THE

Central Law Journal

ALEXANDER H. ROBBINS, Managing Editor
NEEDHAM C. COLLIER, Editor - in - Chief

VOLUME 85

JULY— DECEMBER, 1917

If a

Central Law Journal.

its mere assertion of its own power, even where its power depends upon a fact and

it finds the fact." ST. LOUIS, MO., JULY 6, 1917.

He says, however, that: "When the power DUE PROCESS OF LAW NO PROTECTION

of the court in all other respects is estabAGAINST IMPERFECTION IN JUDICIAL lished, what acts of the defendant shall be REASONING.

deemed a submission to its power is a mat

ter upon which states may differ. The case of Chicago Life Ins. Co. v. statute should provide that filing a plea in Cherry, 37 Sup. Ct. Rep. 492, appears abatement, or taking the question to a high

, Very suggestive as to the enforcement of er court should have that effect, it could thie faith and credit clause of the federal not be said to deny due process of law. The Constitution.

defendant would be free to rely upon his

defense by letting judgment go by default. Associate Justice Holmes thus states the situation : "This is a suit in Illinois upon a

li, without a statute, a court should decide, ji:dgment recovered in Tennessee against

as we have supposed the statute to enact, it

would infringe no rights under the Constithe insurance companies, plaintiffs in er

tution of the United States." ror. They pleaded and set up at the trial that there was no valid service upon them

The justice then speaks of taking a quesin Tennessee and that the judgment was

tion of jurisdiction to a higher court as also void. The defendant in error showed in amounting to submission in the lower court, reply, without dispute, that the defense and then, curiously to us, he speaks as folwas urged in Tennessee by pleas in abate- lows: "It can be no otherwise when a court ment; that, upon demurrer to one plea and

so decides as to proceedings in another state. upon issue joined on the other, the deci- It may be mistaken upon what to it is a matsion was for the plaintiff; and that the

ier of fact, the law as to the other state. judgment was affirmed by the appellate

But a mere mistake of that kind is not a court, and a writ of certiorari was denied denial of due process of law. Whenever a by the supreme court of that state. The wrong judgment is entered against a deinsurance companies say that the present

fendant, his property is taken when it judgment deprives them of their property

should not have been; but whatever the without due process of law."

ground may be, if the mistake is not so im

possible in a rational administration of jusThe appellate court of Illinois, to which

tice, it is no more than the imperfection of the writ of error in this case was directed,

man, not a denial of constitutional rights. held that, as the issue of jurisdiction over

The decision of the Illinois court, right or the parties was raised and adjudicated after

wrong, was not such a denial.” full hearing in the former case, it could not le reopened in this suit on the judgment.

It is a little difficult to say upon what Ii was said by Justice Holmes, speaking of particular principle this case was ruled. It the holding by the Illinois court, that: “The

may be true that the filing of a plea in matter was thought to stand differently

abatement in the Tennessee court could be