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the record of the sheriff, but its effect is to contradict it, to say the least. The court below made the order continuing the action in the name of the executrix upon the affidavit alone. The sumrons showing the date of the receipt was not before the court, as it had not been returned. Apparently, the indorsement was not considered material either by the counsel or the court, but the view we take of the case renders it highly important. The question whether the court had power to make the substitution hinge upon the further question as to 299 which of these records imports the truth as to the date of the issuance of the summons. As a general proposition, as against parties to the record or their privies, the sheriff's return imports absolute verity, and it cannot be impeached, except by some direct attack: 22 Am. & Eng. Ency. of Law, 193; but here no effort is made to get clear of, or set aside, the sheriff's indorsement, and, treating it as of no vitality, the court is asked to disregard it, and proceed with the case as if none had been made. To thus treat it would be to say the indorsement was an absolute nullity for any purpose and in any proceeding, whether collateral or direct. We think that while the indorsement of the sheriff showing the date of a delivery of the summons to him stands unimpeached, and not set aside or otherwise vacated by any adequate proceeding for that purpose, it must be taken as true and to import absolute verity, as against an affidavit of the plaintiff in the action contradicting it, in a subsequent proceeding in the same case to procure an order of substitution and continuance of the action in the name of the executrix. For these reasons, and looking to the record in the case made at the instance of the plaintiff and by the sheriff, an officer of the court, and in the line of his duties as prescribed by the statute, all which remain unassailed and unimpeached, we conclude that the summons had not issued at the time of the issuance of the writ of attachment, nor was it issued until the day subsequent to the issuance of the attachment. Therefore, the allowance of the provisional remedy was without authority of law, and void, and it was error in the court below to grant the order allowing the action to be continued against Cordelia Johnson, the executrix. The judginent of the court below is reversed, and the cause remanded for such other proceedings as may be deemed advisable, not inconsistent with this opinion.
ACTIONS.-A SPECIAL APPEARANCE for a special purpose may. be made without conferring jurisdiction over the person: Note to
Union Pac. Ry. Co. v. De Busk, 13 Am. St. Rep. 233; Green v. Green, 42 Kan. 654; 16 Am. St. Rep. 510.
JUDGMENT BY DEFAULT-SERVICE OF PROCESS-JURISDICTION.-Any means of acquiring jurisdiction is properly denominated process: Wilson v. St. Louis etc. Ry. Co., 108 Mo. 588; 32 Am. St. Rep. 624. Notice is necessary to give a court jurisdiction of the person, and unless it is acquired in some mode, the judgment of the court is a mere nullity: Ex parte Cheatham, 6 Ark. 531; 44 Am. Dec. 525. If the defendant neither appears nor is served with process, a judgment against him is void: Hobby v. Bunch, 83 Ga. 1; 20 Am. St. Rép. 301; Williams v. Preston, 3 J.J. Marsh. 600; 20 Am. Dec. 179; Ditch v. Edwards, 1 Scam. 127; 26 Am. Dec. 414; Shaefer v. Gates, 2 B. Mon, 453; 38 Ain. Dec. 164. Personal service cannot be dispensed with, except in cases distinctly provided for by statute: Note to Renier v. Hurlbut, 29 Am. St. Rep. 85). No one shall be personally bound until he has had his day in court: Furgeson v. Jones, 17 Or. 204; 11 Am. St. Rep. 808. A judgment by default, where defendant was not served, or did not appear, is erroneous, the proceedings being coram non judice: Ditch v. Edwarıls, 1 Scam. 127; 26 Am. Dec. 414; Shaefer v. Gates, 2 B. Mon. 453; 38 Am. Dec. 164.
JURISDICTION.-ATTACHMENT OF PROPERTY does not confer jurisdiction over the defendant; and the attachment is void if it issues before the summons: Note to Langtry v. Wayne Circuit Judges, 13 Am. St. Rep. 354.
SHERIFF'S RETURN imports absolute vérity, is conclusive as between the parties, and cannot, as a general rule, be im neached except by some direct attack: McDonald v. Leewright, 31 Mo. 29; 77 Am. Dec. 631; Stinson v. Snow, 10 Me. 263 ; 25 Am. Dec. 238; Phillips v. Elwell, 14 Ohio St. 210; 81 Am. Dec. 373; Stewart v. Duncan, 47 Minn. 255; 28 Am. St. Rep. 367. The return will, if contraclicted, be sustained by the court, unless it clearly appears from the evidence that it is false: Wilson v. Shipman, 34 Neb. 573; 33 Am. St. Rep. 660.
New Parties; How Jurisdiction Over may be Acquired. Jurisdiction and Process, Generally.—The cases showing how jurisdiction may be acquired over new parties are not numerous, but what there are seem to show that, as a general rule, where new parties defendant are made, pending the action, juris liction over their persons must be obtained in the same way that would have been necessary if they had been made parties in the beginning. And this, of course, is by service of process. This is the mandate of the court, and the means whereby the defendant in a suit is compelled to appear in court, and whereby the effect of the suit is secured to the successful party. It is a violation of one of the first principles of justice to try or to deciile upon the rights of an in lividual, either civilly or criminally, without notice. It has been said, in a well-considered case, that “to decide upon the rights of parties. who have received no notice is always full of hazard. Indeed, so far does the common law carry its dread of ex parte proceedings, it is one of its maxims, 'that he who decides, one party being unheard, does wrong, though he mav decide right'': Eskridge v. Jones, 1 Smedes & M. 595. To obiain jurisdiction of the person, notice is indispensable, unless waived by appearance, which is equivalent to notice, or by consent, and it follows that a judgment without notice, either actual or constructive, or waiver, is a nullity: Hale v. Finch, 104 U. S. 261; Settlemier v. Sullia van, 97 U. S. 44+; Windsor v. McVeigh, 93 U. S. 274, 277; Harris v. Hardeman, 14 How. 334; Dearing v. Bank of Charleston, 5 Ga. 497; 48 Am. Dec. 300; Ex parte Cheatham, 1 Eng.531; 44 Am. Dec. 525; Wood v. Watkinson, 17 Conn. 500; 44 Am. Dec, 562; Swiggart v. Harber, 4 Scam. 361; 39 Am. Dec. 418; Starbuck v. Murray, 5 Wend. 148; 21 Am. Dec. 172. A constructive service of summons is often suflicient: Anderson v. Sutton, 2 Duvall, 480; but some process must appear on the face
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of the record, or the judgment is void. Thus, if the record shows neither personal service, publication, nor other notice, there is a clear want of jurisdiction: Easterly v. Goodwin, 35 Coun. 273; Karr v. Karr, 19 N. J. Eq. 427; Mcırahen v. Carr, 6 lowa, 331; 71 Am. Dec. 421; Com. missioners v. Low, R. M. Charlt. 298; Weeks v. Merritt, 5 Robt. 610. The mere fact that a person is in the presence of a court does not authorize a judgment against him. He must be brought in by legal meang, or must have appeared voluntarily by pleading: Jones v. Kenny, Hardin, 103. A judgment against a person on whom no service of process has been made, or appearance entered, is void : Coudry v. Cheshire, 88 N. C. 375. There is an obvious distinction between a total want of ser. vice of process and a defective service, as to their effect in judicial proceedings. In the one case, a judgment or decree is corani non judice and void; in the other, the defective service gives the defendant actual notice of the proceedings against him, and the judgment or decree, although erroneous, is not void, until reversed by a direct proceeding in an appellate tribunal, and its validity cannot by collaterally called in question: Harrington v. Woffor:), 46 Miss. 31. If service of process is not void, but merely defective, as by reason of an error in the copy of the summons, the jurisdiction is not affected: Irions v. Keystone Mfg. Co., 61 Iowa, 406. A court cannot exercise equity jurisdiction, unless the case is before it on equity process: Norton v. Preston, 15 Me. 14; 32 Am. Dec. 128; Karr v. Karr, 19 N. J. Eq. 427.
New Parties–Necessity of Process—Practice. These principles are applicable to new parties defendant, as well as to the original parties. It is sometimes necessary to add new parties defendant, and courts have power, under the reformed procedure, created by the adoption of codes, to order all necessary parties to be brought in, and this they may do of their own motion whenever it is necessary for the full and complete administration of justice. But, while a court has power to order & pleading amended, and the proper parties to be brought in, it is not bound to exercise such power, and it may dismiss the complaint without piron tice to the right to bring another action: Knapp v. McGowan, N. Y. 75. In some jurisdictions, new parties plaintiff or defendant cannot be brought in by way oi amendment: Ayer v. Gleason, 60 Me. 207; Winslow v. Merrill, 11 Me. 127; Chouteau v. Hewitt, 10 Mo. 131; Chamberlin v. Hite, 5 Watts, 373; Wilson v. Wallace, 8 Serg. & B. 53; Noll v. Swineford, 6 Pa. St. 187; McWilliams v. Anderson, 68 Ga. 772; but in other jurisdictions, and in some of the states where a different rule formerly prevailed, new parties plaintiff or defendant may be brought in by way of amendment: Seitz v. Buffum, 14 Pa. St. 69; Owen v. Weston, 6.: N. H. 599 ; 56 Am. Rep. 547; Walthour v. Spang ler, 31 Pa. St. 521; Lewis v. Darling, 16 How. 1; Hook v. Brooks, 24 Ga. 175; Montague v. King, 37 Miss. 441; Mead v. Bagnall,. 15 Wis. 156; Chapin v. Ourtenius, 15 Ill. 427; Goddard v. Pratt, 16 Pick. 412; Powell v. Myers, 1 Barb. 427; Green v. Deberry, 2 Ired. 344; and it is probably the general practice to bring in new parties by way of amend. ment. But another method of bringing in new parties is by way of a cross-bill or cross-complaint, or supplemental bill: Hungeriord v. Cushe ing, 8 Wis. 332; Prouty v. Lake Shore etc. R. R. Co., 85 N. Y. 272; Winter v. McMillan, 87 Cal. 256; 22 Am. St. Rep. 243; Chalmers . Trent, 11 Utah, 88, 99; though it is held in Shields v. Barrow, 17 How. 130, 145, that new parties cannot be introduced into a cause by a crossbill. In this case, it is said that, “if the plaintiff desires to make new parties, he amends his bill, and makes them. If the interest of the de fendant requires their presence, he takes the objection of nonjoinder, and the complainant is forced to amend, or his bill is dismissed. Ii, at the hearing, the court finds that an indispensable party is not on the record, it refuses to proceed. These remedies cover the whole subject, and a cross-bill to make new parties is not only improper and irregilar, but wholly unnecessary." In Ba lance v. Underhill, 3 Scam. 453, 461, it is said that, “so far as the practice and proceedings are concerned, there is no difference between a cross and an original bill. It is, in fact,
a separate and distinctive suit, commenced by filing the bill, which, it is true, must be confined to the subject matter of the original suit, to answer which the defendant in the cross-bill must be brought into court in the same manner as he would be in any other case." When a supplemental bill is filed, bringing new parties into court, it is, as ti them, a new suit, and is to be considered as being commenced when the supplemental bill is pleaded in office: Morgan v. Morgan, 10 Ga. 2.37. Under the code of Missouri, the court may order the necessary parties to be brought in, either by an amendment of the petition, or by a supplemental petition and a new summons”: Butler v. Lawson, 72 MO. 227. If suit is brought against a female, who subsequently marries, her husband must be made a codefendant; and this should be done, and an averment of the marriage be made, by a supplemental complaint, and not by an amendment of the original complaint: Van Maren v. Johnson, 15 Cal. 308.
But in whatever way new parties are brought in, it is necessary, order to acquire jurisdiction over them, to serve them with process, una less they voluntarily appear or waive such service. There is no way of bringing a party into court, and within its jurisdiction, against his will, but by the service of process: Akin v. Albany etc. R. R. Co., 14 How. Pr. 337; Walkenshaw v. Perzel, 32 How. Pr. 310; Bray v. Creekmore, 109 N. C. 49; Powers v. Braly, 75 Cal. 237; Pico v. Webster, 14 Cal. 202; 73 Am. Dec. 647; Morgan v. Morgan, 10 Ga. 297: Rigney v. Rigney, 127 N. Y. 408; 24 Am. St. Rep. 462; State v. Burke, 37 La. Ann. 231; Thompson v. Allen, 86 Mo. 85; Ballance v. Underhill, 3 Scam. 453: Fletcher v. Holmes, 25 Ind. 458; Lowenstein v. Glidewell, 5 Dill. 325; People v. Woods, 2 Sand. 652; McRae v. Guion, 5 Jones Eq. 129; Voightv. Schenck, 64 Hun, 548; Plemmons v. Southern Imp. Co., 108 N. C. 614; Dunphy v. Riddle, 86 III. 22; Crowl v. Nagle, 86 Ill. 437.
Thus if, after a default, the plaintiff amends his complaint, not in mere matter of form, he must serve the same on the defendant. A judgment entered thereon without such service is irregular: People v. Woods, 2 Sand. 652. If a bi.l is amended so as to make a corporation a party, it is proper to serve the president of the corporation with a copy of the bill, although he is already before the court in his individual capacity: McRae v. Guion, 5 Jones Eq. 129; but the special appearance of the counsel oi & corporation does not bring it into court for the purposes of the action ; and if the corporation has not been served with summons, except as issued against * A. H. Bronson, President," etc., which is legally a summons and service only upon A. H. Bronson, individually, the corporation is not in court, and cannot be brought into court, except by service if process upon it: Plemmons v. Southern Imp. Co., 108 N. C. 614. Where an amended petition has been filed, but has not been served, and judgment has been rendered as prayed for therein, it must, oi nec ssity, be reversed: State v. Burke, 37 La. Ann. 231. So, if an original petition states a cause of action agaiirst individuals, as constituting a copartnership, and the amended petition states one against a corporation, the latter, before the court can have jurisdiction to render judgment, must be in court on voluntary appearance, or be brought in by service of process, and this is so although the firm name was the same as that of the corporation, and the stockholders in the latter composed said firm: Thompson v. Allen, 86 Mo. 85. The service of an amended complaint, upon a person who is brought in thereby for the first time as a des fendant, without a service of the summons upon him, is void : Powers v. Braly, 75 Cal. 237. So, a personal decree against a surety on the bond of a purchaser at a judicial sale is void, where it is rendered upon a rule against him and his surety, upon the latter's failure to pay. There is a want of jurisdiction over the pi rson of the surety. He does not deal directly with the court, and so become a party to the suit: Anthony v. Kasey, 83 Va. 338; 5 Am. St. Rep. 277. Parties not sued in an action of trespass cannot be brought in by mere notice, where there is no pretense that they were trespassers. They must have legal notice, which is the notice required by statute, or make voluntary appearance as parties to
the record: Pico v. Webster, 14 Cal. 202; 73 Am. Dec. 647. There must be service of process on the defendants in a cross-bill, unless they voluntarily appear: Fletcher v. Holmes, 25 Ind. 458; Lowenstein v. Glide well, 5 Dill. 325; and, where a supplemental bill is filed, new parties must be served with process: Shaw v. Bill, 95 U. S. 10, 14. A resident of one state cited as a warrantor in a suit in another state, at the request of the defendant in such suit, but with no notice to him, except the ap. pointment of a curator ad hoc, to represent him in the suit, is not bound by a judgment rendered therein: Flowres v. Foreman, 23 How. 132. Ii a new party defendant is brought into a suit to enforce a mechanic's lien by amendment of the petition, the suit as to hin is brought only from the time he is made a party, and it can have no relation back, so far as he is concerned, to the time of bringing suit against the original defendants: Dunphy v. Riddle, 86 Ill. 22; Crowl v. Nagle, 86 Ill. 437. A new party is not bound by depositions taken, or testimony given, in the action prior to his being made à party: Lange v. Braynard, 104 Cal. 156.
An order of court and service of notice, making a person a party de fendant to an equitable proceeding, is as effective as an amendment of the petition bringing in such party and repeating the allegations: McGregor v. MeGregor, 21 Iowa, 441, 454. Parties as to whom a bill has been dismissed by the complainant after a decree can only be brought back by the usual process. An order, therefore, rescindin; the discontinuance could not bring them in and hold then bound by the previous decree and proceedings: Johnson v. Shepard, 35 Mich. 115. If additional parties plaintiff are made, or there is a substitution of parties plaintiff, no summons issues, because the plaintiff is the moving party and comes into court voluntarily: Plemmons v. Southern Imp. Co., 108 N. O. 614. If the defendants have appeared, and new parties plaintiff have been marle by amendment, no new process need is 02. It is enough to serve upon them, or their attorneys, copies of the amended pleadings: Work's Courts and Their Jurisdiction, sec. 42. But this cannot be done where there has been no appearance: Powers v. Braly, 75 Cal. 237. So, in an equitable .proceeding, auxiliary to an action at law already pending, and in which the parties have teen served, a subpæna may be served on their attorneys: Abraham v. North German Fire Ins. Co., 37 Fed. Rep. 731. So, where defendants, who have not answered an original bill
, are called upon by an amended bill simultaneously to answer both, it is not necessary to issue new subpanas: Fitzhugh v. McPherson, 9 Gill & J. 51.
It is held in Walkenshaw v. Perzel, 32 How. Pr. 310, that new parties cannot be added to the action without an amendment of the summons, and that the suminons cannot be amen ied as of course, but that the plaintiff can obtain leave to amend the summons under the general prayer contained in his notice of motion, "for such other order or relish as the court shall see fit to grant.” When a party asks leave of the court to bring in new parties, he necessarily includes in that requesis further request for leave to make such amendment, and to take such steps as shall be requisite to bring into court such new parties. Inte order allowing new parties to be brought in, provision may be made for the amendment of the summons and complaint, and the service of the summong upon the new parties, and the service of the amended corplaint upon the parties already in, specifying in detail the proper pro ceedings to pursue; or, it may simply allow the new parties to be brought in, and direct the necessary amendments to be made to the eummons and complaitn, leaving the plaintiif thereafter to con lu tis proceedings regularly at his own peril: Walkenshaw v. Perzel, 32 L. Pr. 310. If the plaintiff commences an action, for specific performance, against one deiendant, who appears and answers, and the plaintiff, aiter issue joined, but before the trial, which has been noticed, obtaids 23 order, upon application to the court after notice, adding three other persons as parties defendants, directing the pleadings and proceedinys tu be amended by aiding said three persons as parties defendant, anu giring the plaintiff leave to amend his complaint by inserting therein the