2 Stew. 151 | Ala. | 1829
Lead Opinion
The only ground for reversal now insisted on, is, that there was error in either striking out the plea of fraud on motion, or sustaining'a demurrer to it. The obvious tendency and design of that plea was, unless it be regarded as a mere quibble in pleading, to deny the verity of the record in the'sister State; to admit its existence and apparent regularity, but deny its validit}'"; to admit the transcript of the record to be in the ordinary and legal form, that the attestation of the clerk, and the certificate of the presiding judge, were-genuine, and given in the form and manner prescribed by the act of Congress, yet to insist that the judgment is spurious; -that the turpitude and dexterity of a deputy clerk, has eluded the vigilance of the judge and principal clerk, or that his prowess has placed them at defiance, and enabled him to enter up a judgment, without the sanction, and against the authority of the Court.
This is truly a novel defence; yet it has been urged with abilities and ingenuityworthy abetter cause. It has however, been sufficiently answered by the adverse counsel. Both sides have claimed advantage from a decision of this Court, rendered a few days since, in the case of Hunt and Condry v. Mayfield.
Then ihe question recurs, does not this plea directly impeach thefaith, credit and validity of this record ? It admits of no other interpretation, and is clearly forbidden by the Constitution of the United States, Art. 4. Sec 1. “That full faith and credit shall be given in each State, to the public acts, records and judicial proceedings of every other State; and that Congress may, by general laws, prescribe the manner in which such acts, records and judicial proceedings .shall be proved, and the effect thereof;” and with the provisions of the act of Congress in pursuance thereof, passed in 1790, declaring that the record of a judgment from another State, shall have the same faith and credit in each State, that it has in the State Court in which it was rendered.
The plea must be understood as admitting the jurisdiction of the Court in Georgia, and that the process was duly served upon the defendant, as well as the apparent regularity of the proceedings, because neither is denied. If the plea could be regarded as one, amounting in substance only, to the general issue, it was equally inadmissible, as being irregular and unnecessary; and for the additional reason, that the defendant, having at the same time a formal plea of the same kind, is not permitted to encumber tbe record with a multiplicity of similar pleas.
It is not intended on this occasion to decide in the abstract, that in all cases where suit may be brought on a judgment from another State, the plea per fraudem is inadmissible; for the proposition to that extent is unnecessa*
In any view that can be taken in this case, the plea is considered bad and inadmissible, and so entirely insufficient, that there could be no error, either in rejecting it on motion., or overruling it on demurrer.
In the opinion of the Court just expressed, it is intimated that the judgment of a sister State, when sued on in the Court here, cannot be avoided by pleading that it was obtained by fraud, when it appears from the record, thatthe defendant was served with process there. With entire respect, I must be permitted to maintain the converse of that proposition.
I grant that the judgments of the States of this Union, when sued on withoutthe State where rendered,are entitled to a consideration in point of dignity, equally high and conclusive, as in the State from whence they are taken. A sensible and operative construction of the Constitution and act of Congress, conduce to this conclusion; and the Supreme Court of the United States, by its decision in the case of Mills v. Duryee, have put the question beyond controversy.
The learned counsel, who argued the case of Mills v. Duryee in favor of the conclusiveness of the judgment, employs this language: “But the defendant must either distinctly deny the record, avoid it by pleading per fraudem, satisfaction,” &c.
The distinction which was taken in the argument, between the right of parties and strangers, to avoid, has no foundation in sound reasoning. The stranger can avoid because he was not a party to the record, and therefore could not have defended himself against the fraud. The party had no notice of the fraud, and therefore could not have counteracted it before judgment.
Without undertaking to specify any particular fraud which would avoid a judgment, it is enough to say, that any facts and circumstances shewing that the defendant was circumvented by the employment of covinous and fraud-lent means, by the plaintiff, or his agents, done with a view to gain an advantage of him, and that such advantage is gained, would render the judgment null.
But on the sufficiency of the plea in this case, I concur in the opinion of the Court, and am therefore, for affirming the judgment. •
Ante, p. 124.
3 Wheat2l'J. 4 Cowen 29 1 Peters 686
2 Starkie 588.1 Starkie 252. Kent’s Com. 91.
See also Shumway v. Stillman 4 Cowen.
Concurrence Opinion
I concur in the views taken in the opinion delivered by Judge Collier.
Judgment affirmed.