Fullerton v. Horton, 11 Vt. 425

Fullerton v. Horton

11 Vt. 425 | Vt. | 1839

The opinion of the court was delivered by

Collamer, J.

Although the first impression to be derived from the case of Mills v. Durgee, 7 Cranch’s R. 481, is that no plea, but that of nul tiel record, is admissible in the case of judgments of the courts of other states, yet,on more full examination, and collating" that decision with the decisions of most of our sister states, it will be found that such judgments must be subject to be so far inquired into as to ascertain whether the court had jurisdiction. Any plea, therefore, proper, sufficient and necessary for that purpose, must be permitted. In this case no such plea is offered. We are informed of nothingbut what the record from Massachusetts piesents. To this, full faith and credit and effect should be given, unless it appears that the court had not jurisdiction, and that their judgment was, therefore, void.

The court, undoubtedly, had jurisdiction of the subject matter, that is, they had power to render a judgment in an action of assumpsit to that amount. Had they jurisdiction of the defendant ? A court obtains jurisdiction of a defem dantby service ot an attachment of his property within their jurisdiction or by service of process on his person within their jurisdiction. Now, does it appear by this record — and the record is all we have now before us — that the court had no jurisdiction of the defendant in either of these modes ? In the process and record the defendant is set up as resident in the county of Middlesex, and the process is served by at*427taching the house and land in that county, “where he lives and..improves.” Now there is no plea that the defendant did not'own that land, £f_did not then reside there.. .It is true, there was no plea before the court which rendered the judgment, calling upon them to pass on that point, so as to render the record conclusive thereon, but, upon the face of the record, it does show, prima facie, that the defendant then resided in Middlesex county, that land there, of which he was owner, was attached and that the court had jurisdiction of the defendant and legally exercised it, and we must so hold, until the contrary be averred and proved.

But it is urged that the record does not show that the defendant had personal notice of the action. If the defendant were to show that he did not then reside in Massachusetts, but in another state, as was done in all the cases cited by him in argument, then it would be true that notice should clearly and affirmatively appear, as the defendant insists. For a resident of one state ought not to be subject to the jurisdiction of another, unless it affirmatively appear that he had notice. But, in this ease, where the record imports that the defendant there resided and there at his residence a summons was left, and there is nothing shown to contradict this, we cannot say that this was a judgment without jurisdiction or without notice, and therefore void. On the face of this record, it is sufficient.

Judgment affirmed.