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Dec. Term, 1816.

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Lessee of Boswell and others v. Sharp and others.

IN BANK.petent for the complainant to file his or her petition in the proper court of the county in which such lands may be situate, and such court is hereby authorized to take cognizance 'thereof, and direct either personal notice or notice by publication, of its pendency, to be given as in this act provided, and on proof of such notice having been given, to proceed as in " other cases."

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Sec. 7. "That if any person shall file a petition in chance'ry against any defendant residing within this State, in which ' it shall be proper or necessary to join any other defendant re'siding out of the State, whether in the United States or any ' other country, the complainant may cause personal service to ' be made on such absent defendant by a written notice, setting 'forth the pendency of such petition, and the substance of the 'prayer thereof, or he shall cause publication to be made of such notice for nine weeks successively in some newspaper print d in this State, and having general circulation in the county where such suit shall be pending, and on due proof 'that such notice has been given, such defendant shall be con'sidered in court, and be thereupon proceeded against in the same manner as if he had been regularly served with a sub'pœna in the cause."

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The notice actually published is as follows:

"The State of Ohio, Sandusky Common Pleas, May term, 'A. D. 1825. Thomis L. Hawkins v. William T. Barry, Thomas E. Boswell and William Whitimore. This day 'came the complainant, by Orris Parrish, his solicitor, and filed 'the bill, and it appearing to the satisfaction of the Court, the 'defendants are not residents of this State, but reside in the 'States of Kentucky and Massachusetts, it is therefore ordered, 'that notice of the pendency of this suit be published in the 'Western Statesman, a newspaper printed in the town of Columbus, Ohio, for the term of nine weeks successively, be'fore the next term of this Court, that unless said defendants appear at the October term of this Court, and plead, answer ' and demur to said bill, that the matters and things therein set

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Lessee of Boswell and others v. Sharp and others.

Dec. Term, 1846.

'forth and charged will be taken as confessed, and a de- IN BANK.

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cree rendered against them accordingly. A true copy. 'A. Scranton, Clerk."

Jas.

It is assumed by the plaintiff, that the Court only acquires jurisdiction by the publication of a notice which specifies "the

pendency of the petition and the substance of the prayer 'thereof," and that these proceedings are void because there was no sufficient compliance with the last condition. The defendants will attempt to show, the validity of the sale does not depend upon such a strict and literal fulfillment of these requirements.

The defendants do not claim that a judgment or decree is binding upon a party who has had no day in court, or that a judgment is good without some equivalent to the service of process. For present purposes, they do not deny that a court of special jurisdiction, or a court of general jurisdiction, while exercising special powers, must show the condition upon whose existence its jurisdiction depends; but they claim, that the proceedings of courts of general jurisdiction, while exercising their ordinary functions, shall be supported by every reasonable intendment, and they claim the benefit of the most favorable presumptions arising from the nature of chancery tribunals to sustain the force of their acts.

First: It is submitted, that the fair construction of the 12th section requires no other notice than a notice of pendency. The notice of the 7th section must set forth the pendency of the suit and the substance of the prayer. The 12th section carefully omits the requirement of the substance of the prayer. Its language is: "a notice, by publication, of its pendency, to 'be given as in this act is provided; and, on proof of such ' notice having been given, to proceed as in other cases." Not such a notice as the 7th section requires, but "notice of its pendency." The phrase, "to be given," relates, not to the form of the notice, but to the communication of it to the party, viz: to the manner of publication; that is, "notice" "of the pendency of the suit" "is to be given" "for nine weeks

1846.

Lessee of Boswell and others v. Sharp and others.

IN BANK. Successively in some newspaper," &c., and the words "such Dec. Term, notice," in the last clause, by the common rules of interpretation, relate to the last antecedent not such notice as the 7th section demands, but such a notice as is designated in the same sentence.

Second: Admitting, for the sake of argument, that the notice must contain the substance of the prayer, is not this requisition satisfied when it actually contains the demand of a decree? Is it not the whole substance of the bill, to obtain an answer or a decree? If it be held that the 12th section requires the substance of the prayer, we again recur with confidence to the practice of the day, which sufficiently manifests that courts and partitioners regarded such a notice a sufficient compliance with its demands..

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Third: But who can doubt that actual jurisdiction lawfully attached, and has been rightfully exercised between the parties. to this record. Conceding that the case was regulated by the 12th section, "it was competent for the complainant to file his petition in the proper courts where the lands are situate, and such court is hereby authorized to take cognizance thereof, and direct notice." Now, it may well be contended, that complete jurisdiction is conferred by the simple words, "take cognizance," when a bill is filed in the county where the land lies, which is to be affected by the decree, and that all after proceedings can be erroneous only. But our argument has stronger cogency; for the authority to take cognizance and direct notice confers, expressly, the jurisdiction to make the order, and involved the right of adjudicating whether such order has been complied with, so that complete jurisdiction over those parties, to some purposes, has become vested in the Court, which, once acquired, enables them to go on and do complete justice between them; 11 Ohio Rep. 462; 12 Ohio Rep. 368. For where jurisdiction once attached, all subsequent acts, however erroneous, are not void.

No language can more plainly define jurisdiction, than that employed by the Supreme Court at Washington: "The power

Lessee of Boswell and others v. Sharp and others.

<to hear and determine a cause, is jurisdiction. It is coram IN BANK. ‹ judice, whenever a case is presented which brings their power

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into action. If the petitioner states such a case in his peti<tion, that, on demurrer, the Court would render judgment in < his favor, it is an undoubted case of jurisdiction. Whether, on an answer denying and putting in issue the allegations of the 'petition, the petitioner makes out his case, is the exercise of jurisdiction conferred by the filing of a petition containing the <requisites, and in the manner prescribed by law." 6 Pet. Rep. 709.

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On a motion to dismiss, Judge Baldwin employs more forcible illustrations: "Any movement (by a Court) is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear ' and determine the subject of controversy between the parties to a suit; to adjudicate or exercise any judicial power over them. The question is, whether, on the case before the Court, their action is judicial or extra-judicial, with or without the authority of law to render a judgment or decree upon the rights of the litigant parties? If the law confers the power to render a judgment or decree, then the Court has jurisdiction; what shall be adjudged or decreed between the parties, and ' with whom shall be the right of the case, is judicial action, by hearing and determining it." 12 Peters' Rep. 718.

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On another occasion, Judge Baldwin says:

"If the validity of a sale under its process can be questioned for any irregularity preceding the judgment, the Court which 'assumes such power places itself in the position of that which

rendered it, and deprives it of all power of regulating its own 'practice or modes of proceeding, in the progress of a cause to 'judgment. If, after rendition, it is declared void for any ❝ matter which can be assigned for error only, on a writ of error or appeal, then such Court not only usurps the jurisdiction of an appellate court, but collaterally nullifies what such Court ' is prohibited, by express statute law, from ever reversing.

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"The line which separates error, in judgment, from the usur'pations of power, is very definite; and is precisely that which ' denotes the cases, when a judgment or decree is reversible

Dec. Term, 1846.

Dec. Term,

1846.

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Lessee of Boswell and others v. Sharp and others.

IN BANK. only by an appellate court, or may be declared a nullity collaterally, when it is offered in evidence in an action concerning the matter adjudicated, or purporting to have been so. In 'the one case, it is a record importing absolute verity; in the 'other, mere waste paper: there can be no middle charac'ter assigned to judicial proceedings, which are reversible for error. Such is their effect between the parties to the suit; ' and such are the immunities which the law affords to a plaintiff who has obtained an erroneous judgment or execution. It would be a well merited reproach to our jurisprudence, if an innocent purchaser, no party to the suit, who had paid his 'money on the faith of an order of Court, should not have the ❝ same protection, under an erroneous proceeding, as the party who derived the benefit accruing from it. A purchaser, un'der judicial process, pays the plaintiff his demand on the property sold; to the extent of the purchase money, he discharges the defendant from his adjudged obligation. Time 'has given an inviolable sanctity to every act of the Court "preceding the sale, which precludes the defendant from con'troverting the absolute right of the plaintiff to the full benefit ' of his judgment; and it shall not be permitted that the purchaser shall be answerable for defects in the record, from the consequence of which the plaintiff is absolved. Such flagrant injustice is imputable neither to the common nor statute law of 'the land. If a judgment is reversed for error, it is a settled ' principle of the common law, coeval with its existence, that the defendant shall have restitution only of the money - the 'purchaser shall hold the property sold; and there are few, if any, States in the Union who have not consecrated this prin'ciple by statute.

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"Acts of limitation become useless if a defendant is allowed "to evade them, by avoiding judgments or executions, or the suggestions of defects or omissions in the records, which can 'be avoided only by an appellate court; a direct premium is held out for delaying the resort to the mode pointed out by 'law for correcting the errors of judicial proceedings. His debt

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