Peter Vivian Daniel

“ In reference to the first inquiry, it would seem to be a legal truism, too palpable to be elucidated by argument, that no person can be bound by a judgment, or any proceeding conducive thereto, to which he never was party or privy; that no person can be in default with respect to that which it never was incumbent upon him to fulfil. The court entering such judgment by default could have no jurisdiction over the person as to render such personal judgment, unless, by summons or other process, the person was legally before it. ”

“ There is avowedly nothing like personal notice to the parties interested as defendants; they are not even named; and the right of the plaintiff depends entirely upon the fact, to be proved by affidavit, that the owners are unknown.' The Chief Justice, after showing the insufficiency, by proof of the affidavit, according to the requisition of the statute, says: 'The record then states, that at a subsequent day the plaintiffs appear, by their attorney, and the parties unknown being solemnly demanded, come not, but make default. ”

“ The want of jurisdiction makes it utterly void and unavailable for any purpose. The cases in the English courts, and in those of our sister States, are very strong to show that judicial proceedings against a person not served with process to appear, and not being within the jurisdiction of the court, and not appearing in person or by attorney, are null and void. ”

“ A court may be authorized to exert its powers in reference either to persons or things-may have jurisdiction either in personam, or in rem, and the existence of that jurisdiction, as well as the modes of its exercise, may vary materially in reference to the subject-matter to which it attaches. ”

“ At this point it is proper to advert to the character and effect of the process in the suit of Harris and Hardeman, as constituting service upon the defendants in that suit, and thereby investing the court with jurisdiction over their rights. If the rule prescribed by the statute of Mississippi, already referred to, is to govern in this case, it is presumed that a doubt will, or can hardly be raised as to the insufficiency of the service, as there are not less than three instances in which the requisites of the statute have not been complied with. ”

“ That a judgment is conclusive upon parties and privies, is a proposition not to be denied; but if a court has acted without jurisdiction, the proceeding is void, and if this appear on the face of the record, the whole is a nullity.' After quoting the opinion of Chief Justice Thompson, in Borden v. Fitch, 15 Johnson, 121, Chief Justice Savage goes on to say: 'With respect to the proceedings in partition, now the subject of consideration, there can be no doubt that the court, in which the judgment was rendered, had jurisdiction of the subject of partition ”

“ Amongst other proceedings upon this judgment, a writ of fieri facias was sued out in March, 1840, was levied on sundry slaves, the property of Hardeman, and the forthcoming bond in question executed by him on the 20th of April, 1840. In pursuance of this forthcoming bond another fieri facias was sued out on the 11th of June, 1840, and upon this last writ was indorsed on the 8th of October, 1840, a cessat executio by the plaintiff's attorney. ”

“ Smith, 16 Peters, 303, we proceed to compare the proof of service as apparent upon the return of the marshal, with the requirements of the rule in question. This rule has been already quoted. The return of the marshal has also been given totidem verbis. ”