Page:Borden v. State ex rel. Robinson.pdf/36

554 of the plaintiff's attorney ordered it to be paid.

Under this state of case the main, indeed the only question of importance is, whether the probate court in a proceeding in personam, as this is, can proceed to render judgment upon the subject matter, until it has by some means acquired jurisdiction of the person of the defendant; or in other words, whether jurisdiction of the subject matter alone is sufficient to authorize a court, not of inferior jurisdiction, to render a valid judgment, binding upon the person and the estate of the defendant.

If I correctly understand the opinion delivered by my brother judges in this case, it assumes the affirmative of this proposition and whilst they admit that such proceeding may be set aside for error, they hold that the judgment so rendered is valid and binding on the defendant, and sufficient to uphold a sale of his estate under it, and to justify the court that rendered the judgment, and the officers and others who executed it. With great deference, my mind, after a careful examination of authorities, has been lead to a different conclusion. And it becomes my duty under the law to express my individual dissenting opinion upon the several interesting points which are involved in the case.

Premising that my position is assumed alone in reference to proceedings in personam, in contradistinction to proceedings in rem, and that I do not controvert the position that the court of probate, having been created by the constitution, although of limited and defined constitutional jurisdiction, is nevertheless not an inferior court of limited jurisdiction in the sense in which that term is used, I shall first take a brief review of the grounds upon which the right of jurisdiction as contended for is supposed to rest and the authorities brought to its support.

One of the strongest arguments used in support of the jurisdiction of the court is, that as it must necessarily in a greater or less degree be the judge of its own jurisdiction, the fact that it has assumed and exercised such jurisdiction presupposes that it has passed its judgment in favor thereof, and that to hold a judge accountable for an error of judgment could not be sanctioned, as it would strike at the independence of the tribunal itself. This