Page:Borden v. State ex rel. Robinson.pdf/2

520 allowance and order of payment upon which the ''fi. fa. issued was offered against an executor: under the plea of nul tiel record, the record of the allowance and order of payment upon which the fi. fa.'' issued was offered in evidence by the plaintiff, and objected to by the defendant on the ground that they were made without notice to, or appearance by the executor: that the court properly admitted the record as evidence, the jurisdiction of the subject matter appearing in the probate court, and the question of notice to the executor not being one of legitimate inquiry in such collateral proceeding.

The previous decisions of this court as to the absolute nullity of the judgments of superior courts, when the record fails affirmatively to show previous notice, express or implied, to the defendant are overruled.

By WALKER, J. dissenting. The record of the allowance and order of payment offered in evidence disclosing no fact from which the remotest inference may be drawn that any notice was ordered or issued, or that the executor had any notice actual or constructive, or that he was present, or made any appearance, or that he was called to defend, but simply that the claimant appeared, by attorney, and that the probate court first examined and allowed the claim; and thereafter, at a subsequent term, on motion of claimant's attorney, ordered it to be paid, such allowance and order of payment is void.

It is conceded that the probate court, having been created by the constitution, although of limited and defined constitutional jurisdiction, is nevertheless not an inferior court of limited jurisdiction in tkie sense in which that term is used.

The courts of this State are of defined constitutional jurisdiction with regard to the subjects over which such jurisdiction is to be exercised, and so far as the subject matter is concerned they must, at their peril, take notice that they do not exceed it, or usurp that which properly belongs to some other tribunal.

But so far as regards the manner of presenting the subject matter to the consideration of the court, no matter how imperfect or illogical the pleadings may be, if the cause itself be such as the court, by any possible form of presentation, could take jurisdiction of it.

The court in passing upon the facts necessary to present such subject matter properly before it so as to fix a legal liability upon the defendant, would have a right to decide, and whether such decision should be right or wrong, the proceeding, so far as that branch of the inquiry extends, would not be absolutely void, but might be erroneous, and if the ascertainment of that fact alone was sufficient to empower the court to proceed to judgment, then it would be true that the court, and all persons acting under its authority, would be protected by its decision.

It is well established by authority that the right to be heard and to defend life, liberty, property and reputation is a natural, inherent right of universal obligation; it is an inherent, indefeasible, constitutional right, and it is a common law right commencing with the earliest history, and never dispensed with in any government, where these rights are recognized or protected by the government; that before a judicial tribunal can render any judgment whatever binding on either, it is indispensably necessary that the court, either by its process or by voluntary appearance, should first have acquired jurisdiction of the person of the defendant as well