Miller et al. v. Ewing et al. ANDERSON MILLER et al. vs. SAMUEL EWING et al. Where the process is not served on the defendants to a suit, but an attorney of the court where the suit is brought, files a plea to the suit for them, such plea will constitute an appearance to the action, and will authorize a verdict and judgment to be rendered in the case as to them; a mere recital, however, by the clerk, that "the defendants appeared," &c. does not constitute an appearance for such defendants, and will not warrant a judgment against them. Judgments of the courts of our sister states and of this state, stand upon the same basis, and are of equal validity; in either case the jurisdiction of the court rendering the judgment may, when the judgment is made the foundation of an action, be inquired into; and if it had no jurisdiction, the judgment, by whichever court rendered, will be wholly void. Judgments are not merely prima facie evidence of their validity, but conclusive; and the parties to them are estopped by the record from denying their obligatory force, where the jurisdiction of the court appears by the record: where, therefore, a suit was instituted against various defendants, on part of whom only process was served, but an attorney of the court filed a plea for all, upon which a verdict and judgment were rendered against them all, was held to be incompetent for the court rendering the judgment to entertain, on a writ of error coram nobis sued out by the defendants not served, the question as to the validity of such judgment against them, on the ground that the attorney who filed the plea for them was not employed by them; and that, therefore, such court could not empanel a jury to ascertain the fact whether the attorney was employed for such defendants or not; the judgment was conclusive evidence of its validity, and could not be thus attacked at a subsequent term. it Where a writ of error coram nobis with supersedeas, was sued out by defend ants to a judgment, who sought to be relieved therefrom on the ground that they were not served with process in the original suit, and the attorney who filed a plea in the case for them was not employed by them, but filed it at the instance of the plaintiff's attorney, to enable him to get judgment; it was held, that while the court had no power to disturb the judgment, the supersedeas should be retained until the defendants could apply to chancery for relief against the judgment on the ground of fraud. Miller et al. v. Ewing et al. Whether, if an attorney, who is not retained by a party defendant to a suit, and without any authority whatever, files a plea to the suit for such party, who had not been served with process, and had no knowledge of such appearance for him, and a judgment on such appearance by the attorney is rendered against such party; and the attorney be insolvent, irresponsible, and incompetent to answer the injury done, such party can obtain any relief against such judgment; — Quære? Where there is a judgment against three, and execution issues against four; and the one against whom there is no judgment unites with one of the others against whom there is a judgment, in a writ of error coram nobis, and obtains a supersedeas as to both, it is error for the court to dismiss the entire supersedeas; it should be retained as to the one against whom there is no judgment. IN error from the circuit court of Madison county; Hon. J. R. Nicholson, presiding judge. Samuel Ewing and James Cromey sued George R. Fall, as maker, and William H. Washington, as first, Anderson Miller, as second, and Alfred Cox, as third indorser of a promissory note. The suit was brought in the circuit court of Madison county, to its April term, 1838. Fall acknowledged service of process; and an alias process issued to Washington county for Miller and Cox; but no return was made upon it; the record does not show whether any writ issued for Washington. At the return term the following plea was filed, viz. "And the said defendants Washington, Cox, and Miller, by their attorney, come and defend the wrong and injury, when, &c., and for plea say, that they did not promise and assume in manner and form, as the said plaintiff has thereof complained against them, and of this they put themselves on the country, &c. OTT, for defendants." The record then recites as follows, viz. "And now, to wit, on the 18th day of May, A. D. 1838, this day came the said defendants, Fall, Washington, and Miller, by their attorneys, as well as the said plaintiffs, and on motion of plaintiffs' counsel, this suit is dismissed as to defendant Cox; whereupon came a good and lawful jury to try the issue joined, to wit, &c. &c., who, upon their oath, do say, we the jury find for the plaintiffs, and assess their damage at sixteen hundred Miller et al. v. Ewing et al. and forty-one dollars; it is therefore considered by the court, that the plaintiffs recover of the said defendants, Fall, Washington, and Miller, the sum so as above by the jury assessed." A fieri facias issued on this judgment to Madison county, and was returned nulla bona as to Fall. Affidavit being made of Fall's insolvency under the statute, a fieri facias against Washington was issued to Rankin county, which was returned nulla bona also; upon which, an affidavit of Washington's insolvency was filed, and a fieri facias issued to Washington county, commanding the sheriff to make out of the "goods and chattels, lands and tenements of George R. Fall, William H. Washington, Anderson Miller and Alfred Cox," the sum of six hundred and forty-one dollars, which Ewing and Cromey had by the judgment of the court lately recovered against them. The sheriff of Washington county returned this execution "stayed by supersedeas, April 20th, 1840"; and to the April term, 1840, of the Madison court the petition of Miller and Cox was filed, in substance, stating the circumstances under which the judgment was rendered, and that they had never been served with process of any kind; had no notice of the pendency of the suit until execution was issued against them, and had been levied on the property of Miller; that the attorney, Ott, was not employed by them, or either of them; that he plead to the suit without their knowledge or consent, and that they had never recognized his appearance for them; that notwithstanding the dismissal of the suit as to Cox, an execution had issued against him. It was upon this petition, upon the execution of bond, that the writ of error coram nobis with supersedeas, was issued. A motion was made and sustained to discharge the supersedeas, to which Miller and Cox filed exceptions; from which it appears, that they proposed to make and try an issue of fact, as to whether John G. Ott was their attorney in the case; and on the trial of that issue, they proposed to prove he was not their attorney in that or any other suit; that Ott had no authority to appear for them in the suit; that his appearance was without their knowledge or consent; and was made at the request of the attorneys for Ewing and Cromey, to enable them to obtain Miller et al. . Ewing et al. judgment at that term of the court, for the purpose of making the money out of Fall, who was the principal in the suit; and that the appearance entered by Ott, was with the understanding that it should not operate "prejudicially" to Miller and Cox. The court below refused to entertain the issue or hear the proof; and no further testimony being offered, it dismissed the petition and supersedeas, and the defendants Miller and Cox sued out this writ of error. D. Mayes, for plaintiffs in error. 1. That the entry on the record that a party appeared by attorney, or a return by a sheriff, or his general or special deputy, if executed on the defendant, shall conclude that defendant, would be an estoppel of the most appalling kind. It rests upon none of the reasoning which renders records and judicial determinations conclusive; and the same reason of policy which dictates the latter, excludes the former. In England, the ap-' pearance by attorney might, with some show of propriety, be held to conclude the party; for there the warrant constituting the person who appeared as attorney the actual attorney of the party, was indispensable, and the appearance was made by acts of the attorney in court. That the attorney of the court, who claimed to be the attorney of the party, was, in point of fact, constituted his attorney by the party, was therefore a matter to be inquired into, and of which fact high evidence was required, to wit, the warrant of attorney. The fact, therefore, that the attorney who entered the appearance, was in truth the attorney of the party, was a fact judicially inquired of, and ascertained in each case. It was a fact in the cause, ascertained and recorded, as much so as the fact that the attorney appeared. But how is it here? Any man who has leisure to practise law, (and a sprightly man may in a month's time prepare for this,) may write a plea on a slip of paper, put it in the cause, no evidence of my having entrusted my rights or defence to him being required. This court will judicially know the usages and practice of the inferior courts, and will construe their records with the Miller et al. v. Ewing et al. aid of that knowledge. The record may estop the party, as to any fact which it contains, when thus construed; and this is the whole extent to which the doctrine can, upon sound principles, go. The entry, "This day came the parties by their attorneys;" or, "This day came the defendant by his attorney," being thus construed, only means, that there was an appearance, by attorneys, representing themselves to be the attorneys of the parties; and not that, in point of fact, the parties had constituted them their attorneys, in that cause. For this is a matter never judicially inquired into, or in any way ascertained. And for a record to estop, save as to matters which have been inquired into-and as to which, upon such a construction, it is wholly silent, would be as dangerous as it is manifestly unjust. It would also be dangerous to hold that it was no evidence of the fact. But the difference is that between prima facie and conclusive. In the great majority of cases the attorney who appears is employed by the party. And according to sound rules it should be presumed that he was authorized to do so, until the contrary appears. All that I contend for is, that it should be open to inquiry. 2. Wherever the fact which gives the court jurisdiction of the party or the subject-matter is a fact inquired into and judicially ascertained in the cause, then the record ought to be and is conclusive. See Brittain v. Kinnaird, 1 Brod. & Bing. 432; S. C. 4 Moore, 50; 3 Phil. Ev. 50. But when the fact which gives the court jurisdiction of the party is not the subject of judicial inquiry in the cause, the record should not conclude as to such fact. In Hall v. Williams, 6 Pick. R. 232, it appeared by the return that no process had been served on F., a plea was filed by the attorney for the other defendant, and the record stated that W. & F. came by their said attorney, the court decided that it could not be held an assertion on record, that F. appeared to the action. In Aldrich v. Kinney, 4 Conn. R. 380, evidence by defendant, that he had no legal notice, and did not appear was admitted, although the record expressly stated, that the defendant appeared and plead by attorney. Starbuck v. Murray, 5 Wend. 148, is a |