Page:Borden v. State ex rel. Robinson.pdf/3

Rh as of the subject matter; and that a judgment endered by a court without a concurrence of these is absolutely void.

It is to the writ and return upon it (unless in case of statutory notice by publication) that the court, must look for jurisdiction of the person, or to the record for voluntary appearance.

Where an attempt has been made by the proper officer to execute a writ (not void) by any mode prescribed by law, although the return is defective, yet as the legal sufficiency of the return is a matter for the consideration of the court, although the court may err in its judgment, yet as the court had a right to decide, and is presumed to have decided upon it, although it might be reversed for error, it would, until reversed, uphold the judgment of the court.

Where however the writ has no return, there are no facts upon which the judgment of the court can act, nothing to judge of, and therefore no judgment could be rendered.

Should the writ be lost, and it were made to appear that one had issued, then in its absence, service might be presumed, but not when there is nothing to show that a writ issued; to presume that a writ issued, and then that it was served, would be basing a presumption upon a presumption, which is not allowable.

It is not contended that every fact necessary to confer jurisdiction on a court of superior jurisdiction must affirmatively appear of record: in this the former decisions of this court have gone too far.

Every reasonable presumption in favor of the rightful exercise of jurisdiction ought to be indulged; but where the record (the writ and return being taken as part of it) repels the presumption of notice, as in case the writ should be returned "not found," and the record should state that defendant made default, then no ground for presumption would exist, for the writ would negative the presumption of service, and the record of voluntary appearance; and as these aro the only legal means by which the court acquired jurisdiction of the person (unless by publication, and this the record would show, if made,) no presumption could be indulged.

This was an action of debt brought in the name of the State for the use of Robinson against Borden, as sheriff of Pulaski county and his securities, on his official bond, determined in April, 1847, before the Hon. then one of the Circuit Judges.

The plaintiff assigned as a special breach of the bond, that Samuel Robinson, on the 31st July 1841, obtained an allowance of a claim for $190, in the probate court of Pulaski county, against the estate of Cynthia Robinson deceased, of which Woodruff was