Page:Borden v. State ex rel. Robinson.pdf/28

546 fact upon which depended its rightful exercise of jurisdiction over the person of the defendant and having found this fact to exist in the exercise of its power to decide upon its own jurisdiction and so entered it of record, the judgment against the defendant seems necessarily valid until reversed on error.

To determine whether or not the service of the process of summons is sufficient, is certainly, at this stage of the proceedings, as regular and as clearly within the rightful jurisdiction of the court as to these questions as would be decisions as to others at a subsequent stage of the proceedings as to such. In other words, the question presented as to the sufficiency of service is a case as legitimate to call into action the judicial powers of the court as to that question, as a demurrer to the declaration, interposed by the defendant, would be a case as to questions that would be thus raised. And each would be but different steps taken by the court in adjudicating upon the subject matter or "cause of complaint brought before the court," by the declaration, which, under our practice, is the first step.

Nor does the service of process of summons upon the defendant or the determination by the court that it has been properly served, confer any new power upon the court. If so the court would have power conferred upon it by its own officers and by itself, which would be absurd. The court had already power over the defendant, if within reach of its process, and the process is the instrumentality by which this power can be rightfully exercised. If the power is exercised without the process it is wrongfully exercised, but not the less exercised because wrongfully exercised. It is still the exercise of judicial power and the record speaks the verity of its exercise as the sheriff's return of "Executed" speaks the verity of service of process, although there may have been in fact no service at all. If a process of summons were executed upon an Ambassador, or upon a citizen of another State within his own sovereignty; or a court marshal should have one executed on one not subject to marshal law, all such would be nugatory acts, and there would be no more authority in such courts over such persons than before the service