Montgomery v. Merrill

• Decision Date: 04 April 1877
• Citation: 36 Mich. 97
• Court: Michigan Supreme Court
• Parties: Jehiel H. Montgomery v. Jane A. Merrill

36 Mich. 97

Jehiel H. Montgomery v. Jane A. Merrill

Supreme Court of Michigan

April 4, 1877

Heard January 12, 1877; January 16, 1877 [Syllabus Material] [Syllabus Material]

Error to Calhoun Circuit.

Judgment affirmed, with costs.

Woodruff & Clapp, F. A. Stace and D. D. Hughes, for plaintiff in error.

The proof of service was amendable after judgment by showing the necessary facts, even without notice.--Crawford v. Howard, 30 Me. 423; State v. Clark, 18 Mo. 432; Blaisdell v. Steamboat, 19 Mo. 157; Kitcher v. Reinsky, 42 Mo. 427; Webster v. Blount, 39 Id. 500; Whittier v. Vaughn, 27 Me. 301; Foster v. Woodfin, 65 N. C., 29; Mayo v. Whitston, 2 Jones (N. C.), 231; Jackson v. O. & M. R. R. Co., 15 Ind. 192; Jones v. Lewis, 8 Ind. 70; Montgomery v. Brown, 7 Ill. 581; Hall v. Williams, 10 Me. 278; Close v. Gillespie, 3 Johns. 526; Kirkwood v. Reidy, 10 Kan. 453; Chichester v. Cande, 3 Cow. 39, and note; Branker v. Molyneaux, 4 M. & G., 226.

The order to amend is valid, though irregular, till set aside.--Fassett v. Talmadge, 15 Abb. 205; Morrison v. Austin, 14 Wis. 556; Thompson v. Kimball, 46 Ga. 528; De Armond v. Adams, 25 Ind. 450; Harrington v. Wofford, 36 Miss. 31; Hamilton v. Seitz, 25 Penn. St., 226.

And even if notice in such case was requisite and omitted, the court will not disturb the order if it was one that should have been made.--Wooster v. Glover, 37 Conn. 315; Thompson v. Kimball, supra; Allen v. Bideau, 35 Ia. 86; Miller v. Perry, 38 Ia. 301; Sweeney v. Gulick, 67 Ill. 208; Berry v. Love, 1 Wood 120; Hall v. Williams, 10 Me. 278.

It was competent to move to amend and perfect the proof on trial.--Williamson v. Kincaid, 4 Dall. 20; Course v. Stead, Id., 22; U. S. v. Brig "Union," 4 Cranch 216; Arnold v. Nye, 23 Mich. 286; Mayo v. Whitston, supra. It was competent to prove by affidavit the service, and the fact of the cessation of the bank's continued organization, and that Sidney Ketchum was its last president.--Young v. Thompson, 14 Ill. 369; Harrington v. People, 6 Barb. 607; Foreman v. Carter, 9 Kan. 674. It was competent to prove the jurisdictionary facts viva voce on the trial.--Van Deusen v. Sweet, 57 N. Y., 379; Frink v. Frink, 43 N. H., 508; Weed v. Weed, 25 Conn. 337, 494; Talman v. Ely, 6 Wis. 244; Thompson v. Blackhurst, 29 C. L., 313; Farmington v. Sommersworth, 44 N. H., 589; Jenks v. Stebbins, 11 Johns. 224; Jolly v. Toltz, 34 Cal. 321; Freeman on Judgments, 518. See also Burrows v. Bailey, 34 Mich. 64.

A court of general jurisdiction, when acting under a special statutory one, not according to the course of the common law, and when no statutory provision exists for showing the facts upon the record, is regarded as a court of limited jurisdiction, and its jurisdiction may be shown upon the trial like any other fact.--Foot v. Stevens, supra; 1 Smith's L. Cases, 876; Thompson v. Blackhurst, 1 M. & N., 266; Arnold v. Nye, supra; Noyes v. Butler, 6 Barb. 613; Van Deusen v. Sweet, supra. Neither is it an available objection in this case that an amendment or proof aliunde was not offered in a previous stage of the case. There is no showing of any intervening rights since the judgment in 1858; and if there were, the return as it stood before amendment was notice to put one about to purchase upon inquiry.

If the defendant, by consequence of the denial of the amendment of proof of jurisdiction aliunde, would come in by prescription, as is asserted, but not admitted, then the amendment and the proofs should be allowed for that reason.--Horton v. Inhab. of Stamford, 1 C. & M., 733; 1 M. & W., 316; Dartnall v. Howard, 2 Chitty 28.

C. I. Walker, for defendant in error.

The power of amendment in a court of record is very broad, for the purpose of promoting justice, and it may be exercised after the lapse of many years.--Herman on Ex., 397-9; Avery v. Brown, 39 N H., 393. It has, however, been held that after the lapse of six years it was a proper exercise of the discretion of the court to refuse such amendment, even as between the parties.--Thatcher v. Miller, 11 Mass. 413; Thatcher v. Miller, 13 Mass. 269.

There are many obvious limitations to the power of courts thus to alter their solemn records. One is, that it may not be done without notice to the other party to the record.--Freeman on Judgments, § 72; Herman on Ex., p. 398; Whitwell v. Emery, 3 Mich. 89; Emery v. Whitwell, 6 Mich. 488, 492; Denison v. Smith, 33 Id. 155; Dorsey v. Pierce, 6 Miss. 173; Means v. Means, 42 Ill. 50; McGlaughlin v. O'Rourke, 12 Iowa 459; Wilkie v. Hall, 15 Conn. 32; Green v. State, 19 Ark. 637; Martin v. Burt, 20 Ark. 636.

Nor even then will it be done in a case like this, where the service was not personal, but constructive and statutory, unless the record at the time shows a compliance with the statute, the court acquires no jurisdiction.--Greenvault v. F. & M. Bank, 2 Doug. 508; Wilson v. Arnold, 5 Mich. 105; Lot Two v. Sweetland, 4 Green, Iowa, 466; Tunis v. Whitman, 10 Iowa 305; Hodson v. Tibbits, 16 Iowa 97; Brau v. Arrington, 22 Ark. 362.

Nor when the original defendant is dead, or has ceased to have an interest in the matter, as in the case of bankruptcy.--Phillips v. Tannin, 6 Bing. 237; Hunt v. Pasmore, 4 M. & S., 329; 6 N. H., 460.

Nor can an amendment be made to affect the rights of third parties.--Freeman on Judgments, § 74; Hermann on Ex., p. 56; Inman v. Hurst, 2 New. R., 133; Greenvault v. F. & M. Bank, 2 Doug. 514; Emerson v. Upton, 9 Pickering 167; Hovie v. Waite, 17 Pickering 199; Howard v. Turner, 6 Greenleaf 106; Means v. Osgood, 7 Greenleaf 148; Bannister v. Higgins, 16 Me. 73; Pierce v. Strickland, 25 Me. 289; Ohio L. & T. R. Co. v. Urban Ins. Co., 13 Ohio 221; McCormack v. Mellish, 36 Ill. 114; Thompson v. Kimbry, 46 Ga. 534; Dawson v. Cowan, Dev., 304; Cape Fear Bank v. Wilson, 2 Iredell 148; Williams v. Sharp, 70 N. C., 584; 4 N. H., 116; 39 N. H., 377; 7 Ill. 164.

We insist, therefore, that the record, as thus amended, was rightly rejected, for the reasons suggested: (1) This is not one of the cases where an amendment essential to showing jurisdiction can be made, the service upon the defendant being statutory, not actual; (2) The defendant has ceased to exist, and no amendment can therefore be made; (3) The amendment was made without notice, which is never admissible; (4) It was made at too late a period; (5) The amendment affects the rights of defendant, who is no party to the record.

The court having rejected the amended record as evidence in the plaintiff's title, the plaintiff then offered to prove a proper service upon the bank by a service upon its last president, in three several ways: first, by affidavits taken in the case of Montgomery v. The Bank, already filed in that case, and upon which the motion to amend was based; second, by new affidavits made by the same parties to the same effect; third, by the oral evidence of Judge Woodruff, who made the original service, that said Ketchum was the president of the bank.

We think it clear beyond all question that the validity of this judgment must rest upon the record; that it cannot be helped out by parol testimony, or by any testimony save that of the record itself. The record can neither be contradicted nor in any way affected by parol evidence.--Herman on Ex., p. 391; Allen v. Carpenter, 15 Mich. 33; Gardener v. Hosmer, 6 Mass. 328; Wellington v. Gale, 13 Mass. 483, 487; Bannister v. Higgins, 16 Me. 73; Metcalf v. Gillett, 5 Conn. 400; Sheldon v. Comstock, 3 R. I., 84; Sullivan v. Blackwell, 28 Miss. 637; 6 Barb. 607.

Cooley, Ch. J. Campbell and Marston, JJ., concurred. Graves, J., did not sit in this case.

OPINION

Cooley, Ch. J.:

This case has twice before been in this court.--Montgomery v. Merrill, 18 Mich. 338; Merrill v. Montgomery, 25 Mich. 73. It is an action of ejectment brought for lands which the plaintiff claims under an execution sale on a judgment against the Calhoun County Bank. The defendant is in possession, and though the nature of her claim is not disclosed by this record, it appeared when the case was before us in the first instance that she claimed under proceedings against the bank antedating the plaintiff's judgment. The only questions which the present record brings up are: First, The validity of an amendment made to the record of plaintiff's judgment in order to show that the court had jurisdiction to render it; and second , whether, if the amendment was not admissible, the facts upon which it was made could be shown on the trial in order to sustain the jurisdiction of the court which rendered the judgment.

The charter of the Calhoun County Bank expired in 1857, but by statute the bank was continued in existence for three years longer for the purpose of winding up its concerns. The suit in which the plaintiff obtained his judgment was commenced in 1858, after the bank had ceased to do business. Service of the declaration was made upon persons who, the attorney showed by affidavit, he was informed and believed were the last president and two of the last directors of the bank. This showing was held insufficient to warrant such service; a positive showing of facts being requisite when an exceptional service is to be made.--Merrill v. Montgomery, supra. After the decision to that effect had been made by this court, the plaintiff made an ex parte application in the court below for leave to amend by making the positive showing that should have been made in the first instance, and this was granted August 3, 1875. The showing consisted in affidavits that Sidney Ketcum, one of the parties upon whom service of the declaration was made, was the last president of the bank. That showing, if originally made, would have been sufficient to support the judgment.

When the cause went to trial...