Case 25 — PETITION ORDINARY
Feb. 27.
Dunn’s Ex’rs v. Shearer.
APPEAL FROM MADISON COMMON PLEAS COURT.
1. The publication of the notice of the filing of the petition and object thereof, in proceedings to empower a married woman to contract, etc. as a feme sole, as provided for in the act of February 14, 1866 (Myers’s Supp. 728) was sufficient, when published in one issue of the paper, designated by the court, at least ten days before the rendition of the decree, and therefore the court had jurisdiction to render the decree in this case.
2. A married woman empowered to contract, etc. as a feme sole may employ her husband to act as her agent.
C. F. and A. R. BURNAM for appellants.
1. The decree of the Garrard Circuit Court, empowering Mrs. Dunn to contract, etc., as a feme sole can not be assailed or impeached collaterally in the Madison Common Pleas Court. (5 Watts & Sarg. 473 ; 3 ib. 127; 4 ib. 191; White v. Albertson, 3 Dev. 241; Ib. 257; 8 Mo. 208; 3 Har. 73; Bamster v. Higginson, 3 Ship. 93; Stewart v. Millar, 1 Meigs, 574; Lamprey v. Nudd, 9 Foster, 299; 11 Foster, 273; Billings v. Russell, 23 Pa. St.; 4 Texas. 101; 2 Paine C. C. Rep. 536; Cypher v. McLure, 22 Pa. St. 195; State v. Conoly, 6 Iredell, 243; 6 Barr, 272; Busbee Law (N. 0.), 78; Smith v. Knowlton, 11 N. H. 191.)
2. But again: the decree of the Garrard Circuit Court, one of general jurisdiction by law, and having under the statute of 1866 special jurisdiction of the parties and the subject-matter of their complaint, by the presumption of law, concludes all collateral proceedings in other courts of the state, when the want of jurisdiction is not shown on the face of *575the record itself. (Mcllvoy v. Speed, 4 Bibb, 86; Hall v. Heffrey, 6 N. H. 444; 1 Smith’s Le. Ca., part 2, 1021; Hardy v. Gholson, 26 Miss. 70; 31 Ind. 466 ; 8 Vt. 208 ; 7 B. Mon. 342; 12 B. Mon. 244; 1 East. 355; Cooley’s Con. Lim. 406; 1 Greenleaf’s Ev., p. 22, sec. 19, and notes; 1 Starkie’s Ev., pp. 234-243.)
3. The judgment of a superior court is not void, but only voidable, on appeal or writ of error. (Bacon’s Abr., c. citing 2 Salk. 674; Priggs v. Adams, S.' C. Carth, 274. See also 1 Chitty s PL 181, and cases cited in note T; Wallbridge v. Hall, 3 Vt. 114; Weyer v. Lane, 3 Ham. O. 305; Buell v. Cross, 4 Ham. O. 39; 6 Peters, 729 ; Burns’s Law Die., p. 407; Hopkins v. Commonwealth, 3 Mass. 342; 12 Peters, 718; Borden v. State, etc., 6 English (Ark.)
4. The statute of 1866 (Myers’s Supp. 728), conferring on married women the privileges of femes sole, is one which is peculiar in itself, is one declaring the status of the petitioner, and which can not be questioned elsewhere, when a final judgment has been pronounced by a competent tribunal. (Newcomb’s ex’rs, &c. v. Newcomb, 13 Bush, 544.)
“ Until notice of the filing of the petition and object thereof be published at least ten days,” in said act of 1866, means a publication at least ten days before, etc.
Mrs. Dunn’s executors have the same right to the fund in controversy that she would have if living. (Walton v. Broaddus, 6 Bush, 329; Mc-Clanahan v. Beasley, 17 B. Mon. Ill; 2 Met. 509.)
C. J. BB.ONSTON roe appellee.
1. The provision of the act of 1866, that “ the court shall not have jurisdiction to make any such order, or decree, as provided in the first section, until notice of the filing of the petition and object thereof shall be published at least ten days in a newspaper designated by the court ” requires a publication in each issue of the paper designated for a period of ten days — one insertion in a daily newspaper ten days before the time the court begins is not sufficient.
2. The contract of partnership between Mrs. Dunn and Hume was invalid. Hume holds the funds as a trustee for the benefit of the assailing creditors. (Price’s adm’r v. Boswell, 3 B. Mon. 20.)
Said partnership contract, if valid, must inure to the benefit of her husband. (Uhrig, &c. v. Horstman & Sons, 8 Bush, 172; Basham v. Chamberlain, 7 B. Mon. 443.)
3. The judgment of the Garrard Circuit Court, relied on as enabling Mrs. Dunn to exercise a power in derogation of marital rights, as relieving her of marital disabilities, is void, and confers no power.
To render a decree obligatory, there must be service of process, actual or constructive, otherwise the judgment is void. (Moore v. Farrow, 3 Mar. 43; Green v. McKinney’s heirs, 6 J. J. Mar. 197; Taylor’s heirs *576v. Watkins, 4 B. Mon. 568; Clary’s heirs v. Marshall’s heirs, 5 B. Mon. 266; Hynes v. Oldham, 3 Mon. 266.)
Publication is constructive service of process where publication is required, and decrees without service or due publication are void. (Green’s heirs v. Breckinridge’s heirs, 4 Mon. 545; Blight’s heirs v. Banks, 6 Mon. 205; Bank IT. S. v. Cockran, 9 Dana, 395; Hardin, 493; 2 Bibb, 156; 1 Mar. 592; 2 Mar. 497 ; 3 Mar. 414; 1 Litt. 118; lb. 417; 3 Litt. 104; 5 Litt. 304; 4 J. J. Mar. 637; 6 J. J. Mar. 134; lb. 142; 1 Dana, 462 ; 2 Dana, 452; 3 Dana, 214; 5 Dana, 390; lb. 511; 9 Dana, 346; 2 B. Mon. 453; 12 B. Mon. 600; 1 Met. 504.)
4. The general doctrine that judgments of superior courts can not be questioned collaterally, and that records import absolute verity, is confined to parties and privies, and does not apply to strangers. A stranger has no right of appeal, new trial, or direct proceedings to vacate the judgment. (Newcomb’s ex’rs, &c. v. Newcomb, 13 Bush, 544; Dean v. Nelson, 10 Wallace, 158; Stev. Dig. Ev., arts. 41 and 42; Moore v. Farra, 3 Mar. 43; Shaefer v. Gates and wife, 2 B. Mon. 453; 1 Greenleaf’s Ev., sec. 522; 16 Ga. 487 ; 2 Grattan, 250; 8 Md. 236; 2 Am. Le. Cases, 439, 441 et seq.; 1 Smith’s Le. Ca. 834; 2 lb. 683.)
This doctrine is only applicable to courts of general jurisdiction, and the Garrard Court was not exercising general, but special jurisdiction; for whenever a new right is created by statute, and its enforcement is committed to a court of general jurisdiction, such court quo ad hoc is an inferior court. (McMin v. Wheeler, &c., 27 Cal. 300; Colan v. Barrett, 5 Cal. 210; Whitwell v. Barbie, 7 Cal. 321; Sharp v. Spire, 4 Hill, 76; Williamson v. Berry, 8 Howard, 495; Oakley v. Aspinwall, 4 Comst. 522, 525; Gray v. Larrimore, 2 Abb. U. S. 542; Thatcher v. Powell, &c., 6 Wheat. 35; 3 Blackstone, 283, 444.)
5. Want of jurisdiction may always be set up when rights are claimed Under the judgment or decree. (Latham v. Edgerton, 9 Cowan, 229; Jacobs v. L. & N. R. R. Co., 10 Bush, 263; Davis v. Connelly, 4 B. Mon. 137; Eaton v. Badger, 32 N. H. 228, 237; Pendleton v. Weed, 17 How. (N. Y.) 72; Fitzhugh v. Custar, 4 Texas, 399; Harvey v. Edmonds, 68 N. C. 243; Putnam v. Mann, 3 Wendell, 205; Barnes v. Harris, 3 Barbour, 608; Doty v. Brown, 9 How. (N. Y.) 437; Pollard v. Wegener, 13 Wis. 572; 1 Greenleaf’s Ev. 625; 2 ib. 542, 545; Bailey v. Beadles, 7 Bush, 384; Dorsey v. Kendall, 8 Bush, 299.)
6. The record must show, as required by the statute, that a copy of the publication, with the proof thereof, was filed with the record. Proof does not appear in this case. (Green’s heirs v. Breckinridge’s heirs, 4 Mon. 544; Peers v. Carter’s heirs, 4 Litt. 268; Newcomb’s ex’rs, &c. v. Newcomb, 13 Bush, 544; Brownfield v. Dyer, 7 Bush, 505; Long v. Montgomery, 6 Bush, 394; Lloyd’s adm’r v. McCauley, 14 B. Mon. 430; *577Adams v. Tiernan, 5 Dana, 396; Starbuck v. Murray, 5 Wend. 158; Cor-win v. Merritt, 3 Barb. 346; Blight’s heirs v. Banks, 6 Mon. 205; Clark v. Thompson, 47 111. 25; Hahn v. Kelley, 34 Cal. 391.)
7. Statutes conferring summary powers and authorizing the exercise of such powers upon parties brought within the jurisdiction of the court by constructive service must be strictly construed, and the express letter of the law positively adhered to. (Bloom v. Burdick, 1 Hill, 141; Hallettv. Righter’s heirs, 13 How. (N. Y.) 45; Broadhead v. McConnell,* 3 Barb. 189; Wright v. Douglass, 3 Barb. 575; Cook v. Farran, 34 Barb. 95; Mims v. Mims, 3 J. J. Mar. 105; Bangs v. McIntosh, 23 Barb. 598; Raymond v. Smith, 1 Met. 67; Gill v. Johnson’s adm’r, 1 Met. 652; 1 Smith’s Le. Ca. 116; Williamson v. Berry, 8 How. 495; Boswell v. Otis, 9 How. 336; Bigelow v. Stephens, 19 Johns. 41; Bradshaw v. Heath, 13 Wend. 402; Jackson v. Estey, 7 Wend. 148; Corwin v. Merritt, 3 Barb. 345.)
The omission of the term, when the order was made, in the certificate of the order of the publication, is a fatal defect. (Miller v. Hall & Hanks, 3 Mon. 243. See also Evans v. Benton, 3 Mon. 390; 7 Mon. 217, 264; 2 J. J. Mar. 463,486; 6 J. J. Mar. 18; 7 J. J. Mar. 442; Milam v. Thomasson, 7 Mon. 324; Ferril v. Combs, 7 J. J. Mar. 247; Cravens v. Dyer, Dallam & Co., 1 Litt. 153; Pyle v. Cravens, 4 Litt. 17; Lawlin’s heirs v. Clay, 4 Litt. 283; Hopkins v. Claybrook, 5 J. J. Mar. 236.)
The purpose of the legislature was evidently to afford creditors of the husband an opportunity of knowing of the application in order to avail themselves of the provision, made by the statute, to resist the application. Without publication as required by the statute, they were not notified as to the proceedings, and therefore they were void as to them.
JUDGE HINES
delivered the opinion op the court.
By a decree of tbe Garrard Circuit Court, rendered at the July term, 1872, Mary Dunn, wife of R. B. Dunn, was empowered to trade as a feme sole. In October, 1874, W. S. Hume and Mary Dunn entered into partnership for the purpose of buying, feeding, and selling cattle and hogs, R. B. Dunn acting as agent for his wife. The money to purchase the stock was borrowed on the joint obligation of Mr-s. Dunn and W. S. Hume. Appellee, in September, 1874, obtained judgment against R. B. Dunn, and in December of that year had execution issued thereon, and levied on the stock held *578under the partnership, and attempted to subject it to the payment of his debt.
The court below held that the decree of the Garrard Circuit Court, empowering Mrs. Dunn to trade as a feme sole, was void for want, of sufficient publication, and subjected the interest claimed by Mrs. Dunn to the payment of the debt of appellee. From that judgment this appeal is taken.
The principal question to be considered is whether the publication in the proceeding under the act of February 14, 1866 (Myers’s Supplement, p. 728), was sufficient to give the Garrard Circuit Court jurisdiction to render the decree conferring on Mrs. Dunn the right to trade and contract as a single woman.
The language of the statute is, “ The court shall not have jurisdiction to make any such order or decree, . . . until notice of the filing of the petition and object thereof shall be published at least ten days, in a newspaper designated by the court; and a copy of the notice and proof of publication shall be filed in the action; and any creditor of the husband shall have the right to be made a party to said action, and contest the making of a decree or order therein.”
In that proceeding the court, January 25, 1872, caused to be entered the following order: “ It is ordered and adjudged that the filing of said petition and object thereof shall be published at least ten days in the Louisville Courier-Journal, a newspaper published in the city of Louisville.” The proper affidavit was made showing that the required notice was published in one issue of the daily Courier-Journal more than ten days before the rendition of the decree.
For our present purpose it is immaterial whether the publication'required by the act be considered in the nature of constructive process, for, in any event, it is a question of legislative intention. It may be conceded that jurisdiction can not be acquired in such cases without a strict compliance with the *579requirements of the statute, and that without such compliance the decree would be absolutely void, and should be treated as if never made.
Three constructions have been contended for: First, that the law requires ten distinct and separate publications in the same paper. Second, that it requires the notice to be published in every regular issue of the paper designated, beginning at least ten days before the day on which the decree is rendered. Third, that one publication made in the paper designated, whether daily, weekly, or semi-weekly, is a literal and substantial compliance with the law.
The court below, in the able opinion rendered in this case, adopted the second view as the correct one. In this we are of the opinion that the court is in error.
Neither the first nor the second construction can be adopted without interpolating, into the statute, words which are not necessary to give it effect as it stands. In either case there would be a departure from its literal sense when the language is considered in its ordinarily-accepted meaning. It appears reasonable that if the legislature had intended that the publication should be made on ten 'different days, beginning more than ten days before the decree, or that the number of publications should depend upon the fact whether the paper designated was weekly, semi-weekly, or daily, it would have so expressly said, as was done prior to the Code, in the acts prescribing publication in cases against non-residents.
We are clearly of the opinion that the most reasonable and conservative construction is, that there is a compliance with the statute when the publication is made in one issue of. a paper designated by the court, if that publication is “ at least” ten days before the rendition of the decree.
We do not think that the proof shows any interest on the part of R. B. Dunn in the property in controversy that can be subjected to his debts. It does not appear that his credit *580furnished any of the funds used in the purchase of the stock, or that he invested any thing in the speculation. There is no reason why Mrs. Dunn should not employ her husband to act as her agent as well as any one else. In fact it was highly proper that she should do so. It is not necessary to determine whether, if Mrs. Dunn was indebted to her husband for services in managing her business, it could be subjected to the payment of appellee’s claim, for the pleadings are not in a condition to raise that question.
Wherefore the judgment is reversed, and cause remanded with directions for further proceedings consistent with this opinion.