Hess v. Cole

The Chief Justice

delivered the opinion of the court.

To an action of dower unde nihil habet the defendant pleads an assignment of dower by commissioners appointed by the Orphans’ Court of the county of Gloucester, under the provisions of the statute, and a decree thereon. The plea sets out with particularity the proceedings in the Orphans’ Court upon *121 which the decree was founded. To this plea there is a general demurrer.

In support of the demurrer, the plaintiff relies upon a variety of particulars, in which the proceedings of the Orphans’ Court, as they are set forth in the plea, are not in conformity with the requirements of the statute upon which the proceedings are founded. The argument in support of most of these objections proceeds upon the ground that the Orphans’ Court is a tribunal of limited or special jurisdiction; that in the assignment of dower it exercises a special statutory authority, and that unless its proceedings are in strict compliance with the provisions of the statute, the decree founded upon those proceedings is null and void. Unless this position be sound, it is clear that the decree, while it remains in force, cannot be avoided in a collateral way for mere irregularities.

The Orphans’ Court, as established in this state, is not a tribunal of general jurisdiction. Its jurisdiction does not extend to all persons nor to every subject matter. In this sense its jurisdiction is limited. And in the same sense the courts for the trial of small causes, the Court of Common Pleas, and even the Circuit Court of the United States, are courts of limited jurisdiction. But they are not, in the technical sense of the term, inferior courts or courts of special jurisdiction, whose proceedings are subject to the narrowest rules of construction, and whose judgments will be deemed invalid for every irregularity apparent in their proceedings. In like manner, the jurisdiction of the Orphans’ Court, though limited is not special. It does not exercise a mere delegated authority for special purposes. It is a regularly constituted tribunal of justice, with broad and comprehensive powers, operating upon great and varied interests, and regulated by well settled principles. Its decrees upon all subjects within the scope of its jurisdiction are entitled to every presumption ill favor of their regularity that the judgments of this court are entitled to. While they remain in force they are equally binding. They cannot be avoided in a collateral way, but must be regarded as valid until reversed by due course of law.

These principles were expressly sanctioned by this court in *122 Den ex dem. Obert v. Hammel, 3 Harr. 73 , and the same principle, as applied to Orphans’ Courts and Courts of Probate, have been recognised in several of our sister states. In Den v. O’Hanlon, 1 Zab. 582, the Court of Errors and Appeals held unanimously (counsel being stopped in support of the position) that the decree of the Orphans’ Court, on a matter within their jurisdiction, is conclusive, and cannot be impeached when brought in question collaterally, though irregular and unlawful.

This consideration disposes of all the objections relied upon in support of the demurrer which affect merely the regularity or legality of the proceedings before the Orphans’ Court. However valid these exceptions might' prove, if the proceedings complained of were regularly brought into this court for review, they cannot be taken advantage of in a collateral way while the decree remains in force. To avail the plaintiffs upon this demurrer, it must appear that the decree of the Orphans’ Court is void, and the assignment of dower by virtue thereof a nullity.

The last reason relied upon in support of the demurrer is, that no notice was given to William Hess, the plaintiff in this suit, of application to the Orphans’ Court that he was no party to the proceedings before that court, and that, so far at least as his rights are affected, the proceedings and decree are inoperative and void.

It appears by the plea that the proceedings before the Orphans’ Court for the assignment of dower were instituted upon the petition of a purchaser of the real estate in question ; that notice of the application, pursuant to the requirements of the statute, was given to Rachel G. Hess, the dowress ; that at the time of the application she was married to her present husband, William Hess, (who with his wife are plaintiffs in this suit), and that notice was given to her of the application. The plea further states, by way of excuse for want of notice to the .husband, that the said Rachel G. Hess, at the time of the service of the notice, was living separate and apart from the said William Hess, and acting as a feme sole; that the said William Hess was not at that time, nor has he been at any time since, a resident of .the state of New Jersey, but was resident in some *123 part or place unknown; and that previous to the service of the notice, the said William Hess had deserted the said Rachel, and had voluntarily abandoned his marital rights.

The statute regulating the proceedings in the Orphans’ Court for the assignment of dower requires that the party petitioning shall give twenty days’ notice to the other person or persons interested. The husband of the dowress was manifestly a person interested within the contemplation of the statute. His interest in his wife’s land became vested upon his marriage, and none of the facts stated in the plea tend in the least to divest .his title. He -was then entitled to notice by the express provision of the statute. His rights were to be concluded by the decree. Upon the clearest principles of justice, he was entitled to an opportunity of being heard. It needs no argument to prove that the service of a notice, or of any judicial process whatever upon a feme covert, where the husband’s rights are concerned is a mere nullity. It is no notice to the husband. The wife is never recognised as the agent of the husband for such purpose, unless by force of express statutory authority. There was then no notice to the husband, express or implied, of the application to the Orphans’ Court. He was iu no wise a party to those proceedings. It remains only to inquire whether this want of notice is a mere irregularity, or whether it affects the jurisdiction of the court, aud renders their proceedings null and void.

By the strict rules of the common law, it was necessary in every suit not only that the defendant should be served with process, but that his appearance to the action should be effected. Every student is familiar with the cumbrous machinery and complicated process by which the courts sought to compel the appearance of the defendant. He is familiar, also, with the principle, that if the defendant was contumacious, and refused to appear to a mere civil action, the proceedings were at an end. Ho judgment could be rendered. Every common law record shows upon its face that the defendant was either in custody, or was summoned or attached to answer to the action, And, however inconvenient may have been the strictness with which the principle was applied, and the extent to which it *124 was enforced in ancient common law proceedings, the principle itself is by no means peculiar to the common law. It pervades in fact every code of law and every well regulated system for the administration of justice.

The time and the manner of the notice, whether it shall be actual or constructive, whether personal or otherwise, are subjects of legislative control, founded upon considerations of policy or expediency. There are modes prescribed by statutes arising from the'necessity of the case, in which judgments may be recovered without notice to the defendant. But in the absence of statutory provisions it is an inflexible rule of law, as well as the clear dictate of justice, that no man shall be deprived of his rights, either of person or property, without an opportunity of being heard. It is not enough that the court have jurisdiction of the subject matter, they must also have jurisdiction of the person. In every proceeding of a judicial nature it is essential that the person whose rights are to be affected should be a party to the proceeding, and have an opportunity of making defence. Matter of Flatbush avenue, 1 Barbour’s Sup. Co. R. 290; Anderson v. Miller, 7 Black. 417 ; Corlies v. Corlies, 8 Verm. 389 ; Enos v. Smith, 7 S. & M. 85 ; Griffith’s administrator v. Vertner, 5 Howard 736 .

In Enos v. Smith , the action was brought in covenant upon a warranty. The breach assigned was the recovery of dower in the Probate Court. Upon the record being offered in evidence, the plaintiff offered to prove that the order assigning dower was void for want of notice, of the application. The court below overruled the testimony, upon the ground that no evidence could be admitted to show that the decree of the Pro- ' bate Court was irregularly made. But upon error the Court of Appeals held that decision erroneous. They said truly that a judgment without notice and without the appearance of the party is a nullity, and may be shown to be so, even when it comes collaterally in question.

In Shumway v. Stillman, 6 Wend. 453 , Chief Justice Savage, in delivering the opinion of the Supreme Court of New York, says: “ An examination of the case results in the establishment of the following proposition, that a judgment of a *125 court of general jurisdiction in any state in the Union is equally conclusive upon the parties in all the other states as in the state in which it was rendered. This, however, is subject to two qualifications. 1. If it appear by the record that the defendant was not served with process, and did not appear in person or by attorney, such judgment is void. 2. If it appear by the record that the defendant appeared by attorney, the defendant may disprove the authority of such attorney to appear for him.”

As it appears expressly by the plea that no notice was given to the plaintiff, William Hess, of the application to the Orphans’ Court, as it does not appear that he became in any way a party to those proceedings, the decree of the Orphans’ Court, so far at least as it operates upon his rights, is null and void. The plea consequently shows no valid defence to the action.

Let judgment be rendered for the demurrant.

Justices Carpenter and Randolph concurred.

Note. This case was argued at January term last. The court took time to advise until the present term, when the demurrer was sustained, and judgment ordered for the plaintiffs. In the mean time, after the argument and before the judgment was pronounced, Cole, the defendant, died.

Browning, for plaintiffs, asked that judgment might be entered as of the last term, when the argument was had. He cited Den v. Tomlin, 3 Harr. 14 ; Spalding v. Congdon, 18 Wend. 543; Cumber v. Wane, 1 Str. 426, &c.

He said, as the damages had not been assessed before the death of the tenant, the judgment would not bind the land, and that he hesitated as to taking judgment in this suit. Park on Dower 308, 309.

Per curiam. When the delay has occurred by the action of the court, as in the present instance, by taking time to advise, the court will in general permit judgment to be entered nun o pro tune. The court will not in such case permit its action to work an injury to the party, though it is said to be otherwise when the delay has occurred by a proceeding in the *126 course of the common law, as by a writ of error, or the like. 1 Archb. Pr. 228 (Ed. 1838); 2 Wms. Saund. 72 a, note to 6th Ed.; Lanman v. Audley, 2 M. & W. 535.

Judgment accordingly.

Cited in State v. Newark, 1 Dutch. 412 ; Hopper v. Chamberlain, 5 Vr. 226; Russel v. Work, 6 Vr. 319 ; State v. Plainfield, 9 Vr. 97 ; Jacobus v. Mut. Ben. Life Ins. Co., 12 C. E. Oreen 624.