filed the following dissenting opinion
I find myself unable to concur with the majority of the court in the opinion pronounced in this case.
The judgment of a court of general jurisdiction is here sought to be' impeached and held a nullity in a collateral proceeding, for want of jurisdiction over the person of the defendant.
In such ease l regard the rule to be, that it is not necessary that the jurisdiction should affirmatively appear, but that it will be presumed until the contrary is shown ; that, if jurisdiction do not appear upon the face of the record, the judgment will be reversed on error or appeal, but that it is not a nullity which may be disregarded in a collateral action. Kemp’s Lessee v. Kennedy, 5 Cranch, 173; McCormick v. Sullivant, 10 Wheat. 192; Foote v. Stevens, 17 Wend. 483; Hart v. Leixas, 21 ib. 40; The Chemung Bank v. Judson, 4 Seld. 254; Ruckman v. Cowell, 1 Comst. 505; Brown v. Wood, 17 Mass. 67; Reynolds v. Stansbury, 20 Ohio, 344.
Such would seem to be the rule, and the distinction, when the question comes up directly upon appeal or by writ of error, or is raised collaterally, heretofore recognized in this State. Kenney v. Greer, 13 Ill. 432; Dunbar v. Hallowell et al. 34 Ill. 168; Pensoneau v. Heinrich, 54 Ill. 271.
The ground upon which the judgment here is declared to be a nullity, is, that it does not appear, by the certificate of publication of notice on file, that W. Harr & Son, whose names ar.e subscribed to it, were the publishers or printers of the newspaper, or what was the date of the last paper which contained the notice. But the presumption of due publication of notice was strengthened by direct proof made on the hearing of this case, that W. Harr & Son were the publishers of the paper, and that the notice was published for the requisite length of time.
Such mode of proof in like cases has received the sanction of this court.
In Pierce v. Carleton et al., 12 Ill. 363, the court says: “Waiving any discussion of the question whether the publication of notice is necessary to confer jurisdiction on the court in proceedings by attachment, it is enough for the decision of this case that it sufficiently appears from the record that the requisite notice was given. The record states that the plaintiffs filed proof of publication, and then follows a notice in due form, with a certificate of Houghton & Springer attached, in which they state that the notice was published in the “Northwestern Gazette” for four weeks successively, the first publication being on the 20th of March, 1850. The judgment against the defendant was entered on the 20th of May, so that sixty days intervened between the first insertion of the notice and the date of the judgment. It is true, that Hough-ton & Springer do not describe themselves in the certificate as publishers or printers of the “Gazette,” nor do they state where the paper was published. But it was clearly competent for the plaintiffs to prove, by parol, that the paper was published in the State, and that Houghton & Springer were the publishers thereof. The presumption should be indulged that this was done.” The question there came up collaterally.
Again, in Dukes v. Rowley, 24 Ill. 222, it is said : “It was objected that the certificate of publication was insufficient, as it failed to show that the persons who signed it were publishers of the newspaper in which the tax list was advertised. The evidence on the trial shows that they were the publishers, and the presumption is that the fact was proved to the court at the time the case was heard on the application for a judgment for the taxes. This is certainly true in a collateral proceeding, whatever might be the presumption, if it was questioned oh error.”
This was in support of a tax deed made under a judgment for taxes, rendered upon such notice. It is true, in this last case, it was recited on the face of the proceedings, “and, whereas, due notice has been given of the intended application for a judgment against said lands,” etc., but no stress whatever is laid upon the fact of such recital in the opinion,. it not being even adverted to.
I do not regard this rule of presumption, as to jurisdiction, tó be varied in this case, because the suit in which the judgment was rendered was commenced by attachment instead of by summons, or by holding to bail.
■ That circumstance, as I conceive, did not bring the case within that class of cases where a special statutory authority being conferred upon a court of general jurisdiction, to be e-xercised without the scope of its general and common law power, in a special and often summary manner, its proceedings in relation thereto are held to stand on the same footing with thpse of courts of inferior jurisdiction. Harvey v. Tyler, 2 Wallace, 329, and cases there cited ; Pensoneau v. Heinrich, supra, respected a record in a mechanics’ lien suit, a proceeding quite as special as the one in question.
I can not but regard the present decision as at variance with the true rule as declared in former adjudications of the court, and that decisions, which form rules of property, should not be lightly disturbed.