
    
      Marcus Upson v. Jacob Horn.
    
    On appeal from the decree of the Ordinary, ordering a sale of land for a division, upon the ground that the applicant had been permitted to serve the summons in partition on the defendant — the Court refused to disturb the decree.
    A decree of the Ordinary cures any previous irregularity not positively fatal.
    Constitutionally and legally, the judgment of every Court, within its jurisdiction, is res judicata,.
    
    
      Before Frost, J. at Edgefield — March Term, 1848.
    TRESPASS TO TRY TITLES.
    The plaintiff claimed under a deed of conveyance from the Ordinary of Edgefield district, dated 7th July, 1845. The land had been sold by the sheriff, for partition among the heirs of George Horn, under an order made in the Court of Ordinary, in June, 1845. One Daniel Boon was the applicant, who had purchased the interest of one of the heirs.— He was permitted by the Ordinary to serve the summons on the parties, and had made return, on oath, of the service on the defendant, who was one of the heirs. Col. Hill, the Ordinary, testified that the defendant appeared at the return of the citation and objected to the sale, saying he had purchased the interest of some of the distributees.
    On the cross examination, Col. Hill said that the defendant appeared before the order of sale. It was on the return of the summons, — thought it was not on the sale day.— Daniel Boon was offered as a witness to prove the actual appearance of the defendant. He was at variance with the defendant. The plaintiff’s attorney said he had other witnesses who could prove Horn’s presence before the Ordinary at the return of the summons. The proceedings before the Ordinary were, in several particulars, irregular and imperfect. The defendant claimed the land by many years possession— said to be twenty years and upwards.
    The Circuit Judge held that Horn could only have been legally made a party to the proceedings in partition by evidence, on the record, of the service of the summons upon him; either by the return of the sheriff, or by his acknowledgment of service, in writing, on the citation. That the affidavit of the service by Daniel Boon, the applicant, indorsed on the citation, was not a legal service of the summons, by which the defendant could be concluded as a party to the proceeding; and that it was not competent to supply the want of a legal service of the summons, by parol evidence, that the defendant was present in the Ordinary’s Court, when the case was heard and the order made. And that the judgment having been without proof, on the record, of the defendant having been made a party, the order and all the proceedings, as against him, were void, for want of jurisdiction.
    The plaintiff submitted to a non-suit, and moved in the Court of Appeals for a new trial, on the ground:
    That his Honor, the Circuit Judge, erred in ruling that service on a defendant of a summons in partition, in the Court of Ordinary, could not be established by the return on the summons of personal service on him, made by the applicant, by the testimony of witnesses of the actual appearance in the Court of the defendant on the day when, according to the summons, he should have appeared, and by the decree of the Ordinary for partition, nor by parol evidence of any other fact; and could be established only by the return of service made by the sheriff, or the written acknowledgment of ser-vjce j^y ^ ¿efen(Jant.
    1 Bail. 25.
    
      i Bail. 512.
    1N.S McC. 408.
    
      Wardlaw, for the motion.
    
      Griffin, contra.
   Richardson, J.

delivered the opinion of the Court.

We need not decide finally whether Daniel Boon, a party interested in the sale of the land, was a proper person to serve the summons on the defendant to appear before the Ordinary; if the objection had been made before the decree to sell the land.

The facts are, that D. Boon did serve the summons — that Jacob Horn appeared and objected, not to the manner of the summons, but because he had'purchased the land of some of the heirs of Geo. Horn, the intestate freeholder. But the Ordinary ordered the sale, and the plaintiff, Marcus Upson, purchased the land at the public sale, made by the sheriff under the Ordinary’s decree, and'took a conveyance accordingly.

The question then occurs — does not such conveyance assure the land to Upson ? or, will the Court look behind the Ordinary’s decree, and hold it null and void 1 and, thereby, invalidate the title of Upson, on account of the irregular service of the original summons by D. Boon; though not objected to at the time of the decree; i. e. can the objection enure to set aside the purchase at this late day ?

In the case of Lyles v. Robinson, the Court decided that where a sum of money had been decreed by the Ordinary against the administrator, on his bond, he could not deny that he had been duly cited. In that case, on a collateral motion, made in a suit to recover the money, the Court held such decree final and conclusive, and the irregularity cured. Assuredly, then, and much less, will this Court lift the decision of the Ordinary; when it has been carried into effect, by the actual sale of the land, as in the present case; unless the irregularity be positively fatal. Non dormientibus subvenient leges, would seem the proper reply. In the case of Henry v. Ferguson, the Court unanimously held that, in a sale of land by the sheriff, they would not look beyond the judgment for irregularities. They considered the judgment authoritative, as long as it stood unreversed. Among several of our own cases, bearing on this point, see Barkley v. Scriven, where the Court say, “ the purchaser is not required to look into the regularity of the proceedings in obtaining the judgment.” So, also, the sale of the land, in the recent case of Ingram v. Belk, was upheld, although there was irregularity in the original writ of sci. fa. under which the land was sold. And in the more recent case of Sherman v. Barrett, the Court of Errors refused to look beyond the judgment from which issued the process of contempt. In that case, as in the one now before the Court, the party to the proceedings moved to have them set aside, after the judgment had been obtained. —

l Bail 267.

In such cases the party having omitted to object to the supposed irregularity, when he might have objected, leaves a just inference that he acquiesced in the manner of such proceedings ; and, therefore, all objections prior to the judgment, were concluded. Is it not plain, that if such untimely objections were upheld, judgment would no longer be the final res judicata, which estops further litigation ; and reviews or new trials might be had by the device of wilful omissions of unessential points at the proper opportunity? The motion on the circuit, in the present case, went to overturn the entire decree. If it prevailed, the Ordinary would have to proceed de novo, and make another decree. Whereas constitutionally and legally, the judgment of every Court, within its jurisdiction, is res judicata. The case of Samuel Singletary v. Geo. Carter, is one of the adjudications relied upon to warrant the Circuit decision : and it will serve well to illustrate the distinction before us. John D. Singletary and Samuel Singletary had obtained judgment against George Carter. John D. Singletary was a deputy sheriff; he levied upon Carter’s land — sold it, and his co-plaintiff, Samuel Singletary, purchased ; and the Court held the sale absolutely null and void, because the levy had been made by a deputy sheriff, who was one plaintiff, and the other plaintiff bought the land. — The point of the argument from this case, is that D. Boon’s service of the summons is no better than Singletary’s levy on Carter’s land. Doubtless the adjudication in Singletary v. Carter, was sound and legal. It is wise to restrain officers from proceeding to have their own judgments satisfied through their own official levy, and by a consequent purchase by themselves. But the objection was not, as in the present case, to the judgment against Carter; it was to the subsequent levy and sale of Carter’s land. Such posterior proceedings were no part of the original res judicata, and were never before the Court till the trial to decide the title of Samuel Singletary. It therefore remains to be adjudged, (if the sales had been regular, and only the original writ against Carter, served by the plaintiff, J. D. Singletary,) whether the judgment would have been set aside by reason of such stale objection to the service of the writ. The distinction is obvious; and notwithstanding the general strictures in Singletary and Carter, it may be questionable whether a judgment of record would be set aside upon the mere fact that an interested deputy sheriff had served the original writ. The cases I first cited, indicate very differently; at least after judgment. And see Chit. G. P. p. 262, and many cases cited to shew the contrary, even if the objection had been taken before the judgment. Any one may serve a process. But such are por our present consideration. To conclude, then, the distinction recognized in the cases I have first cited, is between irregularities in obtaining the judgment, which are concluded, ipso facto, i. e. by the rendition of the judgment; and such irregularities as occur after the judgment, which could not have been before considered. This was Singleta-W’s case ; and be it conceded that that case has some general dicta bearing upon the one before the Court. But the adjudication proper of that case, rests upon legal principles, admissible in this case only if D. Boon’s agency had occurred after instead of before the Ordinary’s decree. A new trial is therefore ordered. I would not have dwelt upon the distinc-^on uPon which the case turns, and which seems to speak for itself, but because of similar attempts made to set aside former proceedings, and in this way to force a rehearing; and because all the Court may not have felt as fully as myself, the principle of judicial estoppels to past litigation, after judgment.

°w‘ 4 J?’ 2R?593- i Bin. 145 • i Bail. 448; 3 strob. Tidd. 88; 2 Ñ. &McC.25; Plow.a,76 a.

O’Neall, J. and Evans, J. concurred.

Motion granted.

Frost, J.

dissenting. It was held, by the Circuit Judge, that a person, resident in the jurisdiction, can be made a party to proceedings in partition, before the Ordinary, only by service of process by the sheriff; or by some disinterested person; or by confession on the record. And that service of the summons by the applicant, is illegal; and a judgment, rendered on such service, void; and cannot be made valid by the testimony of witnesses, that they saw the defendant in the office of the Ordinary, the day the order for sale was made. In reversing the Circuit decision, it must be affirmed that the summons to the defendant may be served by the applicant; and that his oath is sufficient evidence of the service ; or if not, that one may be made a party to proceedings for partition, by parol evidence.

By the Act of 1824, 3 sect. 6 Slat. 248, the summons for partition by the Ordinary must be served “ by the sheriff,” or “ by any disinterested person,” “ or may be consented to, by a written acceptance of the parties interested, indorsed, by the Ordinary, on the original summons.” The Act of 1839, 27 sect. p. 45,11 Stat. requires that persons interested in a partition, shall be made parties in the same manner as is provided, by the Act, in the proceeding to prove a will in solemn form. The 11 sect. p. 41, requires all persons having an interest for or against the probate of the will, who may be in the State, to be cited “ by personal notice.” No precise mode of citing the persons, so interested, is expressly provided. In the 21 sect, p 43, which directs how witnesses shall be sum-luoned, a general direction is introduced that it shall be the duty of the sheriff to serve all process, issued from the Court of Ordinary, in the same manner as other process is served by him.” And in the 27 sect. p. 45, the Ordinary is empowered on the return of the original summons, served, accepted, or consented to,” to proceed and determine the matter.

2 McC. 470; _ 1 ai ’ 2 Rich, 594

It is not necessary to settle the proper construction and effect of these enactments. If the Act of 1839 be obscure or defective, the most obvious authority, to aid or supply its imperfection, is the Act of 1824. But it is sufficient for this case, that service by the applicant, himself, is not declared to be legal and sufficient. Such service can then only be held sufficient by the rules of the common law.

It is a maxim of the common law, resting on the most obvious and stable principles of justice, that a party cannot testify in his own cause. The minutest pecuniary interest in the issue is sufficient to exclude the testimony of a witness; and yet in this case it is held that the plaintiff may, by his own act, charge the defendant; and by his owii affidavit supply the evidence necessary to the recovery of a judgment. In May v Walter, it was held that a sheriff cannot, even by his own deputy, serve a writ in his own case. In Singletary v. Carter, a levy made by a deputy sheriff under an execution in which he was plaintiff, was ruled to be void j and that a sale, made under such levy, vested no title in the purchaser. Colcock, J, takes the broad ground that no officer who is interested in a suit shall serve any process appertaining to it, from the beginning to the conclusion. The reasoning of the judge applies as well to a private person as to an officer. He says the common law has been eulogised as a system of reason and justice; and asks whether a proposition can be stated, which would be more universally concurred in, than that no officer should be permitted to act in his own case.

3 Chit. Geni. Prac. 262, and other authorities have been cited to shew that process may be served by a party; but on referring to them it will be found that the practice rests on British statutes not of force in this State.

If the service of the summons on the defendant by the plaintiff be illegal, then it appears, on the face of the proceedings, that the defendant was not a party to them. Can he be made a party by the testimony of witnesses that they saw him in the Ordinary’s office, the day the summons was returned 7 In Gates v. Trick, it was held that an order for the sale of land, by the Ordinary, in partition, is final and conclusive, and estops the parties from asserting, against a purchaser under the order, any claim or title which might have been put in issue in the proceeding for partition. Such evidence would then create an estoppel by parol; which has no precedent or analogy in the law. A judgment imports the highest certainty and obligation. It proves itself, and can be prove(j by no other evidence.- How does it comport with these attributes that its validity may depend on the uncertain and contradictory testimony of witnesses, respecting the presence of the defendant in Court, on a certain day 1 In Marshall v. Drayton, it was directly adjudged that “ no person can be made a defendant in a cause, except by process of the law, or by his own consent. The assent of the defendant to be made a party is inferred from his entering an appearance or pleading to an action, although the process with which he has been served be irregular; and although, indeed, no process be served on him. But it is apprehended that there is no case in which it will be inferred from a mere verbal assent; even if such assent be fully proved. It results, therefore, that it must be by matter of record.”

2N- c|6McC-

Tidd 474 ' '

It is necessary to attend to the distinction between irregularities by which a judgment is voidable merely, and such defects as make it void. Irregularity consists in a want of adherence to some prescribed rule or mode of proceeding, either in the omitting to do something that is necessary to the due and orderly conduct of the suit, or doing it an unseasonable or improper manner. A judgment, voidable for irregularity, can be set aside only by a party, on a proceeding instituted for that purpose; and until it be set aside, the sheriff may justify under it, and the purchaser acquires a good title. But all acts done under a void judgment are illegal, and all persons concerned in the act are trespassers. No title can be acquired under it. A judgment rendered without jurisdiction is void; and the objection may be taken in an action brought by one who claims title under the judgment. Jurisdiction can be acquired, in the case of one resident in the State, only by the service of process, notifying him to appear and defend the action. It is admitted that the judgment of a Court of competent jurisdiction is supported by the presumption that every thing necessary to its validity has been done. This presumption will supply all apparent irregularities. But it is a maxim of law that “ presumptio stat donee probitur in con-trarium.” If it appears by the record that the Court has not jurisdiction, presumptio cedit veritati. A judgment against A is binding though any or every part of the proceedings may be wanting; on the presumption that the Court would not illegally have rendered it. But a judgment against A and B on proceedings against A only, would be clearly void against B, because it appears, by the record, B was not a party ; and the objection could not be obviated by evidence that B was seen in the Court house the day the verdict was rendered. Mashall v. Drayton.

If then the service of the summons by the applicant was illegal, and cannot be validated by proof of the defendant’s presence in the Court of Ordinary, the judgment is void for want of jurisdiction, apparent on the record, so far as the defendant is concerned, and the plaintiff acquired no title, against him, by his purchase under the order for sale.  