as follows:
"When the person on whom the service is to be made resides out
of the state, or has departed from the state, or cannot, after due
diligence, be found within the state, or conceals himself to avoid
the service of summons, and the fact shall appear by affidavit to
the satisfaction of the court or a judge thereof or a county judge,
and it shall in like manner appear that a cause of action exists
against the defendant in respect to whom the service is to be made,
or that he is a necessary or property party to the action, such
court or judge may grant an order that the service be made by the
publication of the summons. [
Footnote 1] "
Page 85 U. S. 354
In December following, upon the petition of the plaintiff, a
guardian
ad litem was appointed for the child. The other
defendants appeared by attorneys and answered.
In January, 1855, Eaton, who had been a clerk of the deceased,
and who, as administrator, was made defendant in the above action
of Gray, resigned his trust and commenced a suit in the district
court of the state against Palmer, the remaining administrator, and
against the widow and child. In his bill he also alleged that a
co-partnership had existed between him and the deceased, that such
co-partnership embraced all the business and real estate
transactions of the deceased, and that his interest in the
partnership and its property was one-fourth.
In this action, publication was made of the summons issued
against the defendant Franklina, but it nowhere appeared in the
record that any application was ever made to the court or judge
thereof for an order directing the publication, or that any such
order was ever made. So far as appeared from the record, it was the
voluntary act of the complainant without judicial authority or
sanction. The supreme court afterwards held that no sufficient
service was ever made of the summons issued. In September
following, after the publication thus made, upon application of the
complainant, the same person was appointed guardian
ad
litem for the infant defendant in this action, who had
previously been appointed such guardian
ad litem in the
other action. The other defendants appeared by attorney and
answered.
On the 23d of October following, upon the stipulation of the
guardian thus appointed and the attorneys of the other defendants,
the two actions were consolidated into one. Four days subsequently,
a decree was entered in this consolidated action, and from a
certificate of the judge appended to the decree, it would seem to
have been entered without trial and by consent and agreement of the
parties. By this decree it was adjudged that a co-partnership had
existed between Eaton and the deceased, which embraced all the
property, real and personal, and all the business of each
Page 85 U. S. 355
of them, and that in this co-partnership Eaton had an interest
of one-fourth; that there had also existed at the same time a
co-partnership between Gray and the deceased, which also embraced
all the property, real and personal, and all the business of each,
and that in this co-partnership Gray had an interest of one-third;
that the latter co-partnership was subject to the co-partnership
with Eaton, and that therefore Eaton should take one-fourth of the
estate, and Gray one-third of the remaining three-fourths, and that
the residue should be equally divided between the widow and child.
By the decree, a reference was also ordered to a commissioner to
take and state an account of the business profits and property of
the two co-partnerships, with directions upon the confirmation of
his report to sell all the property, real and personal, of both
co-partnerships, and upon the confirmation of the sales to execute
proper conveyances to the purchasers.
The commissioner stated an account as required, his report was
confirmed, and by a decree of the court, made in April, 1856, a
sale of the entire property of the two alleged co-partnerships was
ordered. The sale was had under this decree in May following. At
that, sale the premises in controversy were bid off by Gwyn Page,
one of the attorneys of the plaintiff, Gray and to him the
commissioner executed a deed. Page subsequently sold and conveyed
an undivided half of the premises to J. B. Crockett, his law
partner, also one of the attorneys of the plaintiff, Gray and the
latter in June, 1863, conveyed his interest to Lucy Page, the
defendant in the case. The interest of Gwyn Page in the remaining
half passed by devise to the defendant.
On appeal to the supreme court of the state, the decree of the
district court was, at the October Term of 1857, reversed on the
ground that no sufficient service of summons was made upon the
infant Franklina under the statute, in the case of Eaton against
Palmer, and that until such service, no guardian
ad litem
could be appointed for her, and on the further ground that the
evidence presented had not established a co-partnership between
William H. Gray and the
Page 85 U. S. 356
deceased. The case was accordingly remanded to the district
court, and afterwards both suits were dismissed.
The circuit court gave judgment in the suit below for the
defendant, and the plaintiff thereupon brought the case here on
writ of error. In its opinion, which accompanied the record and in
which the circuit court went into an elaborate argument to show
that the District Court of California had, when its decree was
rendered, apparently, jurisdiction, the circuit court held that the
record in the state court could not be attacked collaterally unless
it affirmatively showed that the court did not have jurisdiction.
Its language was as follows:
"The record in the consolidated action is here attacked
collaterally, and not on appeal, or in a direct proceeding of any
kind to reverse, set aside, or vacate the decree. The rule is
different in the two cases. When attacked collaterally, it is not
enough that the record does not affirmatively show jurisdiction,
but, on the contrary, it must affirmatively show that the court did
not have jurisdiction, or the decree will be valid until reversed
on appeal, or vacated on some direct proceeding taken for that
purpose. "
Page 85 U. S. 364
MR. JUSTICE FIELD, after stating the facts of the case,
delivered the opinion of the Court as follows:
The supreme court of the state in its opinion, to which we are
referred in the findings, speaks of its decision as though there
were two separate decrees before it, but this is an evident
inadvertence, as there was but one decree, and that was reversed
for the reasons assigned as applying to proceedings in the separate
suits before their consolidation. After the reversal of the decree,
it is possible that the suits proceeded independently of each other
as before their consolidation, until the dismissal disposed of them
entirely.
The defendant relies upon the validity of the decree of the
district court, notwithstanding its subsequent reversal, to uphold
the commissioner's sale and deed. Her position is this: that the
district court of the state was a court of general jurisdiction;
that being such, it is presumed to have had jurisdiction both of
the subject matter and persons which authorized the rendition of
the decree in question; that such presumption is conclusive, and
the validity of the decree cannot be collaterally attacked by any
matter outside of the record, and that, therefore, the sale made
under the decree before it was reversed is not affected by the
reversal.
The position of the defendant was sustained by the circuit
court. "The record in the consolidated action," says that
court,
"is here attacked collaterally, and not on appeal, or in a
direct proceeding of any kind to reverse, set aside,
Page 85 U. S. 365
or vacate the decree. The rule is different in the two cases.
When attacked collaterally, it is not enough that the record does
not affirmatively show jurisdiction, but, on the contrary, it must
affirmatively show that the court did not have jurisdiction, or the
decree will be valid until reversed on appeal, or vacated on some
direct proceeding taken for that purpose."
If the rule as thus stated were universally true, it would not
support the decree in the case at bar, for the record in the
consolidated action does affirmatively show that the district court
never acquired jurisdiction over the person of Franklina C. Gray in
one of the actions, and therefore had no more authority to appoint
a guardian
ad litem for her in that action than it had to
appoint attorneys for the other defendants. That record embraces
the judgment of the appellate court as well as the decree of the
district court, and it contains an express adjudication of the
appellate court to that effect. The record of itself establishes,
therefore, the invalidity of the decree. The adjudication of the
appellate court constitutes the law of that case upon the points
adjudged, and is binding upon the circuit court and every other
court when brought before it for consideration. The circuit court
possesses no revisory power over the decisions of the supreme court
of the state, and any argument to show that that court mistook the
law and misjudged the jurisdictional fact would have been out of
place. There were no facts before the circuit court which were not
before the supreme court of the state when its judgment was
pronounced.
But the rule of law as stated by the circuit court is not
universally true. It is subject to many exceptions and
qualifications, and has no application to the case at bar.
It is undoubtedly true that a superior court of general
jurisdiction, proceeding within the general scope of its powers, is
presumed to act rightly. All intendments of law in such cases are
in favor of its acts. It is presumed to have jurisdiction to give
the judgments it renders until the contrary appears. And this
presumption embraces jurisdiction
Page 85 U. S. 366
not only of the cause or subject matter of the action in which
the judgment is given, but of the parties also. The former will
generally appear from the character of the judgment, and will be
determined by the law creating the court or prescribing its general
powers. The latter should regularly appear by evidence in the
record of service of process upon the defendant or his appearance
in the action. But when the former exists, the latter will be
presumed. This is familiar law, and is asserted by all the adjudged
cases. The rule is different with respect to courts of special and
limited authority; as to them, there is no presumption of law in
favor of their jurisdiction; that must affirmatively appear by
sufficient evidence or proper averment in the record, or their
judgments will be deemed void on their face.
But the presumptions, which the law implies in support of the
judgments of superior courts of general jurisdiction, only arise
with respect to jurisdictional facts concerning which the record is
silent. Presumptions are only indulged to supply the absence of
evidence or averments respecting the facts presumed. They have no
place for consideration when the evidence is disclosed or the
averment is made. When, therefore, the record states the evidence
or makes an averment with reference to a jurisdictional fact, it
will be understood to speak the truth on that point, and it will
not be presumed that there was other or different evidence
respecting the fact, or that the fact was otherwise than as
averred. If, for example, it appears from the return of the officer
or the proof of service contained in the record that the summons
was served at a particular place, and there is no averment of any
other service, it will not be presumed that service was also made
at another and different place; or if it appear in like manner that
the service was made upon a person other than the defendant, it
will not be presumed, in the silence of the record, that it was
made upon the defendant also. Were not this so, it would never be
possible to attack collaterally the judgment of a superior court,
although a want of jurisdiction might be apparent upon its face,
the answer to the attack would always be
Page 85 U. S. 367
that, notwithstanding the evidence or the averment, the
necessary facts to support the judgment are presumed.
The presumptions indulged in support of the judgments of
superior courts of general jurisdiction are also limited to
jurisdiction over persons within their territorial limits, persons
who can be reached by their process, and also over proceedings
which are in accordance with the course of the common law.
The tribunals of one state have no jurisdiction over the persons
of other states unless found within their territorial limits; they
cannot extend their process into other states, and any attempt of
the kind would be treated in every other forum as an act of
usurpation without any binding efficacy. "The authority of every
judicial tribunal, and the obligation to obey it," said Burge in
his Commentaries, "are circumscribed by the limits of the territory
in which it is established." [
Footnote 2] "No sovereignty," says Story in his Conflict
of Laws,
"can extend its process beyond its own territorial limits to
subject either persons or property to its judicial decisions. Every
exertion of authority of this sort beyond this limit is a mere
nullity, and incapable of binding such persons or property in any
other tribunals. [
Footnote
3]"
And in
Picquet v. Swan, [
Footnote 4] the same learned justice says:
"The courts of a state, however general may be their
jurisdiction, are necessarily confined to the territorial limits of
the state. Their process cannot be executed beyond those limits,
and any attempt to act upon persons or things beyond them would be
deemed a usurpation of foreign sovereignty, not justified or
acknowledged by the law of nations. Even the Court of King's Bench
in England, though a court of general jurisdiction, never imagined
that it could serve process in Scotland, Ireland, or the colonies,
to compel an appearance, or justify a judgment against persons
residing therein at the time of the commencement of the suit. This
results from the general principle that a court created within
Page 85 U. S. 368
and for a particular territory is bounded in the exercise of its
powers by the limits of such territory. It matters not whether it
be a kingdom, a state, a county, or a city, or other local
district. If it be the former, it is necessarily bounded and
limited by the sovereignty of the government itself, which cannot
be extraterritorial; if the latter, then the judicial
interpretation is that the sovereign has chosen to assign this
special limit, short of his general authority."
In
Steel v. Smith, Mr. Chief Justice Gibson, of the
Supreme Court of Pennsylvania, after referring to the citations we
have made from the treatises of Burge and Story says:
"Such is the familiar, reasonable, and just principle of the law
of nations, and it is scarcely supposable that the framers of the
Constitution designed to abrogate it between states which were to
remain as independent of each other, for all but national purposes,
as they were before the Revolution. Certainly it was not intended
to legitimate an assumption of extraterritorial jurisdiction which
would confound all distinctive principles of separate sovereignty.
[
Footnote 5]"
Whenever, therefore, it appears from the inspection of the
record of a court of general jurisdiction that the defendant
against whom a personal judgment or decree is rendered was, at the
time of the alleged service, without the territorial limits of the
court, and thus beyond the reach of its process, and that he never
appeared in the action, the presumption of jurisdiction over his
person ceases, and the burden of establishing the jurisdiction is
cast upon the party who invokes the benefit or protection of the
judgment or decree. This is so obvious a principle, and its
observance is so essential to the protection of parties without the
territorial jurisdiction of a court, that we should not have felt
disposed to dwell upon it at any length had it not been impugned
and denied by the circuit court. It is a rule as old as the law,
and never more to be respected than now, that no one shall be
personally bound until he has had his day in court, by which is
meant until he has been duly cited to appear, and
Page 85 U. S. 369
has been afforded an opportunity to be heard. Judgment without
such citation and opportunity wants all the attributes of a
judicial determination; it is judicial usurpation and oppression,
and never can be upheld where justice is justly administered.
When, therefore, by legislation of a state constructive service
of process by publication is substituted in place of personal
citation, and the court upon such service is authorized to proceed
against the person of an absent party, not a citizen of the state
nor found within it, every principle of justice exacts a strict and
literal compliance with the statutory provisions. And such has been
the ruling, we believe, of the courts of every state in the Union.
It has been so held by the Supreme Court of California in repeated
instances. In
Jordan v. Giblin, [
Footnote 6] decided in 1859, service of publication was
attempted, and the court said that it had already held,
"In proceedings of this character, where service is attempted in
modes different from the course of the common law, that the statute
must be strictly pursued to give jurisdiction. A contrary course
would encourage fraud and lead to oppression."
In
Ricketson v. Richardson, [
Footnote 7] decided in 1864, the court, referring to
the sections of the statute authorizing service by publication,
said:
"These sections are in derogation of the common law, and must be
strictly pursued in order to give the court jurisdiction over the
person of the defendant. A failure to comply with the rule there
prescribed in any particular is fatal where it is not cured by an
appearance."
In
McMinn v. Whelan, [
Footnote 8] decided in 1866, the plaintiff in ejectment
traced his title from one Maume. The defendants endeavored to show
that the title had passed to one of them under a previous judgment
against Maume. This judgment was recovered against Maume and
others, who were nonresidents of the state, upon service of summons
by publication. It appeared from the record that a supplemental
complaint had been filed in the action, and that the summons
published was issued upon
Page 85 U. S. 370
the original complaint, and not after that had been superseded
by the supplemental complaint. It was objected that the publication
thus made was insufficient to give the court jurisdiction of the
person of the absent defendants; the objection was answered by the
position that the judgment could not be questioned collaterally for
the reason that the jurisdiction of a court of general or superior
jurisdiction would be presumed in the absence of evidence on the
face of the record to the contrary. But the court held the
objection well taken, and after referring to the case of
Peacock v. Bell, in Saunders, said that that case
"involved the question of jurisdiction as to the subject matter
of the action and not as to the person of the defendant, and it may
be doubted if a case can be found which sanctions any intendment of
jurisdiction over the person of the defendant when the same is to
be acquired by a special statutory mode without personal service of
process. If jurisdiction of the person of the defendant is to be
acquired by publication of the summons in lieu of personal service,
the mode prescribed must be strictly pursued."
But it is said that the court exercises the same functions and
the same power whether the service be made upon the defendant
personally or by publication, and that therefore the same
presumption of jurisdiction should attend the judgment of the court
in the one case as in the other. This reasoning would abolish the
distinction in the presumptions of law when applied to the
proceedings of a court of general jurisdiction, acting within the
scope of its general powers, and when applied to its proceedings
had under special statutory authority. And indeed it is contended
that there is no substantial ground for any distinction in such
cases. The distinction, nevertheless, has long been made by courts
of the highest character, both in this country and in England, and
we had supposed that its existence was not open to discussion.
"However high the authority to whom a special statutory power is
delegated," says Mr. Justice Coleridge, of the Queen's Bench,
"we must take care that in the exercise of it the facts giving
jurisdiction plainly appear, and
Page 85 U. S. 371
that the terms of the statute are complied with. This rule
applies equally to an order of the Lord Chancellor as to any order
of Petty Sessions. [
Footnote
9]"
"A court of general jurisdiction," says the Supreme Court of New
Hampshire,
"may have special and summary powers, wholly derived from
statutes, not exercised according to the course of the common law,
and which do not belong to it as a court of general jurisdiction.
In such cases, its decisions must be regarded and treated like
those of courts of limited and special jurisdiction. The
jurisdiction in such cases, both as to the subject matter of the
judgment, and as to the persons to be affected by it, must appear
by the record; and everything will be presumed to be without the
jurisdiction which does not distinctly appear to be within it.
[
Footnote 10]"
The qualification here made that the special powers conferred
are not exercised according to the course of the common law is
important. When the special powers conferred are brought into
action according to the course of that law -- that is, in the usual
form of common law and chancery proceedings, by regular process and
personal service, where a personal judgment of decree is asked or
by seizure or attachment of the property where a judgment
in
rem is sought -- the same presumption of jurisdiction will
usually attend the judgments of the court as in cases falling
within its general powers. Such is the purport of the language and
decision of this Court in
Harvey v. Tyler. [
Footnote 11] But where the special powers
conferred are exercised in a special manner, not according to the
course of the common law, or where the general powers of the court
are exercised over a class not within its ordinary jurisdiction
upon the performance of prescribed conditions, no such presumption
of jurisdiction will attend the judgment of the court. The facts
essential to the exercise of the special jurisdiction must appear
in such cases upon the record.
Page 85 U. S. 372
The extent of the special jurisdiction and the conditions of its
exercise over subjects or persons necessarily depend upon the terms
in which the jurisdiction is granted, and not upon the rank of the
court upon which it is conferred. Such jurisdiction is not,
therefore, the less to be strictly pursued because the same court
may possess over other subjects or other persons a more extended
and general jurisdiction. Upon this subject the commentators on
Smith's Leading Cases, after referring to numerous decisions
holding that in such cases the record must show a compliance with
the provisions of the statutes conferring the special jurisdiction,
very justly observe that,
"the inconveniences which may occasionally result from this
course of decision are more than compensated by the lesson which it
teaches, that from whatever source power may come it will fail of
effect when unaccompanied by right. [
Footnote 12]"
In the supplemental complaint filed in the action of
Gray v.
Eaton and others, and in the original complaint of
Eaton
v. Palmer, the absence of Franklina from the state and her
residence in another state are alleged. The record in the two
actions, and of course in the consolidated action, shows that she
was thus beyond the reach of the process of the court. All
presumption of jurisdiction over her person by the district court,
which otherwise might have been indulged is thus repelled, and it
remains for the defendant to show that by the means provided by
statute such jurisdiction was obtained. The statute provides, in
case of absent and nonresident defendants, for constructive service
of process by publication. It requires an order of the court or
judge before such publication can be made; it designates the facts
which must exist to authorize the order, the manner in which such
facts must be made to appear, the period for which publication must
be had, and the mode in which the publication must be established.
These provisions, as already stated, must be strictly pursued, for
the statute is in derogation of the common law. And the order,
which is
Page 85 U. S. 373
the sole authority for the publication, and which by statute
must prescribe the period and designate the paper in which the
publication is to be made, should appear in the record with proof
of compliance with its directions, unless its absence is supplied
by proper averment. If there is any different course of decision in
the state, it could hardly be expected that it would be followed by
a federal court so as to cut off the right of a citizen of another
state from showing that the provisions of law, by which judgment
has been obtained against him, have never been pursued.
The provisions mentioned were not strictly pursued with respect
to the infant defendant. There were various omissions and
irregularities in the proceedings taken which prevented the
jurisdiction over her from ever attaching. It is unnecessary to
specify them, as the effect of some of them has been the subject of
judicial determination by the supreme court of the state. That
court has adjudged that no sufficient service was ever made upon
her, and that until such service, no guardian
ad litem
could be appointed for her; and that adjudication is conclusive. It
follows that the decree against her, and all proceedings founded
upon such decree, so far as her rights are concerned, necessarily
fall to the ground. Judgment without jurisdiction is unavailing for
any purpose.
The decree being thus reversed, the title acquired by Page, the
purchaser at the commissioner's sale, falls with it. He was one of
the attorneys of the plaintiff Gray and the law imputes to him
knowledge of the defects in the proceedings, which were taken under
his direction and that of his co-partners, to obtain service upon
the infant. The conveyance by him of an undivided half to his law
partner, also one of the plaintiff's attorneys, was made after the
decree of the district court had been reversed for want of
jurisdiction over the infant. The partner also took his interest
with knowledge of this defect. The protection which the law gives
to a purchaser at judicial sales is not extended in such cases to
the attorney of the party, who is presumed to be cognizant of all
the proceedings.
Page 85 U. S. 374
In many of the states it is the law that a purchaser at a
judicial sale loses his title upon a reversal of the judgment or
decree under which the sale was made where such purchaser is a
party to the judgment or decree. In
Reynolds v. Harris, it
was held by the Supreme Court of California that where a plaintiff
bought property under a judgment, he must restore it to the
defendant on a reversal of the judgment, the court observing, after
citing several cases, that the current of authority, broken only by
a case or two, went
"directly to the point that a party obtaining through the
judgment before reversal any advantage or benefit, must restore
what he got to the other party, after the reversal. [
Footnote 13]"
The writer of this opinion endeavored to combat this doctrine in
a case in the circuit court of the United States where a purchase
had been made under a decree in that court for the enforcement of a
mechanic's lien. In that case, the complainant was mentioned in the
decree as a possible bidder, and provision was made for crediting
his bid on the amount adjudged due to him. On a reversal of the
decree the court sustained the sale, and endeavored in its opinion
to show that on principle the same protection should extend to
purchasers under judgments and decrees when parties as when
strangers. The law, however, of the state does not appear, so far
as we are enabled to discover from the decisions of its Supreme
Court, to have been changed since the decision in
Reynolds v.
Harris. And according to that law the purchasers being the
attorneys of the parties, and standing in the same position as the
parties, could not maintain their title independent of any defects
of jurisdiction in the proceedings.
The same doctrine prevails in Missouri. "The restitution," says
the supreme court of that state,
"to which the party is entitled upon the reversal of an
erroneous judgment, is of everything which is still in the
possession of his adversary. Where a man recovers land in a real
action, and takes possession or acquires title to land or goods by
sale under
Page 85 U. S. 375
execution, and the judgment is afterwards reversed, so far as he
is concerned his title is at an end, and the land or goods must be
restored in specie; not the value of them, but the things
themselves. There is an exception where the sale is to a stranger
bona fide, or where a third person has
bona fide
acquired some collateral right before the reversal. [
Footnote 14]"
The same doctrine is asserted in
McJilton v. Love, by
the Supreme Court of Illinois, [
Footnote 15] and is there stated to be well established
by authority, and numerous cases in support of the position are
cited. In New York, the doctrine would seem to be settled in the
same way. [
Footnote 16] As
this case must go back for a new trial, this position can be more
fully considered than it appears to have been by the court
below.
The defendant in this case acquired her interest, one-half, by
devise from the purchaser, Page; and the other half by conveyance
from one of the attorneys years after the reversal of the
decree.
It follows that the judgment must be
Reversed and the cause remanded for a new trial.
DAVIS, J., did not sit in the case, and took no part in its
decision.
[
Footnote 1]
Civil Practice Act of California, section 30; Hittel's General
Laws of California, page 724.
[
Footnote 2]
Commentaries on Colonial and Foreign Law, p. 1044.
[
Footnote 3]
Section 539.
[
Footnote 4]
5 Mason 40.
[
Footnote 5]
7 Watts & Sergeant, 451.
[
Footnote 6]
12 Cal. 100.
[
Footnote 7]
26
id. 149.
[
Footnote 8]
27
id. 300.
[
Footnote 9]
Christie v. Unwin, 3 Perry & Davison 208.
[
Footnote 10]
Morse v. Presby, 5 Foster 302.
[
Footnote 11]
2 Wall. 332.
[
Footnote 12]
Vol. 1, p. 1012.
[
Footnote 13]
14 Cal. 680.
[
Footnote 14]
41 Mo. 416.
[
Footnote 15]
13 Ill. 486.
[
Footnote 16]
Jackson v. Cadwell, 1 Cowen 644.
