Roach v. Privett, 90 Ala. 391

Roach v. Privett

90 Ala. 391 | Ala. | 1890

MoOLELLAN, J.

The judgment sued on was rendered by the Supreme Court of Tennessee, on appeal from a Circuit Court of that State, and is not only an affirmance of the latter judgment, but is also in terms an original judgment in the appellate court, with order for execution out of that court, for the amount there adjudged to be due. In the absence of proof of any law in Tennessee to the contrary, we must intend, not only that the judgment of the appellate tribunal is in accordance with-the law of that State, but that it is the only judgment in force in the case in which it was rendered. Hassell v. Hamilton, 33 Ala. 280. Especially so as this ruling is in harmony with our own decisions as to the merger of judgments appealed from into judgments of affirmance on appeal.—McArthur v. Dane, 57 Ala. 448; Werborn v. Pinney, 76 Ala. 291.

The special plea of the defendant below was an attempt to impeach the judgment sued on, by showing that the nisi prms court which rendered the judgment appealed from, and which had thus merged into the judgment of the Supreme Court, was without jurisdiction; but it disclosed that the defendant had prosecuted the appeal, and submitted himself to the jurisdiction of the appellate tribunal. We concur with the circuit judge that this was fatal to the plea. It showed that the court which rendered the judgment sued on, the only subsisting judgment in the cause, had jurisdiction of the defendant, whatever may have been the fact in this regard as to the primary court. The defendant could not thus invoke the jurisdiction of the appellate court, and speculate on the chances of its-favorable action, without being bound and precluded by whatever judgment should be rendered in the exercise of that jurisdiction. If he desired to avoid this result, and at the same time draw in question the jurisdiction of the primary court, his remedy was a writ of error eoram vobis, under which it was open to him to show that the trial court had never *395acquired jurisdiction of Ms person, either by service of summons or attachment of his property. In that proceeding, upon a proper showing, the judgment below could have been expunged. Such is the course of the common law, which, in the absence of anything to the contrary, we are bound to presume obtains in Tennessee. — Stephen’s Pl. *119; Day v. Hamburgh, 1 Brown (Pa.) 75. But, as he elected to hazard the rendition of a valid judgment against him, by taking an appeal on a record which did not disclose the jurisdictional infirmity of which he complains, he can not be heard to object that the judgment thus rendered in a proceeding instituted by him was void because of the absence of service on him in the primary court. The demurrer to the special plea was, therefore, properly sustained.

Our opinion is, that the Circuit Court erred in excluding from the jury the evidence offered by the defendant in support of the set-off claimed by him against the judgment debt. This ruling appears to have proceeded on the theory, that as the alleged counter-claims, or items of set-off’, antedated the Tennessee judgment, and could have been pleaded in that action, the rendition of that judgment forecloses and precludes them. This view finds some support in some of our earlier cases (Crawford v. Simonton's Ex'rs, 7 Port. 110); but it is unsound in principle, and can not be reconciled with later adjudications. The settled doctrine of this court now is, that a set-off may or may not be pleaded, at the election of the defendant; and that, unless it is pleaded, the right to sue upon it as an independent cause of action, or to rely upon it in defense of another action by the same plaintiff, is in nowise affected or impaired by a judgment against the defendant. Wharton v. King, 69 Ala. 365; Weaver v. Brown, 87 Ala. 533. And tills is in harmony with the ruling in other jurisdictions. Freeman on Judgments, §§ 277-280. What the law in this regard is in Tennessee, we are not advised by any thing in this record; and we can not look elsewhere to ascertain it.—Johnston v. State, 88 Ala. 176. In the absence of evidence on this point, the presumption is that the common law controls the question in that State; and at common law, a set-off can not be pleaded at all. — Waterman on Set-off, § 10; White v. Governor, 18 Ala. 767. And hence, of course, a counter-claim, not a matter of recoupment, could not have been made an issue in the case, nor concluded by the judgment therein.

It is contended, however, that the error, if any, committed by the trial court in excluding evidence of set-off, was without injury, in that the defendant failed to sustain the plea, the ruling of the court having been made after all the testimony *396on this point had been adduced. We can not pass upon the sufficiency of the evidence on any controverted issue of fact. That question is for the determination of the jury. If there was any evidence, however weak and inconclusive it may have been, tending to support defendant’s plea'of set-off, the error in excluding it can not be said to have involved no injury to him, as we can not know what effect it would have had on the minds of the jury. That there was such evidence, the record before us clearly demonstrates.

Parol evidence of the judgment rendered by the justice of the peace should not have been received, on the showing made. It should, at least, have been made to appear that the justice had been in office continuously since its rendition, or that he had succeeded, after being out one or more terms, to the same justiceship, which he held at the time of the judgment. Otherwise, there is no presumption of loss or destruction of the papers, or the judgment-entry, from a failure to find them or it in his office at the time of the search proved. Non constat but that the docket on which the judgment-entry was made had, as required by law, been delivered to another justice, and never returned to the magistrate who rendered the judgment.

For the error pointed out above, the judgment of the Circuit Court is reversed, and the cause remanded.