Central Law Journal.

ST. LOUIS, MO., JULY 6, 1917.

DUE PROCESS OF LAW NO PROTECTION AGAINST IMPERFECTION IN JUDICIAL REASONING.

The case of Chicago Life Ins. Co. v. Cherry, 37 Sup. Ct. Rep. 492, appears very suggestive as to the enforcement of the faith and credit clause of the federal Constitution.

Associate Justice Holmes thus states the situation: "This is a suit in Illinois upon a judgment recovered in Tennessee against the insurance companies, plaintiffs in error. They pleaded and set up at the trial that there was no valid service upon them in Tennessee and that the judgment was void. The defendant in error showed in reply, without dispute, that the defense was urged in Tennessee by pleas in abatement; that, upon demurrer to one plea and upon issue joined on the other, the decision was for the plaintiff; and that the judgment was affirmed by the appellate court, and a writ of certiorari was denied by the supreme court of that state. The insurance companies say that the present judgment deprives them of their property without due process of law."

The appellate court of Illinois, to which the writ of error in this case was directed, held that, as the issue of jurisdiction over the parties was raised and adjudicated after full hearing in the former case, it could not be reopened in this suit on the judgment. It was said by Justice Holmes, speaking of the holding by the Illinois court, that: "The matter was thought to stand differently

its mere assertion of its own power, even where its power depends upon a fact and it finds the fact."

He says, however, that: "When the power of the court in all other respects is established, what acts of the defendant shall be deemed a submission to its power is a matter upon which states may differ. If a statute should provide that filing a plea in abatement, or taking the question to a higher court should have that effect, it could not be said to deny due process of law. The defendant would be free to rely upon his defense by letting judgment go by default. li, without a statute, a court should decide, as we have supposed the statute to enact, it would infringe no rights under the Constitution of the United States."

The justice then speaks of taking a question of jurisdiction to a higher court as also amounting to submission in the lower court, and then, curiously to us, he speaks as follows: "It can be no otherwise when a court so decides as to proceedings in another state. It may be mistaken upon what to it is a matter of fact, the law as to the other state. But a mere mistake of that kind is not a denial of due process of law. Whenever a wrong judgment is entered against a defendant, his property is taken when it should not have been; but whatever the ground may be, if the mistake is not so impossible in a rational administration of justice, it is no more than the imperfection of man, not a denial of constitutional rights. The decision of the Illinois court, right or wrong, was not such a denial."

It is a little difficult to say upon what particular principle this case was ruled. It may be true that the filing of a plea in abatement in the Tennessee court could be