McDermott v. Clary

| Mass. | Sep 15, 1871

Mobton, J.

This is an action upon a judgment recovered in Tennessee. The plaintiff put in evidence an exemplified copy of the record of the court in Tennessee, showing that the plaintiff had recovered a judgment against the defendant, upon his default, for the use and occupation of a house in Memphis. The defence was, that the court in Tennessee had no jurisdiction to render the judgment, the defendant not being a resident of that state, and not having been served with process.

1. The first exception is to the testimony of the defendant set forth in the bill of exceptions. The objection at the trial was a general one to the whole testimony ; but much of it bore directly and immediately upon the question whether any service in the suit had been made on the defendant. This the plaintiff now concedes was admissible, it being competent for the defendant to show by paroi that the return of the officer was false, and that in fact there was no service on him. Carleton v. Bickford, 18 Gray, 591. But he objects to the testimony of the defendant, to the effect that he was not a resident of Tennessee, and that he was in Memphis as an officer of the army, and occupied the house in question as his military quarters assigned to him by his superior officers.

We think it would be too strict a rule to hold that the defend- . tot should be confined to a bare denial of the fact that service was made on him. The testimony as to the capacity and mode in which he was occupying the house tended to show his relation • to the parties and cause of action, and would be of some aid to the jury in deciding the issue before them. It would enable them more intelligently to weigh the testimony as to this issue, and determine the credit due to it. It was admitted solely upon the question of service, and we do not think it is so foreign to this issue as to make its admission a ground for a new trial.

2. The only other exception was to the ruling of the presiding judge, set out in the bill of exceptions. It appeared at the trial, that two suits had been commenced by the plaintiff against the defendant; one being an action of ejectment for the possession of the house in question, and the other being for use and occupation of the same house. The defendant testified that he employed counsel in the ejectment suit, but did not employ counsel in the suit for use and occupation. He further testified that he employed counsel in the contempt case, but supposed’ the contempt arose in the ejectment case. It appeared from the record put in by the plaintiff, that the proceedings for contempt arose in the suit for use and occupation, and not in the ejectment suit. In view of this testimony, the court ruled, Cas we understand the bill of exceptions,) in substance, that if the defendant employed counsel in the proceedings for contempt, under the mistaken belief that these proceedings grew out of the suit for possession, it would not be proof of an appearance in the case in which the judgment sued upon was recovered. We are of opinion that this ruling was correct. The process for contempt, though it arose out of the suit for use and occupation, was an entirely distinct proceeding, in behalf and in the name of the state, and not of the plaintiff. An appearance, whether voluntary or compulsory, to answer to that process, would not prove an appearance in the civil suit. I is immaterial whether the defendant acted under the mistaken belief that the process of contempt grew out of the ejectment suit or not. In either case, the appearance in the contempt pro* • ceedings would not be equivalent to, nor prove, an appearance in the suit for use and occupation.

Exceptions overruled.