The judgment of Norman v. Cheever, entered in the Eighth District Court, on October 11, 1850, and under which appellant claims title, was utterly void, and not voidable.
The appellants say that the jurisdiction of the Eighth District Court must be presumed. If nothing but the judgment and execution had appeared before the Court below, or before this Court, such presumption would exist; but the rule of law is only that it is presumed " until the contrary be shown," and respondents have shown the contrary, by giving in evidence the whole of the proceedings prior to the judgment, and thoseproceedings show nothing by which the Court acquired jurisdiction, as against Cheever, even if it acquired jurisdiction as against the other defendants.
Now, it cannot well be presumed that the record certified by the clerk, as the whole record (such certificate made only nine months after the judgment was rendered), was defective; whether defective or not, the effect of it was to shift the presumption, or burden of proof, over to appellant, and force him to prove that the Court had acquired jurisdiction in some way or other than that which the record of July, 1851, showed.
When the cause in question was before this Court, in 1852, on appeal from this very judgment (see Pierson v. Norman , 2 Cal. 599), the same record came up, and no other, as is shown by the facts reported in that case, with this additional fact, however, which does not appear in the record in this cause, that the agreement to build the ten-pin alley, the agreement to arbitrate, and the award of the arbitrators, were all filed in Court on the very same day that judgment was rendered, viz: October 11, 1850.
It is under such a judgment alone that defendant founds his right to recover.
Thus, withoutnotice, or opportunity of being heard, without consent, without a day in Court, it is claimed that the title of Cheever can be taken from him. If the other defendants had been part-owners of the property, a different question would arise, but the property belonged to Cheever alone.
The eighth section of article first of the Constitution prescribes that " no person shall be deprived of life, liberty, or property, without due process of law."
Judge Bronson, in Bloom v. Burdick, 1 Hill, 139, uses the following language: " It is a cardinal principle, in the administration of justice that no man can be condemned, or divested of his right, until he has had the opportunity of being heard. He must, either by serving process, publishing notice, appointing a guardian, or in some other way, be brought into Court; and if judgment is rendered against him before that is done, the proceeding will be as utterly void as though the Court had undertaken to act where the subject-matter was not within its cognizance. This is the rule in regard to all Courts, that the jurisdiction of a superior Court will be presumed until the contrary appears; whereas an inferior Court, and those claiming underits authority, must show it had jurisdiction." " The distinction between superior and inferior Courts is not of much importance, in this particular case, for whenever it appears that there was a want of jurisdiction, the judgment will be void in whatever Court it was rendered."
All the decisions which have been made for the protection of purchasers, were in cases where the Court had jurisdiction; but there was error or irregularity in the proceedings, and even in these cases such protection has only been accorded to bona fide purchasers, which the judgment-creditor, such as Norman is in this case, has never been held to be.
In other words, the cases have been where the judgment was a voidable and not a void one. But it has never been held, and never will be, that a purchaser can be protected under a judgment entered by a Court, without notice to defendant of any kind, actual or constructive, and without the opportunity of being heard in his defense.
Thus, in Smith v. The State, 13 Smedes & Marsh. 140, it was held that where the judgment was void, the bona fide purchaser took no title.
Admitting that Cheever subsequently appeared in the Eighth DistrictCourt, by his counsel, Mr. Swezy, that act did not confer jurisdiction on that Court, so as to make that valid which was before utterly null; the more especially as he appeared there (as is shown by the record) for the express purpose of excepting to the jurisdiction of the Court, on the very ground now taken, viz: that the judgment had been entered without notice to him, or opportunity of his being heard.
But even supposing that Pierson, Ralfe, and Ruth were properly in Court, under their agreement to that effect, still, a judgment entered against Cheever with them, did not render the judgment less void as to him.
Thus, in Hulme v. Janes, 6 Tex. 242, (a still stronger case than this,) a suit had been regularly entered against three defendants, two of whom were duly served, but no service was in any manner had against the third. Judgment by default was entered against all three. The Supreme Court not only held the judgment absolutely void, as against the defendant not served, but also void against the two served, on the ground that it was indivisible in its nature.
The present proceedings were had while the Practice Act of 1850 was in force, and in that law therewere no provisions for entry of judgment against all the defendants, on a joint-contract, where all were not served, such as are found in the Practice Act of 1851, section thirty-two, and chapter first of title ten; and even under the latter Act the joint-judgment in such case is only against the joint-property of all, and not against the separate property of the defendant not served.
Respondents do not deem it necessary to follow appellant throughout the course of his argument.
It is all based upon an erroneous hypothesis, namely: that the judgment against Cheever was a voidable, and not a void one.
The judgment being a void one, it was not necessary that Cheever should have noticed it in any way. A void judgment can be attacked at any time, in any proceeding, direct or collateral, and it is not necessary that the power of an Appellate Court should be invoked. This proposition needs no authority to support it.
But Cheever did resort first to the Court below, for its assistance, which was refused, and afterwards to this Court, as before stated, asking it to decide the question of jurisdiction; and that this Court did not then do him the full justice which they wouldhave done him, if they had had all the facts of the case before them, can surely not now be alleged against him, or against his grantee, the respondent Gavard, in this case.
This Court is now asked, in this collateral proceeding, where that judgment is attacked by a bona fide purchaser from Cheever, to give such a decision as shall put an end to all questions of adverse title derived under Norman's pretended judgment.
JUDGES: Burnett, J., after stating the facts, delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BURNETT, Judge
The only question in the case regards the validity of the judgment under which the premises were sold. If void, the sale was invalid, and the sheriff's deed conveyed to the purchaser no title. On the other hand, if the judgment was merely voidable, the sale was valid.
To sustain a personal judgment, the Court must have jurisdiction of the subject-matter and of the person. (Whitwell v. Barbier , 7 Cal. 54.) Where the jurisdiction of the Court as to the subject-matter has been limited by the Constitution or the statute, the consent of parties cannot confer jurisdiction. But when the limit regards certain persons, they may, if competent, waive their privilege, and this will give the Court jurisdiction. If, however, a party has not been brought into Court, and does not of himself come in and waive the necessity of service, the Court has no jurisdiction over him, and the judgment against him is a nullity.
The learned counsel for the plaintiff insists that the District Court was a Court of general jurisdiction; that every presumption is in favor of the proceedings of such Courts; and, unless the want of jurisdiction appears on the face of the record, the judgment must be sustained. This position is, no doubt, correct. The judgment was prima facia good. The proof introduced by plaintiff was ample to throw the onus upon the defendants. But when they produced the record of the entire case, it presented a new feature. From the record, it did not appear that Cheever ever had any notice of the submission, or of the award, or of the judgment, until he came in afterwards, and moved to set aside the same, for the very reason that he had not been properly brought into Court. The fact that he did not join in the submission is a proof that he was ignorant of the whole matter.
When the entire record did not show that Cheever was brought into Court, the proof was sufficient to rebut every presumption in favor of the jurisdiction. The statute provides a way in which parties shall be brought into Court. If that mode is not followed, they cannot be brought into Court in any other way. They may come in voluntarily. The record must then show, either that the party was summoned in the mode provided, or that he appeared in Court. If records or papers are lost, their contents may be proved.
The appearance of Cheever in the Court after the judgment was rendered, and his motion to set it aside, did not cure the fatal defect of a want of jurisdiction. Had the Court set aside the judgment, and permitted him to answer to the merits, a judgment subsequently rendered would have been valid. But the appearance of a party for the purpose of objecting to the prior void proceeding, will not cure it. (Diedesheimer v. Brown, ante 339)
The authorities referred to, and quoted in the able brief of plaintiff's counsel, do not sustain the judgment. Nor does the fact that the judgment was reversed in this Court upon a ground that would only render the judgment voidable, at all affect the rights of the defendants. There may be several grounds upon which a judgment should be reversed. The reversal upon one ground, does not prove the non-existence of another.
It is unnecessary to express any opinion as to whether the judgment was void, or voidable, as against the other parties. The property sold was the individual property of Cheever, and the judgment being void as against him, the plaintiff's deed conveyed no title.
Judgment affirmed.