Hahn v. Kelly

Sawyer, J., concurring specially:

I concur in the judgment, and in the reasoning of my brother, Sanderson, upon which it is sustained. I will add a word respecting the record, and for the purpose of alluding to Forbes v. Hyde, 31 Cal. 342. While the points discussed and decided in that case are correctly determined, I am satisfied that the opinion stops short of the entire truth in regard to judgments of the kind there in question. In that case, and in Braly v. Seaman, 30 Cal. 610, the parties, relying on the judgment, introduced in evidence as a part of the record and of their case, the order for publication of summons, and affidavits upon which they were based, and they were treated as parts of the record without discussion. And in Forbes v. Hyde, the order for publication, and the judgment itself, recited the affidavits as the basis upon which they rested, thus showing by direct reference, that the jurisdiction of the Court, if any attached, depended upon those affidavits, and the publication in pursuance thereof, and on *422nothing else. The record contained an express statement that there were no other affidavits filed. Treating the affidavits and order as parts of the record, all that was done affirmatively appeared, and as the acts performed did not effect a service, the want of jurisdiction was apparent.

In the present case the question is directly made for the first time, as to what constitutes the record within the meaning of the rule, and what facts appearing in such record disr close a want of jurisdiction. These points have been elaborately argued, and numerous authorities bearing upon the question cited. At common law “ a record signifies a roll of parchment upon which the proceedings and transactions of a Court are entered or drawn up by its officers, and which is then deposited in its treasury in perpeiuam rei memoriam.” (3 Steph. Com. 583; 3 BL Com. 24; 2 Burr. Law Die., Tit. “Record.”) “A Court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are .called the records of the Court, and are of such high and super eminent authority that their truth is not to be called in question.” (3 Steph. Com. 583; 3 BL Com. 24; 2 Burr. Law Die., Tit. “ Record.”) In Courts not of record the proceedings are not enrolled. (Ib.) The privilege of having these enrolled memorials constitutes the great leading distinction in English and American law between Courts of record, and Courts not of record, or, as they are frequently designated, superior and inferior Courts. (Ib.) “ In the United States paper has universally supplied the place of parchment as the material of the record, and the roll form has, on that account, fallen into disuse; but in other' respects the forms of the English records have, with some modifications, been generally adopted.” (Burr. Law Die., Tit. “Record.”) But whether in parchment or in paper, in the roll form or otherwise, this judgment roll is what is known in law as the record—the technical record—and is what is meant by Courts ' and law writers when they speak of records of superior Courts, or Courts of record. This technical record is the *423only strict and proper proof of the proceedings of the Courts in which they are preserved, and are regarded in law as proof of so absolute a nature as to admit of no contradiction. In the language of Lord Coke, “• they import in themselves such incontrollable credit and verity, as they admit no averment, plea or proof to the contrary.” (Coke’s Litt. 260 a; 3 Steph. Com. 583; 8 Bl. Com. 24; 2 Burr. Law Die., Tit. “ Record.”) As to the history and character of the record, etc., see, also, Burr. Pr. 16, 17, 247; Steph. PI. 25, 27, 81, 111. So inviolable is the rule regarded, that, on the issue of nul tiel record, when a record of a judgment corresponding with the plea was produced, it was held to be inadmissible to rebut this proof by showing a rule of the same Court entered in the minutes at a subsequent term setting aside the judgment for irregularity. (Crosswell v. Byrnes, 9 John. 290.) The Court say: “ There is no doubt of the competent power in the Court to make such a rule; but the question is, whether the entry of such a mle upon the minutes is to be received as evidence against the record. It appears to be contrary to all well settled technical rules upon the subject to give the entry that effect. A record imports verity, and can only be tried by itself. The vacatur ought to be enrolled, or entered of record as much as the rule for judgment. The Court could not receive the entry on the minutes of a rule for judgment as evidence to support a plea of a former recovery, and why should an entry vacating a judgment be received to contradict the enrollment of the judgment ? The maxim in this, as well as in other cases, is, that nihil tam naturale, quam quidlibet dissolvi eo modo, quo ligatur. (1 Jenk. Cent. 120.) To give an entry on the minutes that authority would destroy the certainty, order and solemnity of enrollments; and it has been frequently held that the Courts cannot regard any proceeding as a matter of record until it is enrolled.” (1 Salk. 329; 1 Ld. Raym. 243; Jenk. Cent. 25; Crosswell v. Byrnes, 9 John. 289, 290; see, also, McKnight v. Dunlop, 4 Barb. 39, 40; Moore v. Risdell, 1 Ld. Raym. 243.) Thus the order vacating a judgment, *424although entered in the minutes of the Court, until enrolled, could not be given in evidence against the judgment, for, until enrolled, it constituted no part of the record—the technical record, which imports absolute verity. And this, as before remarked, is the record which Courts refer to, when they speak of matters appearing upon the record of Courts of record. When a mistake in making up the record occurs, the Court of which it is a record may, at the proper time, and in the proper mode, amend it so as to make it speak the truth. (3 Bl. Com. 24; 3 Steph. Com. 583.) But till amended, when brought collaterally in question, it cannot be impeached, even by the files and minutes of the Court, by the aid of which the record itself might be amended by the proper Court. In a general sense, all the files and minutes of the Court are often spoken of, in modern times, as the records of Courts, and this use of the word tends to lead.to a confusion of ideas.

In examining questions of the kind now under consideration, it must always be borne in mind, that it is only the record, technically so called, that imports absolute verity, and is to be tried by itself—teste meipso (see Sherman v. Story, 30 Cal. 257)—whenever its existence is called into question; that is to say, its existence and purport is to be determined by a bare inspection of the document offered as a record. But in those Courts and tribunals where the proceedings are not enrolled or recorded, as well the existence of their proceedings, as the truth of the matters therein contained, shall, if disputed, be tried and determined by a jury. (3 Bl. Com. 25.)

Records were formerly niade up in the presence of the Court as the case progressed, but were subsequently prepared out of Court after the case was closed, either by the clerk or the attorneys. (1 Burr. Pr. 247.) They consisted of the placita, memorandum, pleadings, imparlance or continuance, etc. (1 Burr. Pr. 247.) Examples of judgment records or rolls under the former system, will be found in 3 Burrill’s Ap., p. 132, et seq., and in a criminal case in 4 Bl. Com. Ap. The judg*425ment record has recently been somewhat modified by statutory provisions in some, if not all, the States; but they all, where a judgment roll is made up, contain the substance of the former rolls. Section two hundred three of the Practice Act expressly provides for a judgment roll, and prescribes what it shall contain. It omits the formal parts—the placita, memorandum, continuances and connecting links—some of which have been rendered unnecessary by changes in our proceedings, but contains all the essentials of the common law record. In the case of a default, it consists of the summons with the affidavit or proof of service, complaint with memorandum indorsed upon the complaint that the default of the defendant in not answering was entered, and a copy of the judgment. This is the technical record, which imports absolute verity and cannot be impeached collaterally, even by the files and minutes of the Court itself not forming a part of the record. This is the record which must show affirmatively a want of jurisdiction, in order to render the judgment void. Section thirty-three of the Practice Act declares what shall constitute proof of service, and this does not include either the affidavit or order for publication. They, therefore, do not constitute a part of the record, and the verity of the record cannot be impeached by them. The cases of a similar character hitherto decided by this Court were tried, argued on both sides, and decided on the assumption that the affidavits and order of publication constituted a part of the record. In this respect there was error. In this case there were two facts required to be made to appear to the Court below. One is the fact of publication of summons, and the other is that the party making the affidavit of publication was the printer, his foreman or principal clerk. The fact of publication could be proved by no other party under the statute. (Sec. 33.) But there is nothing requiring the fact that the party making the affidavit is the printer, foreman or principal clerk, to be proved by him, also, or that this proof shall *426be in writing. I can see no reason why that fact may not be proved by oral testimony in Court, or in any other mode recognized by law for proving other facts in the course of ordinary litigation. In the record now before us, there is an affidavit stating all the facts necessary to show a service by publication, but it does not show that the affiant was the printer, foreman, or chief clerk. If we can regard it at all, it shows a publication. If we cannot regard it, for the want of proof, that it was made by the proper party, then the worst that can be said is, that it does not affirmatively show a publication. It certainly does not affirmatively show that there was no publication. It singly does not appear affirmatively whether there was or was not a service. But the judgment itself says that it did appear “to the Court that the summons and complaint in this cause have been duly served on the defendants according to law and the order of the Judge of this Court,” and thus the fact of service affirmatively appears in the record. This is a fact which the Court had jurisdiction to find, and according to the record it was found; and the record, whether correct or not, imports absolute verity, and no Court, in a collateral proceeding, can go behind it, or to the files or minutes, to impeach it. There is no inconsistency in the record. The Court exercises the same functions and the same jurisdiction in determining whether there was a service, whether personal, and the evidence is the certificate of the Sheriff, or affidavit of a party competent to serve the process, or by publication, and the evidence is by the affidavit of the printer. And I see no reason why the same presumption should not arise on the record in one case as in the other. It is a record in either case, for the statute makes it so in one case as well as in the other. And the record must be tried by itself alone. There is no new jurisdiction, either as to the person or subject matter conferred on the Court by the statute authorizing service by publication of summons. The service is made in cases involving the ordinary process of the Court. Only the *427mode of serving process is modified in certain eases within its ordinary jurisdiction. In some of the States a service was formerly, and, doubtless, now is, made by leaving a copy of the summons at the residence of the defendant, with some person of suitable age and discretion, or at his last known place of residence. I am not aware that any different rule of presumptions in Courts of record was applied to the record of a domestic judgment on a service of this kind, from that applied to a service upon the party himself. Yet this can no more be called a personal service than a service by publication. The only question, at last, is: was there a service in any legal mode ?—and the Court has jurisdiction to determine that question. If the Court determining the question is a Court of record, the judgment record imports absolute verity, and whatever that says must be taken as true. If the record in fact does not speak the truth, the only remedy of the party is to attack it directly on appeal or in the Court of which it is a record, if under the circumstances it can be there corrected, or by some direct suit or proceeding known to the law to vacate it.

A caution is here necessary. In modern practice, in some of the States, there is no judgment roll or record made up, even in Courts of record, as in Iowa, and, at one time, in Michigan. In these States perhaps the minutes and files of the Court might be regarded as the record, and possibly everything appearing therein might be considered. (Morrow v. Weed, 4 Iowa, 127; Norvell v. McHenry, 1 Mich. 227.) In considering the numerous decisions in the several States, it is always necessary to understand the local law affecting the question, and this is not always stated in the opinions, or otherwise accessible. In this State we have a record, and the statute expressly provides what it shall contain.

The following authorities bear upon the questions arising in this case, and in a greater or less degree sustain the conclusion attained: Tollman v. Ely, 6 Wis. 244; Foot v. Stevens, 17 Wend. 484; Newman’s Lessees v. City of Cincinnati, *42818 Ohio, 323; Horner v. Doe, 1 Cart. 131; Bolter v. Chapline, 12 Iowa, 205; Sheldon v. Wright, 5 N. Y., 1 Seld, 517; Voorhies v. Bank of United States, 10 Pet. 449; Grignon’s Lessees v. Astor, 2 How. U. S. 319; Richards v. Skiff, 8 O. St. 588; Moor v. Starks, 1 O. St. 369; Hart v. Seixas, 21 Wend. 45; Carson v. Pearl, 4 J. J. Marsh. 93, 94; Heirs of Biggs v. Blue, 4 McLean, 149; Kipp v. Fullerton, 4 Minn. 480; Hardy v. Gholson, 26 Miss. 72; Cooper v. Sunderland, 3 Iowa, 114; Morrow v. Weed, 4 Iowa, 78; Potter v. Merchants' Bank, 28 N. Y. 654, 655. Also, see cases cited by appellant, and authorities cited in the eases above referred to.

The judgment should be reversed and a new trial had.