43 Ky. 136 | Ky. Ct. App. | 1843
delivered tlie opinion of the Court.
This was an action of debt, brought by Davis against Mary Connelly and Joseph C. Hughes, executors of Thomas Connelly, deceased, upon a judgment obtained against them in the Supreme Court of the State of Ohio, sitting in the county of Hamilton, in said State. The defendants pleaded, in substance, that when the suit in which the judgment had been rendered was commenced, Thomas Connelly was a resident citizen of Boone county, in this State, and lived and died there; that the defendants were appointed and qualified as his executors in said county of Boone; that they were never appointed, qualified or admitted as such, in any Court or judicial tribunal in the State of Ohio, nor did their testator at the time, or after his death, leave assets or estate there; that the proceedings in the record in the suit declared on, were had in the State of Ohio against them as executors under the laws and within the jurisdiction of Kentucky; that there was, at the institution and during the pendency of said suit, no law of the State of Ohio which authorized the suing or reviving a suit already brought, by consent or otherwise, against executors qualified and appointed in another State; that said proceedings were not within the jurisdiction of said Supreme Court of Ohio by the laws thereof, and that the judgment therein is null and void. To this plea the plaintiffs replied, that the suit in Ohio was commenced in Connelly’s lifetime, and process duly served upon him therein; that h'e appeared, pleaded non assumpsit, with notice of set-off, and the suit was
A demurrer to this replication was sustained by the Circuit Court, and the only question presented for our consideration is, rvhether it contains matter sufficient to maintain the action.
There is no doubt that in an action brought upon a judgment, the defendant may impeach the validity of the judgment by showing a want of jurisdiction in the tribunal by which it was rendered : but it would seem to be equally clear, that the judgments of the superior judicial tribunal of one of these States are, prima facie, entitled to the presumption in eveiy other State, that they are rendered by competent authority, they cannot, therefore, be impugned by a mere allegation of want of jurisdiction. But he who would defeat a judgment on this ground, must show the want of jurisdiction by appropriate allegations of fact, unless it appear on the face of the judgment or record, which is the basis of the action. By the constitution of the United States, and the act of Congress of May, 1790, made in pursuance thereof, the records and judicial proceedings of each State, shall, when properly authenticated, have the same faith and credit in every other State as by law or usage they have in that in which they take place; and as has been heretofore decided, they are entitled to the same effect in every State. Fletcher vs Ferrell, (9 Dana, 377,) and cases there cited.
In consequence of this principle, the record and judgment now in question are entitled, in the tribunals of this State, to the same faith, credit and effect, as conclusive proof of all the matters therein appearing, that
The general averment at the end of the plea, that the proceeding was not within the jurisdiction of the Superior Court of Ohio, by the laws thereof, is therefore, in itself, insufficient to impeach the judgment, and must be regarded merely as a conclusion drawn from the facts previously averred, and the question on the plea is, whether, those facts are sufficient to support this conclusion. The plea does not say that the proceeding therein described was prohibited by any law of Ohio — much less that by any law of Ohio, such proceeding was declared to be void. But the averment on this subject may, and in favor of the judgment of a Superior Court perhaps should, be understood as meaning nothing more than that there is no law’’ of Ohio expressly authorizing or providing for such a proceeding; in which case there could be no plausible ground for contending that the proceedings were void, merely because they were not expressly authorized. It is not pretended that the Court of Ohio had no jurisdiction to ascertain and adjudge the debt in question, if there were before it proper parties, against whom, as representatives of the deceased debtor, it might be adjudged;
In the case of Campbell’s administrator vs Tousey, executor of Booth, (7 Cowen’s Rep. 67,) the Supreme Court of New' York consider it unquestionable, that a foreign executor is liable to be sued there. And we certainly are not prepared to admit that the mere circumstance that the defendants w^ere, as to the Courts of Ohio, foreign executors, would put them so entirely beyond the jurisdiction of those tribunals, that the proceedings against them, to which they did not object, should, on that ground alone, be deemed void. As executors, qualified in Kentucky, they wmre, in fact, the representatives of the testator in Ohio. If it had become necessary for them to make legal proof of their character, then it might have been necessary for them to prove the will and qualify there, or to produce the certificate of probate and qualification in Kentucky, as the laws of Ohio may provide or be understood; and in this aspect of the subject, they might not have been compellable to answer as executors
But further, it is laid down in Williams on Executors, page 138, that if a man sue as executor, or if an action be brought against him as executor, and he plead in that character, this will make him executor de son tort, for which Godolphin and Comyn’s Digest are referred to ; and in Comyn’s Digest, title Administrator, c. 1, it is ‘said that a man is executor de son tort, “if he sue or an. swer to a suit as executor.” Now whatever may be said of the averment of the plea that the proceedings against the defendants in Ohio were bad against them as executors under the laws and within the jurisdiction of Kentucky, the exact import of which it might be difficult to determine, the judgment is against the defendants as executors generally, and the replication states that they, pro. fessing to be executors of Connelly, and acting as such, entered a voluntary appearance in and to the suit, as his executors, &c. as appears by the record; which record shows that they were proceeded against as executors of Connelly, without other designation, and that their voluntary appearance as his executors, was the ground of the proceeding. Upon the facts stated in the replication, and also in the record, they are estopped to’deny that they were executors in Ohio. They have voluntarily assumed to be so, by act of record, and in that character sustained the defence of the suit to final judgment against them. Upon the face of the pleadings and the record, they were executors of Connelly in Ohio; and if not lawful executors, they made themselves executors de son tort, by their acts; and whether they could or could not have defeated an attempt at a compulsory revival of the suit against them by timely denial of the character ascribed to them.
If then the plea should be understood as sufficiently averring that there is a law of Ohio which makes void a proceeding against foreign executors as such, the effect of that averment is avoided by the fact shown in the replication, and by the record to which it refers, that the proceeding was not against them in that character, but as executors generally, that is, as executors in Ohio; and whether they were so lawfully or unlawfully, is immaterial to the question of jurisdiction. In either case they are equally estopped from denying the character in which they appeared and defended the suit, and the judgment is equally valid and conclusive against them.
It is only necessary to say further, that the fact, if it be so alledged in the plea, that there never were any assets of the testator in the State of Ohio, does not, in our opinion, affect the validity of the judgment or its enforcibility by action here, as it would undoubtedly have been deemed effectual in Ohio, to authorize an execution against any assets which the defendants may, at any time after its rendition, have had in that State, so it should be deemed sufficient to authorize a judgment against them here, by which the assets in their hands in this State may be reached. As we 'cannot suppose that the plea that no assets had come to their hands, without more, would have been sufficient to have ousted the Ohio Court of its jurisdiction to render judgment against defendants who admitted themselves to be executors, we cannot admit that the same facts can be alledged with that effect, after judgment, even if it be not concluded by the judgment.
It seems to us, finally, that the objection now made to the jurisdiction, is grounded on a mere personal privilege which, if it ever existed, might have been and was positively waived or lost by not being asserted in time.
From this view of the case it follows, that in our opinion, the Court erred in sustaining the demurrer to the replication, and in renderingjudgment thereon for the defendant.
Wherefore, the judgment is reversed and the cause remanded, with directions to overrule the demurrer and for further proceedings.