Argument for Plaintiff in Error.

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gan. His principal estate, as well as his domicil, was in Michigan, but he owned two small tracts in Massachusetts. The Probate Court of Middlesex County, Massachusetts, by proceedings, regular in form, appointed Frank B. Cotton, a citizen of that State, administrator with the will annexed. The Massachusetts property was afterwards sold by that administrator for $350.

After the death of Fletcher the principal suit was revived, the administrator entered his appearance therein, and an order was made by the Massachusetts court that the executors and the children and residuary legatees of the decedent be notified to appear, and that in default thereof the arbitration proceed. They were notified by personal service of the order in the State of Michigan, but did not appear. The arbitration proceeded in their absence and a final award was made. It should also be stated that on his death Fletcher's counsel withdrew their appearance in the case. On April 14, 1903, the Massachusetts Supreme Judicial Court confirmed the awards of the arbitrator, and adjudged that Albert W. Brown recover from Frank B. Cotton, administrator with the will annexed, the sum of $394,372.87 and $4,495.85 as interest and the costs of suit, afterwards taxed as $5,385.40. It was further adjudged and decreed that the Michigan executors of the last will were bound by the final award of the arbitrator and liable to pay to Albert W. Brown the aforesaid sums; that the legal representatives of George N. Fletcher were likewise bound by the award and liable for any deficiency. Thereafter the decree of the Massachusetts court was filed in the Probate Court of Wayne County, Michigan, as evidence of a claim against the estate. It was disallowed by that court, and on appeal to the Supreme Court of Michigan the disallowance was affirmed. 146 Michigan, 401. Thereupon the case was brought here on

error.

Mr. Harrison Geer and Mr. John Miner for plaintiff in error: The Massachusetts court in equity having had jurisdiction

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Argument for Plaintiff in Error.

in Fletcher's lifetime over the subject-matter and the parties to the suit, and on his death the suit having been duly revived, the decree is conclusive evidence of debt in this proceeding.

The death of a party to a suit in equity does not amount to a determination of the suit, but merely suspends the proceedings until new parties are brought before the court. When the suit is revived, the cause proceeds to its regular determination. 5 Am. & Eng. Ency. of Pl. & Pr. 790, 791; Story's Equity Pl. & Pr. § 354; Clarke v. Mathewson, 12 Pet. 171; Mellus v. Thompson, 1 Cliff. 129; Hoxie v. Carr, 1 Sumn. (U. S.) 178.

While the right of the Massachusetts court to proceed in the suit was suspended by Fletcher's death, the court was not thereby divested of jurisdiction. It retained the jurisdiction possessed by it in the lifetime of Fletcher until the cause was finally determined. 2 Black on Judg. § 912; Freeman on Judg. § 142; Sanford v. Sanford, 28 Connecticut, 6; Evans v. Black, 5 Arkansas, 429; Quarl v. Abbott, 102 Indiana, 239, 240; Gray v. Bowles, 74 Missouri, 419; Nations v. Johnson, 24 How. 202. See also Smith v. Engle, 44 Iowa, 265; Laing v. Rigney, 160 U. S. 531; Fitzsimmons v. Johnson, 90 Tennessee, 416; Field v. Judge, 124 Michigan, 68.

The court having possessed jurisdiction of the cause until it was finally determined, its exercise of that jurisdiction cannot be questioned in a collateral proceeding like the one at bar. There is a marked distinction between the jurisdiction of a court and its exercise of that jurisdiction. If it has no jurisdiction, any judgment rendered by it is absolutely void, and may be attacked in a collateral proceeding. If it has jurisdiction, but exercises it wrongfully, its judgment may be reversed on appeal, but it cannot be questioned in a collateral proceeding. 17 Am. & Eng. Ency. of Law (2d ed.), 1042; Paine v. Mooreland, 15 Ohio, 435; Chase v. Christianson, 41 California, 255; Laing v. Rigney, 160 U. S. 531; Babb v. Bruere, 23 Mo. App. 606; Hagerman v. Sutton, 91 Missouri, 519.

Argument for Plaintiff in Error.

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The suit having been properly revived against the administrator with the will annexed, and the court having retained the jurisdiction that it possessed in Fletcher's lifetime until the cause was finally determined, the decree against such administrator is valid and conclusive evidence of debt in this proceeding against his estate in Michigan.

Even if the suit had not been revived after Fletcher's death the decree would be merely voidable, and not void, nor subject to attack in a collateral proceeding like the case at bar. While a court ought to cease the exercise of its jurisdiction over a party on his death, its failure to do so can only be corrected in a direct proceeding. The court having possessed jurisdiction in the lifetime of the party, and having retained such jurisdiction until the final determination of the suit, its exercise of that jurisdiction, even after the death of a party, is not subject to collateral attack. 2 Black on Judg. § 200; Freeman on Judg. §§ 140-153; 17 Am. & Eng. Ency. of Law (2d ed.), 1070; New Orleans v. Gaines, Admr., 138 U. S. 612; Reid v. Holmes, 127 Massachusetts, 326; Collins v. Mitchell, 5 Florida, 364; Neale v. Utz, 75 Virginia, 480; Yaple v. Titus, 41 Pa. St. 195; Carr v. Townsend's Ex'rs, 63 Pa. St. 202; Swasey v. Antram, 24 Ohio St. 87; Claflin's Ex'r v. Dunne, 129 Illinois, 241; Mitchell v. Schoonover, 16 Oregon, 211; Hayes v. Shaw, 20 Minnesota, 405; Stocking v. Hanson, 22 Minnesota, 542; Watt v. Brookover, 29 Am. St. Rep. 816n; Webber v. Stanton, 1 Mich. N. P. 97.

Fletcher's Michigan executors and the administrator with the will annexed of his estate in Massachusetts are in such privity tha. the decree is conclusive evidence of debt in this proceeding.

Both the executors and the administrator with the will annexed are in privity with their testator, Fletcher. 23 Am. & Eng. Ency. of Law (2d ed.), 101; Words and Phrases, Vol. 6, pp. 5606-5611; 1 Greenl. Ev. § 523; Litchfield v. Goodnow, 123 U. S. 549; Williams v. Barkley, 58 N. E. Rep. 768; Pennington v. Hunt, 20 Fed. Rep. 195; Hill v. Tucker, 13 How.

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Argument for Defendant in Error.

458; Goodall v. Tucker, 13 How. 469; Latine v. Clements, 3 Kelly (Georgia), 426.

Mr. Henry M. Campbell for defendant in error:

The contention that the administrator with the will annexed, appointed by the Probate Court of Suffolk County, Massachusetts, at the instance of the plaintiff, was in privity with the executors appointed by the Probate Court for the County of Wayne, Michigan, under the will, so that a decree in Massachusetts against the Massachusetts administrator with the will annexed, is binding upon the Michigan executors, is without support in principle or authority. Campau v. Gillett, 1 Michigan, 417; Gary, Probate Law, § 9; Story, Conflict of Laws, §§ 512, 513, 514; Lafferty v. People's Savings Bank, 76 Michigan, 35; Am. Missionary Ass'n v. Hall, 138 Michigan, 247; Low v. Bartlett, 8 Allen, 262; Vaughn v. Northrop, 15 Peters, 5; Aspden v. Nixon, 4 How. 467; Stacey v. Thrasher, 6 How. 58; McLean v. Meek, 18 How. 16; Johnson v. Powers, 139 U. S. 156.

The covenants contained in the agreement of submission could not confer upon the Massachusetts court the power, which it did not otherwise possess, to render a judgment against the Michigan executors over whom it had no authority and who had not been brought within its jurisdiction by legal process. Woodbury v. Proctor, 9 Gray, 19; Wily v. Durgan, 118 Massachusetts, 64; Seavy v. Beckler, 132 Massachusetts, 203; Mussina v. Hettzog, 5 Binn. (Pa.) 387.

An agreement that the Massachusetts court shall have authority to enter a decree which shall be binding upon persons not lawfully brought before it and upon an estate situated without its jurisdiction, is legally impossible. The State of Massachusetts, itself, is without power to confer such authority upon its courts, and the Michigan laws expressly prohibit the adjustment of claims against estates within its jurisdiction in any other way than that designated by its own laws. Cooley's Constitutional Limitations, 491; Spear v. Carter et al., 1 Michi

gan, 19, 23; Youngblood v. Sexton, 32 Michigan, 406, 409; Allen v. Carpenter, 15 Michigan, 25, 32; Thompson v. Michigan Mutual Benefit Assn., 52 Michigan, 522, 524; Kirkwood v. Hoxie, 95 Michigan, 62; Santom v. Ballard, 133 Massachusetts, 465; Batchelder v. Currier, 45 N. H. 460, 463; State v. Richmond, 26 N. H. 232; Dudley v. Mayhew, 3 N. Y. 9; Morrison v. Weaver, 4 S. & R. (Pa.), 190; Agee v. Dement, 1 Humph. (Tenn.) 332; Judy, Adm'r, v. Kelly, 11 Illinois, 211; Greer v. Ferguson, 56 Arkansas, 324; Flandrow v. Hammond, 13 N. Y. App. Div. 325; Sloan v. Sloan, 21 Florida, 589–596; Elling v. First Nat'l Bank, 173 Illinois, 368, 387; Freeman on Judgments, § 120, and cases cited; Foster v. Durant, 2 Cush. 544; Woodbury v. Proctor, 9 Gray, 18; Hubbell v. Bissell, 15 Gray, 551; 17 Am. & Eng. Ency. of Law (2d ed.), 1060.

MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.

The Federal question presented is, whether the Michigan courts gave force and effect to the first section of Article IV of the Federal Constitution, which provides that “full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." That this is a Federal question is not open to doubt. Huntington v. Attrill, 146 U. S. 657, 666, and cases cited.

The constitutional provision does not preclude the courts of a State in which the judgment of a sister State is presented from inquiry as to the jurisdiction of the court by which the judgment was rendered. See the elaborate opinion by Mr. Justice Bradley, speaking for the court, in Thompson v. Whitman, 18 Wall. 457. That opinion has been followed in many cases, among which may be named Simmons v. Saul, 138 U. S. 439, 448; Reynolds v. Stockton, 140 U. S. 254, 265; Thormann v. Frame, 176 U. S. 350. Even record recitals of jurisdictional facts do not preclude oral testimony as to the existence of those facts. Knowles v. Gaslight &c. Co., 19 Wall.