Haywood v. Collins

• Decision Date: 30 September 1871
• Citation: 1871 WL 8146,60 Ill. 328
• Parties: RUFUS HAYWOODv.WATSON COLLINS et al.
• Court: Illinois Supreme Court

60 Ill. 328

1871 WL 8146 (Ill.)

RUFUS HAYWOOD

v.WATSON COLLINS et al.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county.

This was a bill in chancery, filed by Rufus Haywood in the circuit court of Cook county, against Watson Collins, Nathan B. Gladding, Allen Bacon, John M. Ware, Henry J. Goodrich, Charlotte P. Goodrich and Moses D. Wells, for the purpose of having deeds of conveyance of lands they claimed set aside as a cloud on title to his lands. It is claimed that the judgment in attachment against complainant, and under which the lands were sold, was void for want of service on complainant, either actual or constructive.

Defendants filed their answer to the bill, a trial was had, and the court, after hearing the evidence, refused the relief and dismissed the bill at the costs of complainant; and from that decree he appeals to this court.

Messrs. BENNETT & VEEDER, for the appellant.

Messrs. SLEEPER & WHITON, for the appellees.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

We propose to consider two questions:

First--Was the judgment of the circuit court of Coles county void or only voidable?

Second--Does the record of the court, as amended in 1870, afford evidence of the due publication of notice?

In May, 1860, proceedings in attachment were commenced in the Coles county circuit court against appellant and one Bane.

Appellant was a resident of New York, and Bane resided in Coles county.

A writ of attachment was issued and directed to the sheriff of Cook county, levied upon the real estate in controversy as the property of appellant, and returned “not found” as to the defendants.

At the October term of the court, in the year 1860, judgment was rendered against appellant and Bane, by default; but the court did not find that any notice had been given to appellant, either actual or constructive. The only pretended notice of the pendency of the attachment was, by publication. Conceding that the court might have received other proof of the fact of publication than the certificate of the publisher, the record does not so state.

The certificate attached to the notice did not purport to have been made either by the printer or publisher of any paper.

In Haywood v. McCrory, 33 Ill. 459, this notice was held to be fatally defective. Beckwith, J., in delivering the opinion of the court, said: “The record of the judgment fails to show that notice was given of the pendency of the suit; and the certificate of publication on file is not such an one as the statute requires. It does not purport to be made by the printer or publisher of any newspaper. In suits by attachment, where there is no personal service upon the defendant, in order to sustain the judgment the record must show affirmatively that the prerequisite of the statute in regard to notice by publication was complied with.” The judgment in the case was accordingly reversed.

Counsel for appellees insist that this judgment of reversal is the only erroneous judgment given in this case.

The force of the remark we can not appreciate; of its fitness and good taste, others must judge.

The implied rebuke, however, shall not deter us from an adherence to the opinion, as it is in consonance with good sense and essential to secure the rights of property.

By virtue of executions issued upon this judgment, a large amount of the real estate of appellant has been sold. It appears, from the record in this case, that the note upon which the judgment was founded was either a forgery, or at least made without the authority of appellant. After the judgment in 1860, the note was withdrawn from the circuit court of Coles county, and a suit instituted against appellant in the State of New York, on the trial of which the payee of the note was defeated.

The circumstances, therefore, appeal to our sense of justice, and incline us to afford the relief prayed for if consistent with the well established principles of law. A man's property has been seized for a pretended debt, and sales made without any actual notice to him, until the time had matured for the execution of the deed and it had been executed and delivered.

It is a principle of natural justice that a man must have notice of some character before his property shall be bound by a judicial sentence. Without the existence and enforcement of this principle, the right to possess and enjoy property can not be sustained.

Our attachment law, in accordance with this settled rule, requires notice by publication in some newspaper, when the writ of attachment has been levied upon property or served upon a garnishee, and has been returned not found as to the defendant.

What shall be the proof of publication? It may be made in some other mode than by the certificate of the printer or publisher, but when the latter mode is adopted it must conform to the requirement of the statute, which provides that the certificate of the printer or publisher shall be evidence of publication. R. S. 1845, 47.

Therefore, a certificate of some person which does not show that he was printer or publisher, is not in compliance with the statute. No presumption is to be indulged, but the fact must affirmatively appear. Any other construction would permit any one, without knowledge of the fact of publication, to give the certificate.

There was, then, no sufficient notice of publication, tested by the requirement of the statute, and the court, in its judgment, did not find that notice of any kind had been given. In determining the presumptions which may aid such a judgment, we must inquire into the character and jurisdiction of the court which rendered it.

The general jurisdiction of the circuit courts is over all matters and suits at common law and in chancery.

When acting within the scope of its general powers, a circuit court is a court of superior jurisdiction. The rule is, that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so. Peacock v. Bell, 1 Saund. 69.

But when a superior court exercises a special statutory and extraordinary power, it stands upon the same ground and is governed by the same rules as courts of limited and inferior jurisdiction. The rule then is, that nothing shall be intended to be within the jurisdiction but that which is so expressly alleged. Peacock v. Bell, supra.

In proceedings by attachment, is the circuit court acting within the scope of its general powers, or is it exercising a special statutory power? It will not be contended that, at common law, this summary and extraordinary remedy could be pursued. It exists and is conferred alone by the statute, and is in derogation of the common law.

An attachment derives all its validity from the statutes, and in all essential particulars must conform to their requirements. Cariker v. Anderson, 27 Ill. 358; Rowley v. Berrian, 12 Ill. 198; Vairin v. Edmonson, 5 Gilm. 270; Lawrence v. Yeatman, 2 Scam. 15.

Where there is not personal service, the statute requires that there must be notice by publication. This is as essential to jurisdiction as the issue of the writ and the levy upon property.

In this summary proceeding, by which the citizen is deprived of his property without actual notice; without trial, except by an idle form; by which his entire estate may be taken in payment of a feigned indebtedness--a proceeding entirely ex parte--the authority for such remedy should be strictly pursued.

The levy upon property by the writ of attachment gives jurisdiction of the subject matter, but there must also be jurisdiction of the person, in some of the modes required by the statute. If this jurisdiction does not exist, the judgment is void, and its validity may be inquired into collaterally.

In this case there is nothing in the judgment, by recital, to indicate notice, and the only evidence in the record is the defective certificate. The facts, necessary to give jurisdiction, do not appear upon the face of the proceedings. If the facts must affirmatively appear, then the judgment is a nullity; concludes no one; and may be rejected whenever collaterally drawn in question.

That the validity of a judgment may be questioned in a collateral proceeding, has often been decided by this court.

In Goudy v. Hall, 30 Ill. 109, it was decided that the decree of a county court authorizing the sale of land, was absolutely void if the notice required by the statute had not been given; and that its validity might be inquired into when the record was offered in an ejectment suit.

In Miller v. Handy, 40 Ill. 448, the court said, if there was not jurisdiction to render the judgment offered in evidence in defense, then all the proceedings were coram non judice, and they may be attacked collaterally in an action of ejectment.

In Campbell v. McCahan, 41 Ill. 45, it is said that there must be jurisdiction of both the subject matter and of the person, to give validity to judgments; and if jurisdiction is not acquired, the judgment is void and may be resisted successfully, either in a direct or collateral proceeding.

To the same effect is the case of White v. Jones, 38 Ill. 160.

In Clark v. Thompson, 47 Ill. 26, it was held that the presumption in favor of the jurisdiction, even of a court of general jurisdiction, may be rebutted in all collateral proceedings; and when there is no finding of the court, the presumption will be that it acted upon the summons and return which do appear in the record. In the case at bar there was no finding by the court, and the inference is that it assumed jurisdiction of the person of appellant by virtue of the defective certificate.

In Huls v. Buntin, 47 Ill. 396, the suit was ejectment, and the defendant claimed title by virtue of a sale by an administratrix, under a decree of court. It was held that, if the court did not have jurisdiction, the decree was not binding, and could be attacked collaterally.

This court has frequently held that the county co...