Springer v. Shavender
| Decision Date | 25 February 1896 |
| Parties | SPRINGER et al. v. SHAVENDER et al. |
| Court | North Carolina Supreme Court |
On Petition to rehear. Dismissed.
For prior opinion, see 21 S.E. 397.
An estoppel cannot be based on a judgment which is void for want of jurisdiction, as in case of a judgment in probate proceeding, on the estate of a "living man," so as to bind the heirs of the supposed decedent, who were parties to the action.
Shepherd & Busbee, W. B. Rodman, and J. H. Small, for petitioners.
Chas F Warren and J. W. Hinsdale, for defendants.
The basis of the application to rehear and reverse the former ruling of this court (116 N.C. 12, 21 S.E. 397) is the contention that there was error in holding that the children of George W. Dixon were not concluded by the finding in the special proceeding instituted by his administrator to sell the land in controversy, and to which said heirs were parties, that he was then dead, though it is now found by the jury that he was in fact alive when the administrator issued the summons, and when the land was sold under the decree for assets. The question presented is whether the doctrine of estoppel applies to and binds the children, who since Dixon's death have brought suit to recover possession from those claiming through the purchaser at the sale; and it depends for its solution upon the answer to the preliminary question, whether the judgment is in law utterly void or only voidable. The contention of the defendants rests upon the erroneous assumption that a judgment void for want of jurisdiction of the subject-matter is prima facie conclusive on the parties, and protected from collateral attack, as it is where the authority to deal with the subject-matter is conceded, and it is proposed to impeach the decree because of an incorrect finding in the record that a party waived personal service by appearance, or otherwise submitted to the authority of the court.
The fundamental and inherent difference between the two kinds of judgments grows out of the fact that the right to be present in court, and have an opportunity to defend an action, where it is proposed to adjudicate one's title to property, is a personal one, and a party may waive by acquiescence or by neglect even the requirement of the statute that notice or summons shall be actually served, or served in a specified manner or within a given time, while the authority of the court to take jurisdiction of the subject-matter is derived from an express grant by the sovereign state in the constitution and laws made in pursuance of it, and, like any other agent acting under a power, a judicial tribunal is not warranted in going beyond the limits of "the law of its creation," fairly construed. Thomas v. People, 107 Ill. 517; Melia v. Simmons, 45 Wis. 334; Scott v. McNeal, 154 U.S. 34, 46, 14 S.Ct. 1108. The law under which the jurisdiction of a clerk is exercised is the provision of the constitution (article 4, § 12) which empowers the legislature to allot and distribute the jurisdiction conferred by the organic law among those courts inferior to the supreme court, and the statute (Code, § 1436) which, in pursuance of the provision of the constitution authorizes the institution of a special proceeding "when the personal estate of a decedent is insufficient to pay all his debts, *** to sell the real property for the payment of the debts of such decedent." In discussing the contention that such judgments as that rendered in the special proceeding are liable to collateral attack, the supreme court of Texas gives its sanction to the principle upon which the former opinion in this case rests, as follows "This [the rule that judgments cannot be collaterally impeached] cannot be universally true, because, in the case of an administration upon the estate of a living man, the court necessarily determines that the man is dead, and yet the man may be shown to have been alive at the time of the judgment; and in such case, although every step in the proceeding by which the man's estate is sold may have been taken with the most perfect regularity, and although the purchaser buys in good faith, no title passes or can pass." Withers v. Patterson, 27 Tex. 497. But the learned counsel for the petitioner intimated that the court of Texas was out of line with the current of authority in holding such decrees void for want of power in the court to pronounce them, without actually acquiring jurisdiction over the subject-matter in the manner prescribed by law. It would seem therefore but proper that somewhat extended quotations and numerous citations should be made to show that the contention is not well founded.
"Jurisdiction," said the supreme court of Illinois in Thomas v. People, supra, "in the general and most appropriate sense of that term, as applied to the subject-matter of a suit, is always conferred by law, and it is a fatal error to suppose the power to decide in any case rests solely upon the averments of a pleading." Quoting from Melia v. Simmons, 45 Wis. 334, the court said of the appeal before it:
In enumerating the classes of cases in which decrees of probate courts are utterly void, and those where the court has jurisdiction of the subject-matter, but by some mistake issues letters testamentary irregularly or illegally, the court of New Hampshire classified our case among those void for want of jurisdiction. "So," said the court, "where a will is proved or letters are granted, when the person supposed to be dead is still living, the powers of the courts being limited to the estates of deceased persons." Morgan v. Dodge, 44 N.H. 259. An examination of the authorities cited in Scott v. McNeal, 154 U.S., at page 47, 14 S.Ct. 1108, to sustain the proposition that, where a probate court adjudges that a man is dead when he is alive, the judgment is invalid, shows that in the following cases such a decree was held to be "absolutely void for all purposes and ab initio": Melia v. Simmons, supra; Thomas v. People, supra; Stevenson v. Superior Court, 62 Cal. 60; D'Arsment v. Jones, 4 Lea, 251; Perry v. Railroad Co. 29 Kan. 420. In the case of Scott v. McNeal, supra, the only question presented was whether the alleged intestate was bound by the probate proceeding to which his heirs were parties, and in which the court had found that he was dead, when he appeared in person before the court; and, of course, it was only adjudged that he was not estopped from denying the title of the purchaser under a decree to sell his lands for assets. But on page 43, 154 U.S., and page 1108, 14 Sup. Ct., the court said: "The absolute nullity of administration granted upon the estate of a living person has been directly adjudged or distinctly recognized in the courts of many other states." The second authority cited in support of the proposition was State v. White, 7 Ired. 116, where the obligor on a bond executed as administrator of an alleged intestate, not the intestate himself, was allowed to impeach the grant of letters collaterally. The court, after citing an array of authorities, call attention (as did this court in the former opinion) to the fact that the case cited in the petition from Roderigas v. Savings Inst., 63 N.Y. 460, is not sustained by authority elsewhere, was seriously criticised by Chief Justice Redfield, and subsequently explained by the court which rendered it, as governed by a statute somewhat peculiar in its terms.
No man can put himself in the place of the sovereign, and make the adjudication of a court valid by ratifying an unauthorized exercise of power by its agent, when the law of the land which is the agent's power of attorney, declares that the court has no authority to render the judgment. It was upon this principle that this court, in State v. White, supra, allowed the obligor upon the plea of the general issue to show that the alleged intestate of the plaintiff, to whom letters of administration had been issued, was alive when the letters were granted. If he was alive, the subject-matter was wanting, and there was no jurisdiction in the probate court. This court may be supposed to have known that the facts in London v. Railroad Co. were not such as to make it direct authority to support this principle, but it is authority to show that the court there (88 N.C. 588, 589) cited State v. White, supra, with approval, and distinguished London v. Railroad Co., from it, as subsequently the same principle was adverted to in Garrison v. Cox, 95 N.C. 353, and other cases cited for the purpose of distinguishing them, and not in support of the opinion. After citing State v. White, with approval (page 589), the court said: "If the person on whose estate the court undertakes to grant letters testamentary or of administration be dead, and at the time of his decease have his domicile or have bona notabilia to be administered, it matters not how irregular may be the proceedings of the court, or how obscured and incomprehensible its conclusions, they afford sufficient authority to cover the bona fide transaction of its appointees." The court thus clearly sustained the doctrine already stated, that irregularities in appointing administrators would not invalidate their acts where it appeared that there was a dead man, and jurisdiction consequently of the subject-matter (his estate), and, on the other hand, by citing with approval State v....
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