Page:Borden v. State ex rel. Robinson.pdf/38

556 Suppose a declaration or statement in writing to be filed setting forth a contract for $500, but without date or any averment that it was due, or had not been paid; although it is evident a demurrer should he sustained to such a declaration, yet if the court should erroneously decide it good and render a judgment upon it, such judgment would not for this reason be held void; because the subject matter being within the jurisdiction of the court, its decision as to the proper averments to charge the defendant, no matter how erroneous, was made in the exercise of judicial discretion upon a matter of law, as to the sufficiency of such averments. But suppose, instead of such contract, there should be inserted in the statement in writing filed, a copy of "The Hymns to the Gods," and the court should be so lost to common sense and right as to render judgment upon it against its distinguished author, would any one contend that such judgment would not be void? And yet if the court is to be the judge of its jurisdiction and is to be protected in such judgment because it has so decided, whether of the subject matter or of the trimmer of presenting it, it necessarily follows that the judgment would be as valid in the one ease as in the other. For if it is once admitted that the court has a discretionary power in regard to the subject matter itself, which when exercised will protect it in any one instance, the principle is conceded, and it must of necessity be extended even to the extreme case we have put. It will not do to say that it shall be protected where its judgments have been reasonably exercised in doubtful cases: that would be sitting in judgment upon the exercise of a discretionary power, and if applied to the subject matter itself, might also be applied to every opinion of the court upon law or fact submitted to it. The only safe rule then to my mind is to hold the court at its peril to keep within its jurisdiction, but to protect it fully in the free exercise of its discretion, in determining all questions which may arise in adjudicating upon such doubtful matter.

Another position assumed in support of the validity of judgments rendered without notice to the defendant is that courts of general jurisdiction have jurisdiction over all persons within