49 Tenn. 304 | Tenn. | 1871
delivered the opinion of the Court.
Neely brought this action of debt against Coffee, in the Circuit Court of Overton county, upon a judgment for fifteen hundred dollars, recovered against defendant in the Circuit Court of Cumberland county, State of Kentucky, at "the October Term thereof, 1865, and here to the Court shown. The defendant pleaded mil tiel record; fraud in obtaining the judgment; no jurisdiction in the Circuit Court of Cumberland county of the subject matter of the suit; no jurisdiction in said Court of defendant’s person
The record does not show, with certainty, what disposition was made of the plea of nul tiel record. It should have been tried by the Court, but no direct action appears to have been taken upon it, except to grant leave to file a replication thereto. The issue seems to have been submitted to the jury, and this was error. See 2 Yer., 258; 2 Swan, 555.
On the trial in the Court below, the plaintiff read in evidence a paper, styled “A transcript of record from the Circuit Court of Cumberland,” to the reading of which defendant excepted, because, as he alleges, it was not, for various reasons, properly authenticated. The certificates upon said paper are as follows:
“State of Kentucky, i “Clerk’s Office Cumberland Circuit Court. /
“ I, C. P. Gray, Clerk of the Cumberland Circuit Court, certify that the foregoing six pages and nine lines contain a true and perfect transcript of the petition, notes, summons, Sheriff’s return thereon, judgment and fi. fa.*307 that issued thereon, with Sheriff’s return thereon, as the same remains now on file and of record in my office.
r — A—, f ICy. Seal 1 1 0court°' f v — v"—'
In testimony whereof, I have hereunto set an<^ affixed my seal of office, at office in Burksville, 11th day of Jauuary, 1866.
“G. P. Geay, Clerk.”
“State oe KeNtucky, i ‘‘Cumberland Circuit Court.j
“I, T. L. Alexander, Judge of the 15th Judicial District, in the State of Kentucky, and presiding Judge of the Cumberland Circuit Court, do certify that C. P. Gray, whose genuine signature appears to the foregoing certificate as Clerk, is now, and was at the time of signing the same, Clerk of the Cumberland Circuit Court, duly qualified according to law; that his certificate is in due form of law, and all his official acts as such are entitled to full faith and credit. In witness whereof, I have hereunto set my hand as Judge aforesaid. This, the 11th day of January, 1866. T. L. ALEXANDER, J. C. C.”
It is contended for the plaintiff in error, that the Clerk’s certificate is not sufficient, because, it is said, he does not purport to certify the copy of a record, but only copies of certain papers in a cause; and it is further alleged that the record is not certified under the official seal of the Court, and that the Judge does not certify that there is no public seal of office in his- court. Neither of these positions is correct.
1. The act of Congress of May 26,. 1790,'prescribing the mode of authenticating legislative acts and judicial records and proceedings, does not, in express terms, re
In Peck v. Gale, 3 Mil. La. R., 320, 323 and 324, it was held that a certificate of the Clerk that the transcript contains the proceedings on file and of record, is presumptive evidence that it contains the whole proceedings; and, therefore, a transcript, thus authenticated, may be read. See 3 Cow. & Hill’s Phil, on Ev., 2d ed., 1059. In Pennsylvania, a certificate from the prothonotary,' annexed to the exemplification of a record, that the paper is truly copied from the records, imports that it is a copy of the whole, and not a mere extract; and that- the words, “a true copy,” import an entire copy. Edmiston v. Scharwtz, 13 Serg. & Rawle, 135; 3 Cow. & Hill’s Phil., 1059, 60. These cases are almost identical in principle with this, and are not in conflict with Burton v. Pettibone, 5 Yer., 443. There it-was held, that “to certify
2. It seems to be generally agreed that the method of authentication prescribed by the .act of Congress is not exclusive of any other which the States may see proper to adopt. See 1 Greenl. Ev., 2d ed., 505, and the eases cited in note to 1 Bright. Dig., .265. Several of the States have legislated upon the subject. 3 Cow. & Hill’s Phil. Ev., 2d ed., 1060. Among others, the Code oí Tennessee, 3795, contains a provision as to the mode oí authentication. The act of Congress provides that the authentication shall be by “the attestation of the Clerk and the seal of the Court, if 'tlíére be a seal,” etc.; and the objection here is, that the Clerk does not purport to affix the seal of the Court, but only his seal of office. Admitting Jhat there may be a distinction between the seal of the Court and the seal of the Clerk, as a mere officer of the Court, and that there is some plausibility in the argument that the Clerk does not, in the exact language of the act of Congress, purport to affix the seal of the Court eo nomine, we hold that the. provision in the Code, 3795, contains a literal answer to the objection, and embraces precisely such certificates as those now under consideration. The words of that section are, that: “A judicial record of 'a sister State, or of any of the Federal Courts of the United States, may be proved by, a copy thereof, attested
The objection, therefore, stated in the bill of exceptions, that the Judge does not certify that there is no public seal of office in his court, if it were tenable under the act of Congress, is expressly obviated by the provision in the Code as to the Clerk's seal of office; and, according to Foster v. Taylor, 1 Cooper’s Overt., 568, foot; 2 Tenn., 191, it is immaterial to which certificate the seal stands in juxtaposition; the Court will consider it as annexed to the proper certificate.
3. It is next insisted that the Circuit Court erred in sustaining the demurrers to the pleas which sought to put in issue the jurisdiction of the Circuit Court of'Cumberland county, Kentucky, both as to the subject matter in litigation, and the person of the plaintiff in error.
In Story’s Confi., § 609, the author, in treating of the constitutional provision, that “full faith and credit shall be given in each State, to the public acts, records and judicial proceedings of every other State,” declares that this doe^ not prevent an inquiry into the jurisdiction of the court in which the original judgment was rendered, to pronounce the judgment; nor an inquiry into the right of the State to exercise authority over the parties or the subject matter; nor an inquiry whether the judgment was founded in, and impeachable for, a manifest fraud. And Chancellor Kent, in a note to his Commentaries, vol. 1, p. 261, m., 6th ed., cites a large number of authorities to establish the positions pervading, as he says, the jurisprudence of this and all other coun
The judicial knowledge thus taken of the laws of Kentucky is not only in conformity to our own Code,
4. The next question submitted in behalf of the plaintiff in error is by no means free of difficulty. In his second plea, it is alleged, in substance, that owing to a great political prejudice existing at the time of the service of the summons, between citizens of Kentucky and Tennessee, the plaintiff in error could not attend to the defense of the suit there, without endangering his life; that the defendant in error, well knowing this fact, took advantage of the temporary sojourn of the plaintiff in error in the State of Kentucky to cause, process to be served; and that he “fraudulently combined with the citizens of Kentucky, by force and threats, to keep him from 'making his defense, and took judgment against him by default, well knowing that defendant did not owe him one cent;” and that he owed the defendant in
In Topp v. Bank of Alabama, 2 Swan, 184, it was held that judgment rendered in- one State, in pursuance of the laws of that State, -is to be regarded as absolutely binding upon the parties thereto, in every other State, until it is either set aside by the tribunal rendering it, or reversed upon error.” But the question of fraud was not considered in that case; and the broad .principle thus announced is limited and restricted by the facts appearing in the case in judgment. For, in that case, it was held that when two judgments for the same debt had been recovered under the local laws of the State of Alabama, the one ágainst the maker, and the other against the indorser of a promissory note, and the judgment against the indorser was paid by him, such payment extinguished both judgments; and an action could not be maintained in this State upon the judgment recovered against the principal, although it had been assigned to the indorser.
It has been seen in the passage above quoted from Story’s Conflict of Laws, that the judgment is not of such absolute perfection or inviolability as to preclude an inquiry in the Court of the State in which suit is brought upon it, as to whether it is founded in and impeachable for a manifest fraud. It is said in 1 Greenl. Ev., 2d ed., § 541, that the proceedings in rem, of foreign Courts of Admiralty, are generally conclusive; but it is added,
We are aware that, a contrary doctrine has been held in some of the States. See 2 Am. Lead. Ca., 3d ed., 737. But such a view of the law gives to the judgment an extra-territorial operation which it does not possess in the State where rendered, was not contemplated by the Act of Congress, and is not generally conceded by the States. In an early case in this State, it was said: “There can be no doubt that the judgment of another State can be examined here whenever the party in whose name it was obtained, applies to our courts to have it effectuated. The courts here can not act blindfolded, nor was it ever intended by the Act of Congress that they should:” Coop. Overt. Tenn. B., 212. In the same case, it was said that “it has been determined by our courts that a judgment of another of the United States is not to be considered in the same view as the
and had no notice as to the taking of the account. Glasgow v. Lowther, Cooke, Cooper’s ed., 351. In Wincheser v. Evans, Ib., 320, it was held, upon demurrer to a plea in bar of the bill, that “the record of a judgment in another State is conclusive evidence that such judgment was rendered, but a court of equity in this State is not thereby preceded from inquiring into the grounds upon which it was rendered, and granting relief in a proper case, upon the merits.” Afterwards, when the cause came to be finally heard, it was held, among other things, in a learned opinion, delivered by Alfred Harris, Special Judge, “that equity will relieve against a judgment rendered in a sister State, upon any ground which' would entitle a party to relief against a judgment in this State: 3 Hay, Coop, ed., 211. It is also a well-established doctrine in this State, that, when the judgment of a sister State is void for •want of jurisdiction in the court rendering it, or is rendered upon an attachment of property without personal service of process, or appearance, no action can be sus
No doubt, as we apprehend, can exist, that if it were clearly shown in the proper court of any State where a judgment has been rendered, that it was obtained by fraud, it would be set aside; and where an action is brought upon it, it can have no more force or effect in the State where the suit is brought than in the State where the judgment was rendered. As we understand the decisions of the Court of Appeals of Kentucky, judgments and decrees obtained by fraud would be set aside by the legal tribunals of that State; and the judgment in the case before us is of no greater validity here than it would be in the State where it was rendered. See Talbot v. Todd, 5 Dana, 196; Thomas and Wife v. Hite, 5 B. Monroe, 598; Kennaird v. Adams, 11 Ib., 219. It has been declared in this State, that “the judgments of courts of record are of such high verity, that their existence can not be impeached by parol proof; they
The more usual, and certainly the better, practice in this State, is to resort to a court of equity to obtain relief against a fraudulent judgment. The Code does not, in express terms, provide for any action -on a judgment from another State, but divides the two classes of actions into' actions upon contracts and for wrongs. 2746, 2747. It is declared, in sec. 2884, par. 2, that any pleading shall be sufficient, “when, by a fair and natural construction, it shows a substantial cause of action or defense.” At common law, “a defendant .could not plead that the judgment had been obtained against him by fraud, though it might be pleaded that a judgment against a third person was so obtained.” 1 Chit. PL, 486, n. But in England, as well as in several of the United -States, “it has been customary to grant new trials, where judgments are obtained through fraud or trick.” 3 Graham & Wat. on New Trials, 1008, 1015.
We' are unable to perceive any valid reason why the defense may not be made by plea, in a court of law, to an action upon a judgment from another State, especially under the provisions of the Code; and the judgment of the court below was erroneous, in sustaining the demurrer to the plea of fraud.
4. On a careful examination of the record, we are not satisfied as to the correctness of the verdict of the jury on the plea of set off. The evidence tends strongly to show that the defendant in error is' liable for the value
Let the judgment be reversed, and the cause remanded for a new trial.