Hill v. Woodward

• Decision Date: 20 March 1884
• Citation: 78 Va. 765
• Parties: HILL v. WOODWARD AND ALS.
• Court: Virginia Supreme Court

78 Va. 765

HILL v. WOODWARD AND ALS.

Supreme Court of Appeals of Virginia.

March 20, 1884

^[a1]Absent, Lacy, J.

Appeal from decree of circuit court of King William county, entered June 3d, 1881, in the cause of Robert A. Woodward administrator of Eliza Meredith, deceased, and others creditors of Wm. Hill, deceased, against Walker Hill administrator, Catherine B. Hill, widow, and Walker Hill, and six other children and heirs of said Wm. Hill, deceased. Object of suit was to subject decedent Wm. Hill's estate to pay his debts. It was brought in circuit court of New Kent county, to October rules 1878. Widow's name does not appear in process returned executed. Bill was filed at January rules 1879, and contains widow's name as one of the defendants. Decree of May 31st, 1879, brings the cause " on to be heard on the bill taken for confessed as to all of the defendants, " and directs an account of decedent's real estate and debts. Report shows debts to the amount of $2,014.02, as of June 1st, 1880, one whereof was a judgment for $1,037.72, paramount to widow's dower. Report confirmed and land decreed to be sold subject to dower, if it brought enough to pay the judgment, with costs and expenses, but if not, then to be sold free of dower. At this juncture the cause was removed to circuit court of King William county. The land was sold August 12, 1880. Sale was reported June 3d, 1881, and confirmed without exception. Report shows that widow was notified of the sale, and was present, and bid for the land, and afterwards regretted she had not purchased it, but objected not to the sale. Sale was free of dower, to Thomas Ingersoll, at $2,305. On 1st June 1881, she filed her petition, alleging she had never been properly made a party to the suit, and asking to be made a party, and that all the proceedings be vacated, and the suit be heard de novo. Her petition was dismissed by the decree of June 3d, 1881, and she obtained an appeal to this court.

Remaining facts are stated in opinion.

J. F. Hubbard, for the appellant.

James C. Lamb, W. F. C. Gregory, for the appellees.

OPINION

RICHARDSON, J.

In the petition for appeal several errors are assigned, but in his note of argument the counsel for the appellant confines the discussion to the single point, that the appellant was not made a party to the suit in the court below.

In the logical order of discussion it is contended by counsel for the appellees (1) that the record sufficiently shows that the appellant had been properly made a party, and (2) that even if she had not been, she is estopped by her conduct from denying it.

This is a case in which a party, under very peculiar circumstances of apparent neglect, comes forward at the last stage of a tedious and expensive litigation to overturn and nullify the proceedings had in a suit in a court of competent general jurisdiction. To effect this purpose several things must be observed and kept constantly in view, viz: (1) That the appellant is assailing the record, and the onus is upon her to show that she was not properly made a party. (2) That it is not sufficient that she should raise a doubt as to whether she had been made a party. (3) That the record and judgment being those of a court of general jurisdiction, every presumption will be made in their favor. And (4) that in determining this question, this court, no less than the court below, will look at the whole record.

It is contended in argument, by the counsel for the appellant, that in this case no presumptions arise in aid of the record, as in cases where the judgment of a court of general jurisdiction is attacked in a collateral proceeding; and the annotation of authorities to Crepps v. Durden, 1 Smith's Leading Cases, 7 Am. Ed., 1125, is relied on to sustain this position. Crepps v. Durden, when looked to, does not sustain the proposition contended for. On the contrary, the notes to that case distinctly show the rule to be that the jurisdiction of courts of general jurisdiction will be presumed to have been properly exercised. The language relied on by counsel for the appellant is this: " It is generally conceded that when the want of notice appears of record, the judgment is erroneous and may be reversed; and the better opinion seems to be that the same result will follow if the proceedings fail to show that the defendant was summoned or appeared," citing a number of authorities. And the annotators further say: " An opposite decision in Hart v. Seixas, 21 Wend. 40, seems to have been founded on the mistaken supposition that a court of error cannot look beyond the record, as returned or certified, for the purpose of ascertaining whether the rules of law have been observed. Although the original or judicial writ by which the suit was instituted, the sheriff's return, and the warrants of the attorneys on either side, are not ordinarily sent up to the court above, it is always competent for the plaintiff in error to allege a defect in any such particular. A certiorari will then issue to ascertain the truth of his statement, and the judgment be reversed if it is sustained, unless the omission is merely formal and accidental, when it may be corrected by an entry nunc pro tunc. " We shall presently see that the failure by proper steps to have the record in the one court brought to and inspected by the other court, or its contents learned and acted on by that other, was an omission on the part of the appellant in the conduct of her case in the court below, which weighed against her below, along with other circumstances in the record, and which in this court makes the presumptions in favor of the correctness of the judgment of the court below conclusive.

But however this may be, whether the annotators in the language relied on by the appellant's counsel, as quoted above, intended to state the general rule deduced from all the authorities, or merely to state certain exceptional rulings, the annotators must speak for themselves. On the succeeding page (1126) it is said: " The difference between holding that a judgment may be reversed on error or set aside by the court which rendered it, and disregarding it as a nullity while still untouched, is the whole difference between what is absolutely void and what is merely voidable, and involves consequences of too much moment to be lightly disregarded." Citing Trimble v. Long, 14 Ohio N. S. 431, 439; Voorhees v. The Bank of the United States, 10 Peters 449. And the annotators proceed to say: " It was accordingly decided in Foot v. Stevens, 17 Wend. 483, that the judgment of a county court was conclusive on the defendant, although the record contained no averment that he was served with process, or had notice in any way of the proceedings against him." And it is further said: " This decision was followed in Hart v. Siexas, 21 Wend. 40, where the general principle that the jurisdiction of superior courts will be presumed to have been properly exercised, was ably vindicated, although carried somewhat beyond its legitimate sphere." Thus it is seen that Hart v. Seixas, so far from being represented as in conflict with the established rule, is referred to as an able vindication of the rule and as following in the footsteps of the case of Foot v. Stevens, supra, the only criticism being that it extended the rule somewhat beyond its legitimate sphere.

Then on same page, the annotators say that, " notwithstanding there are a number of cases in this country which tend more or less strongly to sustain the proposition that, as notice is essential to confer jurisdiction, the judgment will be invalid unless the record contain some entry or averment that notice was given" ; citing Given v. McCarroll, 1 S. & M. 368; Steen v. Steen, 3 Cushman 513; " and while there are others that go further and hold that judicial proceedings may be avoided, by proof that proper notice was not given, in opposition to a positive averment on the record that it was" ; and citing several cases to that effect, finally admits the established rule in this language: " But the weight of authority is much the other way, and in favor of the position taken in Foot v. Stevens, and Hart v. Seixas, that where the cause is within the jurisdiction of a superior court, it will be presumed to have taken the necessary steps to acquire jurisdiction over the parties" -- citing a great number of decisions both of the supreme court of the United States, and of many of the States, and among them the case of Reynolds v. Stansbury, 20 Ohio 344, where an order vacating a judgment was held valid, although there was nothing in the record to indicate that the plaintiff was notified to appear and show cause; and the court said that while the judgments of inferior courts were void, unless the record showed that the parties had appeared or been summoned, there was a conclusive presumption in favor of the proceedings of a superior court. So, in the notes to Crepps v. Durden, it is also said: " It was decided in Horner v. Doe, 1 Ind. 131; Wright v. Marsh, 2 Iowa 94; and Pierce v. Griffin, 16 Id. 552, that the parties will be presumed to have been amenable to the authority of the court, unless the record shows that they were not; while it was held in Moore v. Stooks, 1 Ohio St. 369, that a judgment cannot be impeached for want of notice, unless the failure to give it appears by something more explicit than the mere failure of the record to show that it was...