
    Anderson Miller et al. vs. Samuel Ewing et al.
    Where the process is not served on the defendants to a suit, but an attorney ' of the court where the suit is brought, files a plea to the suit for them, such plea will constitute an appearance to the action, and will authorize a verdict and judgment to be rendered in the case as to them ; a mere recital, however, by the clerk, that “ the defendants appeared,” &c. does not constitute an appearance for such defendants, and will not warrant a judgment against them.
    Judgments of the courts of our sister states and of this state, stand upon the same basis, and are of equal validity ; in either case the jurisdiction of the court rendering the judgment may, when the judgment is made the foundation of an action, be inquired into ; and if it had no jurisdiction, the judgment, by whichever court rendered, will be wholly void.
    Judgments are not merely prima facie evidence of their validity, but conclusive ; and the parties to them are estopped by the record from denying their obligatory force, where the jurisdiction of the court appears by the record : where, therefore, a suit was instituted against various defendants, on part of whom only process was served, but an attorney of the court filed a plea for all, upon which a verdict and judgment were rendered against them all, it was held to be incompetent for the court rendering the judgment to entertain, on a writ of error coram nolis sued out by the defendants not served, the question as to the validity of such judgment against them, on the ground that the attorney who filed the plea for them was not employed by them; and that, therefore, such court could not empanel a jury to ascertain the fact whether the attorney was employed for such defendants or not; the judgment was conclusive evidence of its validity, and could not be thus attacked at a subsequent term.
    Where a writ of error coram nolis with supersedeas, was sued out by defendants to a judgment, who sought to be relieved therefrom on the ground that they were not served with process in the original suit, and the attorney who filed a plea in the case for them was not employed by them, but filed it at the instance of the plaintiif’s attorney, to enable him to get judgment; it was held, that while the court had no power to disturb the judgment, the supersedeas should be retained until the defendants could apply to chancery for relief against the judgment on the ground of fraud.
    
      Whether, if an attorney, who is not retained by a party defendant to a suit, and without any authority whatever, files a plea to the suit for such party, who had not been served with process, and had no knowledge of such appearance for him, and a judgment on such appearance by the attorney is „ rendered against such party ; and the attorney be insolvent, irresponsible, and incompetent to answer the injury done, such party can obtain any relief against such judgment; — Quaere ?
    
    Where there is a judgment against three, and execution issues against four ; and the one against whom there is no judgment unites with one of the others against whom there is a judgment, in a writ of error coram nobis, and obtains a supersedeas as to both, it is error for the court to dismiss the entire supersedeas; it should he retained as to the one against whom there is no judgment.
    In error from the circuit court of Madison county; Hon. J. R. Nicholson, presiding judge.
    Samuel Ewing and James Cromey sued George R. Fall, as maker, and William H. Washington, as first, Anderson Miller, as second, and Alfred Cox, as third indorser of a promissory note. The suit was brought in the circuit court of Madison county, to its April term, 1838. Fall acknowledged service of process; and an alias process issued to Washington county for Miller and Cox; but no return was made upon it; the record does not show whether any writ issued for Washington.
    At the return term the following plea was filed, viz.
    “ And the said defendants Washington, Cox, and Miller, by their attorney, come and defend the wrong and injury, when, &c., and for plea say, that they did not promise and assume in manner and form, as the said plaintiff has thereof complained against them, and of this they put themselves on the country, &c. Ott, for defendants.”
    The record then recites as follows, viz.
    “And now, to wit, on the 18th day of May, A. D. 1838, this day came the said defendants, Fall, Washington, and Miller, by their attorneys, as well as the said plaintiffs, and on motion of plaintiffs’ counsel, this suit is dismissed as to defendant Cox; whereupon came a good and lawful jury to try the issue joined, to wit, &c. &c., who, upon their oath, do say, we the jury find for the plaintiffs, and assess their damage at sixteen hundred and forty-one dollars ; it is therefore considered by the court, that the plaintiffs recover of the said defendants, Fall, Washington, and Miller, the sum so as above by the jury assessed.”
    
      A. fieri facias issued on this judgment to Madison county, and was returned nulla bona as to Fall. Affidavit being made of Fall’s insolvency under the statute, a fieri facias against Washington was issued to Rankin county, which was returned nulla bona also; upon which, an affidavit of Washington’s insolvency was filed, and a fieri facias issued to Washington county, commanding the sheriff to make out of the “ goods and chattels, lands and tenements of George R. Fall, William H. Washington, Anderson Miller and Alfred Cox,” the sum of six hundred and forty-one dollars, which Ewing and Cromey had by the judgment of the court lately recovered against them.
    The sheriff of Washington county returned this execution “ stayed by supersedeas, April 20th, 1840”; and to the April term, 1840, of the Madison court the petition of Miller and Cox was filed, in substance, stating the circumstances under which the judgment was rendered, and that they had never been served with process of any kind; had no notice of the pendency of the suit until execution was issued against them, and had been levied on the property of Miller; that the attorney, Ott, was not employed by them, or either of them ; that he plead to the suit without their knowledge or consent, and that they had never recognized his appearance for them; that notwithstanding the dismissal of the suit as to Cox, an execution had issued against him. It was upon this petition, upon the execution of bond, that the writ of error coram nobis with supersedeas, was issued.
    A motion was made and sustained to discharge the superse-deas, to which Miller and Cox filed exceptions; from which it appears, that they proposed to make and try an issue of fact, as to whether John G. Ott was their attorney in the case; and on the trial of that issue, they proposed to prove he was not their attorney in that or any other suit; that Ott had no authority to appear for them in the suit; that his appearance was without their knowledge or consent; and was made at the request of the attorneys for Ewing and Cromey, to enable them to obtain judgment at that term of the court, for the purpose of making the money out of Fall, who was the principal in the suit; and that the appearance entered by Ott, was with the tinderstanding that it should not operate “prejudicially” to Miller and Cox. The court below refused to entertain the issue or hear the proof; and no further testimony being offered, it dismissed the petition and supersedeas, and the defendants Miller and Cox sued out this writ of error.
    
      D. Mayes, for plaintiffs in error.
    1. That the entry on the record that a party appeared by attorney, or a return by a sheriff, or his general or special depu*;, if executed on the defendant, shall conclude that defendant, would be an estoppel of the most appalling kind. It rests upon none of the reasoning which renders records and judicial determinations conclusive; and the same reason of policy which dictates the latter, excludes the former. In England, the appearance by attorney might, with some show of propriety, be held to conclude the party ; for there the warrant constituting the person who appeared as attorney the actual attorney of the party, was indispensable, and the appearance was made by acts of the attorney in court. That the attorney of the court, who claimed to be the attorney of the party, was, in point of fact, constituted his attorney by the party, was therefore a matter to be inquired into, and of which fact high evidence was required, to wit, the warrant of attorney. The fact, therefore, that the attorney who entered the appearance, was in truth the attorney of the party, was a fact judicially inquired of, and ascertained in each case. It was a fact in the cause, ascertained and recorded, as much so as the fact that the attorney appeared.
    But how is it here 1 Any man who has leisure to practise law, (and a sprightly man may in a month’s time prepare for this,) may write a plea on a slip of paper, put it in the cause, no evidence of my having entrusted my rights or defence to him being required.
    This court will judicially know the usages and practice of the inferior courts, and will construe their records with the aid of that knowledge. The record may estop the party, a? to any fact which it contains, when thus construed; and this is the whole extent to which the doctrine can, upon sound principles, go. The entry, “This day came the parties by their attorneys;” or, “This day came the defendant by his attorney,” being thus construed, only means, that there was an appearance, by attorneys, representing themselves to be the attorneys of the parties; and not that, in point of fact, the parties had constituted them their attorneys, in that cause. For this is a matter never judicially inquired into, or in any way ascertained. And for a record to estop, save as to matters which have been inquired into — and as to which, upon such a construction, it is wholly silent, would be as d'angerous as it is manifestly unjust. It would also be dangerous to hold that it was no evidence of the fact. But the difference is that between prima facie and conclusive. In the great majority of cases the attorney who appears is employed by the party. And according to sound rules it should be presumed that he was au~ thorized to do so, until the contrary appears. All that I contend for is, that it should be open to inquiry.
    2. Wherever the fact which gives the court jurisdiction of the party or the subject-matter is a fact inquired into and judicially ascertained in the cause, then the record ought to be and is conclusive. See Brittain v. Kinnaird, 1 Brod. & Bing. 432; S. C. 4 Moore, 50 ; 3 Phil. Ev. 50.
    But when the fact which gives the court jurisdiction of the party is not the subject of judicial inquiry in the cause, the record should not conclude as to such fact. In Hall v. Williams, 6 Pick. R. 232, it appeared by the return that no process had been served on F., a plea was filed by the attorney for the other defendant, and the record stated that W. & F. came by their said attorney, the court decided that it could not be held an assertion on record, that F. appeared to the action. In Aldrich v. Kinney, 4 Conn. R. 380, evidence by defendant, that he had no legal notice, and did not appear was admitted, although the record expressly stated, that the defendant appeared and plead by attorney. Starbuck v. Murray, 5 Wend. 148, is a strong case, in which the record is held but prima facie, and the reasoning of the court seems to be conclusive. The broad ground is here taken, that the appearance is necessary to give jurisdiction over the person of the defendant; and that any fact stated in the record, upon which jurisdiction depends, may be controverted by pleading and proof as fully as facts may be disputed to which the record has no relation. “ It appears to me,” says Judge Marcey, “that this proposition (the conclusive effect of the entry) assumes the very fact to be established, which is the only question in issue. For what purpose does thre defendant question the jurisdiction of the court ? ' Solely to show that its proceedings and judgment are void, and therefore the supposed record is not in truth a record. If the defendant had not proper notice of, and did not appear to the original action, all the state courts, with one exception, agree in opinion, that the paper introduced, as to him is no record. But if he cannot show, even against the pretended record, that fact, on the alleged ground of the uncontrollable verity of the record, he is deprived of his defence by a process of reasoning, that to my mind is little less than sophistry. The plaintiffs in effect declare to the defendant, — the paper declared on is a record, because it says you appeared, and you appeared because the paper is a record. This is reasoning in a circle. The appearance makes the record of uncontrollable verity, and the record makes the appearance an uncontrollable fact.” This reasoning does seem irresistible, but the court will examine the case itself, and it will be found to stand on a foundation not to be shaken. On the only foundation that can, to an independent mind, give the weight of authority to any judicial determination, or settle any question which involves the rights of man. That is the authority of right reason bestowed by God himself, upon his creature man, as the supreme director of all his actions, and the final arbiter of all his rights. Judge Co wen, whose opinions are entitled to no small consideration, refers to the case of Starbuck v. Murray, with unqualified approbation, and in his 3 Phil. Ev. 801, refers to Latham v. Edgerton, 9 Cow. R. 227; Mills v. Martin, 19 John. R. 33; Borden v. Fitch, 15 lb. 141; Slocum v. Wheeler, 1 Con. R. 429; Buitrick v. Allen, 8 Mass. R. 273; Bissell v. Briggs, 9 lb. 462; Jacobs v. Hull, 12 lb. 25; Kilburn v. Woodioortk, 5 Johns. R. 37; Fenton v. Garlick, 8 lb. 194; Pawling v. Bird's Executors, 13 lb. 192; Phelps v. Holker, 1 Dali. 261; Kibbe v. Kibbe, Kirby’s R. 119; Stay ell v. Westcott, 3 Day’s R. 349; Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnell, 3 Wheat. 234, note(e) ; Hay dock v. Cobb, 5 Day’s R. 527; Smith v. Rhoades, 1 lb. 168; Den-isson v. Hyde, 6 Con. R. 508. I have carefully examined these cases. Some of them have no direct bearing, but they rest on principles wholly sound, and confirmatory of the position for which I contend. It is a well established rule that we may at all times raise the question of jurisdiction. If so, of what value is the right, if the record concludes us as to the fact upon which the jurisdiction depends 1
    
    
      W. Thompson, on same side.
    
      Shackleford, for defendants in error.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

Miller and Cox obtained a supersedeas to a judgment against them in the circuit court of Madison county, in favor of defendants in error, which on motion was discharged in that court, and the case comes up to reverse the judgment on that motion. The facts are to' the following effect: The suit was against the maker and indorsers of a promissory note, Miller and Cox being the second and third indorsers. Process was issued to Madison county for the maker and first indorser, arid to Washington county for Miller and the last indorser, but was not returned. To the declaration a plea was filed by an attorney of the court, commencing in these words: “ And the said defendants, Washington, Cox, and Miller, come and defend,” &c. The plea was the general issue, and the plaintiff obtained a verdict and judgment. An execution issued, which was levied on the property of Miller; he petitioned for a writ of error coram nobis and supersedeas, stating in his petition that he had never been served with process; that the attorney who filed the plea was not employed by him in that or in any other case, and that he knew nothing of the suit or judgment, until the execution was levied on his property.

At the hearing of the motion the defendants in the court below proposed to make up an issue, to try whether Ott was their attorney, and proposed and offered to prove that the attorney was not employed by them; that he had no authority to appear in the suit; that such appearance was unknown to plaintiff in error, and had never been approved. That the plea was filed at the request of the plaintiff’s attorney, in order that his clients might get a judgment at that term against the maker of the note. That this was done under a promise from the attorney of Ewing and Cromey, that the appearance and judgment should not operate prejudicially to the other defendants; but the court refused to allow the issue and proof to be made.

The apparent hardship of this case has induced us to examine into the question involved, with great care. In the case of Jones et al. v. Hunter et al. 4 How. 342, a plea like this, for the defendants generally, was held to be an appearance of all the parties, although two of the defendants had not been served with process. The same question was decided in the same way, in the case of Henderson v. Hamer et al. 5 How. 525. This question has been the subject of adjudication in other states, and has been decided in the same way. McCullough v. Guetner, 1 Binney, 214; Hills et al. v. Ross, 3 Dallas, 331. This precise point received a very full consideration by Chancellor Kent, whilst chief justice of the supreme court of New York; and his conclusion was, that a party was bound by the appearance of an attorney of the court, although he had not been served with process, and had not authorized the attorney to appear for him. Denton et al. v. Noyes, 6 Johns. 296. The cases of Hall v. Williams, and Starbuck v. Murray, so much relied on, have been examined, and whilst they tend to establish the position assumed, yet they do not meet the precise question. They were both actions brought on judgments recovered in sister states, and the question was, how far they were conclusive under the constitution of the United States. The general inclination of the authorities has been to regard such judgments as foreign, and open to inquiry. The first case was an action brought in Massachusetts against Williams & Fiske, on a judgment rendered against them in Georgia. The plea was that they had not been served with process. Another plea was, that Fiske never was an inhabitant of Georgia, and had never been served with process, to both of which the plaintiff replied that they were estopped by the record. On inspection of the record it appeared from the officer’s return, that Williams had been served with process, but Fiske had not. Williams' alone filed a plea. In a subsequent part, however, the record states that, “afterwards, to wit, on, &c., came the within named Henry Hall, &c., as well as the within named Edward Williams an'd Abijah Fiske, within named, by their attorney, &c.” It seems that on a verdict against them, the court rendered judgment against both, by name. The question was, whether Fiske was estopped. This was evidently mere recital by the clerk. The court decided that where there is no appearance and no notice, and the record shows such to have been the case, the judgment is not binding on the party. On this ground the judgment was not regarded as conclusive on Fiske, because' there was no appearance for him. The court seemed to lay much stress on the fact that the attorney appeared for Williams alone, and it was thus virtually conceded that, if the record had shown an appearance for Fiske by attorney, he would have been estopped.

The case of Starbuck v. Murray was an action commenced-in New York on a judgment which had been rendered in Massachusetts, on a proceeding commenced by attachment. The defendant pleaded that he had not been served with process, and had not appeared in person, or by attorney; the plaintiff replied that he was estopped by the record, which declared and averred that the defendant appeared; the replication concludes with a readiness to verify by the record, and the defendant demurred. The question was of course as to the sufficiency of the replication ; and it was evidently bad. We have just seen that a mere recital that the party appeared, does not conclude him, and the same point has been decided in the same way by this court. After a very full investigation of the question, the court decided that the second plea, which averred that the party had not been served with process, and did not appear by himself or attorney, was a good defence to the action. It is a question which does not admit of doubt, that such a plea is good ; the sufficiency of the plea was not the direct question; it was as to the sufficiency of the replication, which did not aver an actual appearance of the party, either by himself or attorney; but only that the record averred that the party appeared. It was an effort to raise an estoppel by matter which was not in effect an estoppel. But the case does not decide that if the record shows affirmatively an appearance of the party by plea, either by himself-or by attorney, that he will be permitted to deny such appearance. The case of Aldrich v. Kinney, 4 Conn. R. 380, is a more' direct authority than any that has been found. It decides that proof may be introduced to show that the attorney was not authorized to appear. That too was the judgment of a sister state, and the decision seems to be predicated on the rule of decision which had been adopted by other courts, that want of jurisdiction might be shown, on the principle that the judgment of a sister state is not conclusive unless the court had jurisdiction of the person and the subject-matter. We have said that an inclination has been manifested to consider the judgments of a sister state as foreign judgments, or at least as something lower in dignity than domestic judgments. And in order to make the judgments of sister states something less than domestic judgments, many of the decisions leave it as an inference to be drawn from the language used, that domestic judgments are higher in dignity than they really are. Thus it is said in a leading case “that judgments rendered in any other of the United States are not, when produced here as the foundations of actions, to be considered as foreign judgments, the merits of- which are to be inquired into, as well as the jurisdiction of the courts rendering them. Neither are they to be considere^ as domestic judgments rendered in our own courts of record, because the jurisdiction of the courts rendering them is a subject of inquiry.” Similar language has been used in other case’s. What is the reason given as constituting the difference? “ Because the jurisdiction of the courts rendering them is a subject of inquiry.” And is not the jurisdiction of the court on domestic judgments, when made the foundation of an action, the subject of inquiry? Is any domestic judgment conclusive unless the court had jurisdiction of the parties, and of the subject-matter of the suit? Surely not. Then the jurisdiction of the court is always a subject of inquiry, and there is in reality no difference between domestic judgments and the judgments of the courts of a sister state, when made the 'foundation of an action. The constitution of the United States places them all on the same footing, and this was the doctrine decided in Mills v. Duryer, 7 Cranch, and afterwards adhered to in Hampton v. McConnell, 3 Wheaton, 234. We admit then that the jurisdiction of the court is a subject of inquiry, even in the judgments of our own courts; but how is the inquiry to be made ? That is the question. It is a question of evidence, and comes down to this; will parol evidence be received in a court of law to contradict the record by proving a fact to be untrue, which is affirmatively asserted to be true on the record ? If so, then any fact may be disproved ; one, as well as another. This would be making judgments but prima facie evidence — good until disproved. If a party may open and reverse a judgment, by denying that he appeared by attorney, he may also deny an appearance made in proper person. It would open the door to an inquiry as to the employment of an attorney, or as to the appearance of the party, to be decided by a jury, and judgments, instead of being the end, would often be the beginning of litigation. A judgment, before it could be said to import verity on its face, would require the aid of a second judgment, establishing the jurisdiction of the court in the first.

In the case cited from 6 Johnson, Chancellor Kent stated the rule of the king’s bench to be, that if the attorney was not responsible, or competent to answer his client, the court would relieve against the judgment; he added, that he was willing to go further, by letting the defendant make his defence to the suit, leaving the judgment to stand as a security to the plaintiff. And he also said that collusion between the plaintiff and the attorney who appeared would alter the case, but does not say what remedy he would have applied. The facts of this case, if truly stated, seem to savor of collusion, and to call for relief. But as the court cannot at a subsequent term set aside its judgments, or reverse them for anything but errors of fact, the relief must be found in the control which a court will exercise over its own process to prevent it from being used as an instrument of oppression, by staying proceedings until the judgment was attacked by bill in chancery, for fraud. Supersedeas ought not, under the circumstances, to have been discharged, although the judgment ought not to have been disturbed. The supersedeas was improperly discharged, for another reason, so far as Cox was concerned. There was an execution against him without a judgment, the suit having been dismissed as to him. He had joined in the application for the supersedeas, and by discharging it the court in effect sustained an execution against him without a judgment.

The judgment discharging the supersedeas must be reversed, and the cau.se remanded, to be disposed of according to this opinion.  