Newcomb v. Peck

17 Vt. 302 | Vt. | 1845

The opinion of the court was delivered by

Williams, Ch. J.

In this case, on the plea of nul tiel record, an objection is made to a recovery by the plaintiff, because, in the record of the judgment, the Christian name of Pomroy is omitted. It is to be observed that/the record is precisely as stated in the declaration. The judgment rendered in the court in Massachusetts cannot be considered as void, on account of that omission. When a man makes a contract in one name, not his true one, the contract may be declared on in a suit against him in his true name, averring the identity; and so, also, when a judgment is rendered against a man in one name, he may be sued by his right name, with a similar averment.

With respect to the other pleas, the court are not disposed to make an elaborate investigation of the various decisions, which have been made on the subject of foreign judgments, or of judgments rendered in the different states of the Union. It is sufficient for us to say, that all the questions, which arise in this case, have been decided in, the courts of this state, and are reported as authorities. We are not inclined to take the lead in setting forth any new views upon this subject. Whether the Constitution of the United States, and the Acts of Congress .thereon,, which certainly do elevate the judgments of the different states of the Union, when sued in another state, above foreign judgments, do not, in every particular, except as to the remedy for enforcing them give to them the same and all the effects of a domestic judgment, which a court of the State, where thp judgment was rendered, acting under the laws of the state, would give, is certainly a question deserving of great consideration.

Before the cases of Mills v. Duryee, 7 Cranch 481, and Hampton v. McConnel, 3 Wheat. 234, decided the effect of a judgment rendered in the state courts, the facility with which such judgments were, obtained, behind the back of the defendant, had induced the courts not to treat them very favorably. The same difficulty has occurred in England, with respect to their colonial and Irish judgments. There has been a consequent disposition to limit and explain away the decisions in those cases, and to make them appear as not controverting the decisions which had been previously made in the state courts. In most, if not all the states, it has been considered, that, by a proper plea, it may be put in issue that the court rendering the judgment had not jurisdiction of the parties, and that process was not served on them. We, in this State, have followed in the wake of their decisions; and, in the case of Pierson v. Mudget, in Addison County, January 1831, it was determined that a judgment rendered in another State, against a citizen of this State, who was not within the jurisdiction of the court rendering the judgment, and had no notice of the suit, and did not appear, could not be enforced in this State by action of debt on the judgment; — thus considering them in the same light that an Irish judgment (which is no record in England, Harris v. Saunders, 10 E. C. L. 373) was considered in the case of Ferguson v. Mahon, 39 E. C. L. 38. But when the defendant was sewed with process within the State, where the judgment was rendered, or appeared and submitted to the jurisdiction, the judgment has been held conclusive. Hoxie v. Wright, 2 Vt. 263. Bellows et al. v. Ingham, Ib. 575. Blodget v. Jordan, 6 Vt. 580. That such judgment is to be considered a debt of record, on which the appropriate remedy is by action of debt on the record, and to which the only general issue is nulticl record, was decided, in the case of Boston India Rubber Factory v. Hoit, 14 Vt. 92.

Give, then, to the judgment, on which the present action is founded, the effect of a record, and it is very clear that the defendant can interpose no plea, which denies the record. The record does not derive its efficacy from the fact of notice to the parties ; but it is valid and effectual, in consequence of its being the judgment of a court of record. The question, then, will arise, whether the defendants, in this case, can deny the fact, which appears by the record, to wit, that both of the defendants appeared in the suit in Massachusetts. It appears to us that the averments in the pleas of the defendants do expressly contradict the record, and that the defendants’ only remedy, if the facts are as they have stated them to be, is to apply to the court where the judgment was rendered to vacate the judgment.

, In the case of Malony v. Gibbons, 2 Campb. 502, in an action on a. colonial judgment, where the appearance of the defendant was stated, in the record produced, to have been by attorney, Lord Eilen-borough said, that, though he would look to these foreign judgments with great jealousy, yet he would give them credit for the facts which they specifically alleged, and would presume that the court, in that case, saw that the person who appeared was properly constituted attorney for the defendant; and, in the case of Becquet v. MacCarthy, 22 E. C. L. 220, the court held, that, where the law of a colony provided that notice of a process might be given to the king’s attorney general, in the case of an absent party, but did not expressly provide that he should give notice to the party, upon the. presumption that he would do whatever was necessary, the judgment rendered there was not void. Assuredly, if the record of a foreign judgment is to be considered ns prima facie evidence of notice to the party, the record of a domestic judgment should he held conclusive in a similar case, inasmuch as a record is of absolute verity, and concludes every thing appearing thereon.

The very point in controversy in this part of the case was decided by Judge Washington, in the case of Field v. Gibbs, 1 Pet. C. C. Rep. 155, that where, by the record, it appears that the party appeared and pleaded by attorney, he could not controvert that fact, in an action of debt on judgment in another state. In the case of St. Albans v. Bush, 4 Vt. 58, it was decided that the appearance of the party by attorney, appearing from the record, was not to be controverted. And, indeed, notwithstanding some decisions to the contrary, in some of the states, we do not see how this fact, appearing in the record, can be denied and traversed, without setting aside the record altogether; and, from the decisions made in this state, and referred to, we do not consider it now an open question.

With respect, therefore, to the plea of nil debet in this action, we consider it is bad, as the debt, on which the plaintiff declares, is a debt of record; and as to the subsequent pleas, the defendant is es-topped by the record from averring the facts, therein set forth.,

The judgment is therefore affirmed.