Harris v. Hardeman

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.

The facts are stated in the opinion of the court.

It was argued by Mr. Nelson for the plaintiff in error, and Mr. Freeman for the defendant.

Mr. Nelson contended that the judgment of the court below was erroneous, and referred to the following authorities.

To show that the bond was regularly taken under the Mississippi statute. Hutch. Code, 910, Art. 6, sec. 2; Howard & Hutch. 653, sec. 73.

The ground of the motion made by the defendants in error, in the court below, was, that the original judgment was void for want of notice; and that being void, the process issued upon it and the bond taken under that process, were nullities.

It may be true that the return of the service of notice was insufficient. Smith v. Cohen, 3 Howard, (Miss.) 35; Tomlinson v. Hoyt, 1 Smedes & Marsh. 515; Eskridge v. Jones, Id. 595.

But that was matter to be considered and passed upon by the court rendering the judgment. Fatheree v. Long, 5 Howard, (Miss.) 661; Smith v. Bradley, 6 Smedes & Marsh. 492.

Besides, the defendants were estopped, by the execution of the bond, from denying the validity of the judgment and the execution. Bank U.S. v. Patton, 5 Howard, (Miss.) 200; Miller v. Patten, 3 Smedes & Marsh. 463; Keringham v. Scanland, 6 Howard, (Miss.) 540; Field v. Morse, 1 Smedes & Marsh. 347; Conn v. Pender, 2 Smedes & Marsh. 386; Pender v. Felton, 2 Id. 535; Clowe v. Tharpe, 3 Id. 64; McCoul v. Ellet, 8 Id. 505.

The bond was regularly forfeited. Barker v. The Planters Bank, 5 Howard, (Miss.) 566; Puckett v. Graves, 6 Smedes & Marsh. 384; Talbert v. Melton, 9 Id. 9; Dowd v. Hunt, 10 Id. 414.

And the forfeiture of the bond extinguished the original judgment. Davis v. Dixon, 1 Howard, (Miss.) 64; Weathersby v. Proby, Id. 98; Witherspoon v. Spring, 3 Id. 60; Binny v. Stanton, 2 Smedes & Marsh. 457.

Moreover, the return was in conformity with the rule of court.

To show the validity of said rule, the plaintiff in error relied upon the act of Congress of the 24th September, 1789, sec. 34, (Laws U.S. vol. 1, 93); Act of 2d March, 1793, sec. 7, (Laws U.S. vol. 1, 335); Act of 19th May, (Laws U.S. vol. 4, 279); Wayman v. Southard, 10 Wheaton, 1 ; Beers v. Haughton, 9 Peters, 330, 360, 361; Fullerton v. Bank U.S. 1 Peters, Sup. Ct. Rep. 612; Williams v. Bank U.S. 2 Id. 96; Amiss v. Smith, 16 Peters, 303.

Mr. Freeman, for defendant in error.

In this case, a motion was made in the court below, to quash the forthcoming bond, and vacate the original judgment. It was sustained upon the ground of the judgment being a nullity, there having been no service of process upon Hardeman, and no appearance entered for him.

It will be conceded, that if there be no notice, actual or constructive, the judgment is a nullity. 4 Peters's Rep. 474; 2 Yerger's Rep. 484; 11 Wendell's Rep. 652; 15 Johnson's Rep. 141; 1 Smedes & Marshall's (Miss.) Rep. 351. There was no 'actual service' of process on Hardeman, as is shown by the marshal's return. Did he have constructive notice? The statute of Mississippi provides, when the defendant is not found, that constructive service may be made, and points out the mode. Howard & Hutchinson's Dig. 583, sec. 27. The statute was not complied with in executing the writ in this case. It was served by leaving a copy at defendant's residence. And is not even dated. In construing this statute, the court of last resort in Mississippi, have several times held such service to be bad. As, for example, in the case of Smith v. Cohea, (3 Howard's Miss. Rep. 35,) it is held that a return on a writ 'executed by leaving a copy at the boarding-house of the defendant,' is insufficient. So, also, in the case of Fatheree v. Long, (5 Howard's Miss. Rep. 661,) it is held that the return 'executed by leaving a copy at the defendant's house,' is bad. And the court goes on to say, that when the service is not personal, the return must show that the requirements of the statute were complied with. A similar exposition of the statute was given in the cases of Tomlinson v. Hoyt, and Eskridge v. Jones, 1 Smedes & Marshall's Rep. 515 and 595.

Had this motion been made at the term next succeeding that at which the judgment was rendered, no one would doubt Hardeman's right to the relief sought by it. Does the giving and forfeiture of the forthcoming bond, and the lapse of time, bar his right?

It is believed that if the giving and forfeiture of the forthcoming bond does not bar, the mere lapse of time cannot. For there is no time limited by the statute within which such a motion may be made. That the giving and forfeiture of the forthcoming bond interpose no obstacle to the motion, is clear. It is true, the court of last resort in Mississippi, has frequently decided that a motion to quash a forthcoming bond, must be made at the term to which it is returnable. 6 Howard's Miss. Rep. 540; 1 Smedes & Marshall's Rep. 347; Id. 386. Yet the same court has held that when the judgment is absolutely void for want of jurisdiction in the court rendering it, either of the subject-matter, or over the parties, the forthcoming bond is absolutely void also, and subject to be quashed, on motion, at any time, either at, or subsequent to the return term. Buckingham v. Bailey, 4 Smedes & Marshall's Rep. 538.

A stronger reason may be added in this court. Here the forthcoming bond is treated and considered as part of the process of the court. 16 Peters's Rep. 312, 313. In this case, that process is founded upon a judgment confessedly void. The court can always control its own process; and will never permit void writs to be issued and executed, when brought to its attention. And it can make no difference whether the effort to resist the issuance and execution of such process is made within one, or after a lapse of ten years, from the date of the void judgment.

A rule of court, adopted by the District Judge, (Judge Adams,) is relied on to show that the execution of the process upon Hardeman, was sufficient. Upon this, I remark:

1. That even if the rule be valid, the service is not good, for it has no date; and it does not appear, therefore, that it was executed 'fifteen days' before court, so as to give jurisdiction of the person.

2. The District Judge has no power to adopt such a rule. 16 Peters's Rep. 314. The decision of the Circuit Court should therefore be affirmed.

Mr. Justice DANIEL delivered the opinion of the court.