Lavin v. The Emigrant Industrial Savings Bank, his rights or privileges, unless the matter shall be adjudged against him upon trial had according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. It cannot be done by mere legislation. But, if there can be a doubt upon the first section of the seventh Article, there can, I think, be none, that the seventh section of the same Article covers the case: No person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.' In The Matter of Albany Street, (11 Wend., 149,) where it was held that private property could not be taken for any other than public use, Chief Justice Savage went mainly upon the implication contained in the last member of the clause just cited. He said: 'The Constitution, by authorizing the appropriation of private property to public use, impliedly declares, that, for any other use, private property shall not be taken from one and applied to the private use of another.' And, in Bloodgood v. The Mohawk & Hudson R. R. Co., (18 Wend., 59,) Mr. Senator Tracy said, the words should be construed as equivalent to a constitutional declaration, that private property, without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation.' I feel no disposition to question the soundness of these views, but still it seems to me that the case stands stronger upon the first member of the clause: No person shall be deprived of life, liberty, or property without due process of law.' The words 'due process of law,' in this place, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property. It will be seen, that the same measure of protection against legislative encroachment is extended to life, liberty and property; and, if the latter can be taken without a forensic trial and judgment, there is no security for the others. If the Legislature can take the property of A and Lavin v. The Emigrant Industrial Savings Bank. transfer it to B, they can take A himself and either shut him up in prison or put him to death. can be done by mere legislation. cess of law."" But, none of these things There must be due pro These authorities would seem to be more than sufficient to establish the proposition, that it is not competent for a State, by a law declaring a judicial determination that a man is dead, made in his absence, and without any notice to or process issued against him, conclusive for the purpose of divesting him of his property and of vesting it in an administrator, for the benefit of his creditors and next of kin, either absolutely or in favor of those only who innocently deal with such administrator. The immediate and necessary effect of such a law is to deprive him of his property without any process of law whatever, as against him, although it is done by process of law against other people, his next of kin, to whom notice is given. Such a statutory declaration of estoppel by a judgment to which he is neither party nor privy, which has the immediate effect of divesting him of his property, is a direct violation of this constitutional guaranty. No such thing is known to the law as a judgment to which a person is neither a party nor a privy being conclusive against him. This has been repeatedly declared, in the most emphatic terms, by the Supreme Court of the United States, while on the other hand one who is a party or a privy to a judgment is conclusively bound thereby, and by the determination of every question necessarily determined therein, even by the determination of a fact essential to the jurisdiction of the Court, so that he cannot impeach the decree collaterally, by denying that fact, but is limited to those remedies provided for reviewing the decree by an Appellate Court. Thus, in the case of The Mary, (9 Cr., 144,) Chief Justice Marshall says: "The whole world, it is said, are parties in an Admiralty cause. The reason on which this dictum stands will determine its extent. Every person may make himself a party, and appeal from the sentence; but notice of the controversy is necessary in order to become Lavin v. The Emigrant Industrial Savings Bank. a party, and it is a principle of natural justice, of universal obligation, that, before the rights of an individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him. Where these proceedings are against the person, notice is served personally or by publication; where they are in rem, notice is served upon the thing itself." In Hollingsworth v. Barbour, (4 Pet., 475,) the same Court adopt the language used by the Circuit Court below, and say: "It is an acknowledged general principle, that judgments and decrees are binding only upon parties and privies. The reason of the rule is founded in the immutable principle of natural justice, that no man's rights should be prejudiced by the judgment or decree of a Court, without an opportunity of defending the right. This opportunity is afforded, or supposed to be afforded, by a citation or notice to appear, actually served; or constructively, by pursuing such means as the law may, in special cases, regard as equivalent to personal service. The course of proceedings in Admiralty causes, and some other cases where the proceeding is strictly in rem, may be supposed to be exceptions to the rule. They are not properly exceptions. The law regards the seizure of the thing as constructive notice to the whole world, and all persons concerned in interest are considered as affected by this constructive notice. But, if these cases do form an exception, the exception is confined to cases of the class already noticed, where the proceeding is strictly and properly in rem, and in which the thing condemned is first seized and taken into the custody of the Court." In Walden's Lessees v. Craig's Heirs, (14 Pet., 154,) the same Court says: "It is admitted that the service of process or notice is necessary to enable a Court to exercise jurisdiction in a case; and, if jurisdiction be taken where there has been no service of process or notice, the proceeding is a nullity, It is not only voidable but it is absolutely void." In Shelton v. Tiffin, (6 How., 186,) the same Court says: "Had the Circuit Court which rendered that judgment jurisdiction of the case? No process was served upon L. P. Perry, nor does it appear * * Lavin v. The Emigrant Industrial Savings Bank. that he had notice of the suit until long after the proceedings were had. But there was an appearance by counsel for the defendants and defence was made to the action. This being done by a regularly practising attorney, it affords prima facie evidence, at least, of an appearance in the suit by both the defendants. Any individual may waive process and appear voluntarily." The Court then discusses the evidence tending to show that the attorney was not authorized by L. P. Perry to appear, and proceeds: "But, the appearance by counsel who had no authority to waive process, or to defend the suit for L. P. Perry, may be explained. An appearance by counsel under such circumstances, to the prejudice of a party, subjects the counsel to damages; but this would not sufficiently protect the rights of the defendant. He is not bound by the proceedings, and there is no other principle which can afford him adequate protection. The judgment, therefore, against L. P. Perry must be considered a nullity, and, consequently, did not authorize the seizure and sale of his property." In Boswell's Lessee v. Otis, (9 How., 350,) the same Court says: "It may be difficult, in some cases, to draw the line of jurisdiction, so as to determine whether the proceedings of a Court are void or only erroneous; and, in such cases, every intendment should be favorable to a purchaser at a judicial sale. But, the rights of all parties must be regarded. No principle is more vital to the administration of justice than that no man shall be condemned, in his person or property, without notice and an opportunity to make his defence." In Nations v. Johnson, (24 How., 203,) the same Court says: "Notice to the defendant, actual or constructive, however, is essential to the jurisdiction of all Courts, and it was held by this Court, in Webster v. Reid, (11 How., 460,) that, when a judgment is brought collaterally before the Court, as evidence, it may be shown to be void on its face, by want of notice to the person against whom it is entered." So, in Bloom v. Burdick, (1 Hill, 139,) the Supreme Court of New York, by Mr. Justice Bronson, says: "The Surrogate undoubtedly acquired jurisdiction of the subject matter, on the presentation of the Lavin v. The Emigrant Industrial Savings Bank. petition and account; but that was not enough. It was also necessary that he should acquire jurisdiction over the persons to be affected by the sale. It is à cardinal principle, in the administration of justice, that no man can be condemned or divested of his right, until he has had the opportunity of being heard. He must, either by serving process, publishing notice, appointing a guardian, or in some other way, be brought into Court, and, if judgment is rendered against him before that is done, the proceeding will be as utterly void as though the Court had undertaken to act where the subject matter was not within its cognizance. This is the rule in relation to all Courts, with only this difference, that the jurisdiction of a Superior Court will be presumed until the contrary appears, whereas an inferior Court, and those claiming under its authority, must show that it had jurisdiction." In Thompson v. Tolmie, (2 Pet., 169,) the Supreme Court quotes and adopts the following language: "When a Court has jurisdiction, it has a right to decide every question that occurs in the cause, and, whether its decisions be correct or not, its judgment, until reversed, is regarded as binding in every other Court. But, if it acts without authority, its judgments and orders are regarded as nullities. They are not voidable but simply void, and form no bar to a recovery sought in opposition to them, even prior to a reversal." This last case is an authority for the position, that, as against persons who were parties to the cause or proceeding, and those in privity with them, the determination of every fact, including facts which the Court must find in order to maintain its jurisdiction of the cause, is final and conclusive, as against a party, unless reversed, and cannot be disputed by such party in any collateral proceeding or suit. The plain ground of this doctrine is, that even jurisdictional facts, so called, may be put in issue, and the Court has authority and jurisdiction to try that issue; and, what is or may be put in issue in a cause is, upon the strongest grounds of public policy, conclusively determined by a judgment, as between those who are parties to the cause, unless reversed by an appellate Court. This doc |