
    
      William Hurt vs. James H. Hurt and others.
    
    A distributee absent from this State, but within the United States, who has been properly made a party, by publication, to a bill for distribution of the estate of the intestate, is concluded by the decree for distribution, unless he appear and petition for re-hearing within two years — the time allowed by the Aot of 1784, (7 Stat. 2Í0,) — although the decree excludes him altogether from the share of the estate to which he was entitled; and it makes no difference whether he had actual notice of the suit or not.
    
      Before Dunkin, Ch., at Spartanburg, June, 1853.
    The facts of this cáse are stated in the circuit decree, which is as follows:
    Dunkin, Oh. In the latter part of the year, 1846, one Joel Hurt, of Spartanburg district, died intestate, leaving a conside-ble estate. Administration on his estate was granted to James Silman and Isham Hurt. On the 18th February, 1848, a bill was filed in this Court by the administrators, alleging that the real estate had been sold under the order of the Court; that the personalty had been reduced to money, the debts paid, and that distribution was ready to be made among the parties entitled as heirs or distributees of the intestate. The intestate left no widow or lineal descendant. He had had brothers and sisters, both of the whole and half blood — all of those of the whole blood were supposed to have pre-deceased the intestate, unless it were a brother, William Hurt: of him the bill alleges that he is “ supposed to be living, and residing in the State of Kentucky ; that he had been heard from about five years previously, but the complainants alleged that they were ignorant whether he was or was not living, or if dead, whether he had left any representatives.” The existence of the children of a deceased brother of the whole blood, as well as of the existence of some brothers and sisters of the half blood, is set forth, and the aid of the Court is prayed in ascertaining and determining the rights of the parties, the complainants submitting that this would depend upon the existence or non-existence of the brother or sister of the whole blood at the death of the intestate.
    On 5th March, 1848, an order for publication was made against the several defendants alleged to be absent from the State, among whom was William Hurt. The rule to plead having expired on the 6th June, 1848, an order pro confesso was taken against the absent defendants. At June sittings 1848, an order was entered at the instance of the solicitors of the administrators, by Chancellor Johnston, that all persons claiming to be next of kin to the said Joel Hurt (the intestate) do establish before the commissioner of this Court the degree of consanguinity in which they stood to the intestate, before the 1st June next, (1849.) This notice was under the order published for three months in Spartanburg, in a New-Orleans paper, and one at Nashville, Tennessee. At June sittings, 1849, this notice was extended for a year longer in the same papers. At June sittings, 1850, a final decree was pronounced, directing a distribution of the funds among the five children of a deceased brother of the whole blood, and a brother of the half blood, share and share alike. In July, 1850, the decree was carried into execution, by payment to the several parties entitled to receive the same. All these parties reside beyond the limits of this State, except the defendant, James H. Hurt, who is one of the five children of a deceased brother.
    On 1st March, 1853, the plaintiff, William Hurt, filed this bill, alleging that he was not aware of the proceedings until within a year past, that the funds had been distributed under the decree among parties, all of whom were now beyond the limits of the State, except the defendant, James H. Hurt, and praying “ that the said James H. Hurt and all other parties who drew the funds as aforesaid, account for so much of the same as rightfully belonged to the plaintiff, with interest thereon.” All the pro-cedings against the absent defendants, seem to be null and void for any effective purpose. As they are beyond the limits of the State and have no property within the State, it is not perceived on what principle they can be rendered amenable to the jurisdiction of the Court. Prior to the partition of the estate they were properly parties in relation to their interest therein. But after the decree had been pronounced, the estate settled in conformity thereto, and the several parties had received their respective shares, there was an end of the litigation.
    But the defendant, James H. Hurt, relies on the former decree and proceedings, in bar of the plaintiff’s action. The absent defendant in that suit, Wm. Hurt, was made a party in the mode prescribed by law. In order to protect, as far as possible, the rights of absent defendants, it is provided by the 24th see.tion of the A. A., 1784,  that if any person against whom a decree shall be made, or his or her legal representative, shall, within four years after passing said decree, if without the limits of the United States, and within two years if absent from this and within the United States, appear in Court and petition to be heard with respect to the matter of such decree, .&c., the person so petitioning shall be admitted, &c., and such proceedings shall be had, &c., as if no former decree had been made in the said cause. But if neither the persons against whom such decree shall be made, nor his legal representative shall appear and petition for a re-hearing within the time above mentioned, such decree shall stand absolutely confirmed against the person against whom it was made, his legal representatives, and all claiming under him. The decree of June, 1850, stood then absolutely confirmed in July, 1852. It may be that errors existed either of fact or of law in that decree.
    If the half blood were entitled at all, the absent brother of the half blood would seem to have had scanty justice rendered to him, as he was awarded but a sixth when the canons of distribution gave him a moiety. Yet after the expiration of two years, it would be incompetent for him to open the decree. Perhaps he was entitled to no part of the estate. How can that be averred against the decree in which the plaintiff had the same opportunity of being represented and heard as himself?
    The evidence, written and oral, and offered by the plaintiff himself, is most abundant to show that both the parties and the Court used every means that diligence or caution could suggest to arrive at a sound judgment. If the decree were re-opened, absolute certainty could not be attained. John Hurt and James Hurt, Tabitha Hurt and Nancy Hurt, were brothers and sisters of the whole blood of the intestate, and were made parties by publication. Their death has been presumed, and the Court has properly acted upon the presumption, and after this lapse of time, the action of the Court in relation to the subject matter of the controversy must be regarded as final. “ Interest reipubli-cce ut sit finis litium
    
    It is ordered and decreed that the bill be dismissed.
    The complainant appealed, and now moved this Court to reverse the circuit decree, on the grounds: ■
    1. Because the complainant is the legal heir of Joel Hurt, deceased, and could not in justice and equity be deprived of his property without being heard.
    2. Because the decree of the Court disposing of the property of Joel Hurt, deceased, to the defendants, was ex parte, and not binding on the complainant.
    3. Because the decree was contrary to law and equity, and a violation of the Constitution of the State, and of the United States.
    
      Bobo and Edwards, for appellant.
    
      Dean, contra.
    
      
       1 Brev. Dig. 203; P. L. 337; 7 Stat. 210.
    
   The opinion of the Court was delivered by

Wardlaw, Ch.

In conformity to the procedure prescribed by 12 section of the Act of 1784, (7 Stat. 210,) the present plaintiff, resident in Kentucky, was regularly made a party defendant to the suit, in which the decree was rendered of which he now complains. Under the Act a person, absent from the State but having property within it, may be made a defendant to a suit in Equity here bringing that property into litigation, although he be the sole defendant. Bowden vs. Schatzell, Bail. Eq. 361; McKinne vs. City Council of Augusta ; Kinloch vs. Meyer, Speers Eq. 428. In such case the Act makes him strictly a party, as fully bound by the proceedings as a party served with process of subpcena. In this respect the Act is altogether different from the Act of 1823, (6 Stat. 212,) which provides a remedy at law in cases of joint contract where one of the contractors resides without the limits of the State, for the latter Act contains an express proviso that the proceedings shall have no effect so far. as the party out of the State is concerned. I suppose, too, that proceedings at law against partners, under the Act of 1792, (7 Stat. 281,) would affect only the property within the State of the firm and of the partner served with process, and that the absent partner is merely a nominal defendant. Such is the intimation of opinion in Simonds vs. Speed, 6 Rich. 390, although the point is reserved from judgment. But the Act of 1784 contains no such saving to an absent defendant to a suit in Equity, and declares on the contrary in 13 section, that “ the decree shall stand absolutely confirmed against him, his legal representatives and all claiming under him,” unless he avail himself of a petition for re-hearing, within four years after decree, if he be without the limits of the United States, and within two years if he be within any of the other States except South-Carolina. The jurisdiction of this Court cannot be extended, upon any sound principle, to the case of one named as a defendant, where neither his person nor his property which is the subject of litigation, is within the State; but in the suit in which a decree was made against the present plaintiff, the property-in controversy, according to his pleading now, belonged to him in whole or in part, in respect to which property he was under the Act a regular party. He made no application to the Court for relief by petition for re-hearing or otherwise within two years, the term of limitation applicable to his case, after the decree had been pronounced and fully executed. Statutes of limitation create positive and conclusive bars, which cannot be avoided in any particular case from considerations of inconvenience or hardship in their operation. Cases of hardship must arise under every such statute. If one in the condition of the plaintiff is entitled to be heard after two years against a decree, the Act is a nullity, and he can be barred only by the presumption arising from the lapse of twenty years. It is always unsafe to look beyond the judgment of the Court into the reasons which may have influenced the Judge who pronounced the judgment. Frequently sound conclusions are attained upon false premises. If a judgment or decree be dependant for force or extent on the reasons which may be assigned for it, then it must be examinable without limitation as to time for any error of fact or of law. Inattention of parties, perversity of witnesses, mistakes of counsel and judges, frequently defeat or diminish the right in forensic contests; but it is much more important to the commonwealth that an end should be put to litigation, than that every case should be rightly decided and for right reasons. If the operation of the ‘ ideo consideratum est be proportioned to the soundness of the argumentation on which it is based, then there is a wilderness for the march of writs of error, motions for new trial, petitions for re-hearing and bills of review.

It does not appear upon what facts and reasons the Court proceeded in the decree of June, 1850, to exclude the plaintiff from succession to the estate of his intestate brother; and where we are left to conjecture, we may adopt any hypothesis consistent with the pleadings, which will sustain the decree. If we suppose that proof was made that plaintiff released his interest to those who took under the decree, or that he was illegitimate, then he was rightly excluded. Error may still remain as to the mode and measure of distribution directed by the decree, but that is error not affecting him if he be excluded altogether. His cause of complaint is that the half brother was admitted to any share, and not that such share was too small. But the inquiry as to error is immaterial. Wherever the Court has jurisdiction as to the subject and parties, its judgment must be conclusive on all parties and privies, notwithstanding any error of fact or of law, until it be reversed, or be vacated for fraud. The bill in this case makes no charge of fraud in procuring the decree, and it is framed for reclamation of the money paid under the decree, and not for vacating the decree itself; and if it had been framed to set aside the decree, only one (besides the plaintiff) of the original parties is properly before the Court.

The plaintiff in his bill alleges by way of excuse from the bar of the Statute, that he had no notice of the publication or of his brother’s death, until a time within a year before filing the bill. If he be understood by this negative pregnant as admitting notice of the publication for a full year before filing this bill, then he confesses laches for two months and more before the bar of the Statute was complete. But it is unnecessary to take any such narrow view. The Statute does not require proof, impracticable in most cases, of actual notice of the suit to an absent defendant; and puts publication in a newspaper for three months in place of service of process to answer. In the present instance, unusual efforts were made to bring before the Court all persons claiming shares in the estate, by publication calling them in, made in three newspapers in as many States, and continued for two years after the order pro confesso.

It is argued that the decree in the former case is not against the present plaintiff, but only in favor of other parties to the suit, and is therefore not binding on him. A decree directing an estate to be distributed among particular parties to the suit, is necessarily a decree against the claims of all other parties to the suit. Dyson vs. Leek, 5 Strob. 143.

The'third ground of appeal suggests that the circuit decree violates the Constitutions of the State and of the United States. It does not appear to us that any constitutional question is involved in the case.

It is ordered and decreed, that the appeal be dismissed, and the circuit decree be affirmed.

Johnston and Dunkin, CC., concurred.

Appeal dismissed. 
      
      
         5 Rich. Eq. 55.
     