Gilbert v. Hanford

Decision Date27 October 1864
Citation13 Mich. 40
CourtMichigan Supreme Court
PartiesWilliam Gilbert v. Caroline Hanford

Heard October 13, 1864

Error to Wayne circuit.

This was an action of debt on a justice's judgment. The plaintiff in error (defendant below) demurred to the plaintiff's declaration, and the demurrer was overruled. The defendant (below) then pleaded the general issue, and the cause was tried by the court without a jury, and judgment rendered for defendant in error (plaintiff below).

The pleadings and facts are sufficiently stated in the opinion of the court.

Judgment reversed with costs of both courts.

H. C Knight, and Charles Tryon, for plaintiff in error:

It is a well settled principle of law, that where a court has jurisdiction, its proceedings cannot be impeached collaterally; nor, when of record, can there be any proof in opposition to the record: Clark v. Holmes, 1 Doug Mich. opinion of Judge Goodwin, pages 398 and 400.

Where there is jurisdiction, the proceedings cannot be impeached collaterally; nor, when of record, can there be any averment or proof in opposition to the record; and whether its decision be correct or otherwise, its decision, until reversed. Is regarded as binding in every other court: 1 Wendell 79: Riley v. Seymour, 1 Wendell 147; Mather v. Hood, 8 John. R., 51; Cunningham v. Bucklin, 8 Cowen 178.

It is a general rule that a party proceeded against must be notified in some legal manner of the proceedings, in order to give the court jurisdiction of his person; and where the statute prescribes the mode of acquiring jurisdiction of the person, it must be complied with, or the subsequent proceedings are a nullity: 1 Hill's R., 130; Cowen's Treatise, fourth edition, 252; 15 John. R., 244.

Where the proceedings of a court of inferior jurisdiction are void for want of jurisdiction, the consequence of the judgment being void, is as if there had been no action: 14 John. R., 432.

If a justice gives judgment against one who is not in court, and who had not been served with summons, he would acquire no jurisdiction of him, and the judgment would, for this cause, be void: 14 John. R., 244; Campau v. Fairbanks, 1 Manning's Mich. 151; 14 John. R., 481; 13 Wendell 85; 19 John. R., 39; 3 Wendell 202.

Ward & Palmer, for defendant in error:

The defendant in error declared in her true name on a judgment recovered by her in a wrong name, averring that she was the identical person who recovered the judgment. The plaintiff here pleads the general issue, and objects that the judgment so recovered is void on account of the misnomer.

The objection is not tenable at all, and if it were, it would not be under the issue.

Misnomer is a ground of abatement only, and if not pleaded is waived, and the judgment recovered is valid: 1 Chitty Pl., 248 and 451.

The plaintiff below had only to prove the judgment declared on, and the averment of identity, to entitle her under the pleadings to recover: Barry v. Carrothers, 6 Rich. S. C. Rep., 331; LaFayette Insurance Company v. French, 18 Howard's U. S. Reports, 404; Hart v. Johnson, 6 Hammond's Ohio Reports, 240; Newcomb v. Peck, 17 Vt. 302.

OPINION

Campbell J.:

Caroline Hanford sued upon a judgment rendered by a justice of the peace in favor of William Faulkner, against William Gilbert upon default of appearance. ...

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3 cases
  • Locke v. Leonard Silk Co.
    • United States
    • Michigan Supreme Court
    • October 30, 1877
    ... ... 199; but defendant ... waives nothing by not appearing: the plaintiff must establish ... his case precisely as if he were present: Gilbert v ... Hanford 13 Mich. 40; the justice's necessary absence ... for a few minutes beyond the hour does not discontinue the ... case: Stadler v ... ...
  • Wixom v. Stephens
    • United States
    • Michigan Supreme Court
    • January 11, 1869
    ...as to the defendants in error, by reason of the misnomer in Stephens's name, could not be relied on as a bar to an action on the note: 13 Mich. 40, 43. the judgment is good, in which case it is a good ground for recovery, or it is void, in which event it leaves the right to recover on the n......
  • Kent v. May
    • United States
    • Michigan Supreme Court
    • October 27, 1864

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