Richards v. Rote

• Citation: 68 Pa. 248
• Parties: Richards <I>versus</I> Rote.
• Decision Date: 18 May 1871
• Court: United States State Supreme Court of Pennsylvania

68 Pa. 248

Richards versus Rote.

Supreme Court of Pennsylvania.

March 30, 1871.

May 18, 1871.

March 30th 1871.

Before THOMPSON, C. J., READ and SHARSWOOD, JJ. WILLIAMS, J., at Nisi Prius

Error to the Court of Common Pleas of Clinton county: Of January Term 1871.

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J. Chatham (with whom was C. S. McCormick), for plaintiff in error.—The judgment of any court can be binding only when it appears that the person or property over which it assumes control was within its jurisdiction: The Mary, 9 Cranch 126; Ragan's Estate, 7 Watts 438; Ege v. Sidle, 3 Barr 115; McKee v. McKee, 2 Harris 231; McNeal v. Holbrook, 1 Casey 189; Delaney v. Gault, 6 Id. 63; Kennedy v. Wachsmuth, 12 S. & R. 171; Dicks v. Hatch, 10 Iowa 380; State v. Culler, 18 Md. 418; McMinn v. Whelan, 27 Cal. 300; Evans v. Ashby, 22 Ind. 15; Torrance v. Torrance, 3 P. F. Smith 510; Act of March 29th 1832, § 2, Pamph. L. 190, Purd. 764, pl. 4.

The Act of April 6th 1870 is in violation of the 8th section of the 11th Article of the Constitution, Amendment of 1864, in that the title of the act does not clearly express the subject contained in it: Walker v. Caldwell, 4 L. Ann. R. 298; People v. Mahaney, 13 Mich. 494; Sun Mutual Insurance Co. v. Mayor, &c., of New York, 8 N. Y. 253; State v. County Judge, 2 Iowa 282; Blood v. Mercelliott, 3 P. F. Smith 395; Brewster v. City of Syracuse, 19 N. Y. 116.

The act is in violation of the Bill of Rights, which declares that no man can be deprived of his property unless by the judgment of his peers and the law of the land, and that all courts shall be open, and every man, for an injury done him in his lands or goods, shall have remedy by the due course of law, and right and justice administered without sale, denial or delay: Brown v. Hummel, 6 Barr 86; Ervine's Appeal, 4 Harris 257; Grenawalt's Appeal, 1 Wright 99; Cooley on the Constitution 107; Newland v. Marsh, 11 Ill. 382; Norman v. Hiest, 5 W. & S. 171; Menges v. Dentler, 9 Casey 495; Grim v. Weissenburg School District, 7 P. F. Smith 437; Baggs's Appeal, 7 Wright 512; Burns v. Clarion County, 12 P. F. Smith 425; Alter's Estate, 17 Id. 341; Denny v. Mattoon, 2 Allen 361; McDaniell v. Correll, 19 Ill. 226.

____ Corss (with whom was G. W. Hecker), for defendant in error.—The want of a guardian does not render the proceedings void if it appears that the infant was represented in fact at the time of the valuation: Elliott v. Elliott, 5 Binn. 1.

It is not necessary to establish lunacy by inquisition of lunacy. If done in any way to satisfy the court it is sufficient. Inquisition of lunacy is only persuasive evidence: Tazier v. Saturlee, 3 Grant's Cases 162; Rex v. Rex, 3 S. & R. 533; Taggart v. McGinn, 2 Harris 157; Lycoming v. Union, 3 Id. 166.

The opinion of the court was delivered, May 18th 1871, by SHARSWOOD, J.

However it may have been before April 14th 1835, the 2d section of the Act of Assembly of that date, Pamph. L. 275, made it essential in order to divest the interest of a child or other person, by proceedings in partition in the Orphans' Court, that each child or person should be named in the petition, decree and notices. It provides that "in the proceedings for the partition and valuation of an intestate's real estate, the parties in interest shall be named in the petition, decree and notices when known, but if it shall appear on oath or affirmation that the names or residences of any of the parties are unknown to the applicant for the partition, the Orphans' Court shall have power to direct such notices to be given to such parties, by publication in public newspapers, describing the parties as far as practicable, as shall appear to the court to be reasonable and proper; and the proceedings shall be as effectual to all intents and purposes, as if all the parties had been named in the proceedings." It is very clear that this provision is not merely directory, but is made necessary to invest the court with jurisdiction over the person and the interest which may be in him in the land. It has been so held by this court in a case entirely parallel. By the 15th section of the Act of February 24th 1834, Pamph. L. 75, giving jurisdiction to the Orphans' Court to decree the specific performance of the written contract of a decedent for the sale of real estate, upon the application either of the purchaser or of the executors or administrators of the decedent, it was enacted that "after due notice of such bill or petition to the purchaser or to the executors or administrators and heirs of the decedent or devisees of such estate, as the case may require to appear, in such court, on a day certain, and answer such bill or petition if there be cause, such court shall have power * * * to decree specific performance." It was held in McKee v. McKee, 2 Harris 237, that if it appear from the record that such notice was not given, the proceedings are void. This determination was not based upon the mere order of collocation of words in the law, which it might have been argued made the power of decree to be "after," and therefore dependent upon the fact of notice, but upon the broad general principle, that before the rights of an individual can be bound by a judicial sentence or decree, he shall have notice of the proceeding against him, or an opportunity to be heard. At all events when the law makes provisions by which such opportunity may be afforded, it must not appear to have been wholly disregarded. "Such notice," said Mr. Justice Bell, "is indispensably necessary to give jurisdiction over the person of the party, and it has been truly said, that without citation and an opportunity of being heard, the judgment of a court, whether ecclesiastical or civil, is absolutely void:" Com. v. Green, 4 Whart. 568. He adds: "The power to divest men of their estates and transfer them to others is a momentous one to be exercised with great care and caution. Before it can be made effective, the court must possess itself not only of the subject, but of the person whose interests are to be dealt with. In McKee v. McKee, as well as in Ragan's Estate, 7 Watts 441, the case of Jackson v. Brown, 3 Johns. 459, is referred to with approbation. It was there held that when one of several tenants in common had aliened his share, and the plaintiff in an action of partition proceeded as if no such alienation had been made, by giving notice to the original co-tenant, without taking notice of the grantee, the judgment was void. The Acts of Assembly of New York, on which that decision was based, are in their terms like that of 1835, merely directory. There are no doubt many proceedings in the Orphans' Court which are not adversary, and where the absence of notice, though an error and an irregularity, will not render the decree void, so as to be impeachable collaterally. In Elliott v. Elliott, 3 Binn. 1, it was held that a proceeding for partition in the Orphans' Court was not like an adversary suit at common law, where an infant defendant must appear by guardian or it is error. But neither of the Intestate Acts of 1705 or 1764, under which it appears that the proceedings in that case had taken place, directed that a guardian should be appointed for minors interested in a partition or appraisement of real estate in the Orphans' Court. So in Rex v. Rex, 3 S. & R. 533, it was held that under the practice of the Orphans' Court, it was not an objection to an award of an inquest for partition of an intestate's estate, made on the petition of one of the heirs, that it was done without notice to the widow or other children. But the law under which that proceeding was had did not require notice. Nor, as stated by Mr. Justice Duncan, could any injustice be done; for any objection which would have been available to prevent the award of the inquest, might be made to the confirmation of the inquisition when returned. It is evident that notice at some stage of the proceeding before final decree was regarded as necessary, though not mentioned in the Act of April 19th 1794, 3 Smith 143, nor any supplement thereto. The Act of 1835 was evidently passed for the very purpose of supplying what was a glaring defect in the existing law. We hold then that when the name of a party in interest does not appear in the petition, decree and notices, unless it appears by affidavit that his name was unknown, and publication made accordingly, his share or estate will remain undivided or undivested, if there is a sale ordered, unless by some subsequent act or conduct of such party or those claiming under him, it has been ratified. When the name does appear, it will be conclusively presumed in favor of the regularity of the proceedings of a court of justice, that due and regular notice has been given, even though it is not affirmatively shown in the record, but when his name is not there, or that of a stranger who has no right to represent him is in his place, there is no room for any such presumption.

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