State ex rel. McCall v. Cohen

The opinion of the court was delivered by McIvee, á. J.

The object of this proceeding was to review, by certiorari, a judgment rendered by a trial justice. Such a writ •cannot be demanded as a substitute for an appeal, (State v. Steuart, 5 Strob. 29 ,) and, therefore, if the grounds upon which it was demanded were such as could have been presented by appeal, the writ should not have been granted. But if it appears, from the return that the inferior tribunal to which it was directed has undertaken to render judgment in a case of which it had no jurisdiction, or against parties who have not, by proper process, been brought within its jurisdiction, then the writ was properly granted. In this case the allegation is that the trial justice proceeded to render judgment against parties who had not been served with process or otherwise legally been made parties to the action in which the judgment was rendered. It also appears that this question was submitted to the decision of the trial justice by a motion to set aside the judgment; and it is contended that by so doing the respondent, under the rule laid down in State v. Scott, 1 Bail. 294 , has precluded himself from raising the question of jurisdiction in this form, and can only do so by appeal from the decision of the trial justice on the motion to set aside the judgment. It is very true that the rule laid down in that case is that where a party submits a question of jurisdiction to, the inferior court, its decision of such question has the same binding force as its decision of any other question submitted to it, and that any error in this respect must be corrected in the same manner as any other errors are corrected, viz., by appeal. But the exception to the rule is recognized by the same case; and that is, where the want of jurisdiction is apparent upon the face of the proceedings themselves. So that if the proceedings *201 before the trial justice in this case fail to show upon their face that the parties against whom the judgment in question was rendered were ever brought within the jurisdiction of the trial justice before the judgment was rendered, then there was such a jurisdictional defect as was reviewable by the Court of Common Pleas under the writ of certiorari, notwithstanding the fact that the party seeking the writ did submit the question of jurisdiction to the trial justice by his motion to set aside the judgment. For the rule in regard to inferior courts is, that “ nothing shall be intended to be within the jurisdiction that is not expressly averred so to be.” So that if the proceedings show upon their face a want of jurisdiction, or fail to show that which was necessary to confer jurisdiction, the whole is an absolute nullity, and “it is of no consequence in what way the defect is brought to the view of the court.” Devall v. Taylor, Cheves 5.

Upon looking into the proceedings it appears that the original summons contains the following endorsement: “ Served in person by Calvin Josey, 7th May, 1877. Distance eighteen miles for each.” Giving to this very informal return the construction most favorable for the appellants, it only- amounts to a return that Calvin Josey, styling himself a constable, personally served each of the defendants on the day stated with a copy of the summons. This, however, is not sufficient. An action cannot be commenced except by the service of a summons, or by delivering it to the sheriff or other officers of the county, with the intent that it shall be actually served, {Code, § 122,) and the only evidence of service is either by certificate of the sheriff, if served by him, or, if by another person, the affidavit of such person, or the written admission of the defendant, (not to mention service by publication, which is wholly inapplicable to the present case.) Code, § 161. The court is bound to take judicial cognizance of the fact that there is no such officer in the state as a regular constable, inasmuch as the constitution provides that such officer “ shall be chosen in each county by the qualified electors thereof, in such manner as the general assembly may direct,” {Const., Art. IV., § 21,) and the statute book fails to show that any such direction has ever been given. Hence the only authority which Calvin Josey could have for styling himself constable, would be *202 an appointment, in writing, by a judge, trial justice or coroner, for a particular occasion, (Gen. 8tat., oh. XXVI, § 2, 205, as amended by the act of 1873,15 8tat. 512,) and no such authority appears or is alluded to anywhere in the proceedings. The action, therefore, could not be commenced by the delivery of the summons to Calvin Josey, inasmuch as he does not appear to have' been either “ the sheriff or other officers of the county,” and there is no legal evidence that it was ever served upon any one; for, even if served by Calvin Josey, who, as we have seen, was not an officer, that fact could only be made to appear by his affidavit, which is wanting, as is likewise any evidence of a written admission of service by the defendants, or either of them.

But when we look further into the return to the writ of certiorari and examine the affidavits offered on the hearing of the motion to set aside the judgment, it appears, fully, not only that Calvin-Josey did not serve the summons himself, but that he did not know whether it was served by any one else. It seems to us, therefore, that it appears upon the face of the proceedings themselves that the trial justice never acquired jurisdiction in the case against the defendants, and that his judgment against them was, therefore, a nullity, and may be so declared in proceedings by certiorari.

What is termed the voluntary appearance of the defendant on the motion to set aside the judgment, cannot be regarded as equivalent to personal service of the summons, (Code, § 162,) for that, manifestly, has reference to an appearance before judgment is rendered, while-here what is called the appearance was after judgment. So, too, the letter written by L. A. McCall to the trial justice, which is treated by that officer as an acknowledgment, in writing, of the service of the summons, is insufficient for that purpose, for that also Was written long after the judgment was rendered, and the question is as to whether the trial justice had acquired jurisdiction as against the defendants at the time he rendered judgment against them.

The judgment of the Circuit Court is affirmed.

Willard, C. J., and McGowan, A. J., concurred.