Opinion
01-11-1877
FAIRFAX v. CITY OF ALEXANDRIA.
Wattles and Johns, for the appellants. Beach and Stuart, for the appellee.
1. In a proceeding to confiscate property of a person charged to be in rebellion, the directions of the attorney general are, that the method of seizure of the property shall be conformed as nearly as may be to the state law, if there be such. When therefore the proceeding is to confiscate debts due from a municipal corporation, the notice to the debtor must be upon the mayor or other officer named in the Virginia statute; and notice given to the auditor of the corporation is of no effect; and the judgment based upon such notice is null and void.
2. On such a proceeding against F, the counsel of F does not enter an appearance for him, because in three cases against the same party, before the same judge, he was informed by the judge from the bench, that it was the rule of his court not to allow an appearance and defence by rebels and traitors; and in these cases the appearance and defence were stricken from the cases; and this a short time before the last case was acted on. The counsel was not in default for failing to enter an appearance for F; and the decree of confiscation is void and of no effect.
This is a writ of error to a judgment of the circuit court for the city of Alexandria, rendered on the 25th day of May 1875, in an action of covenant, wherein the plaintiff in error, Orlando Fairfax, was plaintiff, and the defendant in error, The City Council of Alexandria, was defendant.
The action was brought upon four bonds of the said corporation, amounting together to the principal sum of $8,700, which bore interest at the rate of six per centum per annum, payable half yearly, of which principal the sum of $3,500 was redeemable on the 10th day of July 1861, and the residue, $5,200, was redeemable on the 1st day of January 1870. The only issues joined in the case were upon the pleas of " covenants performed" and " covenants not broken," to which the plaintiff replied generally; and the parties waiving a trial by jury of the issues joined, and submitting the cause to the determination of the court upon a statement of agreed facts filed and made a part of the record in the cause, and the matters of law arising thereon being argued, it seemed to the court, upon the whole matter therein contained, that the law was for the defendant, and judgment was rendered accordingly.
The defence to the action was, that the said bonds, or the principal and interest of the debt due thereon, were confiscated under the act of congress of July 17, 1862, by the sentence of the district court of the United States for the eastern district of Virginia.
The agreed statement of facts is substantially as follows:
In February 1864, Dr. Orlando Fairfax, the plaintiff in this suit, was residing in Richmond, Virginia, the capital of the Confederacy, and had been living there since the commencement of the war, having, up to said commencement, been a citizen and resident of the city of Alexandria, Virginia. He lived in Richmond till the close of the war, and whilst thus in Richmond, continuously during the period mentioned within the Confederate lines he held four bonds, or evidences of indebtedness of the city of Alexandria, one for $2,000, one for $500, one for $1,000, and one for $5,200, all bearing interest at the rate of six per centum per annum on their face, the three first being due and payable on July 10th, 1861, the last one ($5,200) being due and payable January 1, 1870.
At no time during the war were these bonds or evidences of indebtedness out of the personal possession and custody of Orlando Fairfax, the plaintiff in this cause in the city of Richmond, Virginia. The bonds aforesaid, in the declaration mentioned, were in the words and figures following: (A copy of the bonds and endorsements is set out in the record as part of the facts agreed; but it is unnecessary to set out the same here.)
Three of which bonds had been regularly and properly assigned and transferred to Dr. Orlando Fairfax, the plaintiff in this cause, on the books of the corporation for value, and had passed into his possession and ownership on the 23d day of November 1858, and the fourth one for $5,200, due January 1st, 1870, and bearing interest from July 1st, 1858, and numbered 35, was made and executed and delivered to him in his own name by the defendant for value received.
That, on the 30th day of November 1866, the said plaintiff served a notice on the auditor of the said defendant, who was authorized as agent of the said defendant to pay the interest on said bonds whenever it fell due, not to pay any interest which should thereafter accrue to any but himself or his authorized attorney. That prior to the commencement of this suit, and subsequent to January 1st, 1870, the plaintiff by his authorized attorney and agent, John Johns, jr., repeatedly demanded of the defendant the payment of the principal of said bonds, and the accrued interest thereon, and payment of the same was refused by defendant, and the said amounts have never been paid to the plaintiff.
That, on the 25th day of July 1865, the plaintiff received and accepted the pardon of the president of the United States. (A copy of which pardon is set out in the record, but need not be repeated here.)
That between March 14th, and April 11th, 1864, an attorney at law appeared before Jno. C. Underwood, judge of the district court of the United States for the district of Virginia at Alexandria as counsel, and endeavored to procure from him a reversal of the decree of confiscation entered in favor of the United States against Dr. Orlando Fairfax's (the plaintiff in this cause) house and lot situated on Cameron street, in the city of Alexandria. The judge, the honorable John C. Underwood, informed the attorney from the bench that he could allow no appearance for any " rebel" or " traitor; " that this was the rule of his court as before that publicly announced, and that he had in every case ordered the appearance of counsel for, and the answer of " rebels," to be stricken from the files. The records of three confiscation cases, tried in the United States district court, for the district of Virginia, before the said John C. Underwood as judge, between March 10th, 1864, and May 4th, 1864, in which the United States was plaintiff, and Dr. Orlando Fairfax (the plaintiff in this cause) was defendant, show that in each case the above rule and practice of the court, as proven by said attorney, that is to allow no appearance for any " rebel" or " " traitor," was carried out against Dr. Orlando Fairfax, the defendant in these cases, and the plaintiff in this, and that the appearance of his attorney, and his answers in those three cases, tried and determined between March 10th, 1864, and May 4th, 1864, were, by order of said United States district court at Alexandria, stricken from the files, on the ground that said Dr. Orlando Fairfax was within the Confederate lines, and a rebel.
That the aggregate or principal of said bonds is $8,700, upon which interest has accrued as to $3,500 thereof from January 15, 1867, and on $5,200 thereof from July 1, 1867, on each sum at the rate of six per centum per annum. That on the 4th day of May 1864, the United States district court, for the district of Virginia, in a cause in confiscation therein pending (but not one of the confiscation causes heretofore referred to) in the name of the " United States against all the right, title and interest of Dr. Orlando Fairfax in and to eighty-seven shares of the stock of the corporation of Alexandria, in the eastern district of Virginia, together with all the monies due him and becoming due from the said corporation for dividends upon said stock," passed a sentence of condemnation condemning said stock as forfeited to the United States, the record of which sentence is in the words and figures following, to wit: (Here follows the said record, which will not be set out here in full, but only the substance of such portions as seem to be material to be here stated.)
The libel of information was filed on the 24th of February 1864, by L. H. Chandler, United States attorney for the eastern district of Virginia, in behalf of the government of the United States, against all the right, title and interest of Dr. Orlando Fairfax in and to eighty-seven shares of the stock of the corporation of Alexandria, together with all the monies due him and becoming due from the said corporation for dividends upon said stock, and against all persons lawfully intervening for their interest therein. The said libel contains nine articles, charging the said Fairfax with being the owner of the said stock, and with having forfeited the same by violating, as therein mentioned, the provisions of the act of congress approved on the 17th day of July 1862, entitled " an act to suppress insurrection, punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes, and by disregarding the proclamation of the president of the United States, issued on the 25th day of July 1862, warning all persons within the contemplation of the sixth section of the said act of congress to cease from participating in, aiding, countenancing and abetting the existing rebellion against the government of the United States." The last two of the said articles are in these words:
" VIII. That the said property herein described has been seized by the United States marshal for the district of Virginia, in compliance with instructions issued by the attorney general to district attorneys of the United States, and by virtue of the fifth section of the act approved on the 17th day of July, in the year of our Lord 1862, entitled an act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes."
" IX. That by reason of the premises, the property herein described became and was forfeited to the United States, and ought to be condemned to their use.
And the conclusion of the libel is in these words: Wherefore prayer is hereby made to your honor that process of monition may issue against the owner and owners of the property herein described, and against all persons interested or claiming an interest therein, warning them at some early day to be therein named to appear and answer this libel of information; and the owners of said property being absent and non-resident, prayer is further made for order of publication in the usual form, and for such further and other relief as to law and justice may appertain, and as this court is competent to give in the premises.
L. H. CHANDLER, U. S. Attorney. "
The seizure referred to in the eighth article of said libel was made under a warrant of the said attorney, dated on the 22d of February, 1864, addressed " To the marshal of the United States for the eastern district of Virginia," directing him " to seize all the right, title and interest of Dr. Orlando Fairfax in and to eighty-seven shares of the stock of the corporation of Alexandria in the eastern district of Virginia, together with all the monies due him and becoming due for the said corporation for dividends upon said stock, together with all the improvements, buildings, rights, privileges, appurtenances and other hereditaments to the same belonging, or in any wise appertaining, and all right, title, interest and estate of Dr. Orlando Fair-fax therein, as proceedings are to be instituted to secure the confiscation of the same to the use of the United States under the above entitled act," and directing him to report the said seizure to the said attorney when the same shall have been made. A return was made on said warrant in these words:
" UNITED STATES MARSHAL'S OFFICE,
Alexandria, Va., Feb. 23 rd, 1864.
I certify that I have seized the within described property, and given notice to R. Johnson, Esq., auditor of the corporation of Alexandria, as within directed.
JOHN UNDERWOOD, U. S. Marshal. "
The said warrant and return were filed with the libel, and on the 26th of February 1864, an order was made in the cause, which, after setting out the style of it, is in these words:
" On reading and filing the libel in this case, the court orders that process of monition issue as prayed, and appoints the first Monday in April 1864, and the court room in the custom-house, in the city of Alexandria, as the time and place of trial of this cause; and also orders that notice of said time and place of trial, and of the substance of the said libel, be given by publication thereof in the Virginia State Journal, a newspaper published in the city of Alexandria, and also by posting up the same at the court-house door; and that proclamation of the pendency of this suit be made by the marshal at the court-house door two times weekly, until the day of trial.
JOHN C. UNDERWOOD, District Judge. "
Process of monition was accordingly issued on the same day by the clerk of the said court, directed to the marshal of said district, who made his return thereon, dated April 4, 1864; that he had " caused the notice to be published, posted and proclaimed as within commanded." Copies of said process and return, and of the evidence of the publication and posting thereof, were made a part of the record. And afterwards, to wit: on the 4th day of May 1864, a judgment of confiscation was entered in the cause, which, after setting out the style of it, is in these words:
" The papers in this cause having been theretofore returned, the usual proclamation having been made, the default of all persons being duly entered, and due deliberation being had on the pleadings, it is thereupon, on motion of L. H. Chandler, attorney for the United States, ordered, adjudged, sentenced and decreed by the court that the personal property mentioned and described in the libel in this cause be, and the same accordingly is, confiscated and condemned as forfeited to the United States. And upon like motion it is further ordered, adjudged and decreed that the clerk of this court issue a" writ of venditioni exponas, & c.
The said writ was accordingly issued by the clerk and returned by the marshal, showing the gross amount of sale to be $1,737, which was paid to the clerk by the marshal.
The papers and proceedings aforesaid constitute the record of the sentence of condemnation aforesaid, of which an official copy is made a part of the case agreed, after the insertion of which the agreed case proceeds:
The said eighty-seven shares of stock mentioned and described in said record are the shares or bonds evidenced by the certificates or bonds which are heretofore set forth, and which form the basis of the present action. Under said sentence of condemnation the said stock was sold by the marshal, and by him the stock so sold was transferred on the books of the auditor of the corporation to the purchasers respectively. Said transfers are in the words and figures following. (They are set out in the case agreed, but need not be here inserted.) The said transfers have been recognized by the defendant as valid transfers of said stock, and the defendant has issued to said confiscation purchasers, or to their assigns, certificates of stock of like tenor and amount, which are still outstanding. The several charters of the town and city of Alexandria, Virginia, and the ordinances of said town and city are made part of this agreed statement, the same as if embodied herein at length.
" And it is further agreed, that if from the facts stated above, the law shall be in favor of the plaintiff, the court shall enter judgment for the amount and interest above stated. But if the court shall determine that the law is for the defendant, judgment shall be entered accordingly."
The circuit court having determined, as before stated, that the law upon the facts agreed as aforesaid is for the defendant, and rendered judgment accordingly, the plaintiff applied to this court for a writ of error to the said judgment; which was awarded accordingly.
Wattles and Johns, for the appellants.
Beach and Stuart, for the appellee.
OPINION
MONCURE, P.
If the district court had no jurisdiction to render the decree of confiscation, relied on as a defence by the defendant in this case, then it is admitted by the counsel on both sides, and is clearly shown by authority, that the said decree is void, and must be so regarded, even in a collateral proceeding such as this is.
It is also admitted by the counsel on both sides, and is clearly shown by authority, that as the proceeding in this case is in rem, to give the court jurisdiction of the case, the res must have been brought by seizure within the power and control of the court.
Was it so brought?
" By the seizure of a thing," said the supreme court in Pelham v. Rose, 9 Wall. U. S. R. 103, 106, is meant the taking of a thing into possession, the manner of which, and whether actual or constructive, depending upon the nature of the thing seized. As applied to subjects capable of manual delivery, the term means caption, the physical taking into custody."
" In the case at bar," further said the court, " a visible thing, capable of physical possession, is the subject of the libel. It is the promissory note of Pelham which constitutes the res, against which the proceeding is instituted, and not a ‘ credit’ or debt, which the note is supposed by the defendant's counsel to represent. Whether by any proceedings, under the act of July 1862, the indebtedness of a maker on a negotiable promissory note, before its maturity, could be reached without the possession of the note itself, is not a question presented for our consideration. It is sufficient that the object of the present libel is to reach the note itself. This appears at every stage of the proceedings," & c. " To effect its seizure, as required by the act, it was therefore necessary for the marshal to take the note into his actual custody and control." See also Pelham v. Way, 15 Id. 196.
That a credit was liable to " seizure," within the meaning of the act of July 17th, 1862, clearly appears, not only from the express language of the act itself, but also from various adjudications upon it by the supreme court of the United States.
First, as to the express language of the act. The fifth section enacts: " That to insure the speedy termination of the present rebellion, it shall be the duty of the president of the United States to cause the seizure of all the estate and property, money, stocks, credits and effects of the persons hereinafter named," & c. And the sixth section makes it the duty of the president " to seize and use as aforesaid all the estate, property, moneys, stocks and credits of persons within any state or territory," & c.
Secondly, as to the decisions of the supreme court upon the subject: they are, Miller v. United States, 11 Wall. U. S. R. 268; Brown v. Kennedy, 15 Id. 591.
But as a credit is incapable of being actually seized, it must be constructively seized, if seized at all.
How may it be constructively seized?
The act of congress does not prescribe the mode, as it might have done; and, if it had done so, no doubt a seizure in that mode would have been sufficient, and perhaps the only seizure that would have been sufficient.
But the act of congress, as we have seen, makes it the duty of the president of the United States to seize, or cause the seizure of, all the estate, property, monies, stocks and credits, & c., as aforesaid; thus, as it seems, making it his especial duty to prescribe rules in regard to seizure where doubt or difficulty might arise on the subject. Accordingly, it is stated in 11 Wall., pp. 273 and 274, that " In order to carry out these acts of August 6th, 1861, and July 17th, 1862, the president charged the attorney general with the superintendence and direction of all proceedings under them, and authorized and required him to give to the district attorneys and marshals such instructions and directions as he might find needful and convenient touching all seizures, proceedings and condemnations under them." Accordingly, on the 8th of January 1863, the attorney general issued general instructions on the subject to district attorneys and marshals. Among these instructions the following were given with regard to the seizure of property:
" All seizures will be made by the marshal of the proper district, under written authority to be given him by the district attorney, specifying with reasonable certainty the property to be seized, and the owner whose right is sought to be confiscated.
When the marshal has seized any property under such authority, he will, without any unnecessary delay, make a true return thereof in writing to the district attorney.
Where the state law directs the method of seizure, it shall be conformed to as nearly as may be consistently with the objects of the acts of congress. If the thing to be seized be personal property, it ought to be actually seized and safely kept; if real estate, the marshal ought to seize all the right, title, interest and estate of the accused party, giving notice in writing of the seizure to the tenants in possession, if any; if stocks, or other intangible property, the marshal ought (if there be no specific method prescribed by the state law) to describe the property as plainly as he can in his return, and leave the court to determine the sufficiency of the seizure."
The subject of the proceeding in this case, viewing it most favorably for the defendant, was a " credit." The method of seizure of such a subject, as directed by the state law, is that prescribed by the law in regard to attachments; and where the debtor is a corporation, as in this case, notice of the seizure ought to be given to the person, on whom by law process against the corporation is required to be served.
By the state law, Code of 1860, chapter 151, section 7, page 647, it is enacted that an attachment " shall be sufficiently levied in every case by a service of a copy of such attachment on such persons as may be designated by the plaintiff in writing, or be known to the officer to be in possession of effects of, or to be indebted to, the defendant; and as to real estate, by such estate being mentioned and described by endorsement on such attachment." See also sections 12 and 13 of the same chapter, Id. page 648. In regard to the execution of process on a corporation, it is enacted in section 7 of chapter 170, page 707 of the same Code, that " it shall be sufficient to serve any process against, or notice to, a corporation, or its mayor, rector, president, or other chief officer, or in his absence from the county or corporation in which he resides, or in which is the principal office of the corporation against or to which the process or notice is, if it be a city or town, on the president of the council, or board of trustees, or in his absence on the recorder, or any aldermen or trustee."
The method of seizure in this case ought therefore to have been that prescribed by the state law as aforesaid--that is, the marshal ought to have served a copy of the warrant of the district attorney on the mayor of the city of Alexandria, or in his absence on the president of the council of said city, or in his absence on the recorder or any alderman of said city. The marshal knew, or might easily have known, this method of seizure prescribed by the state law, and ought to have been informed of it if necessary by the district attorney.
Instead of pursuing that course, the marshal pursued the course named in his return, which is in these words: " I certify that I have seized the within described property, and given notice to R. Johnson, Esq., auditor of the corporation of Alexandria, as within directed."
In other words, instead of serving a copy of the warrant on the mayor, or in his absence on the next chief officer of the city, who might have been present as aforesaid, he gave notice of it (whether orally or in writing is not stated), to " R. Johnson, Esq., auditor of the corporation of Alexandria."
What are the duties of this auditor we know not. They may be important in regard to the debt of the corporation, and notice to him may in fact have been as apt to be communicated to the plaintiff as notice to the mayor. But it is enough to say that the law has made the mayor, & c., and not the auditor of the corporation, the agent thereof to receive such a notice, and service of notice upon him has no more effect in binding the corporation than service on any stranger would have had.
In Miller v. United States, 11 Wall. U. S. R. 268, the seizure was of stocks in railroad companies in Michigan, was made by giving notice of seizure to the president of one and vice president of the other of said companies, and was held to be a good seizure, having been recognized to be good by the court in which the proceeding was had and the judgment of confiscation pronounced. But the law of Michigan prescribed no mode of seizure of the stock of a corporation, and the court had prescribed none in that case. The court therefore held that the mode of seizure pursued in that case was reasonable and sufficient. But even in that case, the seizure was considered insufficient by the three dissenting judges.
The act of congress in question is extremely penal in its effect, and ought therefore to be strictly construed, and a rigid compliance with all its requirements ought to be exacted. The means of defence which it afforded to those who were affected by it, were exceedingly limited, and the mode of giving notice to them was necessarily very imperfect. It is all important, therefore, that they should have the full benefit of any defect in the ex parte proceedings had against them under that act. The objection goes to the want of jurisdiction in the court to pronounce the judgment complained of, and if the objection be a good one, it makes the judgment null and void, even in a collateral proceeding. While presumptions are made in favor of the judgment of a court of competent jurisdiction, they are not made in favor of jurisdiction, when that is the question in controversy, and especially is that the case when the court, whose jurisdiction is in controversy, is one of limited jurisdiction, such as are the district and circuit courts of the United States. It cannot be presumed, therefore, in favor of the jurisdiction of the court in this case, that the marshal seized the property described in the warrant in the mode required by law, and especially can it not be so presumed in the face of his return, which shows that the only mode of seizure was by giving notice to R. Johnson, auditor of the corporation of Alexandria, which, as we have seen, was not a legal mode of seizure.
Then the res in this case was not brought by seizure within the power and control of the court which rendered the decree of confiscation in this case, which decree is therefore null and void, and the judgment of the court below must on that ground be reversed and annulled.
But the decree of the district court is void for another reason; and that is, the plaintiff in error was deprived by a rule of the said court of his legal and constitutional right to appear and defend himself in said court against the charge on which the proceeding to confiscate his property as aforesaid was founded. According to the agreed statement of facts in the case, " between March 14th and April 11th, 1864, an attorney at law appeared before John C. Underwood, judge of the district court of the United States for the district of Virginia at Alexandria, as counsel, and endeavored to procure from him a reversal of the decree of confiscation entered in favor of the United States against Dr. Orlando Fairfax's (the plaintiff in this cause) house and lot, situated on Cameron street in the city of Alexandria. The judge, the Hon. John C. Underwood, informed the attorney from the bench, that he could allow no appearance for any ‘ rebel’ or ‘ traitor; ’ that this was the rule of his court as before that publicly announced, and that he had, in every case, ordered the appearance of counsel for, and the answer of, ‘ rebels' to be stricken from the files. The records of three confiscation cases tried in the United States district court for the district of Virginia before the said John C. Underwood as judge, between March 10th, 1864, and May 4th, 1864, in which the United States was plaintiff, and Dr. Orlando Fairfax (the plaintiff in this cause) was defendant, show that in each case the above rule and practice of the court, as proven by said attorney, that is to allow no appearance for any ‘ rebel’ or " traitor,' was carried out against Dr. Orlando Fairfax, the defendant in those causes, and the plaintiff in this, and that the appearance of his attorney, and his answers in those three causes, tried and determined between March 10th, 1864, and May 4th, 1864, were, by order of the United States district court at Alexandria, stricken from the files, on the ground that said Dr. Orlando Fairfax was within the Confederate lines, and a rebel."
The judgment for the confiscation of the stock or bonds held by Dr. Orlando Fairfax, and the money due to him thereon by the city of Alexandria, was rendered by the said district court on the 4th day of May 1864, after the trial of the other three confiscation cases against the same defendant referred to in the said agreed statement of facts, in which cases his other estate, or most of it, was confiscated, and was in form a judgment by default, in the following words: " The papers in this cause having been heretofore returned, the usual proclamation having been made, the default of all persons being duly entered, and due deliberation being had on the pleadings, it is thereupon, on motion of L. H. Chandler, attorney for the United States, ordered, adjudged, sentenced and decreed by the court, that the personal property mentioned and described in the libel in this cause be, and the same accordingly is confiscated and condemned as forfeited to the United States." And then followed an award of a writ of venditioni exponas for a sale of the said property.
Whether the defendant, Fairfax, offered to appear and make his defence in said case, and was refused permission to do so, or refrained from doing so vain a thing by the rule of the court, which had just been enforced against him in three other confiscation cases, does not appear. No doubt he would have so appeared and made his defence in the said case but for the said rule. If he had so appeared and made his defence, and afterwards, before the hearing of the case, the appearance and defence had been stricken from the files on the ground that he was a " rebel" or a " traitor," there can be no doubt but that the judgment afterwards rendered in the case as by default would have been reversed by the supreme court of the United States. It was so expressly and unanimously decided by that court in McVeigh v. United States, 11 Wall. U. S. R. 259, in which Mr. Justice Swayne, delivering the opinion of the court, said: " In our judgment the district court committed a serious error in ordering the claim and answer of the respondent to be stricken from the files. As we are unanimous in this conclusion, our opinion will be confined to that subject. The order in effect denied the respondent a hearing. It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum. If assailed there he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice." Accordingly the judgment of the district court in that case was reversed, and the cause remanded to the circuit court with directions to proceed in it in conformity to law.
In Underwood v. McVeigh, 23 Gratt. 409, it was unanimously held by this court, that even in a collateral proceeding between other parties the judgment of the district court referred to in McVeigh v. United States, supra, having been rendered in the absence of McVeigh, was a nullity, and the deed of the marshal passed no title to the purchaser. Judge Christian, in delivering the opinion of the court, said: " The sentence of condemnation and sale was a nullity--void in toto. It was rendered absolutely void by the act of the court in refusing to permit McVeigh to appear and be heard. The authorities on this point are overwhelming, and the decisions of all the tribunals of every country, where an enlightened jurisprudence prevails, are all one way. It lies at the very foundation of justice, that every person who is to be affected by an adjudication should have an opportunity of being heard in defence, both in repelling the allegations of fact and upon the matters of law; and no sentence of any court is entitled to the least respect in any other court, or elsewhere, when it has been pronounced ex parte and without opportunity of defence." " A tribunal which decides without hearing the defendant, or giving him an opportunity to be heard, cannot claim for its decrees the weight of a judicial sentence. See Smith's Leading Cases, vol. 1, part 2, ed. 1872, pp. 1118, 1119 and 1120, and the numerous cases there cited."
Such is the settled law where the defendant's appearance and answer are stricken from the files, and the court then goes on to decide the case in the absence of the defendant, and without being willing to hear him. In that case the judgment is not only void, but may be reversed on error by an appellate court.
But what difference can it make that the defendant's appearance and answer were first received and then stricken from the files if he was not permitted to appear? It may make this difference to be sure; that, in the latter case, the refusal of the court to permit him to appear, not being matter of record in the case, he can obtain no relief by writ of error to an appellate court. But that difference strengthens the reason for giving him relief in a collateral proceeding, which is his only remedy. Surely he is entitled to some remedy for the grievous wrong which is done him by not permitting him to appear and defend himself against a criminal charge which is made against him. It is not his fault that he has no remedy by writ of error. He had no power to appear against the rule of the court to the contrary. He could not therefore make the refusal of the court a matter of record in the case. The judgment is therefore absolutely null and void, and must be so regarded in a collateral proceeding. The defendant is in effect not a party to the proceeding, and a judgment cannot be conclusive against a person not a party.
The defendant's right to appear and defend himself against the criminal charge made against him in the libel is manifest from the nature of the act of congress, and all the proceedings against him in the confiscation case. The act was not made for the confiscation of property, merely because it was enemy's property, but because the owner of it had been guilty of certain criminal acts defined in the law. His guilt of these criminal acts is the foundation of the judgment of confiscation against him, and his right to defend himself against the charge of these acts is just as clear as would be his right to defend himself against a charge of murder or any other crime. Almost every step in the proceedings recognizes the right of the defendant to appear and make his defence. In the conclusion of the libel, prayer is made that process of monition may issue against the owner of the property therein described, and against all persons interested, or claiming an interest therein, warning them, at some early day to be therein named, to appear and answer this libel of information; and the owner of said property being absent and non-resident, prayer is further made for order of publication in the usual form, & c. And to the same effect are the subsequent proceedings in the case. As for instance, the order of court awarding the monition, appointing a time and place for the trial of the cause, and directing notice of such time and place, and of the substance of the libel to be given by publication thereof in a newspaper published in the city of Alexandria, and also by posting up the same at the court-house door; and that proclamation of the pendency of the suit be made by the marshal at the court-house door twice weekly until the day of trial. All of these directions appear by the record to have been complied with.
What a mockery, in the face of all these proceedings designed to notify the defendant of the charges made against him and to afford him an opportunity of appearing and making his defence, was the application to his case of the rule of the court to " allow no appearance for any ‘ rebel’ or ‘ traitor!’ " thus assuming his guilt of the crime charged against him, which charge he was summoned to answer.
That he was prevented by this rule thus announced from appearing and making his defence, is manifest. He had appeared and made his defence in several other confiscation cases against him tried just before the trial of this one, and his appearance and defence in those cases had been stricken from the file, under the operation of the rule which was then announced to his attorney. He had precisely the same reason for appearing and making his defence in this case as in those cases; and he would, no doubt, certainly have done so, but for the rule which barred the court against him. It was certainly not necessary for him to do so vain a thing as to knock at the door of the court after it was barred, and when he knew it would not be opened to him. It can hardly be necessary to cite authority in support of views which seem to be self-evident. The cases of Dean v. Nelson, 10 Wall. U. S. R. 158; Lasere v. Rochereau, 17 Id. 437; and Tacey v. Irwin, 18 Id. 549, strongly sustain them; but it is unnecessary to do more than refer to them.
Upon the whole, the court is of opinion that the judgment of the circuit court is erroneous, and ought to be reversed and annulled; that the law, upon the facts stated in the case agreed, is for the plaintiff, and that judgment ought to be rendered accordingly.
Since writing the foregoing opinion, we have received and read the opinion of the supreme court of the United States in the case of Windsor v. McVeigh, recently decided in that court and not yet reported. We entirely concur in that opinion, and think the principles established by it fully sustain the views expressed by us, in the latter branch of the foregoing opinion. That decision entirely accords with the decision of this court in Underwood v. McVeigh, 23 Gratt. 409; the facts of the two cases being precisely alike. We have endeavored to show in the foregoing opinion, that there is at least as much reason in this case as there was in that, for considering the judgment of confiscation void, on the ground that it was " a sentence of a court pronounced against a party, without hearing him, or giving him an opportunity to be heard." Such a sentence " is not a judicial determination of his rights, and is not entitled to respect in any other tribunal; " according to the opinion of the supreme court in the case above cited. We deem it unnecessary to say anything further than to express our gratification, that the principle which seems to us to be so just, has thus received the emphatic sanction of that high tribunal.
The case was argued at the last term of the court, and before the election of Judge Burks; but he concurs in the opinion.
JUDGMENT REVERSED.