The courts of one state may inquire into the right of another state to exercise authority over the parties to a judgment and the subject-matter of the action, and they may also determine whether the judgment is founded in and impeachable for a manifest fraud. In the very instructive case of Cole v. Cunningham,1 the Supreme Court of the United States, speaking through Chief Justice Fuller, said: "The Constitution did not mean to confer any new power on the states, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory. Therefore, it must be understood that the public acts, records and judicial proceedings referred to in the full-faith-and-credit clause of the Constitution are such as are made or had in courts of acknowledged jurisdiction. The faith and credit to be given to the judgment of a court of one state by the courts of another, is that same faith and credit that it would receive in the state in which it is rendered."

A court of competent jurisdiction of any state, having jurisdiction of the parties, would have the same unquestionable power to cancel a void judgment or one steeped in and impeachable for fraud, that it would have to cancel any other kind of a contract; and such courts may pass upon, fix and determine the rights of the parties the same as if no judgment had ever been rendered in the first place. This puts the proposition a little stronger than I have ever seen it put by any of the courts or authors, but, nevertheless, it is true.

In the case of Dobson v. Pearce, cited with approval by Chief Justice Fuller, the plaintiff, in a judgment recovered in New York, brought an action upon it in the Supreme Court of Connecticut, whereupon the defendant in the judgment filed a bill against the plaintiff on the equity side of the same court, alleging that the judgment was procured by fraud and praying for

relief. If he had merely defended against the New York judgment, upon the grounds that the judgment was procured by fraud, then his attack would have been a collateral one, and he would have been confined to the record alone for his evidence; but he made a direct attack upon the judgment in a separate suit filed on the chancery side of the court, and was permitted to go outside of the record and prove that the judgment was obtained by fraud. The plaintiff in the judgment appeared in and litigated the equity suit, and the Court adjudged that the allegations of fraud in obtaining the judgment were true, and enjoined him from prosecuting an action upon it. He assigned the judgment and it was held in a suit in New York, brought thereon by the assignee, that a duly authenticated copy of the record of the decree in the Connecticut Court was conclusive evidence that the judgment was obtained by fraud. This is no conflict of law nor conflict of jurisdiction, because the New York judgment was not a judgment. Any court in which a judgment is offered may call for an authenticated copy of the record for the purpose of ascertaining and passing upon the jurisdiction of the court in which the judgment was rendered.

The courts have had some trouble in determining just what jurisdiction is. Chief Justice Green, of New Jersey, has said that jurisdiction is simply power. Judge Van Fleet says that this is the best definition that he has ever seen. The word power may define jurisdiction more accurately than it can be defined by any other single word, but this word alone cannot possibly define it. In the early case of United States v. Don, the Supreme Court of the United States, speaking through Judge Baldwin said: "The power to hear and determine a cause is jurisdiction." From the language of the Court in this case, jurisdiction was defined to be the power to hear and determine. After

this definition had been quoted and approved by all the Supreme Courts of the land, learned and repeated by law lecturers of all the universities and law schools, and memorized by law students, in the case of ex parte Reed, the Court said in an obiter dictum not called for by the facts in the case: "We do not overlook the point that there must be jurisdiction to give the judgment rendered, as well as to hear and determine the cause." From this remark of the Court the definition of the word jurisdiction has since been defined by text-writers as "the power to hear and determine the cause and to give the judgment rendered." While this enlargement may be a little more explicit and may more readily carry a correct idea to the mind of the student, and even the practitioner, yet it adds nothing to the first definition of the Court. The judgment of the Court is really the determination of the cause. There can be no determination of the cause until the judgment is rendered. Courts do not try cases merely to ascertain what ought to be done. They try cases to ascertain what shall be done. If a court should be permitted to hear a cause and simply decide in his own mind what ought to be done, and then stop, the trial would be a farce. The cause is not determined until he renders his judgment, and the giving of the judgment is a determination of the cause. So the definition of Judge Baldwin, in the 6th Peters, will be found to express all the elements of jurisdiction.

It is not the hearing of the cause nor the mere ascertainment of the rights of the litigants that affects the parties to a lawsuit. It is the judgment given that affects the parties, and, if this is void, the jurisdiction to hear is of little or no importance. In determining the validity of a judgment, we are often led into a state of confusion from a mistaken conception that jurisdiction depends upon facts or the actual existence of matters and things instead of upon the alle

(5) 100 U. S. 13-23. (6)

Words and Phrases, Vol. 4, p. 3235.

gations made concerning them. In some cases, the jurisdiction of the court depends upon the existence of facts, and if, upon a trial of the case, the jurisdictional fact is not established by proof, the plaintiff's case falls for want of jurisdiction in the court to hear and determine his cause. This is true in a proceeding for a divorce under those statutes providing that the plaintiff, to obtain a divorce must have resided within the state in which he seeks relief for a definite period before the commencement of his action. If he fails to establish proof of his residence for the required period, by competent evidence, he must fail in the prosecution of his cause for want of jurisdiction in the court to hear his cause.

On the other hand, a court of original jurisdiction may be without power to entertain a suit for a sum below a certain amount. As in Arkansas, no suit can be brought in the Circuit Court upon a contract for an amount not exceeding $100.00, exclusive of interest. If a party brings a suit in the Circuit Court of Arkansas upon an account, stating in his complaint that the amount in controversy is $50.000, he will state himself out of the jurisdiction of the court, and the court will refuse to hear his cause for want of jurisdiction; but if the court should hear the cause and give judgment, this judgment would be rejected as void wherever it might be offered. But if such party, without any intent to deceive or impose upon the court, states in his complaint that the defendant owes him $1,000.00, the court will take jurisdiction upon the statements contained in the complaint and not upon the facts as they may actually exist, and the court will hear his cause. If it is shown by the proof that he is entitled to recover only $50.00, the court will give him judgment for that sum, whereas it would have refused to entertain his suit at all in the first instance if he had stated that the defendant owed him only $50.00.

When jurisdiction depends upon the existence of a fact and not alone upon the

allegation of a fact in the complaint, the court may hear and pass upon the issue tendered as to the existence of the jurisdictional fact, just as it may pass upon any other issue. Thus, in a proceeding for a divorce, where the plaintiff alleges that he has been a resident of the state for the required time, and this allegation is denied by the defendant, and the court having jurisdiction of the parties decides that the allegation is true, the issue as to this fact can never again be questioned in any other court, for the reason that both parties have had their day in a court of competent jurisdiction, and the question has been finally passed upon and determined. If, however, the plaintiff imposes upon a court and deceives the tribunal into a belief that the jurisdictional fact exists, and secures his judgment through default of the defendant, his judgment will be impeachable in any court of competent jurisdiction for fraud.

A domestic judgment of a court of general jurisdiction, whether the record shows. jurisdiction affirmatively or is silent upon the subject, is not subject to collateral attack based upon extrinsic evidence showing want of jurisdiction."

Judge Van Fleet, in his work on Collateral Attack, defines a direct attack on a judicial proceeding to be an attempt to avoid or correct it in some manner provided by law, and he defines a collateral attack as an attempt to avoid, defeat or evade it or to deny its force and effect in some manner not provided by law. I fail to see that either definition is wholly correct. A direct attack is never made merely for the purpose of avoiding a judgment, but it is always made for the purpose of destroying it.

Legal questions may come together like the meeting of land and sea, making a line of demarkation that cannot be crossed without a full knowledge of its presence. They sometimes, however, come together like the blending of the parched sands of Sahara

(7) Townsley-Myrick Dry Goods Co. v. Fuller, 58 Ark. 181.

with the tropical verdure of the Soudan; one side, gradually and almost imperceptibly, passing from the traveler's view, while the other side, as if by a process of dreamy imagination, rises slowly to his vision. The distinction between a direct attack and a collateral one may, on first view, seem to be of the blending kind. But when the distinguishing principles between them are known and understood, it will be seen that they meet like land and sea, and without the least difficulty the practitioner cannot help but see just how far he can walk and just where he must take a boat.

A void judgment may be defeated in a collateral attack, but, like a false witness, when so defeated in one case, it may appear dressed in the full gloss of validity in another case and necessitate another examination as to its character and credibility. But a direct attack is a proceeding to strike it dead.

Some of the courts have said that a direct attack is one in which the recitals of the record may be contradicted, and that a collateral attack is one in which the recitals of the record must be accepted as true. This prescribes the rule of evidence in a direct attack and in a collateral attack, but it does not define the distinction between them. If this should be accepted as a correct definition, then it would be within the power of a judge to exclude all evidence in any case except the record, and by so doing he would make the attack a collateral one. In any other case in which he might see proper to admit evidence aliunde, he would by his ruling make the assault a direct attack.

Confusion sometimes arises from a misunderstanding as to what the record in a case is. The record consists of all papers filed and all entries made upon the dockets and journals of the court, and, if these show that the court had jurisdiction, another court will not undertake to inquire into the truth of this showing through other or outside evidence, except in a direct proceeding

to contradict the record and show that the judgment is void.

It has been said that an attack upon a judgment in the wrong court or by the wrong party is a collateral attack. I do not think so. It occurs to me that any attack

A void judgment is one which has only the form and semblance of a judgment; as if rendered by a court having no jurisdiction. It is a judgment in name and form only.

Mr. Freeman, in his work on judgments, says: "A void judgment is in legal effect no

having it canceled, annulled, modified or vacated, whether with or without merit, before the right court or wrong court, or by the right party or by the wrong party, is a direct attack upon the judgment. I do not think that a mistake of a litigant as to his right to assail a judgment, or his error in going into the wrong court, or an error as to the merits of his case, would affect the character of his attack. If the wrong party brings a suit he will lose, of course, for the reason that he has no right to bring it. If he gets into the wrong court, he will lose. for the reason that he has taken the wrong course, and, like a traveler who has taken the wrong road, cannot reach his destination; and, if his case is without merit, he will fail through the prevailment of justice, but neither of these errors would change the character of his assault.

I have said that a void judgment is no judgment, and that it can neither give a right nor take one away; but under the decisions of the courts of many states this is not literally true. The court of Arkansas, for instance, refuse to give relief against a void judgment, unless the assailant of the judgment alleges and proves a meritorious defense to the original proceeding in which the void judgment is rendered. The rule of procedure is first to ascertain whether there is a valid defense and then to pass upon the validity of the judgment. If it is adjudged that there is no valid defense to the action, then the void judgment will not be disturbed. I have never been able to see the wisdom or correctness of this interpretation of the law and the reasoning of the courts in support of it is not convincing.

it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it, and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress. The first and most material inquiry in relation to a judgment or a decree then is in reference to its validity, for, if it be null, no action upon the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in any legislature or other part of the government can invest it with any of the elements of power o vitality."

This is the universally recognized effect of a void judgment, yet if a party, by imposition or deception upon a court, or through any other means can succeed in obtaining taining a void judgment in Arkansas, he is permitted to enjoy the full benefits and fruits of a valid judgment as if rendered in a wise and honest proceeding, until the defendant appears in court and establishes a valid defense to the wrongful and void proceedings. This enables a litigant in Arkansas, by imposition and fraud upon the court, to take a judgment against an absent defendant, and then compel the defendant to come into the courts of Arkansas and litigate his cause before he can be relieved of the burdens of a void judgment; and, if he fails to do so, his rights must suffer the same as if a valid judgment had been rendered against him. By imposition and deception successfully practiced upon a court, one party can bring another into the local

courts of Arkansas from the most distant parts of the world and compel him to assume the burden of proof and submit to a foreign jurisdiction attended by all its hardships and inconveniences.

An evil almost as great prevails in the state of Iowa and in some of the other states. In Iowa there can be no special appearance in a cause for the purpose of challenging the jurisdiction of the court, and if a party appears for the purpose of challenging the jurisdiction, he is deemed to be in court for all purposes. When a personal action is commenced in any of the courts of Iowa against an absent defendant, and he appears for the purpose of challenging the jurisdiction of the court, he is deemed to be in court for all purposes and must make his defense to the action. On the other hand, if a void judgment is taken against him and he appears in one of the courts of the state to have that judgment set aside, he can be met by a cross-complaint or a counterclaim, setting up the original cause of action upon which the void judgment was rendered.

Thus, it will be seen that the courts of Arkansas and Iowa, in an attempt to do substantial justice, extended their jurisdiction to every part of the world and have made it possible for an absent defendant to be brought into the courts of these states to

answer to a void proceeding or to litigate

the justice of a cause of action upon which a void judgment has been rendered. This

rule is destructive of the principles upon which our government was originally founded, and is but little short of one of the serious wrongs which Jefferson charged against King George the Third, in the Declaration of Independence, that of "transporting us beyond seas to be tried for pretended offenses." A man should know just where he can be sued and to what dictions he owes his allegiance.

that these courts have swept away a most wholesome principle of law as a useless technicality.

When a party goes into the courts of his country for relief, he should be required to go into a court of competent jurisdiction, and he should be required to make his selection at his peril and should not be allowed to harass and annoy even the most culpable legal sinner in a court that has no jurisdiction of the case; and when he goes into a court without jurisdiction, the full penalty of his error should fall upon him alone, and even a defendant against whom he has a just and meritorious cause of action should not be made the victim of his folly. It is enough that a party shall answer in a court where he ought to answer, but it is too much to require him to respond to the wrongful action of a party brought in a foreign court that has neither jurisdiction of his person nor of his property. JAMES E. HOGUE.

Little Rock, Ark.

JUDGE-MADE LAW.

It is really the intent of all courts and lawyers of true merit and ability to avoid and obviate the necessity for litigation, but in an attempt to do substantial justice, I fear