Mr. Justice ThorNTON
delivered the opinion of the Court:
We propose to consider two questions :
First — Was the judgment of the circuit court of Coles county void or only voidable?
Second — Does the record of the court, as amended in 1870, afford evidence of the due publication of notice ?
In May, 1860, proceedings in attachment were commenced in the Coles county circuit court against appellant and one Bane.
Appellant was a resident of New York, and Bane resided in Coles county.
A writ of attachment was issued and directed to the sheriff of Cook county, levied upon the real estate in controversy as the property of appellant, and returned “not found” as to the defendants.
At the October term of the.court, in the year 1860, judgment was rendered against appellant and Bane, by default; but the court did not find that any notice had been given to appellant, either actual or constructive. The only pretended notice of the pendency of the attachment was, by publication. Conceding that the court might' have received other proof of the fact of publication than the certificate of the publisher, the record does not so state.
The certificate attached to the notice did not purport to have been made either by the printer or publisher of any paper.
In Haywood v. McCrory, 33 Ill. 459, this notice was held to be fatally defective. Beckwith, J., in delivering the opinion of the court, said : “The record of the judgment fails to show that notice was given of the pendency of the suit; and the certificate of publication on file is not such an one as the statute requires. It does not purport to be made by the printer or publisher of any newspaper. In suits by attachment, where there is no personal service upon the defendant, in order to sustain the judgment the record must show affirmatively that the prerequisite of the statute in regard to notice by publication was complied with.” The judgment in the case was accordingly reversed.
Counsel for appellees insist that this judgment of reversal is the only erroneous judgment given in this case.
The force of the remark we can not appreciate; of its fitness and good taste, others must judge.
The implied rebuke, however, shall not deter us from an adherence to the opinion, as it is in consonance with good sense and essential to secure the rights of property.
By virtue of executions issued upon this judgment, a large amount of the real estate of appellant has been sold. It appears, from the record in this case, that the note upon which the judgment was founded was either a forgery, or at least made without the authority of appellant. After the judgment in 1860, the note was withdrawn from the circuit court of Coles county, and a suit instituted against appellant in the State of New York, on the trial of which the payee of the note was defeated.
The circumstances, therefore, appeal to our sense of justice, and incline us to afford the relief prayed for if consistent with the well established principles of law. A man’s property has been seized for a pretended debt, and sales made without any actual notice to him, until the time had matured for the execution of the deed and it had been executed and delivered.
It is a principle of natural justice that a man must have notice of some character before his property shall be bound by a judicial sentence. Without the existence and enforcement of this principle, the right to possess and enjoy property can not be sustained.
Our attachment law, in accordance with this settled rule, requires notice by publication in some newspaper, when the writ of attachment has been levied upon property or served upon a garnishee, and has been returned not found as to the defendant.
What shall be the proof of publication ? It may be made in some other mode than by the certificate of the printer or publisher, but when the latter mode is adopted it must conform to the requirement of the statute, which provides that the certificate of the printer or publisher shall be evidence of publication. B,. S. 1845, 47.
•Therefore, a certificate of some person Avhich does not show that he was printer or publisher, is not in compliance with the statute. No presumption is to be indulged, but the fact must affirmatively appear. Any other construction would permit any one, without knowledge of the fact of publication, to give the certificate.
There was, then, no sufficient notice of publication, tested by the requirement of the statute, and the court, in its judgment, did not find that notice of any kind had been given.
In determining the presumptions which may aid such a judgment, we must inquire into the character and jurisdiction of the court which rendered it.
The general jurisdiction of the circuit courts is over all matters and suits at common law and in chancery.
When acting within the scope of its general powers, a circuit court is a court of superior jurisdiction. The rule is, that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so. Peacock v. Bell, 1 Saund. 69.
But when a superior court exercises a special statutory and extraordinary power, it stands upon the same ground and is governed by the same rules as courts of limited and inferior jurisdiction. The rule then is, that nothing shall be intended to be within the jurisdiction but that which is so expressly alleged. Peacock v. Bell, supra.
In proceedings by attachment, is the circuit court acting within the scope of its general powers, or is it exercising a special statutory power ? It will not be contended that, at common law, this summary and extraordinary remedy could be pursued. It exists and is conferred alone by the statute, and is in derogation of the common law.
An attachment derives all its validity from the statutes, and in all essential particulars must conform to their requirements. Cariker v. Anderson, 27 Ill. 358; Rowley v. Berrian, 12 Ill. 198; Vairin v. Edmonson, 5 Gilm. 270; Lawrence v. Yeatman, 2 Scam. 15.
Where there is not personal service, the statute requires that there must be notice by publication. This is as essential to jurisdiction as the issue of the writ and the levy upon property.
In this summary proceeding, by which the citizen is deprived of his property without actual notice; without trial, except by an idle form; by which his entire estate may be taken in payment of a feigned indebtedness — a proceeding entirety ex parte — the authority for such remedy should be strictly pursued.
The levy upon property by the writ of attachment gives jurisdiction of the subject matter, but there must also be jurisdiction of the person, in some of the modes required by the statute. If this jurisdiction does not exist, the judgment is void, and its validity may be inquired into collaterally.
In this case there is nothing in the judgment, by recital, to indicate notice, and the only evidence in the record is the defective certificate. The facts, necessary to give jurisdiction, do not appear upon the face of the proceedings. If the facts must affirmatively appear, then the judgment is a nullity ; concludes no one; and may be rejected whenever collaterally drawn in question.
That the validity of a judgment may be questioned in a collateral proceeding, has often been decided by this court.
In Goudy v. Hall, 30 Ill. 109, it was decided that the decree of a county court authorizing the sale of land, was absolutely void if the notice required by the statute had not been given ; and that its validity might be inquired into Avhen the record was offered in an ejectment suit.'
In Miller v. Handy, 40 Ill. 448, the court said, if there was not jurisdiction to render the judgment offered in evidence in defense, then all the proceedings were coram non judiee, and they may be attacked collaterally in an action of ejectment.
In Campbell v. McCahan, 41 Ill. 45, it is said that there must be jurisdiction of both the subject matter and of the person, to give validity to judgments; and if jurisdiction is not acquired, the judgment is void and may be resisted successfully, either in a direct or collateral proceeding.
To the same effect is the case of White v. Jones, 38 Ill. 160.
In Clark v. Thompson, 47 Ill. 26, it was held that the presumption in favor of the jurisdiction, even of a court of general jurisdiction, may be rebutted in all collateral proceedings ; and when there is no finding of the court, the presumption will be that it acted upon the summons and return which do appear in the record.
In the case at bar there was no finding by the court, and tbe inference is that it assumed jurisdiction of the person of appellant by virtue of the defective certificate.
In Huls v. Buntin, 47 Ill. 396, the suit was ejectment, and the defendant claimed title by virtue of a sale by an adminis-tratrix, under a decre.e of court. It'was held that, if the court did not have jurisdiction, the decree was not binding, and could be attacked collaterally.
This court has frequently held that the county courts, though of limited, are not of inferior, jurisdiction, as distinguishing inferior from superior coürts. Propst v. Meadows, 13 Ill. 157; Clark v. Thompson, supra.
We will refer to some authorities in other States which recognize the rule that superior courts, when in the exercise of a special statutory authority, are not entitled to the same presumptions in favor of their judgments as when in the exercise of their general powers.
In an action of ejectment, the record of a court of general jurisdiction was offered in evidence. In making the record, the court exercised a special power created by statute. It was held, that’ it must appear by the record that the statute had been complied with, or the judgment could have no binding-effect. Denning v. Corwin, 11 Wend. 648.
In Striker v. Kelly, 7 Hill, 10, an action of covenant was brought upon a lease to recover rent. The defense was, that the greater part of the land demised had been charged by an assessment to pay the expense of opening Ninth avenue in the city of. New York. By a statute, the Supreme Court appointed commissioners, who assessed the land, and their report was confirmed by the court, and the land was sold. It -was held, that the powers conferred were judicial, and were given to the court; but that, in the discharge of the duties imposed, the general powers of the court were not-exercised, but only those derived from the statute, and that the proceedings must be treated like those of a court of special and limited jurisdiction.
In Thatcher v. Powell et al. 6 Wheat. 119, ejectment was brought. The defendants, to support their title, read in evidence the transcript of a record of a court of general jurisdiction, made while in the exercise of a special statutory power.
Amongst other things, the statute required publication. Ch. J. Marshali,, in delivering the opinion of the court, said : “These publications are indispensable preliminaries. They do not appear to have been made. The judgment was given without it appearing, by recital or otherwise, that the requisitions of the law had been complied with. We think this ought to have appeared in the record.
“In summary proceedings, where a court exercises an extraordinary power under a special statute, prescribing its course, we think that course ought to be exactly observed; and those facts, especially, which give jurisdiction, ought to appear, in order to show that its proceedings are coram judice.”
The judgment was held to be absolutely invalid.
In Williamson v. Ball, 8 How. 566, and Williamson v. Berry, ib. 495, it was held that a court of chancery, under its general powers, had no authority to decree a sale of the real estate of a minor; and that, when acting for such purpose under a special statute, it must pursue, strictly, the enactment, or no title will pass to the vendee thereunder, or to a subsequent bona fide purchaser.
As illustrative of the principles of the foregoing authorities, we refer to the following cases: Latham v. Edgerton, 9 Cow. 227; Rogers v. Dill, 6 Hill, 415; Bloom v. Burdick, 1 Hill, 130; Mills v. Martin, 19 Johns. 7 ; Jachan v. Esty, 7 Wend. 148; Dakin v. Hudson, 6 Cow. 221; Borden v. Fitch, 15 Johns. 121; Bigelow v. Stearns, 19 Johns. 39.
The rule,' that the exercise of unusual and extraordinary powers will be subjected to the strictest scrutiny, will have a salutary effect. It imposes some restraint upon powers dangerous to the citizen, and which should never be granted or exercised without absolute necessity.
The very security of property requires notice of some kind to the owner before he should be deprived of it. Justice can never be administered, in its true spirit, when either the person or property is condemned without notice.
No case can better illustrate the necessity of legal scrutiny in this class of remedies, than the one under consideration.
Judgment was obtained against a man without any personal notice, and that judgment was based upon a note, either forged oy made without any authority, by the co-defendant of appellant, in the attachment, and thus it is attempted to deprive him of a large amount of property.
This was an extraordinary remedy, and the record must state that satisfactory evidence of the notice was heard by the court, or it should contain sufficient evidence itself. Fayles v. Kelso, 1 Black. 215; O’Brien v. Daniel, 2 Black. 291; Leach v. Swan, 8 ib. 68.
No distinction can justly be taken between this case and decrees directing the sale of lands to pay debts, upon the application of administrators.
Yet, this court has invariably held, that if notice of the latter proceeding has not been served or given in the mode required by the statute, the decree to sell lands will be void, and may be questioned in both direct and collateral proceedings. Clark v. Thompson, supra; Schnell v. City of Chicago, 38 Ill. 383; Morris v. Hogle, 37 Ill. 150.
Counsel for appellees contend that the levy of the wrif of attachment conferred jurisdiction over the land, gave power to compel the appearance of appellant, and to' render judgment and order a sale of the land, just as much as personal service upon his co-defendant gave jurisdiction to render a personal judgment against the latter.
They further contend, “that the failure to give the notice required by the statute, did not deprive the court of its jurisdiction over the subject. matter; nor of its-jurisdiction and power to issue the writ; nor of the jurisdiction over the property acquired by tbe service of the writ upon it, to give judgment against it.”
This argument effectually wipes out the provision of the statute which requires notice ; for, if a judgment can ,be rendered upon the mere attachment of property, there is no necessity for notice in any case.
The statute requires that, upon the return of the writ of attachment, the cleric shall give notice. We are not disposed, if we had the power, to abrogate this wise provision of the law.
The service of the writ only gave jurisdiction over the land, and not over the person. Both must exist prior to the judicial sentence.
The attachment is a lien from the date of the levy only when followed by a judgment, and the latter can never be properly rendered without due notice. Martin v. Dryden, 1 Gilm. 187; Jones v. Jones, 16 Ill. 117.
The facts in the cases cited, of Pierce v. Carleton, 12 Ill. 358, and Dukes v. Rowley, 24 Ill. 210, are somewhat different from the facts in the case under consideration.
In the case in 12 Ill. the record recited that due proof of publication had been made. The court found that the statute had been complied with, and this finding might be the result of parol proof in such a case, but could not if the service had been by summons. The presumption was based upon the finding of the court.
So, in the case in 24 Ill.,the judgment showed that due notice by publication had been given; but the court decided against the tax title because the certificate of publication had not been recorded as required by the statute. This effectually disposed of the deed as evidence of title, and the subsequent remarks as to the sufficiency of the certificate were unnecessary and were obiter dieta, and were virtually overruled in Haywood v. McCrory, supra.
Any attempt to review the cases cited by appellees, would extend this opinion to an unreasonable length. There is a conflict between tbe authorities, and any effort to reconcile them would prove futile.
In the view we have taken, and in the light of the authorities referred to, the judgment of the circuit court of Coles county must be pronounced void.
¥e propose to consider nest the effect of the amended record.
The record shows the following state of facts :
The judgment was rendered at the October term, 1860, of the Coles circuit court. In 1864 a writ of error was prosecuted to this court, and the judgment was reversed and the cause remanded. In July, 1865, the note was withdrawn from the files of the court and a suit prosecuted upon it in the State of New York.
At the October term, 1870, of the Coles circuit court, a motion was made to re-docket the cause, and then the following order was made: “Whereupon plaintiff produces publisher’s certificate, and leave is granted to file the same. And from said certificate and evidence of publisher, the court is satisfied as to the proof of publication, etc.”
There is no evidence in the record that any notice was given to appellant of the intention to make this motion, and it does not appear that he Avas present.
The entry was made more than one year after the filing of the bill in this case. The bill sets up the.record as it existed before the attempted amendment, assails the judgment as void, and charges that the cause had been abandoned by the plaintiff.
As the record, as then made up, was the chief cause for filing the bill, it is certainly anomalous practice to amend it foi the purposes of the trial, and without any notice.
But Avhat does the amendment accomplish ? What purpose does it subserve ? What benefit is it to any party that there should be a sufficient certificate of publication, if no judgment is rendered ?
The apparent judgment of 1860 was not a judgment in 1870; it had been reversed; the reversal was an official declaration that it was false. It was no longer a conclusion 'of law upon facts found or admitted, or upon default. The amended record, therefore, could have no application to this reversed judgment. It could give neither truth nor vitality to it. '
As the effect of the reversal was the annulment of the judgment, it was not revived by the amendment. The proof submitted ten years before had passed from.the memory of the court, the note had been taken from the files, and, in fact, there was no record of the judgment remaining in the circuit court. The judgment, wholly reversed on error, trould not even have been a defense to a subsequent suit for the same cause of action. Smock v. Graham, 1 Black. 314.
The proper course, upon a reversal of the judgment, would have been to re-docket the cause in the court below, and by proof upon a trial, or by default, obtain another judgment. Instead of pursuing that course, we think that there was a total abandonment of the cause.
Upon remandment of the cause, appellant was in court by operation of the writ of error sued out and prosecuted by him, and a trial might have been had. Reaugh v. McConnel, 36 Ill. 373.
This course was not adopted. The cause went off the docket for five years, and appellant was entitled to notice of the motion to reinstate. Mattoon v. Hinckley, 33 Ill. 208.
The want of notice is not aided in this case by the presumptions implied by law in favor of the regularity of the action of superior courts. At the time of the amendment, the adjudication was in relation to the same subject matter which was under consideration when the reversed judgment was obtained.
The inquiry was as to the jurisdiction of the court in the attachment cáse. It was, therefore, not in the exercise of its general powers, but of a special statutory authority given by the attachment law. By virtue of that law alone did the suit commence and progress. The reversal did not change it from a statutory to a common law proceeding. Lapse of time could not do it. Motions, however numerous and varied, could not effect a change. The proceeding had its beginning and termination only by authority of the statute.
The rule, therefore, as to inferior courts, must apply, and the record should show, affirmatively, that notice was given.
Upon the hearing in this case, the deposition of the publisher of the paper was read in evidence to establish the fact of publication.
The adoption of such a rule would destroy every safeguard which the law has thrown around purchasers at judicial sales; make records mere useless things; unsettle titles; and open wide the door to fraud and perjury.
The stability and sanctity of a judicial sentence would then depend, not upon the sure records of the courts, but upon the frail and uncertain memory of 'witnesses. If defects can thuá be supplied, completeness ca.n be pulled down. To-day a purchaser vests his money in land, relying upon an insufficient record as constituting no incumbrance; ten years hence the record is aided by evidence on the trial of an action of ejectment, and he is ousted of his estate. To-day a judgment, in any special proceeding, is no lien, on account of the absence of any notice in the record, or of any finding, and the party who purchases upon the faith of this insufficiency is surprised to learn that the printer of the newspaper, and not the clerk of the court, has been the custodian of the record for ten long years.
The practice would be dangerous, and is unsustained by any principle of law.
Appellant is entitled to the relief prayed for.
The decree of the court below is reversed and the cause remanded.
Decree reversed.