Thomas Boswell Lessee, Plaintiff v. Lucius Otis, Administrator Margaret Dickinson, Widow and Edward Julia Margaret John Rodolphus, Martha Jane, and James Dickinson, Minor Children, of Rodolphus Dickinson, Deceased By Rawson, Their Guardian and Next Friend, Et Al

• Decision Date: 01 January 1850
• Citation: 50 U.S. 336,13 L.Ed. 164,9 How. 336
• Parties: THOMAS E. BOSWELL'S LESSEE, PLAINTIFF, v. LUCIUS B. OTIS, ADMINISTRATOR, MARGARET DICKINSON, WIDOW, AND EDWARD F., JULIA S., MARGARET O., JOHN B. B., RODOLPHUS, MARTHA JANE, AND JAMES A. DICKINSON, MINOR CHILDREN, OF RODOLPHUS DICKINSON, DECEASED, BY L. O. RAWSON, THEIR GUARDIAN AND NEXT FRIEND, ET AL
• Court: U.S. Supreme Court

50 U.S. 336

9 How. 336

13 L.Ed. 164

THOMAS E. BOSWELL'S LESSEE, PLAINTIFF, v. LUCIUS B. OTIS, ADMINISTRATOR, MARGARET DICKINSON,

WIDOW, AND EDWARD F., JULIA S., MARGARET O., JOHN B.

B., RODOLPHUS, MARTHA JANE, AND JAMES A. DICKINSON,

MINOR CHILDREN, OF RODOLPHUS DICKINSON, DECEASED, BY

L. O. RAWSON, THEIR GUARDIAN AND NEXT FRIEND, ET AL.

January Term, 1850

THIS case came up from the Circuit Court of the United States for Ohio, upon a certificate of division in opinion between the judges thereof.

It was an ejectment brought by Boswell, a citizen of Kentucky, against Rodolphus Dickinson and others, tenants in possession, to recover tract number seven in the United States reserve, of two miles square, at Lower Sandusky, in the State of Ohio. Dickinson having died, his heirs and representatives were now parties.

Before relating the proceedings in the ejectment, it is proper to notice some other occurrences which were prior in time.

In May, 1825, Thomas L. Hawkins filed a bill in the Sandusky Common Pleas, against Thomas E. Boswell, William T. Barry, and William Whitimore. The bill stated that all these parties were engaged, as partners, in building a saw-mill upon lot number nine; that they went on with the work until 1823; that he, Hawkins, was a creditor of the concern; that the other parties had obtained a title to two thirds of the lot, and refused to convey any part of it to the complainant. The bill then concludes thus:—'To the end, therefore, that said Boswell, Barry, and Whitimore may, under their corporeal oaths, true answers make to all matters herein charged, and on the final hearing of this cause your honors will decree that said defendants convey one fourth of the said land to which they have obtained

a legal title, and also to account to your orator for the money and time he has expended more than his share on said mill and the improvements of said land, and that notice be given defendants,' &c.

It being made known that the defendants were non-residents of the State, but resided in the States of Kentucky and Massachusetts, notice of the pendency of the suit was published in the Western Statesman, a newspaper printed at Columbus, Ohio, for the term of nine weeks successively.

At May term, 1826, a decree was passed that the bill should be taken pro confesso, and a master was directed to take an account between the parties, who reported a balance due to Hawkins of $1,844.17.

In July, 1826, the court passed a final decree, 'that the complainant do recover of the said defendants the said sum of eighteen hundred forty-four dollars and seventeen cents, and his costs by him in this behalf expended. It is further ordered, adjudged, and decreed, that this decree shall, from the time of its being pronounced, have the force, operation, and effect of a judgment at law, and shall be a lien upon all the town lots of the defendants within said county, and also all the other real estate of the said defendants within said County of Sandusky, as security for the satisfaction of said decree; and it is further ordered, adjudged, and decreed, that, if the above sum of eighteen hundred forty-four dollars and seventeen cents, and the costs to be taxed in this suit, be not paid within thirty days from the date of this decree, upon a precipe being filed with the clerk of this court by the complainant or his solicitor, execution shall issue against the goods, chattels, lands, and tenements of the said defendants, which shall be taken in execution, and sold in like manner as though said execution issued on a judgment rendered in a court of law; and all further proceedings in this cause to be continued until the next term.'

Under a pluries fi. fa., lot number seven was sold, and in May, 1832, the sheriff made a deed of it to Sardis Birchard.

We can now return to the ejectment.

In the trial of it, Boswell, the plaintiff, produced a patent from the United States for the lot number seven, dated September 2, 1831, and also the following agreement of counsel.

'It is admitted, as evidence in this case, that the plaintiff's lessor, said Thomas E. Boswell, now is, and ever since the year A. D. 1818 has been, a resident of the city of Lexington, County of Fayette, and State of Kentucky; that from the 1st

day of May, A. D. 1825, up to the 1st day of August, A. D. 1826, he was not within the State of Ohio, and that the premises in controversy in this case are of the value of ten thousand dollars.

'LANE, BUCKLAND, & HAYS, Attorneys for Defendants.

'Lower Sandusky, Ohio, August 31st, A. D. 1846.'

The plaintiff there rested.

The defendants then offered in evidence a certified copy of the record of the proceedings of the Court of Common Pleas of Sandusky County, and also of the sheriff's deed, to the introduction of which, as evidence in the case, the plaintiff objected.

And thereupon, by consent of parties, the jury do say, that if, in the opinion of the court, the said record and sheriff's deed are by law admissible in evidence, then the said defendants are not guilty of the trespass and ejectment in the declaration mentioned; but if, in the opinion of the court, the said record and sheriff's deed are not admissible as evidence, then the jury say that the defendants are guilty of the trespass and ejectment in the declaration mentioned, and assess the plaintiff's damages at one cent; and thereupon the arguments of counsel being heard, and due deliberation had, the opinions of the judges were divided on the following questions, to wit:——

1. Whether or not the proceedings and decree of the said Court of Common Pleas of Sandusky County, set forth in said record, are coram non judice and void.

2. Admitting said proceedings and decree to be valid so far as relates to the lands specifically described in the said bill in chancery, whether or not said proceedings and decree are coram non judice and void so far as relates to lot number seven, in controversy in this case, and which is not described in said bill in chancery; or, in other words, whether said proceedings and decree are not in rem, and so void and without effect as to the other lands sold under said decree.

And thereupon it is ordered, that said questions be certified for decision to the next term of the Supreme Court of the United States, according to the act of Congress in such case made and provided.

The cause was submitted on printed arguments by Mr. Ewing, for the plaintiff, and Mr. Stanberry, for the defendants. From these arguments it is only possible to give extracts.

Mr. Ewing, for the plaintiff.

The question is upon the process and the decree. If the process be not sufficient to bring the defendant into court and make him a party to the decree, where all the other proceedings are regular, the case cannot be improved by any conceivable amount of errors, irregularities, or discrepancies between the bill and the decree.

The decree is for a sum of money found due by a master upon reference, and it is for nothing else. The case, then, is precisely the same as if the bill had been filed for the recovery of that sum of money merely, and had named no other object; for the decree cannot be strengthened at all by errors and irregularities upon the record. I do not claim that it is weakened by those irregularities,—I merely say that it is not strengthened; it is no better than if the bill had exactly supported the decree.

Now, this personal decree for money against an absent defendant cannot be sustained on general principles of equity. It is coram non judice, if jurisdiction were not obtained by personal service; this is not and cannot be disputed. As a matter of general equity, then, independently of statutory regulation, this whole proceeding would be a nullity, and the sale under the decree void.

But the defendants attempt to sustain the proceeding under the chancery act of Ohio of 1824, and they copy in their brief, as bearing upon the case, the 1st, 7th, 12th, 13th, 16th, 38th, and 40th sections of that act.

The first section gives the Courts of Common Pleas general chancery jurisdiction in all cases properly cognizable in a court of chancery, that is, jurisdiction over the person, and through the person over property. This jurisdiction is obtained by personal service only.

The seventh section allows a petition to be filed against an absent person, where it is necessary to join him with a defendant residing in the State. This does not touch the case at bar. There was no defendant residing in the State.

Section twelfth is the one under which it was attempted to bring this case. It gives the court jurisdiction over the rights of absent defendants, upon notice, 'in all cases properly cognizable in courts of equity, where either the title to, or boundaries of, land may come in question, or where a suit in chancery becomes necessary in order to obtain the rescission of a contract for the conveyance of land, or to compel the specific execution of such contract.'

This decree does not touch 'the title to, or boundaries

of, land'; no decision is made on either in it. It does not relate to 'the rescission of a contract for the conveyance of land,' or to the compelling of 'the specific execution of such contract'; not a word is said of either in it. This decree, then, does not belong to a case in which any other than personal service can bring the defendant into court; and if the decree be the test of jurisdiction, this case was coram non judice.

Where there is a plea to the jurisdiction of a court pending a cause, or a motion to dismiss for want of jurisdiction, there is of course no judgment or decision, and the case can be looked to only in its inceptive stages; but when the final judgment or decree has been...