Page:Borden v. State ex rel. Robinson.pdf/33

Rh This being so, the question is one of precedence. When these two rules of law conflict, which must yield? To this the maxim of the law "that a private mischief shall be rather suffered than a public inconvenience" would seem to give a satisfactory answer. Because the law of notice looks clearly to the protection of private rights, while the law of the validity of judgments until reversed by appellate powers, whilst it also protects private rights, looks emphatically to the effective administration of justice, the sanctity of records, the protection of the ministers of justice that they may fearlessly discharge their duties, the stability of titles, the end of strife and the repose of society. And another answer equally conclusive is that a question, whether there has been notice or no notice, relates not to the investiture of judicial power, but its rightful exercise.

But although we adopt the rule in question as a very general rule, we do not adopt it or any of the rules with which it harmonizes, or is sustained as universal rules. We are not sure that we know any universal rule of law or that any exists that will have application to every matter that may be brought within the letter of the definition. We are sure this cannot embrace every case that might possibly arise that would come within the letter of its description, as we have more than once distinctly intimated in the course of our remarks. If a circuit court were to assume jurisdiction of a matter committed by law to the probate court exclusively, or the county court were to assume jurisdiction of a military officer, or if the probate court were to try and condemn a man for high treason, such proceedings would be all nullities, because there would be no foundation at all for such proceedings: no case had ever been presented to bring into action any judicial power of these Courts. So a judgment might even be void under some circumstances, from some peculiar and inflexible policy of the law for the protection of infants, married women, idiots or lunatics.

These general observations we make simply to indicate more distinctly our views of the important questions passed upon.

The remaining question before us in this case is whether or