¶1delivered the opinion of the court:
¶2The plaintiff assigns as causes of reversal, that the defendant in the court had no legal notice of the proceedings against him, &c. 2nd. That the Circuit Court had no authority to reinstate the judgment. An objection was made on the part of the defendants in error that the judgment of the Circuit Court was not of a character which could be considered final. Whatever doubts we may have entertained upon the subject, the order for execution clearly shows that the Circuit Court considered their action final. Such being the fact, we consider it the duty of the court to look into the record and test the validity of its proceedings.
¶3That it is indispensably necessary that the defendant should have had some legal notice, either actual or constructive, of the cause of action against him, or have waived it by his personal appearance, there can be no doubt or question; and it must be conceded that merely naming a person and styling him a party in the writ or pleadings alone, without giving notice of the proceeding, will not render a judgment valid against him. In the present case, Webb made no defence in the Circuit Court; nor, does it appear from the record, that he had any legal notice, either actual or constructive, of the proceedings against him; nor that he waived such notice by his voluntary appearance. It is a settled principle that unless it appears affirmatively upon the record that the defendant was regularly brought into court in accordance with the statutory provisions regulating the mode of bringing actions, (see sec. 3 to 13, p. 619, Rev. Code,) or that he consented to proceed without process or notice, the court could not exercise any jurisdiction over the subject matter. This objection is valid at every stage in the cause, and cannot- be cured by any subsequent proceeding. And the rule, that want of notice is fatal, is uniformly sustained by all the authorites. See Ormsby vs. Lynch, Littel's Sel. Cas. 303; Borden vs. Fitch, 15 J. R. 121. The second assignment, that the court below could not rightfully reinstate on the record a judgment the original of which was lost or destroyed, has been already decided in the case of Webb vs. Estill, at the last term, and as we think upon correct principles.
¶4We are of opinion, therefore, that the judgment of the court below is absolutely null and void, and that the same ought to be reversed with costs.
¶5The same decision was made in the case of Pettit vs. Hanger & Winston.