Burk v. Amos , 262 Mich. 332 ( 1933 )

I accept the statement of facts made by Mr. Justice SHARPE. No proper proof of service of the summons is on file in the office of the clerk of the court and no summons was served upon the defendant Robert H. Amos. Decree was taken by default. The questions involved are fundamental. Jurisdiction is the power conferred upon a court for the public good, on account of the necessity of dispensing justice. This was the opinion of Lord Coke, expressed in 10 Coke, 73a. Jurisdiction of a particular party or proceeding must affirmatively appear of record. From the record alone the court acquires jurisdiction, certainty in which record is necessary. This mandatory record is the warrant of certainty and the measure of authority of the court. It is the essential basis of due process of law. Jurisdiction is not ambulatory but fixed. What ought to be of record must be proved by the record and by the right record. The existence of a record is mandatory because essential in any government which makes even a pretense of protection of parties by the rules of former adjudication, prior acquittal, collateral attack, and due process of law. This essential record is, in our law, the basis of the vindication of constitutional guaranties. It is the permanent evidence of authorized judicial action; the repository of truth, whether of the present or of antiquity. These maxims are ancient and under constitutional government have been repeatedly restated and reaffirmed.

"A record is a memorial of a proceeding or act of a court of record, entered in a roll for its preservation; a memorial or history of judicial proceedings in a case, commencing with the writ or complaint and ending with the judgment. It is universally required that the higher or more important courts shall keep such records, the object being to secure an accurate memorial of all the proceedings in the case so that persons interested may ascertain the exact state thereof; and all orders of court not entered of record are extrajudicial and void." 15 C. J. p. 971.

In Whirl v. Reiner, 229 Mich. 114, judgment was entered by default against defendant, who moved to set it aside. The court found defendant was served with process, but said:

"There is no question but defendant was personally and lawfully served, but the difficulty is the files of the court on the day of default lacked the proper proof of it."

Why was defendant's default set aside? Because a mandatory record of service of process was a necessary prerequisite of jurisdiction, and no valid default could be entered without such record. The record of service was not on file. No calendar entry thereof appeared in the records and files of the court. This court, at that time, recognized the principles of law above stated, which lie at the foundation of regular judicial procedure.

In Stanczuk v. Pfent, 231 Mich. 689, it was said:

"Suit was commenced by declaration. There was judgment by default. More than six months after entry of default defendant moved to set it aside, showing, as we find, that at the time of entry of default there was not a return of service of the declaration, as the practice requires. 3 Comp. Laws 1915, § 12441. The motion by order was denied. Defendant brings error.

"In facts and in applicable law the case is likeWhirl v. Reiner, 229 Mich. 114. The default was irregular, and, under the holding in the Whirl Case, ought to have been set aside. No other question merits discussion."

This case was followed by Stanczuk v. Pfent, 231 Mich. 691. The right to enter a default of defendant must be determined from the face of the record. Westlawn Cemetery Ass'n v. WayneCircuit Judge, 238 Mich. 119. Before defendants' default could be entered, their appearance in the case must have affirmatively appeared of record. No valid default could be entered so long as that record was incomplete. It makes no difference whether defendants were served with process or not. Though they were served with process, if the proof of service did not appear of record, no valid default could be entered. As said in Rosen. v. WayneCircuit Judge, 244 Mich. 397:

"The facts justifying the default should appear of record." Citing Whirl v. Reiner, supra; Anderson v. Cole, 114 Mich. 637; 1 Abbott's Cyc. Mich. Practice (2d Ed.), p. 479.

The record imports verity. It cannot be varied by parol evidence within the jurisdiction of the court, nor is it subject to collateral attack. 15 C. J. p. 979. And any other holding substitutes uncertainty for certainty, makes conclusive evidence questionable, and verity impeachable.

The judgment should be reversed, with costs.