33 Tex. 288 | Tex. | 1870
The appellees commenced suit in the district court on the twenty-ninth of December, 1859, seeking to recover from the appellant the sum of $1183 62, the amount found due by the Probate Court oí Marengo county, Ala., at the August term for the year 1856, against Benjamin A. Easley, as the administrator of Robert P. MeClinton’s estate, and the appellant and Wm. McClinton as his sureties. Suit was brought on a record of what was claimed to be a valid judgment of said probate court against the parties. The proceedings lingered in the district court until
Courts of probate, being of special and limited jurisdiction, created by local laws, and deriving their jurisdiction from such local statutes, there is no presumption of law to sustain their judgments and decrees, and their records must show an explicit and special finding of all material facts necessary to their jurisdiction and the validity of their findings. The maxim, “ omnia recte jiresumuntur,’.’ will not apply to them in the courts of other States. (81 Conn. R., 381, Portovine’s appeal.) But the record in this case shows that the Probate Court of Marengo county, Ala., had no jurisdiction of the person of Benjamin A. Easley, administrator, nor his security, Anselm B. Easley. The only-service claimed was by publication for three consecutive weeks in a local newspaper. In the case af Norwood and others v. Cobb, 15 Texas, 500, the court held that where suit is brought upon the judgment of the court of another State, rendered in a suit in ■personam, the defendant may prove that he was not served with process in such suit, although there appears in the record proper process regularly returned, “executed;” and if such proof be made, the judgment cannot be enforced in this State. (11 Howard’s S. C. Reports, 165.) The court say: “When a judgment was given in New York,' against one of two partners, one of whom resided in Louisiana, and was never served with process, and an action was brought against him in Louisiana upon this judgment, a peremptory exception, in the nature of a demurrer, that the judgment sued upon is not one on which suit can be brought against the defendant in this court, was well founded.” This decision was given upon the interpretation of a statute of New
The judgment of the Probate Court of Marengo county, Alabama, then, cannot have full faith and credit in the courts of this State; and inasmuch as it shows its own inherent nullity, as against the appellant, it was entirely unnecessary for him to resort to aliunde evidence to prove it void. (See Cooley on Constitutional Limitations, 17, and the authorities cited.) “It is well settled that if the record of a judgment shows that it was rendered without service of process or appearance of the defendant, or if that fact can he shown without contradicting the recitals of the record, it will be treated as void in any other State, notwithstanding the constitutional provisions.” (Benton v. Bergot, 10 S. & R., 242; Theuber v. Blackburn, 1 N. H., 242; Hall v. Williams, 6 Pick, 232 ; Aldrich v. Kenney, 4 Conn., 380; Bradshaw v. Heath, 13 Wend., 407; Robinson v. Ward’s executors, 8 Johns., 86; Fenton v. Garlich, Ibid, 194; Kilburn v. Woodworth, 5 Johns., 37; Pawling v. Bud’s executors, 13 Johns., 192; Starbuck v. Murray, 5 Wend., 161; Westervett v. Lewis, Ibid, 511; Bumler v. Dawson, 4 Scam., 536; Gleason v. Dodd,. 4 Met., 333; Haynes v. Butler, 6 Barb., 613; Warren v. McCarthy, 25 Ill., 95; Rape v. Heaton, 9 Wis., 328; Wood v. Watkinson, 17 Conn., 500.)
The judgment, it is claimed, may be used as evidence to support an action for the penalty of the' bond; or the bond may be set up to show certain primary facts, and the judgment offered to help them out. This cannot be done. If the judgment is void as such, it cannot be entitled to verity as matter of evidence. Nor was this in anywise the proper course to fix the liability of the administrator. Suit should have been brought upon his bond in the proper forum, a breach and devastavit averred and proven, if
Keversed and dismissed.