2 Ind. 548 | Ind. | 1851
This was an action of debt, brought by Lane and one Thomas against Davis, on the judgment of a Court in another state.
The declaration is to the following effect: For that whereas the plaintiffs, heretofore, to-wit, at the May term of the Circuit Court for the county of Claiborne, and state of Mississippi, held at Port Gibson, in said county, on, &e., by the consideration and judgment of said Court, recovered against the.defendant the sum of 142 dollars and 80 cents, the sum above demanded, which, in and by said Court, was then and there adjudged to the plaintiffs for their damages which they had sustained by reason of the non-performance by the defendant of certain promises and undertakings then lately made by the defendant to the plaintiffs, and also their costs and charges by them about their suit in this behalf expended, which costs and charges amount to, &c., whereof the defendant was convicted, as by the record and proceedings thereof remaining in said Court fully appears; which judgment remains in full force, &.c. Whereby an action hath accrued, &c.
The defendant contends that the declaration does not aver that the judgment sued on was rendered by a Court of record, or by a Court having jurisdiction of the person of the defendant; and that, therefore, nil debit was a’ good plea.
The declaration is in the ordinary form in debt on a domestic judgment of a Court of record. 2 Chit. Plead. 482. It describes the judgment of the Court, and then says “ as by the record and proceedings thereof remaining in said,Court fully appears,” &c. We think, therefore, that it is shown substantially, that the Court rendering the judgment was a Court of record. The circumstance that the declaration does not show, in express terms, that the Court had jurisdiction of the person of the defendant, can be no ground for the plea of nil debit. That plea is only admissible where the suit is founded on a matter of fact. The foundation of the present suit is a judgment of a Court of record in Mississippi. Had the suit been brought in that state, the defendant could not have pleaded nil debit, because the common law, which must be presumed to be in force there, does not permit such plea to a suit on a record. By the constitution of the United States, and an act of congress of 1790, the judgment of a Court in any one of the states has the same faith and credit in the other states that it has in the state where it was rendered. ■ Const. U. S. Art. 4, s. 1.— 1 U. S. Stats, at Large, 122. The judgment before us, therefore, being matter of record in Mississippi, must be treated as matter of record here; and the general issue to the suit is, not nil debit, but nul tiel record.
The Supreme Court of the United States long since decided that nil debit could not be pleaded to a suit on the judgment of a Court of another state. Mills v. Duryee, 7 Cranch, 481. — Hampton v. McConnel, 3 Wheat. 234., That Court recently referred to those cases and said that the language of the Court in Mills v. Duryee does not admit of the interpretation that a plea, not denying the
Were the plaintiff compelled, in these' cases, to join issue on the plea of nil debit, the defendant would have the right to prove that the judgment sued on ought not to have been rendered, on the ground that the cause of action had not been established. There would, on such issue, be a re-trial of the merits of the original suit, which is certainly not allowable.
This decision accords with the opinion expressed by the Court in Holt v. Alloway, 2 Blackf. 108.
The judgment is affirmed with costs.