Page:Borden v. State ex rel. Robinson.pdf/1

 

BORDEN ET AL. vs. STATE, USE &C.

 

By the Court: SCOTT, J.—Notice before judicial sentence is not a law of nature; or, at least, not such in a sense that would make a human law nonobligatory that would circumscribe the sphere of its operation. Nor has the common law consecrated it as such by a strict conformity to its mandates.

It follows that there may be an obligatory law paramount to the law of notice before judicial sentence.

By the common law the judgment of a superior court is not void, but only voidable by plea on error.

As a consequence of this law, the judges of these courts are protected absolutely and universally from prosecution or suit for what they do in their judicial capacity.

The existence of this rule of law and this consequence, besides being established by authority, is maintained by the consideration that among the powers vested by law in these courts is the power to decide upon their own jurisdiction.

The rule being established that the judgments of superior courts are not void, but only voidable by plea on error, when this rule comes in conflict with the law of notice before judicial sentence it must be regarded as paramount, because it affects the public interest, whilst the latter looks to the protection of private rights, and it is a maxim of law "that a private mischief shall be rather suffered than a public inconvenience;" and because furthermore, the question whether there has been notice or not, relates not to the investiture of judicial power, but to its rightful exercise.

But the rule that judgments of superior courts are not void, but only voidable by plea on error, though a very general rule, is not adopted as universal; and is subject to exceptions; for example, if a circuit court were to assume jurisdiction of a matter committed by law to the probate court exclusively, or tbe county court were to assume jurisdiction of a military offence, or if the probate court were to try and condemn a man for high treason, such proceedings would be nullities. So a judgment might even be void under some circumstances, from some peculiar and inflexible policy of the law for the protection of infants, married women, idiots or lunatics.

The probate court being not only a court of record, but a constitutional court of fixed and permanent character invested with general jurisdiction and plenary power's over the matters committed by law to its peculiar cognizance, and open to superior review by appeal, is to be regarded as a superior court.

When the judgment of such court is collaterally drawn in question, jurisdiction of the subject matter appearing, jurisdiction of the person is not a legitimate subject of inquiry in such collateral proceeding. In this case a sheriff was sued for failing to execute a fi. fa. issued upon an