ment which fails of success, all judicial acts against the true government will be void," although decisions on private rights may be upheld.18 These decisions relate to the confederate courts of the Civil War. So a court created by an unconstitutional law, or one organized in opposition to express statute, is no court, and all its acts are void.19 As a general rule, a judge whose office was created by an unconstitutional law is an officer de facto, whose acts are not wholly void.20 When jurisdiction is taken, assumed or usurped by misconstruction of statute, common law or constitution, by the weight of authority, the judgment, decree, or final determination is wholly void.21 As a general rule it may be stated that defects in jurisdiction or statement of the case (the record being simply silent or defective) do not make the proceedings void, but merely voidable, the presumption of regularity applicable to courts of general jurisdiction being invoked. This point has been ruled otherwise in some of the code-states.22

On the question of notice, or service of process, the final test of the validity of a judicial record is whether there was, in substance and effect, a hearing. Audi alteram partem (both sides are heard) is a maxim as old as the Book of Proverbs, where it is 17 Dewing v. Perdicaries, 96 U. S. 193, 24 L. Ed. 654.

18 Van Epps v. Walsh, 1 Woods 598 (U. S. Circuit); Nelson v. Boynton, 54 Ala. 368.

19 McClaughry v. Deming, 186 U. S. 49, 22 Sup. Ct. 786, 46 L. Ed. 1049; Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178. 20 Ball v. United States, 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 377; Manning v. Weeks, 139 U. S. 504, 11 Sup. Ct. 624, 35 L. Ed. 264.

21 Van Fleet, Collateral Attack (1st ed.), §§ 62-224.

22 Spade v. Bruner, 72 Pa. St. 57; Strieb v. Cox, 111 Ind. 299, 12 N. E. 481.

23

in substance found: no one is condemned unheard.2 If the record does not show service of process upon, or some notice to, the defendant, the judgment is not void, since the presumption of regularity aids it. Silence on a jurisdictional point is golden.24 If a service be shown, however, and it be on a defendant beyond the territorial jurisdiction of the court, the judgment (if there was no appearance by defendant) will be void as a personal one, though it may be valid as to any property within the jurisdiction which was actually or constructively seized.25 Denial of a hearing by striking out the defendant's pleading or otherwise will render the proceedings coram non judice (no judge present) and void absolutely.26 The constitutional right of due process of law absolutely requires a substantial hearing, adapted to the nature of the case, and where the person proceeded against has an opportunity to be heard, and to defend and enforce his rights.27 In proceedings in rem, where the property is actually in the custody of the court, notice to the owner of any judicial action affecting it, though uniformly given, is not absolutely essential to preserve jurisdiction.28 A judgment as to a subject matter from which the judicial power is excluded by constitution or statute is absolutely void; as, a 23 Murray v. Hoboken Land & Imp. Co., 18 How. 272 (U. S.), 15 L. Ed. 372, defining due process of law.

24 § 4.

25 Leading cases on these points are Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, and Cooper v. Reynolds, 10 Wall. 308 (U. S.), 19 L. Ed. 931. 26 Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914.

27 Stuart v. Palmer, 74 N. Y. 183.

28 There is a conflict on this point; contra, Earle v. McVeigh, 91 U. S. 503, 23 L. Ed. 398; Hassall v. Wilcox, 130 U. S. 493, 9 Sup. Ct. 590, 32 L. Ed. 1001.

decree restraining city officers from canvassing an election.29 Jurisdiction assumed over a person or his property by mistake of law or fact, or over an estate or status actually non-resident or non-existent, will sometimes result in a void and sometimes a voidable judgment. The most noted illustration of this class is administration of the estate of a living person supposed to be dead from long absence. Here the subject matter-the estate of a deceased person-is entirely wanting, and by the weight of authority the proceedings are utterly void.30

6. Fraud-Collusion-Want of hearing.-Whenever it clearly appears that there was not a real contest in the trial or hearing, either through fraud upon one of the parties entirely extrinsic to the trial, or collusion between the parties, the judgment is void even in a collateral proceeding. But it is well settled that judgments founded on fraudulent instruments or perjured evidence are voidable only,31 because this would be to contradict the record on a question of fact,32 and allow repeated if not endless proceedings to open and disregard judicial records. Fraud in the cause of action may be reviewed on direct attack, but has no effect on the judgment when collaterally drawn in question.33 If defendant's attorney corruptly admits judgment it is good on collateral attack.34 An instance of fraud in the cause

29 Dickey v. Reed, 78 Ill. 261.

30 Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896.

31 United States v. Throckmorton, 98 U. S. 61.

32 Van Fleet, Collateral Attack (1st ed.), § 550.

33 Same.

34 Young v. Watson, 155 Mass. 77, 28 N. E. 1135.

of action is Bulkley v. Stewart,35 where the owner of a vessel, knowing it to be lost, procured insurance, and then submitted the claim to arbitration and obtained an award, which was paid. Learning of the fraud the insurer sued to recover back the money, but it was held that the award was binding on collateral attack. Collusion.

Fraud and collusion stand on somewhat different grounds. The former, if outside the cause of action, makes the judgment void, while the latter has no effect on it, so far as the parties are concerned, and may even prevent both from a direct attack upon it. The decisions are quite harmonious on this point.36 But the rule is different as to strangers who are sought to be defrauded. A judgment procured by fraud of either party, or collusion of both, for the purpose of defrauding a third person in respect to a pre-existing right, is void as to such person. 37

Loss of jurisdiction by refusing a substantial hearing. Refusal to consider the merits of a sufficient defense, by striking out an answer, and rendering judgment as by default, 38 makes the judgment absolutely void.

7. What courts are superior and what inferior.— It becomes quite important, therefore, to determine what courts are superior and what inferior, in order to know what judicial records are collaterally bind

35 1 Day 130 (Conn.).

36 Van Fleet, Collateral Attack (1st ed.), § 533.

37 Michaels v. Post, 21 Wall. 398 (U. S.), 22 L. Ed. 520.

38 Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914.

ing. The question is one of presumption only. Any judgment or decree, whether rendered by a superior or inferior court, is void in all courts and places if the judgment record itself actually shows want of jurisdiction, or the violation of some fundamental principle of justice, like the denial of a hearing.39 Everything is presumed in favor of the judgment of a superior court, nothing in favor of that of an inferior. While the authorities are not entirely uniform, it is reasonable to say that any court having unlimited and final jurisdiction over a class of cases is a superior court, and that mere silence of its record on a jurisdictional point will not defeat its judgment as a former adjudication or on collateral attack, although it may cause a reversal on appeal or other direct review. All courts having full and complete jurisdiction, so far as authorized to act, are superior.40

8. Instances of superior and inferior courts.Superior courts are the ordinary state courts of general jurisdiction, and state probate courts, the former circuit and present district courts of the United States, including referees in bankruptcy, the Court of Claims, the courts of general jurisdiction of the District of Columbia, the territorial courts of Alaska and Hawaii, the Commerce Court, the Court of Customs Appeals, and the consular courts. Although the jurisdiction of all these federal courts is limited, they are still courts of general jurisdiction. If their

39 Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914; Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215.

40 Van Fleet, Collateral Attack (1st ed.), § 811.