1. It is an axiom of the law that when a judgment of a court is
offered in evidence collaterally in another suit, its validity
cannot be questioned for errors which do not affect the
jurisdiction of the court that rendered it.
2. Proceedings to enforce a debt or demand by attachment of the
defendant's property partake of the character of suits, both
in
rem and
in personam.
Page 77 U. S. 309
3. If there is personal service of process on the defendant or
personal appearance by him, the case is mainly a personal action;
but if in the absence of either of these, his property is attached
and sold, it becomes essentially a proceeding
in rem, and
is governed by principles applicable to that class of cases.
4. In this class of cases, the court cannot proceed without a
levy on the property of the defendant, and the judgment binds
nothing but the property attached.
5. The seizure of the property of the defendant under the proper
process of the court is therefore the foundation of the court's
jurisdiction, and defective or irregular affidavits and
publications of notice, though they might reverse a judgment in
such case for error in departing from the directions of the
statute, do not render such a judgment or the subsequent
proceedings void.
6. Where there is a valid writ and levy, a judgment of the
court, an order of sale, and a sale and sheriff's deed, the
proceeding cannot be held void when introduced collaterally in
another suit.
The Code of Tennessee of 1857-1858, under its chapter on
ATTACHMENTS, thus provides:
"§ 3455. Any person having a
debt or
demand due
at the commencement of an action, or a
plaintiff
after action for any cause has been brought and
either before or after judgment, may sue out an attachment at law
or in equity against the property of a debtor or defendant in the
following cases:"
"2. Where he is about to
remove or has
removed
himself from the state."
"5. Where he
absconds or is absconding or concealing
himself or property."
"§ 3462. Attachments sued out in aid of a suit already
brought shall be made returnable to the court or justice before
whom the suit is pending."
"§ 3469. In order to obtain an attachment, the plaintiff,
his agent or attorney shall make oath in writing stating the nature
and amount of the debt or demand and that it is a just claim, and
also that
one or more of the causes enumerated in section 3455
exists."
"§ 3470. It is no objection to the attachment that the
bill, affidavit, or attachment states, in the alternative or
otherwise,
Page 77 U. S. 310
more than one of the causes for which an attachment may be sued
out."
"§ 3471. The officer to whom application is made shall,
before granting the attachment, require the plaintiff . . . to
execute a bond in double the amount claimed to be due, . . .
payable to the defendant and conditioned that the plaintiff will
prosecute the attachment with effect or in case of failure pay
&c."
"§ 3472. The affidavit and bond shall be filed by the
officer taking them in the court
to which the attachment is
returnable, and shall constitute a part of the record in the
case."
Subsequent sections of the chapter provide for publication for a
fixed time in a newspaper published in the county where the suit is
brought of a memorandum or notice of the attachment, and
declare:
"§ 3522. This memorandum or notice shall contain the names
of the parties, the style of the court to which the attachment is
made returnable, the cause alleged for suing it out, and the time
and place at which the defendant is required to appear and defend
the attachment suit."
"§ 3524. The attachment and publication are in lieu of
personal service upon the defendant, and the plaintiff may proceed
upon the return of the attachment duly levied, as if the suit had
been commenced by summons."
With these enactments of the code in force, W. G. Brownlow, on
the 26th September, 1863, sued out a writ of summons in trespass in
the County Court of Knox County, Tennessee, against Reynolds and
others, for false imprisonment, for ejecting him from the state
&c.; damages $25,000. To this writ the sheriff returned that
"he had made search and that none of the defendants were to be
found in his county." On the same day that he applied for the
summons, and before the same person, one M. L. Hall, who, as clerk,
had issued the summons in the trespass suit, Brownlow filed an
affidavit for an attachment against the property of Reynolds and
the others. The affidavit, after giving the names of the parties to
the summons, ran thus:
Page 77 U. S. 311
"The plaintiff makes oath that he has a good cause of action
against the defendants herein named in which he will be entitled to
recover a very large sum. He further swears that all of defendants
have
fled from this state OR that they so abscond or
conceal themselves that the ordinary process of law cannot reach
them; that he has this day instituted an action of trespass against
them claiming $25,000. Plaintiff therefore prays for an ancillary
attachment against their property in aid of this his suit."
An attachment bond being given in double the amount ($50,000)
the attachment issued, the bond and attachment being, like the
affidavit and summons had been, both dated September 26. The
attachment recited the above-given affidavit substantially as made,
and directed the sheriff to attach so much of the property of
Reynolds and the others as should be sufficient to satisfy the said
amount of $25,000, and such estate so to secure that the same might
be subject to further proceedings thereon at a court to be held on
a day subsequent and specified. The sheriff returned to this last
writ that he had attached all the right and title of Reynolds in
and to one hundred and sixty acres of land in Knox County.
Publication was ordered by the court to be made in the Knoxville
Whig (a paper of the county) notifying to the defendants to appear
and plead, answer or demur, or that the suit would be taken as
confessed and proceeded in
ex parte as to them. The record
did not, however, set forth the notice which was published, if any
was, though it did set forth the order for publication, which was
entitled, "Order of publication, and
the publication as made in
the Knoxville Whig," making it appear, perhaps, that the
omission to set forth the notice was a clerical error.
The record of Brownlow's suit went on to say that the defendant,
Reynolds, and the others being solemnly called to come into court,
came not, but made default, and it appearing -- the record
proceeded -- that the attachment had been duly levied on the
defendant's property, and
that publication had been made
according to law, it was ordered that the plaintiff should
recover his damages. These were assessed at
Page 77 U. S. 312
$25,000, and for this sum execution was ordered to issue, and
that the sheriff should sell the one hundred and sixty acres of
land attached. The land was accordingly sold under a
venditioni
exponas, and a deed made by the sheriff to one Cooper, by
order of the purchaser. Cooper was put into possession by a writ of
haberi facias, issued from the same court in the same
proceeding. Being thus in possession, Reynolds, the original owner,
brought ejectment in the court below against him. Cooper asserted
title under the judicial proceedings above described. It was
admitted that Reynolds had title to the land unless it had been
divested by those proceedings. The record of the proceedings having
been obtained from the Knox County Court and put in evidence below,
the defendant asked the court to instruct the jury:
"That the Court of Knox County had jurisdiction of attachment
cases and actions of trespass, and that as it is declared in the
judgment in the suit of
Brownlow v. Reynolds that the
attachment was duly levied on the property of the defendants and
that publication had been made according to law, this adjudication
was conclusive upon parties and privies, until the same should be
reversed by a court of error; that the sheriff's deed to the
defendant made, by virtue of the sale under and by virtue of the
judgment of the Court of Knox County, communicated a good title to
the premises in controversy to the defendant as against the
plaintiff, and that the regularity of the proceedings in the said
suit of
Brownlow v. Reynolds. could not be collaterally
inquired into in this cause."
This instruction the court refused to give, but charged the
jury:
"That the summons issued in the case of
Brownlow v.
Reynolds was not served upon the plaintiff in this suit, and
that the question was whether the attachment would bring him into
court; that the affidavit upon which the attachment was issued, was
not made in conformity to the attachment laws of Tennessee; that it
did not show the court in which suit was brought, or state
specifically the cause of action or nature thereof, as required
under the decisions of the Supreme Court of Tennessee, so as to
connect itself with the summons in the
Page 77 U. S. 313
action of trespass; that it did not appear that any publication
was in fact made, and that the Court of Knox County acquired no
jurisdiction of the cause; that the attachment and proceedings
thereon were not sufficient to bring Reynolds before the court;
that there was no authority for rendering the judgment, and that
the levy of the attachment, the judgment of the court, the sale by
the sheriff, and the sheriff's deed, were null and void, and
conveyed no title."
Verdict and judgment having gone accordingly for the plaintiff,
the question now here, on error by the other side, was whether this
instruction was correct.
Page 77 U. S. 315
MR. JUSTICE MILLER delivered the opinion of the Court.
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
only 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
Page 77 U. S. 316
title in another suit between other parties and before a court
which has no jurisdiction to reverse or set aside the 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 case 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. [
Footnote 1]
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 jurisdiction 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
Page 77 U. S. 317
process or by the voluntary appearance of the party 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 that 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,
Page 77 U. S. 318
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's 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 rem, 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
propositions.
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 in such a suit cannot proceed unless the
officer finds some property of defendant 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,
Page 77 U. S. 319
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, the 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
Page 77 U. S. 320
suit to the notice of the party in 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 should 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 are not errors which render its action
void.
The case of
Voorhees v. Bank of the United States
[
Footnote 2] was much like
this, and 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 nonresident 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 the
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, and that they were not fatal in a collateral
proceeding.
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, the sale under the
venditioni
exponas, the writ of possession, sheriff's deed and
Page 77 U. S. 321
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
sacrifice 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.
[
Footnote 1]
Kempe's Lessee v.
Kennedy, 5 Cranch 173;
Thompson
v. Tolmie, 2 Pet. 157;
Voorhees
v. Bank of United States, 10 Pet. 449;
Grignon v.
Astor, 2 How. 319;
Harvey v.
Tyler, 2 Wall. 328;
Florentine
v. Barton, 2 Wall. 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 Coldwell 512
[
Footnote 2]
Cited
supra, p. <|77 U.S. 316|>316, note.
MR. JUSTICE FIELD, dissenting.
I dissent from the judgment in this case. I am of opinion that
the state court of Tennessee never acquired jurisdiction in the
case of
Brownlow v. Reynolds.
