6 Barb. 613 | N.Y. Sup. Ct. | 1849
It has been repeatedly decided by the supreme court of this state, that a judgment of a court of a sister state is not conclusive upon the parties, and has no binding effect in this state, unless the court had jurisdiction both of the subject matter of the suit, and of the person of the defendant. The want of jurisdiction is a matter which may always be set up against a judgment when sought to be enforced, or where any benefit is claimed under it. The want of jurisdiction makes the judgment utterly void, and unavailable for any purpose. (Borden v. Fitch, 15 John. 140. 19 Id. 162, 164. 4 Cowen, 292. 5 Wend. 148. 6 Id. 447. 9 Mass. Rep. 467. 6 Pick. 232.)
The constitution of the United States, which declares that full faith and credit shall be given in each state to the judicial proceedings of every other state, and the act of congress of the 26th of May, 1790, which declares that the judgments of state courts shall have the same faith and credit in other states, as they have in the state where they are rendered, do not prevent an inquiry into the jurisdiction of the court in which the original judgment was rendered; nor an inquiry into the right of
The jurisdiction of the court of a sister state may be inquired into, although the record of the judgment states facts giving it jurisdiction. The record is never conclusive as to a recital or statement of jurisdictional facts, and the defendant is always at liberty, when a suit is brought in this state on a judgment of a court of a sister state, to show a want of jurisdiction, although the record avers the contrary. (5 Wend. 158. 6 Id. 452. 4 Cowen, 294.) No court can acquire jurisdiction by a false as7 section of facts on which jurisdiction depends. (5 Hill, 168, Bronson, J.) But the record of a judgment of a court of a sister state, which states facts giving the court jurisdiction, will be received as prima facie evidence of such facts. (6 Wend. 452, 3. 5 Id. 148.) The defendant, however, is not estopped by such statement in the record from contradicting and disproving it. (Id.) The defendant is always at liberty to show that the court had not jurisdiction of the subject matter of the suit, or of his person, by the personal service of process, or by his appearance in the suit, either in person or by attorney. (6 Id. 447, 452, 3. 5 Id. 158.) Parker, Ch. J., in Hall v. Williams, (6 Pick. 239,) intimated an opinion that if it appeared by the record that the defendant had notice of the suit, or that he appeared in defense, he could not, under the constitution of the United States, and the act of congress, be allowed to contradict the record, by disproving the statement therein of notice of the suit, and of his appearance. But in this state it has been distinctly settled, by repeated adjudications, that no statements in the record can conclude the parties as to any jurisdictional fact. But where the record of a court of a sister state, on its face, shows that the court had jurisdiction of the subject matter of the suit and of the person of the defendant, and where such jurisdiction is not disproved, such record is, under the constitution
If the record of a judgment of a court of a sister state omits a statement of facts necessary to give the court jurisdiction of the person of the defendant, and it is sought to be enforced in this state by an action founded upon it, no credit can be given to such judgment, and it will be regarded as a nullity. (6 Wend. 450, 453. 9 Mass. Rep. 467. 5 Wend. 162. 6 Pick. 241, 245, 247. 13 John. 206, 207. Kibbe v. Kibbe, Kirby, 119. 5 John. 41.) The same principle seems applicable to a record of a judgment of a court of this state, where the record does not show that the court acquired jurisdiction of the person of the defendant. (11 Wend. 647, 653.)
Where the record of a judgment of a court of a sister state does not show that the court acquired jurisdiction of the person of the defendant, can the plaintiff in an action in this state, founded upon the judgment, prove, by parol evidence, in aid of the record, that the court which rendered the judgment did obtain jurisdiction of the person of the defendant, either by personal service of process, or by his appearance in person or by attorney? I think he can not. It is not competent either to contradict, or to add to a record. Although a party may offer evidence to explain, he can not to add to, or contradict, a record. (2 Cowen & Hill’s Notes, 839, 799. 2 John. 24. 1 Phil. Ev. 317.) A party may show that the instrument produced is not in truth a record. Thus the defendant may show that it is a forgery; or he may show a want of jurisdiction in the court pronouncing the judgment. If the court had not jurisdiction, the paper introduced is, as to the defendant, no record. (5 Wend. 158.) The principle which forbids the contradiction of a record, has no application to a case where the question is whether there is or is not a record. The question is an altogether different one where a plaintiff, suing upon a judgment, as a valid and binding judgment, introduces in evidence the re
If it was merely a deed or other written instrument, parol evidence would be inadmissible to contradict, add to, or vary it. [Id. 547.) I think, therefore, that the testimony of Chase and others, under a commission, introduced in evidence, on the trial of this cause, by the plaintiff, was incompetent evidence. If the record does not show that the court in New Hampshire acquired jurisdiction of the person of the defendant, it was not competent for the plaintiff to supply this omission by parol evidence.
I think, upon the authority of Shumway v. Stillman, (6 Wend. 447,) that the record in this case sufficiently shows that the court in New Hampshire acquired jurisdiction of the person of the defendant. The record states that at the September term (1838) of the court the parties appeared, and that the action was afterwards continued from term to term until the September term of 1840, when judgment was rendered in favor of the plaintiff. In Shumway v. Stillman, the record stated that the defendant, by E. Hinds, his attorney, appeared and pleaded the general issue. It also showed that the suit was commenced by attachment; that bank notes to the value of $75,26 and a quantity of machine irons of the value of one dollar, both the property of the defendant, were attached by the sheriff; that the defendant was not found in the bailiwick of the sheriff) and that he summoned E. Hinds, Esq. the attorney of the defendant, by giving him a copy of the writ. Savage, Ch. J. (p. 452,) says: “ By the record it appears that the defendant was not personally served with process, and that an attachment was served upon bank bills, as the property of the defendant. But this does not disprove the fact that he appeared by his attorney, E. Hinds: this fact appears from the record. Although the defendant was not served with process, still he may have authori
I am aware that in Pawlings v. Bird’s Ex’rs, (13 John. 206,) Platt, J. says, if the defendants in a suit commenced against them as absent and absconding debtors, by attachment, should subsequently actually appear and defend the suit, such appearance and defense must be deemed to have been merely to protect the pledge which was the legitimate object ot the proceeding. The same opinion was very distinctly expressed by Parsons, C. J. in Bissell v. Briggs, (9 Mass. Rep. 468.) He says, “ if the defendant, after the service of the process of foreign attachment, should, either in person have gone into the state of New Hampshire, or constituted an attorney to defend the suit, so as to protect his goods, effects, or credits from the effect of the attachment, he would not thereby have given the court jurisdiction of his person ; since this jurisdiction must result from the service of the foreign attachment.” I confess that I am inclined to concur in the opinion of Chief Justice Parsons, and to hold, in accordance with his opinion, that the appearance of the defendant in this case, in the original suit, should be deemed an appearance merely to protect the property attached; and that he did not, by such appearance, give the court of common pleas in New Hampshire jurisdiction of his person. But I consider myself bound by the decisions in Starbuck v. Murray, Shumway v. Stillman, and in Mayhew v. Thatcher ; and I must therefore hold that the appearance of the defendant in this case, in the original suit, gave the court jurisdiction of his person.
The objection to the recovery, that the execution issued on the original judgment in New Hampshire had not been returned, or accounted for, is not tenable. The same objection was made
The motion for a new trial must be denied.