Forsyth v. Barnes
81 N.E. 1028
Ill.
1907
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

Thе record does not disclose where appellants resided when the note was executed, but the fact that the note was dated at Sidney, Ohio, and payable at the German-American Bank of that city, would indicate that the contract was made and to be performеd in Ohio. In view of the fact that appellants were sued in Cook county and there is nothing in the record to indicate that their domicile is elsewhere, it must be presumed that Cook county is the domicile of Anna M. Forsyth. The general rule of law is, that as between the law of the place where a contract is made and of the place where the married woman is domiciled, her capacity to make a contract is governed by the former and not by the latter, (1 Wharton on Conflict of Laws,—3d ed.—sec. 118.) The note and warrant of attorney appeаring from this record to have been executed in Ohio and payable there, questions regarding their validity and the capacity of the makers to make them must be determined by the laws of that State. Evans v. Anderson, 78 Ill. 558; Nixon v. Halley, 78 id. 611; Abt v. American Trust and Savings Bank, 159 id. 467; Milliken v. Pratt, 125 Mass. 311; Story on Conflict of Laws, (7th ed.) 103; 22 Am. & Eng. Ency. of Law, (2d ed.) p. 1322, and cases there cited.

While the coverture of apрellant Anna M. Forsyth was not specifically put in issue under the pleadings, yet the evidence of that fact was properly admissible under the plea of nul tiel record. Streeter v. Streeter, 43 Ill. 155; Thomas v. Lowy, 60 id. 512; Culver v. Johnson, 90 id. 91.

Appellants contend that appellee’s cause of action being based upon the note and power of attorney executed in Ohio, he must rely upon the law of that State to maintain his suit, and that as the record fails to disclose any reference, either in the pleadings or the evidence, to any particular law of Ohio governing this case, it must" be аssumed that the common law prevails there as to the right to enter judgment by confession against a married woman under a power of attorney executed by her during her coverture. This court, in Crouch v. Hall, 15 Ill. 263, said (p. 265): “As a general principle, courts will not take judicial notice of the laws of another country, but they must be alleged and proved as facts. Especially is this the case as to the statutes and local usages of such country. But the rule is not without qualification. In the absence of all proof to the contrary, the common law is presumed to prevail in the States of the Union. On a common law question the courts of one State will assume that the common law is in force in a sister State.” This court reiterated this doctrine in Tinkler v. Cox, 68 Ill. 119, and Schlee v. Guckenheimer, 179 id. 593, and in this last case we said (p. 596): “Courts do not, as a rule, take judicial notice of the laws of another State or country, and their statutes or local usages must be averred and proven where relied on to aid in sustaining a cause of action or defense in this State. Such is not the rule, ‍‌‌​‌‌​‌​​​​‌​​‌‌​​‌‌​‌‌​​​‌​​​‌​‌​​​‌​​‌‌‌‌‌​‌​​‍however, in reference to the common law, which, in the absence of proof to the contrary, will be presumed to prevail in the States of the Union. On a common law question, therefore, the courts of one State will assume that the common law is in force in a sister State, unless proof to the contrary is made.” In Hogue v. Steel, 207 Ill. 340, where thе court had under consideration the conveyance of certain property in the State of Ohio, the marriage being assumed to have taken place in 1851 and the conveyance in 1872, this court said (p. 344): “There being no proof to the contrary, we are to assume the common law prevailed in the State of Ohio during the period from 1851 to 1872.” Again, in Scholten v. Barber, 217 Ill. 148, it was stated that on a common law question the common law would be assumed to be in force in another State, “unless the contrary is shown by averment and proof.”

We find nothing in any of the Illinois decisions cited by appellee that conflicts with the doctrine laid down in the foregoing cases. In Roosa v. Crist, 17 Ill. 450, Chumasero v. Gilbert, 24 id. 651, Miller v. Wilson, 146 id. 523, Hakes v. Bank of Terre Haute, 164 id. 273, and Shannon v. Wolf, 173 id. 253, the court simply laid down the general doctrine that to recover or defend under a foreign law thаt law must be pleaded and proved. The question as to whether the common law would be presumed to prevail in case no particular statute was proven did not enter into the discussion. In Juilliard & Co. v. May, 130 Ill. 87, the court said that in the absence of any allegation or proof of a stаtute it must be presumed either that the common law obtained in New York,' or else that the laws of that State are similar to the laws that prevail in this State, but held that whichever presumption governed the result in the case there at issue would be the same as to appellant, and therefore did not attempt to decide which should control. After a consideration of all these decisions we are constrained to hold that on a common law question it must be assumed that the common law is in force in a sister State unless the contrary is averred and proved.

At common law the contracts of a feme covert are absolutely void and not simply voidable. Disabilities in this respect ‍‌‌​‌‌​‌​​​​‌​​‌‌​​‌‌​‌‌​​​‌​​​‌​‌​​​‌​​‌‌‌‌‌​‌​​‍cannot be overcome by any form of acknowledgment or mode of execution or by uniting with her husband. (15 Am. & Eng. Ency. of Law,—2d ed.—p. 790, and cases there cited.)

Appellants contend that assuming, as we must, that the сommon law was in force in Ohio at the time the confession of judgment was entered, that judgment being entered upon a void contract must also be void. Appellee insists that the provision of the Federal constitution which requires that full faith and credit shall be given in each State to thе judicial proceedings of every other State, and the act of Congress passed in pursuance of this provision, prevent any inquiry into the jurisdiction of the court by which the judgment offered in evidence was rendered. In Thompson v. Whitman, 18 Wall. 457, the United States Supreme Court held that the record of a judgment rendered in another State might be contradicted as to the facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist the record will be a nullity, notwithstanding it may recite that they did exist; that want of jurisdiction may be shown either as to the subject matter or thе person. This doctrine has been adhered to by that court since that decision was handed down. (Simmons v. Saul, 138 U. S. 439; Reynolds v. Stockton, 140 id. 254; National Exchange Bank v. Wiley, 195 id. 257.) In Field v. Field, 215 Ill. 496, we held that the courts of this State may inquire into proceedings, judgments or decrees of a sister State to determine whеther that court had jurisdiction of the subject matter or of the parties, and a decree of divorce entered in Nebraska was held void in that case on the showing that Field went to that State for the express purpose of securing a divorce, and by so doing practiced a fraud upon the court by stating, that he did not know his wife’s actual place of residence, when, in fact, he did know it. To the same effect are Gilman v. Gilman, 126 Mass. 26; and Pennywit v. Foot, 27 Ohio St. 600. Manifestly, under these decisions the constitutional provision as to full faith and credit being given to the judicial proceedings of another State does not prevent an inquiry.into the jurisdiction of the court which rendered the judgment, nor does a recital of the jurisdictional facts in the record of such foreign judgment render .the judgment conclusive in a suit in another State.

The decisions in this country are not in entire harmony as to the binding effect of a judgment against a married woman entered against her on a void contract. Some courts have held that a married woman being exempt from the force of an agreement could not be bound by a judgment based on that agreement, while others havе held that the defense of coverture, under such circumstances, must be made before judgment is entered, and that after it is entered such judgment is not void but only voidable, and hence can only be attacked in direct proceedings, and not collaterally. If by common law such ‍‌‌​‌‌​‌​​​​‌​​‌‌​​‌‌​‌‌​​​‌​​​‌​‌​​​‌​​‌‌‌‌‌​‌​​‍a confession of judgment under a warrant of attorney based upon a void contract is also void then we must so hold here, but if by common law, after such a void contract was merged, such judgment was merely voidable and not void, the common law rule must control, regardless of the decisions of this or any other State. In considering the decisions of the various States on this question it must be borne in mind that in the great majority the question as to what the common law was did not enter into the discussion. From a discussion on this subject by Justice Field in Norton v. Meader, 4 Saw. 603, it is clear that in his opinion under the common law such judgments entered against the wife during coverture were absolutely void. The tendency under recent statutes and modern practice has been steadily in the direction of holding that a judgment against a person under the disability of coverture or infancy is not absolutely vоid, although it may be voidable. (23 Cyc. 1072; see, also, 1 Freeman on Judgments,—4th ed.—sec. 150; 1 Daniell’s Ch. Pl. & Pr.—5th ed.—p. 176, and note; Bigelow on Estoppel,—4th ed.—p. 160; Schouler on Husband and Wife,—ed. 1882,—sec. 289, and note 5; 2 Bishop on Law of Married Women,—ed. 1875,—sec. 380.) However, the inference from the above authorities seems to be that under the common law judgments against married women were ordinarily void, and not merely voidable. This precise question, so far as we are aware, has never been ruled upon by this court. We held in McLean v. Griswold, 22 Ill. 218, that a contract entered into by a woman during сoverture is not merely voidable but absolutely void; that being void she occupies to it the relation of a stranger to the agreement, and is no more liable to be sued upon it than any stranger to it. Taylor v. Boardman, 92 Ill. 566, Thomas v. Lowy, 60 id. 512, and Garretson v. Strawn, 54 id. 402, tend to uphold the same conclusion:

In most of the cases cited where this question has been discussed the judgment was not entered by confession, but only after due notice to the married woman in the case itself. On principle it might well be urged that there is a plain distinction between a judgment entered by confession under a power of attorney where the married woman has no actual notice after she signs the note with the power of attorney attached, and a judgment entered on an ordinary note or contract after notice of the actual proceedings has been given to the married woman. In the latter case she can appear and plead coverture if she desires, and then, under the common law, the plea must be upheld, while in the first case she has no such opportunity and may never know of the judgment until long after it is entered. At commоn law a married woman had no power to make a confession of judgment or to execute a warrant of attorney to confess judgment. (17 Am. & Eng. Ency. of Law,—2d ed.—p. 766, and cases cited; 21 Cyc. 1575, and cases cited.) If the contract is such as a married woman is incapacitated to enter into, her ‍‌‌​‌‌​‌​​​​‌​​‌‌​​‌‌​‌‌​​​‌​​​‌​‌​​​‌​​‌‌‌‌‌​‌​​‍confession of judgment under the contract is a nullity. Her capacity to confess judgment depends upon and is co-existent with her capacity to contract. (30 Am. & Eng. Ency. of Law,—2d ed.—p. 107, and cases there cited.) In White v. Jones, 38 Ill. 159, where an attorney in fact confessed judgment prematurely against certain persons under power of attorney, this court said (p. 163): “The confession being unauthorized at the time it was made, the question arises whether it was merely erroneous or absolutely void. As a rule of general, if not-uniform, application, а judgment is void for all purposes unless the court had jurisdiction of the person of the defendant and of the subject matter of the suit. And jurisdiction is acquired by the actual service of process notifying the party to appear, by constructive notice to appear, as by рublication, or by an entry of his appearance by himself in person or by attorney. In the last case the authority of the attorney to enter his appearance may be contested by the defendant, and if he shows a want of authority it defeats the jurisdiction of the court. * * * Fоr the want of authority there was no appearance and consequently no jurisdiction, and the judgment was void and all subsequent proceedings under it were invalid and conferred no rights upon the plaintiff in that judgment.” In Bruschke v. Nord Chicago Schuetzen Verein, 145 Ill. 433, we held (p. 447): “Where an attornеy entering the appearance of a defendant does so without authority, the judgment or decree based upon such act is void and may be collaterally attacked.” In Gardner v. Bunn, 132 Ill. 403, it is stated that a judgment entered by confession by the clerk of the court in vacation, wherе no affidavit proving the execution of the power of attorney was filed with it, was absolutely void, and there was no jurisdiction over the person of the defendant. In People v. Seelye, 146 Ill. 189, it was held that if a court has proceeded without jurisdiction, either of the person or the subject matter, “its judgment is void to every intent and for every purpose, and it must be so declared in every court in which it is presented.” Payson v. People, 175 Ill. 267; Demilly v. Grosrenaud, 201 id. 272; 23 Cyc. 1070; 24 Am. & Eng. Ency. of Law,—2d ed.—p. 718

. Manifestly, at common law, by the great weight of authority, a confession of judgment on a warrant of attorney executed by a womаn during coverture is void as to her and can be attacked either directly or collaterally. This being so, assuming, as we must, that the common law is in force in Ohio, it must be held that the judgment against appellant Anna M. Forsyth in the court of common ‍‌‌​‌‌​‌​​​​‌​​‌‌​​‌‌​‌‌​​​‌​​​‌​‌​​​‌​​‌‌‌‌‌​‌​​‍pleas in that State was void, and the trial court in this State improperly instructed the jury to return a verdict against her, based solely on the transcript of the judgment record of the Ohio court. The Ohio judgment being void as to the wife, Anna M. Forsyth, the judgment of the superior court was also erroneous as to her husband, Joseph E. Forsyth. Williams v. Chalfant, 82 Ill. 218; Claflin v. Dunne, 129 id. 241; Knights of Honor v. Goldberger, 175 id. 19; Page v. DeLeuw, 58 id. 85.

For the reasons indicated in the foregoing opinion, the judgments of the Appellate Court and superior court will be reversed and the cause remanded to the superior court for further proceedings in harmony with the views herein expressed.

„ , , , , Reversed and remanded.