Page:Borden v. State ex rel. Robinson.pdf/44

562 of a judgment against the person, is as well settled even in New York, as any doctrine can be, and when closely examined, with but little conflict of opinion anywhere.

But there are a number of the other State courts (indeed all of them, so far as I can ascertain, where the question has been presented) that hold the same doctrine, aud declare judgments void if rendered without notice; and some of these have gone fully as far as this court ever did, and require that the facts should affirmatively appear of record. These decisions I will briefly notice.

In Tennessee, in the case of Mason vs. Killibrum, it was held that, as it appeared from the sheriff's return that Killibrum was not found and the record did not show his appearance, "the court had no jurisdiction of his person; therefore the judgment rendered against him in the case is void and a nullity." (2 Yerg. Rep. 383.) The same court in the case of Sumner vs. Wood said, "there was no evidence before the court that ten of Jenkins Whiteside's heirs had been notified to appear to the suit by scire facias against them, and a judgment without notice to the heirs is void. The court had no jurisdiction of the person of the defendant." 6 ''Yerg. Rep.'' 522.

In Kentucky, in the case of Shafer vs. Gates and wife, the court said, "In a legal or available point of view, no person is a party to a suit, without either an appearance or judicial notice of some sort." (2 B. Mon. Rep. 455.) And in Wickliff vs. Dorsey the court said, "Had there been no service of process on any of the heirs, the decree would have been wholly ex parte and therefore void." And in the case of Curry vs. Jenkins, Hardin Rep. 493, the court said, "Natural justice independent of any positive statutory provision clearly indicates that an orphan should not be condemned to servitude in his absence and the absence of his guardian and friend."

In Mississippi, it was held in Gwin et al. vs. MeCarroll, "That it must be shown by the record that the court had jurisdiction of the party either by service of process or by publication where