2 Or. 97 | Or. | 1864
There are numerous assignments of error, but the main question presented by this record is what force and effect a judgment, rendered in form in New York on a joint liability under their joint debtor act, is to have on a party in this State, who was served with process and appeared by attorney in the action. The statute of New York referred to is: “ If the action be against defendants jointly indebted upon contract the plaintiffs may proceed against the defendants served, unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served.”
By examination of the adjudicated cases in New York, under this law, we find it is held that the original contract is merged in and extinguished by the judgment; and that the judgment is valid and binding on the absent defendants as pri/ma facie evidence of a debt, reserving to them the right to enter again into the merits and show that he should not have been charged, if sued upon the judgment. But where the defendant has been served with process, or voluntarily appeared in the action, he is concluded from going behind the judgment and controverting the original cause of action. (Dando v. Doll, 2 Johns., 87; Bank of Columbia v. Newcomb, 6 Johns., 98; Taylor v. Pettibone, 16 Johns., 66; Carman v. Townsend, 6 Wend., 206.) The Constitution of the United States declares that “ full faith and credence shall be given in each State to the public acts, records and judicial proceedings of every other State, and the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” By the act of May 26, 1190, Congress prescribes:
2¿£. “And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence the said records are or shall be taken.”
Then, by the law and usage of New York, the judgment on which this suit is founded was properly rendered, inform, against all the defendants; that the original contract is merged in and extinguished by the judgment; that the judgment is valid and binding as prima facie evidence of a debt against the Shermans, in this State; but as they were not served with process, and did not voluntarily appear in the action, either in person or by attorney, they had the right, in the court below, to enter again into the merits and show that they should not have been charged; but, not so as to Stark, who has had his day in court, been served with process, and appeared by his attorney in the court of New York; and there might have made his defense, if he had one. (Mills v. Duryea, 7 Cranch, 481; D' Arcy v. Morris, Ketchum et al., 11 Howard, 165.) The judgment is then valid and binding on him in this State, and concludes him from going behind it to examine into the original cause of action. It is further claimed by appellant that the authentication of the record from New York is defective, and, therefore, improperly' admitted as evidence in the court below; but, on examination of the authentication, we think the act of Congress, heretofore mentioned, is substantially complied with.
We think there is no substantial error, and the judgment is affirmed.
