Page:Borden v. State ex rel. Robinson.pdf/27

Rh of fifteen years." At a proper time during the term upon calling the defendant and his failure to answer, the plaintiff moves for a judgment by default, whereby upon inspection of the sheriff's return the question arises whether there has been such service as the law requires. There could seem to be no ground of doubt but this would be a clear case for the exercise of rightful jurisdiction in determining the question whether or not the return that the copy was left with the defendant's wife sufficiently showed that the copy was left with "a white person." Because the question legitimately and directly arose in the regular progress of the cause and when passed upon would seem to be directly within the principle of the Dutchess of Kingston's case, (11 State Tr. 261,) restricted in operation in Scott vs. Sherman, (2 Black. R. 979,) to "courts of record having competent jurisdiction of the subject matter," and afterwards again enlarged in Gohan vs. Maingay (Irish Term R. 37, 39 & 50,) after full discussion and examination, to "all courts having competent authority."

When therefore the circuit court should have thus, within its rightful jurisdiction, decided this service of its process sufficient, and had so stated upon its record it would seem inevitable that a judgment thereupon rendered against the defendant could not be a nullity but must remain a valid judgment until reversed by appellate power. Because the judicial ascertainment of the due service of the process of summons in such case must be as authoritative as when ascertained by the inspection of a return by a sheriff that he had executed the process upon the defendant in proper person; since in each case the court exercised its competent judicial powers.

And the judgment by default which followed would be equally valid in each case, and would stand upon the same footing in all respects, except that it might be possible that an appellate court might reverse one of them for an erroneous adjudication as to the sufficiency of service, while in the other there would be no ground to suppose it insufficient. In both cases however the return of the sheriff was the record evidence, upon the inspection of which the court determined as to the existence of the