COURTS

FEDERAL AND STATE

BY

ARTHUR LOOMIS SANBORN, LL.B.*

CHAPTER I.

GENERAL RULES APPLICABLE TO ALL COURTS.

1. Definition of court.-Courts are instituted for the administration of justice, the protection of right, and the restraint or redress of wrong. The term may mean the place where, or the person by whom, justice is judicially administered. The one common and essential feature in all courts is a judge or judges.1 There are said to be four essentials to the exercise of judicial power in such a way as to be binding: a place appointed by law, a time so appointed, a person designated by law to administer justice at that place, and his presence at such time and place. These may be said to be conditions precedent to the existence of a court. In the broad sense

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*U. S. District Judge, Western District of Wisconsin. Formerly, Register of Deeds, Walworth County, Wis.; member of Faculty, Wisconsin University School of Law; member of Board of Examiners for Admission to the Bar, Wisconsin. Editor: Supplement to Wisconsin Statutes, 1883, Annotated Statutes, 1889, Wisconsin Statutes, 1898, Wisconsin Supplement, 1906. 1 Bouvier's Law Dictionary, Court.

2 Dunn v. State, 2 Ark. 229, 252, 35 Am. Dec. 54.

any person or body of persons who are authorized to decide on rights, such as magistrates, executive and ministerial officers, boards, commissions, etc., excepting only legislative officers or committees, are courts. These officers, however, are generally distinguished from courts, and are said to exercise quasi-judicial powers. Thus, officers who are given power to pass upon important and valuable rights of person or property, even without appeal, may exercise only executive or administrative powers. Boards of special inquiry to pass upon the right of aliens to land in this country, or to expel or deport within three years after landing those who enter in violation of law, and the Secretary of Commerce and Labor, who is authorized to confirm or reverse their action, exercise political, not judicial, power, and are not courts. So long as they act with due process of law the courts cannot in any way interfere. Congress may, however, authorize the court to deport aliens, as in the case of the Chinese exclusion statutes, when United States Commissioners may exclude, subject to the right of appeal by the alien to the district court.5 So the Interstate Commerce Commission® and state railroad commissions,' although exercising judicial powers of great importance, are classed as administrative bodies, not courts.

3 Pearson v. Williams, 202 U. S. 281, 26 Sup. Ct. 608, 50 L. Ed. 1029.

4 Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct. 1016, 37 L. Ed. 905.

5 Same.

• Kentucky & I. Bridge Co. v. Louisville & N. R. Co., 37 Fed. 567, 2 L. R. A. 289.

7 Mississippi R. R. Com. v. Illinois Cent. R. Co., 203 U. S. 335, 27 Sup. Ct. 90, 51 L. Ed. 209.

2. Courts of review.-Most courts are both those of original jurisdiction and review. The terms superior and inferior are applied to them, the reviewing court being superior to the one reviewed. The state courts of original jurisdiction are usually authorized to hear appeals from justices of the peace, commissioners in condemnation, and various boards and commissions. The United States Supreme Court has very important original as well as appellate powers, but the United States Circuit Court of Appeals has no original jurisdiction whatever."

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3. Superior and inferior courts. Of the different kinds of courts the most important distinction is between those exercising general jurisdiction, or superior courts, and those of special jurisdiction, or inferior courts. The precise line of division is difficult to trace. In the technical sense inferior courts are those whose judgments, taken alone, are entirely disregarded when attempted to be used as evidence, and whose proceedings, to be of any validity, must show jurisdiction.10 The judgment of a superior court, on the other hand, is valid when collaterally attacked, even though the proceedings fail to show jurisdiction, if they do not expressly show the contrary. On direct attack, by appeal, writ of error, or certiorari, the judgment may be reversed, but on collateral attack the maxim omnia praesumuntur rite et solemniter esse acta (all things are presumed to be done in due form) is applied, and the judgment held binding.

8 U. S. Rev. Stat., § 687.

9 Whitney v. Dick, 202 U. S. 132, 26 Sup. Ct. 584, 50 L. Ed. 963. Kennedy, 5 Cranch 173, 185 (U. S.), Marshall, C. J.

10 Kempe v.

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Direct attack is an attempt to avoid a judicial proceeding in some manner provided by law,11 as by appeal, error, prohibition, mandamus, bill of review, certiorari, etc. Collateral attack is an attempt to avoid it in some manner not provided by law,12 as when it is offered in evidence and objected to in some other proceeding, to show title in ejectment, replevin, trover, trespass, or suit to quiet title.

Presumption of regularity aids jurisdiction of superior court. The supreme tests of the validity of a judgment or decree, those which search the judicial record to the utmost, are collateral attack, the use of such judgment or decree as a former adjudication or res judicata, and the possible effect of the judgment or decree as a lien on property through constructive notice. Since on appeal, error, certiorari, or other direct attack, a judicial determination may be reversed for error as well as for lack of jurisdiction, the test of the latter is the indirect attack referred to.13

4. Effect of presumption.-The presumption of regularity in favor of the jurisdiction of superior courts only arises with respect to jurisdictional facts concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed. When, therefore, a judicial record states the evidence or makes the averment respecting a jurisdictional fact, it will be understood to speak the truth on that point,

11 Van Fleet, Collateral Attack (1st ed.), § 2; see subjects, PLEADING IN CIVIL ACTIONS; PRACTICE; EXTRAORDINARY REMEDIES.

12 Same, § 3.

13 Van Fleet, Collateral Attack (1st ed.), § 17.

and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred.14

Quasi-jurisdictional omitted facts, and defective pleadings, aided by presumption of regularity. Although the federal law limits the federal jurisdiction, in cases of diverse citizenship, to cases involving more than a certain sum of money, yet if the record does not show what amount was in question the judgment is not void, but erroneous only. Nor need diverse citizenship appear in order to protect the record against collateral attack.15 A similar rule applies to defects in the pleadings which would be bad on demurrer.16

5. Cases in which a judicial record may be disregarded as an estoppel, or as sustaining a lien by constructive notice, or when offered in evidence in another suit (collateral attack).-The most which can be done here is to state in a few lines those things which so go to the foundation of a judicial record as to bring it within the maxim debile fundamentum fallit opus (if the foundation is insufficient the whole falls). The fundamental matters here briefly referred to would fill a volume if fully discussed. If the tribunal be organized by a revolutionary govern

14 A substantial quotation from the leading case of Galpin v. Page, 18 Wall. 350, 365 (U. S.), 21 L. Ed. 959, 962, holding a decree for winding up a partnership, based upon a service of summons by publication, defendant being a non-resident of the state and not voluntarily appearing, to be void when used as evidence in another suit to sustain a judicial sale. Cited with approval in Old Wayne Mutual L. Assn. v. McDonough, 204 U. S. 8, 27 Sup. Ct. 236, 51 L. Ed. 345.

15 McCormick v. Sullivant, 10 Wheat. 192 (U. S.).

16 Spade v. Bruner, 72 Pa. St. 57; Strieb v. Cox, 111 Ind. 299, 12 N. E. 481; Wood v. Blythe, 46 Wis. 650.