CHICAGO LIFE INSURANCE COMPANY and the Federal Life Insurance Company, Plffs. in Err., v. BERTHA R. CHERRY.

This is a suit in Illinois upon a judgment recovered in Tennessee against the Insurance Companies, plaintiffs in error. They pleaded and set up at the trial that there never was a valid service upon them in Tennessee and that the judgment was void. The defendant in error (the plaintiff) showed in reply, without dispute, that the defense was urged in Tennessee by pleas in abatement; that, upon demurrer to one plea and upon issue joined on the other, the decision was for the plaintiff; and that the judgment was affirmed by the higher courts. The plaintiff had judgment at the trial in Illinois, the judgment was affirmed by the appellate court, and a writ of certiorari was denied by the supreme court of that state. The Insurance Companies say that the present judgment deprives them of their property without due process of law. Other sections of the Constitution are referred to in the assignments of error, but they have no bearing upon the case.

The ground upon which the present judgment was sustained by the appellate court was that, as the issue of jurisdiction over the parties was raised and adjudicated after full hearing in the former case, it could not be reopened in this suit. The matter was thought to stand differently from a tacit assumption or mere declaration in the record that the court had jurisdiction.

A court that renders judgment against a defendant thereby tacitly asserts, if it does not do so expressly, that it has jurisdiction over that defendant. But it must be taken to be established that a court cannot conclude all persons interested by its mere assertion of its own power (Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897), even where its power depends upon a fact and it finds the fact (Tilt v. Kelsey, 207 U. S. 43, 51, 52 L. ed. 95, 99, 28 Sup. Ct. Rep. 1). A divorce might be held void for want of jurisdiction although the libellee had appeared in the cause. Andrews v. Andrews, 188 U. S. 14, 16, 17, 38, 47 L. ed. 366, 367, 372, 23 Sup. Ct. Rep. 237. There is no doubt of the general proposition that, in a suit upon a judgment, the jurisdiction of the court rendering it over the person of the defendant may be inquired into. National Exch. Bank v. Wiley, 195 U. S. 257, 49 L. ed. 184, 25 Sup. Ct. Rep. 70; Haddock v. Haddock, 201 U. S. 562, 573, 50 L. ed. 867, 871, 26 Sup. Ct. Rep. 525, 5 Ann. Cas. 1. But when the power of the court in all other respects is established, what acts of the defendant shall be deemed a submission to its power is a matter upon which states may differ. If a statute should provide that filing a plea in abatement, or taking the question to a higher court, should have that effect, it could not be said to deny due process of law. The defendant would be free to rely upon his defense by letting judgment go by default. York v. Texas, 137 U. S. 15, 34 L. ed. 604, 11 Sup. Ct. Rep. 9; Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 272, 273, 59 L. ed. 220, 224, 225, 35 Sup. Ct. Rep. 37. If, without a statute, a court should decide as we have supposed the statute to enact, it would infringe no rights under the Constitution of the United States. That a party that has taken the question of jurisdiction to a higher court is bound by its decision was held in Forsyth v. Hammond, 166 U. S. 506, 517, 41 L. ed. 1095, 1099, 17 Sup. Ct. Rep. 655. It can be no otherwise when a court so decides as to proceedings in another state. It may be mistaken upon what to it is matter of fact, the law of the other state. But a mere mistake of that kind is not a denial of due process of law. Pennsylvania F. Ins. Co. v. Gold Issue Min. & Mill. Co. 243 U. S. 93, 96, 61 L. ed. 610, 37 Sup. Ct. Rep. 344. Whenever a wrong judgment is entered against a defendant, his property is taken when it should not have been; but whatever the ground may be, if the mistake is not so gross as to be impossible in a rational administration of justice, it is no more than the imperfection of man, not a denial of constitutional rights. The decision of the Illinois courts, right or wrong, was not such a denial. If the Tennessee judgment had been declared void in Illinois, this court might have been called upon to decide whether it had been given due faith and credit. National Exch. Bank v. Wiley, 195 U. S. 257, 49 L. ed. 184, 25 Sup. Ct. Rep. 70. But a decision upholding it upon the ground taken in the present case does not require us to review the Tennessee decision or to go further than we have gone. An objection that a copy of the document sued upon should have been filed with the declaration is a matter of state procedure, and not open here.

Judgment affirmed.