Greenvault v. President of the Farmers & Mechanics' Bank

2 Doug. 498

Opinion

Whipple, J.

delived the opinion of the Court.

The paper purporting to be an affidavit, filed with the clerk as the foundotion of the attachment against Bissell under which the plaintiff claims, was sworn to before the clerk, of the-circuit court of Lenawee county, in vacation. The first question'that arises in the case, is, whether the clerk was authorized to administer the oath, or take the affidavit. Whatever may have been-the powers, in this respect, of the clei'k, at common law,.during the term, and while the court was in actual session, it is clear that the authority to administer oaths or take affidavits in vacation, must result from some positive provision of the statute in force. No provision conferring such authority is to be found in the Revised Statutes of 1838 ; and it follows, as a necessary consequence, that the act of the clerk in administering the oath, was extrajudicial and void.

The net of the clerk, then, being void, no affidavit was, in fact, filed previous to-the issuing, of the writ of attachment.-

The next question to be determined, is, whether the issuing, of the writ,-without an affidavit, was also void ; or, in-other words, did the authority to issue t-he process, depend upon the making and filing of the affidavit with the clerk? This question must be answered in the affirmative. The statute, (see ante, p. 499, § 1,) declares, in express terms, that the creditor shall be entitled.to proceed by attachment, againsl his debtor, upon the condition, that an affidavit, such as is required, be fiiled wth the clerk; and the second section, in terms equally clear, authorizes the clerk to issue the writ, upon the filing of the affidavit. The intention of the legislature is manifest from the language of the act itself, and. that intention we are bound to carry into effect.

The next inquiry is, what was the legal effect of issuing the writ without making and filing the affidavit required by law, upon the judgment and subsequent proceedings of the circuit court. This inquiry is answered by the opinion of this court in the cases of Palmer v. Oakley, (ante, p. 433,) Wight v. Warner, 1 Dougl. Mich. R. 384, and Clark v. Holmes, Ibid. 390. In the case first named, we recognized the rule as laid down in the case of Elliott v. Piersol, 1 Peters, 340, that the decision of a court which has acquired jurisdiction of a cause, will be held binding until reversed; but that if a court act without authority, its judgments will be regarded as nullities; and that the jurisdiction of a court exercising authority over a subject matter, may be inquired into in every court where the proceedings of the former are relied on, by a party claiming the benefit of such proceedings. The rule thus laid down, is firmly established by the numerous decisions referred to in that case, and is recognized in all courts, where the common law prevails, as too-firmly settled to be shaken. Another rule, sustained by an unbroken current of decisions in this country and England is, that where a court is vested with extraordinary powers, under a special statute prescribing its course, that course ought to be exactly observed ; and the facts which give jurisdiction, ought to appear, in order to show that its proceedings are coram judice. These principles are applicable to all courts, whether of iuferior or superior jurisdiction ; the only difference being, that in respect to inferior courts, jurisdiction must appear .on the face of the proceedings ; while, in regard to superior courts, jurisdiction will be presumed, until the contrary is shown. It will be unnecessary, at this time, to recur to the reason ing or authorities by which these propositions are sustained, as the cases to which I have referred, contain not only a full exposition of our views upon those propositions, but a full citation of many of the leading authorities by which they are established.

Nothing remains for us but to apply the principles laid down by us in those cases, to the questions now before us. What, then, was the character of the court, and the nature of the jurisdiction it exercised in suits in attachment? The circuit court was a court of general common law jurisdiction, in both civil and criminal cases. Its general powers are clearly defined by statute. It was, in other 'words, a court of superior jurisdiction. Do proceedings in attachment, fall within the circle of the general powers conferred upon the circuit court by statute? They clearly do not. The jurisdiction in this respect is special and extraordinary. The mode of proceeding is peculiar, and in derogation of the common law. It is special, because limited to cases either of absconding or non-resident debtors. It is extraordinary, because the process, contrary to the general rule recognized -in our statutes, acts upon the property and not the person of the debtor.. It is, in its nature, a proceeding in rem, to collect a debt due from a debtor to his creditor. It is in derogation of the common law, because it is a direct proceeding to subject the real estate, by actual sale, to the payment of debts.

I have already said that there was no preliminary proof whatever to authorize the issuing of the attachment. The facts which give jurisdiction, do not appear in the proceedings. In the absence of such proof, what, it may be asked, is the judgment which the law pronounces upon such proceedings? There being no authority to issue the process, it is of course void. Being void, the service was void ; the property attached never was brought with in the jurisdiction of the court, and the court had no authority to order its sale. In short, the circuit court never had jurisdiction of the subject matter, because the facts necessary to call that jurisdiction into exercise never existed. Can a party, then, to such proceedings — one who stood in the character of a plaintiff, so far as the prosecution of his own claim was concerned — protect himself, under a sale made by virtue of an order entered in the records of a court which never acquired jurisdiction of the subject matter — a court within whose jurisdiction the property never was brought? As well might it be contended that a judgment, where the proceedings are in personam, could be sustained, when it affirmatively appears in the record, that the person to be affected by the judgment never was brought within the jurisdiction of the court by whom it was rendered. The distinction is well defined between cases where jurisdiction is acquired, and is improvidently exercised, and cases where jurisdiction never was acquired. In the first class of cases the judgment will bind untd reversed. In the other, the judgment is a mere nullity ; it is as though it had never been entered. In the first class, the record cannot, in general, be impeached ; in the last, it may be impeached, especially, if it shows on its face that jurisdiction was usurped. Acts done by a court, without authority, are equally as void, and for the same reason, as acts done without authority by either the executive or legislative departments of the government. If either of these departments usurp an authority not conferred by the constitution or laws of the state, and a party seeks to shelter himself under such usurped authority, in a judicial proceeding, the court before whom such a proceeding is pending, would not hesitate to declare all acts done under such authority void. If not, then we should have to submit quietly to the well merited rebuke, that rights the most sacred are no longer guarded and protected by just laws enacted by our consent; but are left to the tender mercies of a man or set of men, who, although acting under color of authority, are mere usurpers. Apply this reasoning to the case before us. The powers possessed over the person and property of the citizen, by the judicial tribunals, are as accurately defined as are the powers conferred upon the other departments of the government. In the particular case before us, the circuit court of Lenawee county was authorized, by a judicial proceeding, to divest one person of his property and transfer it to another, under a certain state of facts. The facts, however, which authorized the act to be done, did not exist; nevertheless, the court proceed to do the act, by which, under color of legal proceedings, one man is divested of his estate, and it is transferred to another. What difference it may be asked, is there between such an act, and an act of the legislature which should declare that the property of A. should become the property of B. No difference in principle exists between the two cases. In the one case, it would be regarded as a bold and palpable usurpation; in the other, the usurpation would appear less bold, although more dangerous, because partially concealed beneath the solemn drapery with which judicial proceedings are invested. The theory of our government contemplates that its powers should be distributed, and administered by three departments ; neither of which should exercise powers conferred upon another. Tins principle, so necessary to the existence of free government, should be ctrefully observed ; yet, it is to be regretted, that, to suit the emergencies of particular cases, courts of justice have sometimes assumed legislative powers. Not contented with expounding the law, they have resolved themselves into legislative bodies, and made laws adapted to the supposed equities of particular cases. The opinions of men are thus substituted for the will of the community expressed through1 the legislature. In the case before us, the legislature have thought proper to give to the circuit court jurisdiction in certain cases, and upon certain conditions. To call this jurisdiction into exercise, it must be shown that the conditions upon which it depended have been fulfilled; and where this jurisdiction is special and extraordinary, not falling within the line which circumscribes the general powers of the court, it would' seem that the record itself should show affirmatively the existence of all the facts necessary to call into action the special powers thus granted. 3 Blackf. R. 230.

Much reliance was placed upon the case of Voorhees v. Bank United States, 10 Peters, 473. But the distinction between that case and the one before us is so obvious as to render it impossible to use it as an authority. 1. In that case, Voorhees was the alienee of Cutter, who was the defendant in the attachment, by a conveyance executed long after the judgment in attachment. Cutter, then, stood in no better plight than Voorhees would have done, had he brought suit against the bank. 2. It was competent for Voorhees to have brought errorupon the judgment, which he failed to do. In the case before us, the defendants could not have availed themselves of this remedy to reverse the proceedings below. 3. Stanley, under whom the Bank of the United States purchased, was regarded in the light of an innocent purchaser; whereas, in the case before us, the plaintiff was a party to the proceedings in attachment, and was bound to see that the court had jurisdiction. The Supreme Court of the United' States decided in that case,- that from what appeared on the face of the proceedings, it might be fairly presumed that all the facts necessary to give jurisdiction to the court of common pleas of Ohio, were shown to that court before the rendition of the judgment confirming the acts of the auditors. In the case before us, nothing is left to implication. The verdict sets out all the proceedings, from which it manifestly appears that there was no affidavit proving the facts necessary to confer authority upon the circuit court to issue the process. Whether the presumptions made in support of the judgment in the case of Voorhees v. Bank of United States, were, or were not justified by the facts of that case, it is quite unnecessary to determine. The fact that the report of the auditors making the sale was confirmed by the court of common pleas of Ohio, was, in the opinion of the Supreme Court of the United States, sufficient to authorize the presumption, that all the jurisdictional facts were shown; especially, as reference was had, in some part of the proceedings, to an affidavit, which, in the absence of all other proof, the court would intend was regular, and in accordance with law. It is to be remembered, however, that the controversy was between the alienee of the defendant in attachment, who purchased subsequent to judgment, and innocent third persons, who claimed through the purchaser at the sale, by virtue of the judgment in attachment, and whose purchase was afterwards confirmed by the court.

It is not to be denied, that some of the views expressed by Mr. Justice Baldwin, touching the conclusiveness of judgments rendered in attachment causes, differ essentially from those expressed by other judges and courts of great respectability. But upon this point, much of what is said by Judge Baldwin, was not called for by the facts in the case before the court. While, therefore, I am unable to perceive, if the premises assumed by the Supreme Court were correct, why the judgment of that court may not be sustained, I desire it to be understood, that we express no opinion upon questions which did not necessarily call for the opinion of the court.

The last question to be considered, is, as to the legal effect of the filing a new affidavit, by the plaintiff, by virtue of the order made at the April Term, 1842, of the circuit court.

First: Was it competent to grant the order? The act of 1839 provides, that “ no suit shall be quashed on account of any defect in the affidavit on which the same issued : Provided, That the plaintiff, his agent or attorney shall, whenever objection may be made, file such affidavit as is required by law.” S. L. 1839, p. 228, § 36. This law, it is to be observed, was not in force at the time the paper purporting to be an affidavit, and upon which the attachment was issued, was filed. Do the words of the act authorize a new affidavit to be filed, where the original affidavit was void ; or, in other words, where no affidavit was made or filed, as contemplated by the statute ? The amendator-y act speaks of defects in the affidavit upon which the writ issued ; from which it results, by necessary implication, that defects could not be supplied, in cases where no affidavit whatever was filed. It evidently contemplated cases where affidavits were filed, but which, through ignorance, inadvertence, or mistake, did not embody all the facts necessary to authorize the issuing of the writ; but it could not have been the intention of the legislature to authorize an affidavit to be filed after judgment was rendered and the property attached sold, and thus legalize acts which were absolutely void. The language, in the latter part of the act, is conclusive upon this point. It authorizes a party to “file such affidavit as is required by law;” implying that the original affidavit was not such as was required by law. In the case before us, if the construction contended for by the plaintiff, be correct, an affidavit filed three years after the rendition of the judgment, would have the effect of rendering a proceeding legal, which was before that time a mere nullity ; —of giving jurisdiction to a court, which, at the time the writ issued and the judgment was rendered, had no jurisdiction. Such a power the legislature would hardly exercise ; and there is nothing in the amendatory act, from which it can, with any show of reason, be contended that such was the intention of the legislature.

But, supposing for a moment, that the legislature might, in the plenitude of its authority, exercise such a power, and that the act of 1839 warrants the construction contended for by the plaintiff, how could it affect the rights of the present defendants ? The filing, with the register, of the writ of attachment, did not operate as constructive notice to the defendants, who purchased soon after the date of the writ, or create a lien on the premises, for the reason that the writ itself was void. To affect a party with notice, the deed, or in this case, the writ, must be such an one as in the case of a deed, the law authorizes to be registered, or in the case of a writ, it must be a writ, the issuing of which is authorized by law. The special verdict does not find that the defendants had actual notice of the pendency of the proceedings in attachment. There being, then, neither actual or constructive notice, how could the rights of the defendants be affected by an order of the court made three years after they had acquired a valid title to the premises? No ex parte legislation, or order of the court founded upon such legislation, could, under the circumstances stated in the special verdict, have the effect claimed for it, viz : that of divesting an estate acquired by the defendants from Bissell, and transferring it to the plaintiff in this case. The original proceedings in attachment, then, being void, and no subsequent legislation, or orders of the court, having applied remedies sufficiently potent to cure those proceedings of the infirmities which beset them, it follows, that the judgment on the special verdict must be rendered for the defendants. Certified accordingly.