Lead Opinion
delivered the opinion of the court.
This was a suit upon the record of- a judgment rendered in Mississippi, and though many questions are raised, I will consider but one. For one of his defenses the defendant set forth the alleged indebtedness for which the judgment was rendered, charged that it was paid off and discharged before the suit was instituted; that he had left Mississippi and was not a resident of that State when it was instituted; that no service of process was had upon him; that he did not know of the suit and never authorized any one to appear to it for him. The Mississippi record shows appearance by attorney and plea, and that part of the answer setting forth the above facts was, on motion of plaintiff, stricken out. The present record shows that it was not stricken 'out for defect or informality, but upon the ground that the judgment could not be thus impeached.
Counsel have discussed the vexed question whether this Mississippi record imported absolute verity, so that the recital of service and defendant’s appearance could not be contradicted, and have cited authorities upon both sides. The affirmative of this question was taken by this court in Warren v. Lusk,
But we are not to understand the language of the court as shutting off equitable defenses. That question was not before it, and when the judge says that recitals import absolute verity, and that defendant is estopped from disputing them, he only means
That a judgment may be impeached for fraud or mistake cannot be questioned. (Rogers v. Gwinn,
The only question, then, is, whether the judgment may be attacked, and the want of jurisdiction and the fraudulent simulated appearance be shown by answer, or whether the party, who is not supposed to know of its existence until sued upon it, shall be compelled to go to the State where it was rendered, and there proceed directly to overthrow it. I infer that the latter will not be required, from several considerations. First, the suit is upon a judgment. If obtained by fraud and without jurisdiction, it is no judgment — is void, and will be so declared if the fact is made to appear; the defense goes to its very existence. Second, citizens are not driven to foreign States to protect their’ rights. If they have a legal right, or are being subjected to a wrong, they may look for protection to the tribunal having jurisdiction over them and the subject-matter, if the opposite party has placed himself within this jurisdiction. Third, it would, in many cases, be oppression or an absolute denial of justice. The inconvenience and expense of going to a distant State, of there employing counsel and litigating the matter, would often be so great that the "suffering party would rather pay a pretty large judgment, although fraudulently obtained, than to undertake to set it aside. And "besides, he might not succeed in his direct proceeding abroad until long after it had been collected at home. Fourth, the statute expressly authorizes equitable defenses, and provides for affirmative relief, where, under the old system, a bill was necessary under
The error of the court below was in striking out a defense of this character. It did not distinguish between the old plea in bar and the setting forth of facts which in equity should destroy the ■judgment. We may adhere to Warren v. Lusk, and still permit a party to allege and show that the judgment was obtained by such fraud as went to the jurisdiction of the court, and to do this we will not compel him to go to the situs of a foreign judgment, but permit him to make it as a defense whenever and wherever such judgment is sought to be enforced. I say nothing of any 'other fraud except that which would go to the jurisdiction. If that was obtained, the party may be required to attack the judgment where rendered. But in this view it would not be sufficient to simply set out the fraudulent appearance, but he must show that he was injured by it; for if he has no defense to the claim, there is no warrant for equitable interference. In the case at bar he has done both, and if the facts set forth in the answer which was stricken out are true, the plaintiff is not entitled to judgment.
I have said nothing to impugn the authority of Warren v. Lusk in a proper case. But if it is considered to warrant the action of the court below in the case at bar, it so far goes beyond the received interpretation of the constitutional provisions requiring credit to be given to the judgments of other States. The rule is that they are to be just as conclusive as domestic judgments, with this exception, that “they are open to inquiry as to the jurisdiction and notice to defendant” (Christmas v. Russell,
The reasoning of Marcy in Starbuck v. Murray, as quoted and approved in Harris v. Hardman, is unanswerable. After citing many authorities he says: “ This doctrine does not depend merely iipon adjudged cases. It has a better foundation; it rests upon
“ But it is contended that if the other matter may be pleaded by defendant, he is estopped from asserting anything against the allegation contained in the'record. It imports perfect verity, it is said, and the parties to it cannot be heard to impeach it. It appears to me that this proposition assumes the very fact to be established which is the only question in issue. For what purpose does the defendant question the jurisdiction of the court? Solely to show that its proceeding's and judgments are void, and therefore that the supposed record is in truth no record. If the defendant did not have proper notice of and did not appear to the original action, all the State courts, with one exception, agree in opinion that the paper introduced as to him is no record; but if he cannot show, even against the pretended record, that fact, on the alleged ground of the uncontrovertible verity of the record, he is deprived of his defense by a process of reasoning that to my mind is little less than sophistry. ’ The plaintiffs in effect declare to the defendant the paper declared on is a record because it says you appeared, and you appeared because the paper is a record.”
Reliance is had, in favorof the doctrine of absolute verity, upon Mills v. Duryee,
the judgment will be reversed and the cause remanded.
SEPARATE OPINION OF
The general allegation that the judgment was fraudulently
It would be strange, indeed, if no redress could be afforded by our own courts against foreign judgments, or judgments of sister States obtained by fraud and imposition, and brought here to be enforced. It may be conceded that at law, where there is no apparent irregularity, such judgments import absolute verity; but in equity they may be set aside when obtained by undue and fraudulent contrivances, in the absence of and without notice to the opposite parties. Our citizens cannot be driven to a foreign court to seek a remedy against such judgments, but may, whenever an action is brought here, set up this equitable defense as a complete bar.
The case of Christmas v. Russell,
For these reasons I concur in the opinion of Judge Bliss.
Dissenting Opinion
DISSENTING OPINION OF
The judgment which was given in evidence, and upon which
There was no recital in the judgment that Lusk Was served with process, but simply an appearance by attorney; and yet, after the most exhaustive argument by counsel, and mature deliberation by the court, it was held that, under the act of Congress, where it appeared from the face of the record that the defendant appeared by his attorney, evidence to show that the attorney had no authority to appear was not admissible. Here the case is stronger; the record avers the service of notice as well as an appearance by attorney, and if “full faith and credit” is to be. given to it, I cannot easily see how a party can be allowed directly to deny it in the courts of this State. If its verity can be contradicted by a simple allegation of its falsity, it seems to me that the constitutional provision is destroyed. That there
Mr. Bigelow, in his' recent treatise on estoppel, speaks of Warren v. Lusk as one of the cases in which the constitutional provision and act of Congress in relation to the judgments of sister States have been faithfully followed. (Bigel. Estop. 145.)
The jurisdiction of the court rendering the judgment may always be inquired into, and if no proper notice was served so as to subject the parties to the jurisdiction of the court, that will be a causo for impeaching the record.
Thus, in the case of D’Arcy v. Ketchum (11 How. U. S., 165), it appeared that a judgment had been rendered in the State of New York in favor of Ketchum against Gossip & D’Arcy, upon a partnership note of theirs. There was personal service on Gossip, and no service on D’Arcy, who was an inhabitant of Louisiana. Judgment was rendered against D’Arcy, in accordance with a New York statute, which provided that where joint' debtors were sued, and one of them brought into court, judgment should go against the others in like manner as if they were served with process, the service of process on one being regarded as constructive service upon the rest. An action upon this judgment was brought in the Circuit Court of the United States against D’Arcy. The court held that under the act of May 26, .1790, the record was entitled to full faith and credit, and gave judgment accordingly. This judgment of the Circuit Court was reversed in the Supreme Court on appeal, where it was held that the courts of New York acquired no jurisdiction over D’Arcy, and that, not being a citizen or inhabitant of that State, he could not be affected by laws to which he was not amenable. But the record in that case did not show that any process had been served upon D’Arcy.
See also upon this subject Latimer v. The Union Pacific Railway (
But these were cases of constructive or simulated notice, and the impeachment of the judgments did not involve a contradiction of
This question was recently reviewed in tbe Supreme Court of tbe United States, and tbe authorities commented on. One of tbe defences set up to tbe judgment in controversy was that it was procured and obtained by fraud, but that defense was held bad. Fraud can be pleaded only where tbe merits of tbe action are open to controversy. And tbe court held unanimously that, subject to tbe qualification that they are open to inquiry as to tbe jurisdiction of tbe court which gave them and as to notice to tbe defendant, tbe judgment of a State court, not reversed by a. superior court having jurisdiction, nor set aside by a direct proceeding in chancery, is conclusive in tbe courts of all tbe'other States where tbe subject-matter of tbe controversy is tbe same. (Christmas v. Russell,
Tbe Supreme Court of tbe United States is tbe legitimate tribunal to definitely and finally construe tbe national constitution and tbe acts of Congress, and I am content to abide by its judgment. Tbe established rule is that so long as tbe judgment remains in force it is of itself conclusive of tbe right of tbe plaintiff to tbe thing adjudged in bis favor, and it can only be reversed, set aside or impeached by a proceeding in tbe jurisdiction where it was rendered. Strangers may show that it is fraudulent, but parties and privies are conclusively bound.
For tbe foregoing reasons I dissent from tbe conclusions arrived at by tbe majority of tbe court.