Shilling v. Seigle

207 Pa. 381 | Pa. | 1904

Opinion by

Mr. Justice Bbown,

This is a suit on a judgment rendered against the appellant in the court of common pleas of Columbiana county, Ohio. Objection was made in the court below, which has been renewed here, though not very seriously, to the sufficiency of the exemplification of the record. The copy or exemplification purports to be of a record. The clerk certifies that it “ is truly taken and copied from the records of the said court of common pleas within and for the said county of Columbiana, and that the same is a full and complete transcript of the proceedings had in said cause.” The presiding judge certifies that John S. McNutt, who certified the record, is clerk of said court, and that his attestation is in due form of law; and, in turn, the said clerk certified that W. W. Hole was, at the time of his certificate, and still is, the presiding judge of the said court. This is a full compliance with the rule on the subject as laid down in 1 Greenleaf on Evidence (15th ed.), sec. 506 : “ If the copy produced purports to be a record, and nota mere transcript of minutes from the docket, and the clerk certifies ‘ that the foregoing is truly taken from the record of the proceedings ’ of the court, and this attestation is certified to be in due form of law, by the presiding judge, it will be presumed that the paper is a full copy of the entire record, and will be deemed sufficient.”

The real question raised on this appeal is as to the proof appearing from the record that the sheriff of Columbiana county, Ohio, had served the process on the defendant, personally, in that state. If he was not personally served, and did not appear in the foreign court, he is not concluded by the judgment there entered against him. Section 10 of the Act of April 14, 1851, P. L. 612, provides: “ If the record of a judgment of another state does not show that personal service of the notice or process by which the suit was commenced upon which said judgment was obtained, was made in such foreign state, it shall be sufficient to maintain a plea to the jurisdiction of the court in which said judgment was rendered.” The return of the Ohio sheriff was: “ Received this writ, May 26, 1900, and on May 27,1900, I served the within named defendant, A. H. Seigle, by handing to him personally, a certified copy of this writ with all the indorsements thereon.” According to sec. 5039 of the Revised Statutes of Ohio, brought to the notice of the trial judge of the common pleas of Lawrence county, service of a summons in Ohio, “ shall be made by delivering at any time before the return day a copy of the summons, with the indorsements thereon, to the defendant personally or by leaving a copy at his usual place of residence.” The common pleas of Columbiana county, Ohio, as appears from the exemplification of the record, found that the appellant, who had been returned as personally served by the sheriff, “ was duly served with summons in this cause.”

A record shows not only what appears in express words upon its face, but, in addition, it is to be read as showing whatever must be presumed to appear from it; and if in the present case it presumably shows that the summons was served on the appellant in the state of Ohio, it is sufficient, in the first instance, to sustain the jurisdiction of the foreign court in rendering judgment against him personally, to which all courts within the United States are bound to give the full faith and credit contemplated by the federal constitution. If it did not show actually or presumably that service had been made in the foreign state, the plea to the jurisdiction of the court in which the judgment was rendered could, of course, be maintained under section 10 of the act of 1851.

In Reber v. Wright, 68 Pa. 471, the suit was on a judgment obtained in the state of Ohio, the return of service having been that on the same day the summons was received by the officer, he served it by leaving a copy at the residence of the defendants. Objection was made that “ the record on its face shows that there was no personal service on the defendants;” but it was held that as it appeared there had been service by a copy of the writ left at the place of residence of the defendants, the service was sufficient to sustain the jurisdiction of the Ohio court in the absence of any evidence that the defendants were not at the time residents within the jurisdiction of the court. In other words, without more than appeared from the face of the record, the presumption was that the defendants were residents of the state of Ohio at the time the suit there was instituted and the process served. So here, with the return by the sheriff of personal service on the defendant and the finding of the court “that the defendant, A. H. Seigle, was duly served with summons in this cause,” the presumption surely is that, at the time the writ was served personally on the appellant, he was within the county of Columbiana, the presumed jurisdiction of the sheriff having the writ in his hands. A return to a summons by the sheriff, that he has served the defendant personally therewith, is sufficient without stating that the service was made in his county. This will be presumed: Knowles v. Gaslight & Coke Company, 86 U. S. 58. To the same effect are Richardson v. Smith, 1 Allen, 541, and Mink v. Shaffer, 124 Pa. 280, for omnia prsesumuntur rite esse acta. The proof from the record, however, was simply presumptive, and the defendant was at liberty to show the contrary on the trial here, viz., that he had not been served in the foreign state and that the foreign court had never acquired jurisdiction of his person: Knowles v. Gaslight & Coke Company, supra. But no such defense was made. In his affidavit of defense, the defendant avers that he had not been served “ with any writ, notice, service or process ” hr the suit brought against him in Ohio, and that portion of it containing the averment that he had not been served with any process in the original suit was offered in evidence by the defendant as an admission by the plaintiffs of its truth, because it had not been, as required by the rule of the court below, “ specifically traversed or denied by the opposite party under oath or affirmation,” and was, therefore, to be taken as admitted and no proof required. In making this offer for the purpose stated, it was overlooked that the averment by the defendant that he had not been served was a denial by him of a material averment first made by the plaintiffs in their statement of their claim, that the court of common pleas in Ohio had jurisdiction of the premises, which, as the learned trial judge below very properly held in refusing a new trial, “ should be taken to mean jurisdiction of the person of the defendant and the subject-matter of the suit.” Without such denial, the plaintiffs would not have been put to proof of their averment; but, with the denial, proof was required of them, which they furnished from the record.

We are asked to judicially notice that May 27, 1900—the day on which the sheriff served the summons—was Sunday. So it was, but, under Hastings v. Columbus, 42 Ohio St. 585, and Ohio v. Thomas, 61 Ohio St. 444, the service was good in Ohio.

Judgment affirmed.