Nations v. Johnson

THIS case was brought up by writ of error from the District Court of the United States for the western district of Texas.

All the facts in the case, and also the proceedings of the court below, are set forth in the opinion of this court.

It was argued by Mr. Paschal for the plaintiffs in error, no counsel appearing for the defendants.

Mr. Paschal commenced his argument by stating it as a general principle, that a judgment obtained by publication and without personal service cannot be the foundation of an action in another State, nor, indeed, in the State where the suit is brought; that all suits are either in personam or in rem; that when in personam, there must be personal service to give jurisdiction; when in rem, the remedy is exhausted when the res is disposed of. Amongst other authorities, he cited 3 Howard, 336, and 11 Howard, 437. He then considered the effect of the statute of Mississippi, which he said did not change the principle. When the suit was dismissed, it was a final judgment, a discharge of the defendants, who had no longer a day in court. A writ of error is an original writ.

2 Tidd's Practice, 1134.

Coke Littleton, 298 b.

2 Wm. Sand, 5 Ed., 100.

And a writ of error, like a scire facias, is considered a new action, and, therefore, upon bringing it, the defendant in the original action may change his attorney, without obtaining a judge's order therefor.

2 Tidd's Practice, 1141.

Batchellor v. Ellis, 7 Dunford and East., 337.

Mr. Paschal then proceeded to examint the authorities as to the nature of a writ of error.

11 Howard, 165, 437.

Mr. Justice CLIFFORD delivered the opinion of the court.