The opinion of the majority depends on its holding that the case of Burke v. Kleiman, supra, is res judicata of the points involved and that those points are not subject to further judicial examination. It is said first, that this was a class or representative suit, and second, that in that case the court had jurisdiction to determine whether or not the necessary ninety-five per cent of the frontage had signed up. It is further insisted that the question of jurisdiction cannot be collaterally attacked but that the only remedy must have been by appeal from the judgment in that case.
The opinion of the trial judge is based entirely upon the grounds of res judicata and he very reluctantly felt *Page 377 himself bound by the prior decision. Reference to the abstract of record shows a definite finding of fact that the agreement was never signed by the requisite number of property owners and, in the words of the trial judge: "In other words, there is an invalid agreement which is now sought to be enforced * * * and we know it was a fraud because the proof now shows that there wasn't ninety-five per cent * * * he committed a fraud when he brought this law suit," etc.
The undisputed fact is that by means of fraud and collusion between total strangers an agreement which is void on its face has been imposed upon some ten million dollars worth of the property of five hundred other parties who were never in court, who never had notice of any law suit, who were never by name or as unknown owners made parties to any law suit, and who have never been accorded any process whatever, either due or otherwise. And it is said that this is binding upon them; that they constituted a class because one man fraudulently said they did and another man collusively, and with equal fraud, admitted the allegation, because this second man signed a stipulation saying they had signed an agreement which they had never signed. Certainly no man's rights can be safe under such a rule of law. If one man can allege that I signed an agreement and another total stranger admit that I signed it and fraudulently bind me by this sort of an agreement, it would be contrary to the fourteenth amendment of the constitution of the United States. The trial judge found the entire case of Burke v. Kleiman tainted with fraud, procured by collusion, and intended only to validate an otherwise invalid agreement. He very reluctantly entered a decree in this case because of a mistaken idea that the former judgment was res judicata.
The opinion in this case states that the defendants were so numerous that it would have imposed an unreasonable hardship and burden to make them all parties to the suit. *Page 378 This is a definite overruling of Whitney v. Mayo, 15 Ill. 251. It is true there were five hundred defendants, but even the humblest of these five hundred had a right to his day in court, to be made a party to the suit and to be given an opportunity to defend it. Their names were on the public records of Cook county and not the slightest excuse appears for not making them parties to the suit. If one sought to bind all the property in the city of Chicago by some restrictive covenant, he would assume the burden of making every property owner in that city a party to his suit, either by name or as unknown owner, if he was, in fact, unknown. He could not gain an advantage for himself through a fraudulent scheme simply by saying they were too numerous to mention.
The want of due process is so obvious as to require no argument and it must be admitted. It is said, however, that the court had jurisdiction to determine whether or not it had jurisdiction, and a mere restatement of this proposition refutes it. A court never has jurisdiction to determine that it has jurisdiction when it, in law, has not. The question of whether or not a court has jurisdiction of the parties and the subject matter remains forever open and forever subject to collateral attack. No court can expand its own jurisdiction simply by finding that it has jurisdiction unless that finding is based upon a question of fact which it has power to decide. In Caswell v. Caswell, 120 Ill. 377, and in many subsequent cases, this rule has been made clear.(Beck v. Lash, 303 Ill. 549.) The most recent reference to it in this court is to be found in People v. Sterling, 357 Ill. 354, where we pointed out the distinction between that kind of fraud which goes to the jurisdiction of the court, as distinguished from that other kind which intervenes to procure a decree after the court has obtained a valid jurisdiction. The rule is too clear for restatement. Fraud which impairs or prevents attachment of jurisdiction may always *Page 379 be raised collaterally, and it is only that kind which intervenes after jurisdiction has been obtained that cannot be attacked.
We have in the case before us both kinds of fraud: Fraud in the procurement of the decree by a false stipulation, and a fraud going to the jurisdiction of the court in the very basic and essential allegation that there was a valid agreement that it was actually signed by the necessary ninety-five per cent of frontage owners, and fraud in the jurisdictional allegation that there was a class to be represented when, in fact, no such class ever existed.
It is my opinion that even if the attempted agreement had been signed by the owners of ninety-five per cent of the frontage involved, and if the case of Burke v. Kleiman had been brought in good faith instead of fraudulently, it still could not have been such a class or representative suit as would impair the title of other property owners. Without going into extensive citations of authority, it seems clear to me that a class suit cannot properly be entertained except in that very limited field of cases where the parties have not only a common and general interest among themselves but also an identical right to be protected in a single and undivided res. The entire theory of class representation is a dangerous exception to the general rule that each interested person must be made a party by name, notified of the proceedings and given his day in court. The rules guarding it must be so strict and carefully enforced as to be commensurate with the risks of injustice which are involved. Due process most certainly requires notice and an opportunity to be heard, and no case has come to my attention where the court has failed to make absolutely certain, in advance, that the parties to represent a class must be selected with such care and have such personal interest in the litigation as to guarantee that the rights of all will be fully protected. *Page 380
In the case before us, each property owner held and owned his property in severalty. He might or might not wish the covenant enforced. He might or might not wish to contest its validity. He might or might not wish to sell, lease or mortgage his property without regard to it. On any of these questions, his next door neighbor or any other property owner in the district might disagree with him. There could be no certainty nor even any probability that they would all agree on a course of conduct to be followed at any particular time or under any particular circumstances. There was no common right nor any common fund, nor any common or undivided res to be dealt with, and certainly no one ever had any right or power to speak for any one but himself.
The agreement which formed the foundation for this fraudulent case of Burke v. Kleiman provided on its face that it should be void and of no force or effect unless signed by the owners of ninety-five per cent of the frontage involved within a certain time and placed of record within a certain date. To me, it seems obvious that until those signatures were obtained and the very terms of the agreement itself complied with, there could by no possibility be even the semblance of a class to be represented in a class suit, even if such a suit could be possible under the circumstances, and it seems to me equally beyond question that such a defect in signers could not, in a court of chancery, be obviated through a fraudulent allegation that they had, in fact, been obtained when they had not, and an equally fraudulent and collusive and false stipulation that the owners had signed.
Mr. JUSTICE MURPHY concurs in this dissenting opinion. *Page 381