that in order to constitute it a court of record its proceedings must be according to the course of the common law.'

This excludes all courts of inferior jurisdiction which are created, and their jurisdiction limited and controlled by statute. The fact that a court has a clerk and a seal does not render it a court of record. And it is held that where a court of general jurisdiction has summary powers conferred upon it which are wholly derived from statute and not exercised according to the course of the common law, its decisions must be treated like those of a court of inferior and special jurisdiction."

It will be seen from the authorities cited that no definite rule can be laid down as to what is necessary to constitute a court of record in this country. In those states in which the distinction between common law and equity, with respect to matters of form and the modes of practice and procedure, has been abolished, the attempt to divide courts, in measuring the extent of their jurisdiction, into such as proceed according to the common law and those created and controlled by statute, is entirely inappropriate. And aside from this, such a test of a court of record is uncertain and unsatisfactory. The only safe and reliable rule is the one implied in the designation of the court. If a court is required by law to keep a record of its proceedings, no matter whether by a clerk or by the judge or justice of the peace, it should be treated as just what it really is, a court of record.

1 "A court of record is a judicial, organized tribunal, having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of the common law." 4 Am. & Eng. Enc. of Law, 452; In the matter of Peter Kerrigan, 33 N. J. Law, 344; Cox v. Groshong, 1 Pin. (Wis.) 307; Brown t. Goble, 97 Ind. 88; Anderson's Dic. of Law, 275.

'But see on this point, post, sec. 25.

3 Hutkoff v. Demorest, 10 N. E. Rep. 535.

Furgeson v. Jones, 17 Or. 204: 20 Pac. Rep. 842.

5 "It was, to be sure, the judgment of a justice of the peace that was in question, but his court must be considered as a court of record. A court that is bound to keep a record of its proceedings, and that may fine or imprison, is a court of record. A justice's court is within this definition." Hooker v. The State, 7 Blki. 272, 275.

But, unfortunately, this means of distinguishing between courts of record and courts not of record has not been universally, or even generally, adopted or received as the true test, nor have we any other test by which they can be distinguished that has been generally adopted.

In some of the states this uncertainty has been removed by a direct statutory provision. In New York and some other states the code provides what courts are and what courts are not courts of record.1

7. COURTS OF GENERAL AND SUPERIOR AND OF INFERIOR AND SPECIAL JURISDICTION.-The distinctions between courts of general and superior jurisdiction and those which are of special and inferior jurisdiction, are not more satisfactorily determined and agreed upon than the distinctions between courts of record and courts not of record.2

The question whether a court belongs to one or the other of these classes is usually made to depend upon the effect of its decision when rendered. If its decision is conclusive, except upon appeal, without an affirmative showing of jurisdiction, by its proceedings or otherwise, it is a court of superior jurisdiction. If, on the other hand, nothing can be presumed in favor of its jurisdiction, and its power to act must appear on the face of its proceedings, or its decisions be treated as a nullity, it is a court of inferior jurisdiction.3

1

Throop's An. Code Civ. Pro. (N. Y.), secs. 2, 3; Hutkoff v. Demorest, 10 N. E. Rep. 535; Code Civ. Pro. Cal., secs. 33, 34.

212 Am. & Eng. Enc. of Law, 265. "The question seems to have resolved itself into one of public policy, and whether the particular court of the limited jurisdiction ought to have extended to its jugment the sanctity of the presumptions arising from the adjudications of tribunals of general common law jurisdiction. That the underlying and controlling principle upon which the question must be decided is simply a consideration of correct public policy, is indicated by the language employed by the Supreme Court of Vermont in Wright v. Hazen, 24 Vt. 143." Ex parte Kearny, 55 Cal. 216.

3 "The true line of distinction between courts whose decisions are conclusive if not removed to an appellate court, and those whose proceedings are nullities if their jurisdiction does not appear on their face, is this: A court which is competent, by its constitution, to decide on its own jurisdiction and to exercise it to a final judgment, without setting

But the great difficulty is to determine whether a court is one whose decision is sufficient evidence of its own. jurisdiction or not. In many of the decided cases the question is made to turn upon the kindred one, discussed in the last preceding section, viz., whether the court is one of record or not. So we proceed in a circle with very unsatisfactory results. A court may be one of inferior jurisdiction in the technical sense of the term, that is, in the sense that its judgments are subject to reversal or modification by a court having appellate jurisdiction over it, and yet be a court of superior jurisdiction, as contradistinguished from courts of inferior jurisdiction, because their powers are limited and special. In a technical sense all courts, except those of last resort, are inferior courts."

Whether a court is one of general or special jurisdiction is said to depend upon whether its authority extends to a great variety of matters or only to certain specified cases." And a court of inferior or special jurisdiction can thus be ascertained if its authority is limited to certain specified cases. Such a court is treated as one of inferior jurisdiction because, in order to authorize it to act, it must appear upon the face of its proceedings that the case before it is one of the specified cases over which it is given authority.3

forth in their proceedings the facts and evidence on which it is rendered, whose record is absolute verity, not to be impugned by averment or proof to the contrary, is of the first description; there can be no judicial inspection behind the judgment save by appellate power. A court which is so constituted that its judgment can be looked through for the facts and evidence which are necessary to sustain it; whose decision is no evidence of itself to show jurisdiction and its lawful exercise, is of the latter description." Grignon v. Astor, 2 How. 319, 341; Borden v. State, 11 Ark. 519; 54 Am. Dec. 217.

1 McCormick v. Sullivant, 10 Wheat. 192; Borden v. State, 11 Ark. 519; 54 Am. Dec. 217, 232; 12 Am. & Eng. Enc. of Law, 266; Anderson's Dic. of Law, 275.

2 "Some courts are of general jurisdiction, by which is meant that their authority extends to a great variety of matters; while others are only of special and limited jurisdiction, by which it is understood that they have authority extending only to certain specified cases." Cooley Const. Lim., 5th ed., 502.

1 Post, secs. 23, 25; Cooley Const. Lim., 5th ed., 502.

In the sense that a court which has jurisdiction only in specified cases is one of special, and therefore of inferior jurisdiction, all of the federal courts, except the supreme court, have been held to be inferior courts, on the ground that they have no general, or common law jurisdiction, but only such jurisdiction as is specially conferred upon them by positive law. But, as we shall see when we come to consider the question of jurisdiction,2 they are not so in the sense, or to the extent that their proceedings, outside of their jurisdiction, are nullities, or that the facts. affirmatively appearing on the face of their proceedings may be disproved and disregarded.3 Nor can their judgments be attacked except upon appeal, or writ of error, where their authority to act does not affirmatively appear on the face of their proceedings.*

So it will not do to rely upon the distinction between courts of general and those of special or limited jurisdic

'Cooley's Const. Lim., 5th ed., 27; McCormick v. Sullivant, 10 Wheat. 192; Hahn r. Kelly, 34 Cal. 413; 94 Am. Dec. 742; United States v. Southern Pac. R. Co., 49 Fed. Rep. 300.

2 Post, secs. 23, 25.

3"But this reason proceeds upon an incorrect view of the character and jurisdiction of the inferior courts of the United States. They are all of limited jurisdiction; but they are not on that account inferior courts, in the technical sense of those words, whose judgments, taken alone, are to be disregarded. If the jurisdiction be not alleged in the proceedings, their judgments and decrees are erroneous, and may, upon a writ of error or appeal, be reversed for that cause. But they are not absolute nullities." McCormick r. Sullivant, 10 Wheat. 192, 199.

on

"But the present judgment was neither fraudulent on its face nor even voidable. Had it been rendered on the special counts alone, it might have been voidable by a writ of error for not alleging jurisdiction in the pleadings. (See ante, 2 How. 243; Capron v. Van Norden, 2 Cranch, 126.) But it has been repeatedly settled that even then, without any plea to the jurisdiction, and after a verdict for the plaintiff or the general issue and final judgment, it is not a nullity, but must be enforced till duly reversed. (Kemp's Lessee v. Kennedy, 5 Cranch, 185, and Skillern's Executors v. May's Executors, 6 Cranch, 267; McCormick v. Sullivant, 10 Wheat. 192; Voorhees v. Bank of United States, 10 Peters, 449; Meyer v. Zane, 3 Ohio, 306; Wilde v. Commonwealth, 2 Metc. 408; Hopkins v. Commonwealth, 3 Metc. 460.) Because it would be a judgment rendered by a court not of inferior, but only limited jurisdiction, and the merits would have been investigated and decided by consent." Bank of United States v. Moss, 6 How. 31, 39.

tion, in the effort to distinguish between courts of superior and those of inferior jurisdiction.

It must be apparent from what has been said, and the authorities cited, that the line of demarkation between courts of superior and those of inferior jurisdiction has never been definitely determined, and perhaps never will be. It seems that it must be left to a separate decision, as affecting each court, where there is any doubt as to the class to which it belongs, by the court of last resort in the state where it is situated.'

1 In the case of Hahn v. Kelly, 34 Cal. 391, 411 (94 Am. Dec. 742), this question received careful attention. In that case the court said: "Not universally, but frequently, we find the words 'superior courts' accompanied by the phrase 'proceeding according to the course of the common law.' What does this phrase mean? Does it operate as a limitation upon the rule? Does it mean that when a superior court is proceeding according to the rules and practice of the common law its jurisdiction will be presumed; but that when it is proceeding according to rules and practice prescribed by a statute its jurisdiction will not be presumed, but must be shown? Does it mean that the same court is superior or inferior according to circumstances-that it is superior when it works according to common law, and inferior when it works according to statute law; if it does, what is the reason upon which the distinction which it makes is founded? Unless those who have used the expression can give us a reason for the distinction which it seems to make, which reason is satisfactory, we must conclude that there is none, and that they have used the expression without license. We have been unable to find any reason for such a distinction, none has been suggested, and every reason which occurs to us points the other way. When first employed its use was harmless, for there was then no mode of procedure except such as the common law prescribed; but its continued use, where the modes of the common law have been superseded, is mischievous. Upon an examination of the books it will be found that our most accurate writers do not use the expression when speaking of the present or cognate rules. The only distinction which they make is represented by the words 'superior' and 'inferior,' 'limited' and 'general,' and such, in our judgment, is the only distinction which exists; and there is no satisfactory reason for a further distinction founded upon a supposed departure from the modes in vogue at common law, for the purpose of obtaining jurisdiction. . . The doctrine contended for, pushed to its ultimate conclusion, would abrogate the rule in this state, and dwarf all our courts to the grade of inferior courts at common law. The jurisdiction of all our courts is special and limited, as defined by the constitution, and they do not proceed according to the course of the common law, but according to the course of the practice