38 A.D. 543 | N.Y. App. Div. | 1899
This action was brought on a judgment' of a sister State,, and the question presented on appeal is whether, under the pleadings, thé defendant is bound by the judgment. The, plaintiff'alleges that the Superior' Court of Cook county, Illinois, is a court of general jurisdiction, and that “ on or about the 12th day of December, 1884, plaintiff commenced an action in said Superior Court of Cook County, in the State of Illinois, by the issue of a summons directed to said defendants” (Charles A. Coutant and James Wright, the latter now' dead), “ which said summons so issued was thereafter duly and regularly personally served on the said defendants, and each *of them,” and that “ such proceedings were thereupon had, that thereafter and on or about the 7th day of January, 1885, in said .action plaintiff recovered judgment, which was duly and regularly given by said court against said defendants for the sum of $8,765.30.” The defendant, answering, says he has no knowledge
At the trial the plaintiff offered in evidence a certified copy of the judgment roll, entered in the Superior Court of Cook county, 111., January 5, 1883. This was objected to on the grounds that it was not against the defendant Charles A. Coutant, and “ that it does not appear that the defendant, whoever he was, C. A. Coutant, was personally served with the summons in the action.” The objections were overruled and the defendant excepted. The plaintiff, over the objections of the defendant, was allowed to give evidence tending to establish that the defendant Charles A. Coutant was the C. A. Coutant who was the defendant in the action brought in the Superior Court of Cook county. At the close of plaintiff’s evidence the defendant moved, through his counsel, to dismiss the complaint on the grounds “ that the judgment in Cook county is against C. A. Coutant and not against Charles A. Coutant,” and that it appeared upon the face of the exemplified judgment in evidence that the defendant, if it was Charles A. Coutant, was never personally served with the summons and complaint, and that it appeared.on that paper that the summons or writ was served on-one 0. A. Coutant by reading it to him. The court ruled that the defendant had not pleaded lack of jurisdiction on the part of the Illinois court, and denied the right of the defendant to make proof that he was hot personally served with the summons in the original action, or to amend his pleadings, and the appeal comes to this court upon defendant’s exceptions to these rulings.
There is no serious dispute of the right of the plaintiff to judgment in this action, the principal point of the defendant being that the judgment in the Illinois court is against C. A. Coutant, while the defendant in this action is Charles A. Coutant, and it is apparently upon this technical difference in the name of the party defendant that the defendant relies both in his pleadings and upon this appeal. The effect of this difference in names is materially lessened, if it may be said to have had any force, by the fact that in the affidavit verifying the defendant’s answer, after reciting that “ Charles A. Coutant, being duly sworn, says,” etc., is signed “ C. A. Coutant,”
While the law in this State is well settled that the defendant may. question the. jurisdiction of the court in which the judgment of a sister State is rendered, it is equally well established that he must plead this want of jurisdiction, and the question cannot be raised by a general denial of the allegations of the complaint. The general denial goes only to the extent of denying the existence of the facts necessary to the cause of action, not to the jurisdiction of the court in which the judgment on which this action is based was found, and is in effect to plead nul tiel record. In the case of Starbuck v. Murray (5 Wend. 148, 156), the court, in discussing the case of Shumway v. Stillman (4 Cow. 292), say that in. that case it was explicitly decided “ ‘ that it was competent for the defendant to shew, by a special plea, that the court in which the judgment was rendered had' no jurisdiction either of the subject-matter or of the person.’ ” The plaintiff, in setting forth his cause-of action, states that the summons in the Illinois case “ was thereafter duly and regularly personally served on the said defendants and each of them,” and this fact, while not necessary, perhaps, in the pleadings, is sustained by the recitals of the judgment roll, which says that “it appearing to the court that due personal service of process of summons issued in said cause has been had on the defendants for at least ten days before the first day of this term,” etc.; and the question of what, particular method of service was employed was one wholly within the control of the State of Illinois, and the recital in the
“ It is an elementary principle recognized in all the cases,” say the court in the case of Ferguson v. Crawford (70 N. Y. 253, 256), “ that, to give binding effect to a judgment of any court, whether of general or limited jurisdiction, it is essential that the court should háve jurisdiction of the person as well as the subject-matter, and that the want of jurisdiction .over either may always be set up against a judgment when sought to be enforced, or any benefit is claimed under it.” But nowhere do we find a suggestion that this question may be raised by a simple denial of the allegations of the complaint; it is an affirmative defense, in which all of the presumptions are in favor of the judgment and its recitals. The defendant must not only plead lack of jurisdiction, but he must sustain the burden of proving the defense asserted. The rule is stated in the case of Knapp v. Roche (94 N. Y. 329, 333): “ It is always competent to prove, under a general denial, any facts tending to controvert the material affirmative allegations of' a complaint.” But this is of no avail to the defendant, for the material allegation of the complaint is that a judgment was found against the defendant in the courts of Illinois, and all of the other allegations are incident to that fact. The general denial is a denial only of the fact of the existence of the judgment, and the plaintiff, in producing a duly attested copy
The court, in denying the motion to permit the defendant to amend his pleadings, was acting within its discretion, and, under the circumstances of this case, where the defendant was apparently standing upon a mere quibble, it would have been an abuse of the discretion to have done otherwise than to refuse to grant -the motion. The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.