Cooper v. Reynolds

77 U.S. 308, 19 L. Ed. 931, 10 Wall. 308, 1870 U.S. LEXIS 1123

Opinions

Mr. Justice MILLER

delivered the opinion of the.eourt.

The objections taken to the proceeding' in attachment under which Cooper, the defendant below, claimed title, are, 1st, that by the law of Tennessee the attachment could not be issued at the beginning of the suit where the action was ex delicto, but could outy be issued after suit commenced; 2d, that the affidavit was defective; 3d, that there was no publication of notice, as required ‘by the statutes.

The question of the conformity of these proceedings to the requirements of the statutes under which they were had, has been very fully discussed by counsel, and if we were sitting here as, on a writ of error to the judgment of the State court under which the land was sold, we might .not find it easy to affirm or reverse the judgment on satisfactory grounds, notwithstanding the abundant citation of authorities from the 'Tennessee courts. 'But we occupy no such position. The record of this case is introduced collaterally as evidence of title in another suit, between other parties, and before a court which has up jurisdiction to reverse or set aside that judgment, however erroneous it may be. Nor can it disregard that judgment, or refuse to give it effect, on any other ground than a want of jurisdiction in the court which rendered it.

It is of no avail, therefore, to show that there are errors in that record, unless they be such as prove that the court had no jurisdiction of the case, or that the judgment rendered was beyond its power. -This principle has been often held by this court, and by all courts, and it takes rank as an axiom of the law. But that its applicability to the present ease may be thoroughly understood, reference is made to the most important of the decided cases in this court and in the Supreme Court of Tennessee.

Footnotes

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It is necessary, therefore, in the present case to inquire whether the errors alleged affect the jurisdiction of the court.

It is as easy to give a general and comprehensive definition of the word jurisdiction as it is difficult to determine, in special cases, the precise conditions on which the right to exercise it depends. This right has reference to the power of the court over the parties, over the subject-matter, over the res or property in contest, and to the authority of the court to render the judgment or decree which it assumes to make.

By jui’isdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred.

Jurisdiction of the person is obtained by the' service of process, or by tbe voluntary appearance of the parly in the progress of the cause.

Jurisdiction of the res is obtained by a seizure under process of the court, whereby it is held to abide such order as the court may make concerning it. The power to render the decree or judgment which the court may undertake to make in the particular cause, depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the cause.

It is to be observed that in reference to jurisdiction of the person, the statutes of the • States have provided for several kinds of service of original process short of actual service on the party to be brought before the court, and the nature and effect of this service, and the purpose which it answers, depend altogether upon the effect given to it by the statute. So also while the general rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the officer of the court, such jurisdiction may be acquired by acts which are of equivalent import, and which stand for and represent the dominion of the court over the thing, and'in effect subject it to the control of the court. Among this latter class is the levy of a writ of attachment or seizure of real estate, which being incapable of removal, and lying within the territorial jurisdiction of the court, is for all practical purposes brought under the jurisdiction of the court by the officer’s levy of the writ and return of that fact to the court. So the writ of garnishment or attachment, or other form of service, on a party holding a fund which becomes the subject of litigation, brings thgt fund under the jurisdiction of the court, though the money may remain in the actual custody of one not an officer of the court.

When we come to the application of these principles to the case before us, that which leads to some embarrassment is the complex character of the proceeding which we are to consider.

Its essential purpose or nature is to establish, by the judgment of the court, a demand or claim against the defendant, and to subject his property, lying within the territorial jurisdiction of the court, to the payment of that demand.

But the plaintiff is met at the commencement of his proceedings by the fact that the defendant is not within that territorial jurisdiction, and cannot be served with any process by which he can be brought personally within the power of the court. For this difficulty the statute has provided a remedy. It says that, upon affidavit being made of that fact, a writ of attachment may be issued, and levied on any of. the defendant’s property, and a publication may be made warning him to appear, and that thereafter the court may proceed in the case, whether he appears or not.

If the defendant appears the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of. the court. But, if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rent, the only effect of which is to subject the property attached to the payment of .the demand which the court may find to be due to the plaintiff! ..

That such is the nature of-this proceeding in this latter class of cases, is clearly evinced by two well-established pi’opositious: first, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property'attached in that suit. No general execution can be issued for any .balance-unpaid after the attached properly is exhausted. ■ No suit can be maintained on such a judgment in the same court or in any other, nor can it be used as evidence in any other proceeding not affecting the attached property, nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit. Second, the court,’ iu such a suit, cannot proceed unless the officer finds some property of défendant on which to levy the writ of attachment. A return, that none can be found, is the end of the case, and deprives the court of further jurisdiction, though the publication may have been duly made and proven in court.

Now, in this class of cases, on what does the jurisdiction of the court depend? It seems to us that the seizure of the property, or that which,-in this case, is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to. jurisdiction, as it unquestionably is in proceedings purely in rem. Without this the court can proceed no further; with it the court can proceed to subject that property to the demand of plaintiff. If the writ of attachment is the lawful writ of the court, issued in proper form under the seal of the court, and if it is by the proper officer levied upon property liable to the attachment, when such a writ is returned into court, t;.he power of ,the court over the res is established. The affidavit is the preliminary to issuing the writ. It may be a defective affidavit, or possibly the officer whose duty it is to issue the 'writ may have failed in some -manner to observe all the requisite formalities; but the writ being issued and levied, the affidavit has served its purpose, and, though a revisory court might see in some such departure from the strict direction of the statute sufficient error to reverse the judgment, we are unable to see how that can deprive the court of the jurisdiction acquired by the writ levied upon defendant’s property.

So also of the publication of notice. It is the duty of the court- to order such publication, and to see that it has been properly made, and, undoubtedly, if there has been no such publication, a court of errors might reverse the judgment.

But when the writ has been issued, the property seized, and that property been condemned and sold, we cannot hold that the court had no jurisdiction for want of a sufficient publication of notice.

We do not deny that there are cases which, not partaking of the nature of proceedings in rem, when -the judgment is to have an effect on personal rights, as in divorce suits, or in proceedings to compel conveyance, or other personal acts, in which the legislature has-properly made the jurisdiction to depend on this publication of notice, or on bringing the suit to the notice of the party, ip,some other .mode, when he . is not within the territorial jurisdiction'.

It is not denied that the court had.authority to issue writs of attachment against the property of persons absconding the State, and that- such writs could issue .in actions for torts. The court has a general jurisdiction as .to torts, and attachment is one of its remedial agencies in such cases. Whether the writ shpuld have been issued simultaneously with the institution of the suit, or at some other stage of its progress, cannot be a question of jurisdiction. If it is, .any other error which affected a party’s rights,.could as well be held to affect the jurisdiction. , .

Such departures from the rules which should guide the court .in the conduct of a cause arq not errors which render its action void,

The case.of Voorhees v. The Bank of the United States* wamuch like this, arid required stronger presumptions in favor .of the, jurisdiction of :the court to sustain its .acts than, the one before us.

The defendant there, as here, held land under attachment proceedings. against a pon-resideut who had never been served with process 'or appeared in the case. No affidavit was produced, nor. publication of notice, nor. appraisement of the property, but it was condemned and sold without waiting twelve months from the.return of the writ, and without calling him at three different terms of t-he court,.all of which are specially, required by the act regulating the proceedings in. Ohio, where they were.had. This court held that there was sufficient .evidence of jurisdiction in the court which rendered the .judgment,, notwithstanding the. defects we have mentioned, find that they were xrot fatal in a collateral proceeding. . r

.. In the present case there.is a sufficient writ, of attachment, its levy and return, the judgment of the court, on, trial by jury, the order to sell the property, t,he sale under the venditioni exponas, the writ of possession, sheriff’s deed and actual delivery of possession under order of the court. To hold them void is to overturn the uniform course of decision in this court, to unsettle titles to vast amounts of property, long held in reliance on those decisions, and, in our judgment, would be to sácfifíee sound principle to barren technicalities; and, after a careful examination of the reported cases on this subject, we believe this to be the' law, as .held by the courts of Tennessee.

Judgment reversed, and a new trial ordered.

Kempe’s Lessee v. Kennedy, 5 Cranoh, 173, Thompson v. Tolmie, 2 Peters, 167; Voorhees v. Bank of United States, 10 Id. 449; Grignon v. Astor, 2 Howard, 319; Harvey v. Tyler, 2 Wallace, 328; Florentine v. Barton, Id 210; McGoon v. Scales, 9 Id. 23; Stevenson v. McLean, 5 Humphrey, 332; Britain v. Cowen, Id. 315; Lee v. Crossna, 6 Id. 281; Kilcrease v. Blythe, Ib. 378; Reams v. McNail, 9 Id. 542; McGavock v. Bell, 3 Cold-well, 512.

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Cited supra, p. 316, note.