16 Mo. 102 | Mo. | 1852
delivered the opinion of the court.
This was an action of debt, on a decision rendered in the State of Illinois, against Julian H. Lusk & Edward Lusk, in favor of the plaintiffs in error. The plea was a formal one, without any meaning, under which, by the statute then in force, all defences to actions were required to be made. On the issue in the cause there was a verdict for the defendant, and after judgment the plaintiffs sued out their writ of error.
It appears from the record, on which this suit was instituted, that neither Julian H. Lusk, the defendant in this action, nor Edward Lusk, were served with the original process in the cause. The record states, that the defendants filed their
The only question in this caséis, whether the defence offered by the defendant was admissible, in an action on a judgment or decree of a sister state, rendered under the circumstances detailed in the foregoing statement. When the mind, in considering a question, is relieved from the anxiety of taking a view of it which may be different from that entertained by all others, and is conscious that whatever course it may pursue, it will have the weight of respectable opinions in its support in forming a conclusion, under such circumstances it is the part of wisdom to ascend to first principles, and take that view which, while it avoids any encroachment on the established principles of law, is reconcilable to the dictates of sound policy. Melius est petere foutem quam seciari rivulos. When the nature of the human mind is considered, and its unwillingness to depart from ways of thinking to which it has been long accustomed, it is not remarkable that some repugnance should have been entertained by the old lawyers of the day, to the act
It sufficiently appears upon tbe face of tbe record, that tbe court bad jurisdiction of tbe person of tbe defendant, and if suit bad been brought on sucb a judgment rendered in our own courts, tbe fact of notice could not be controverted; so the laws of Illinois, being the same as ours with respect to the effect of judgments, in a suit on a record ¿rom that state, the truth of a fact appearing on tbe record, cannot be controverted. Tbe defendant is not without redress. In tbe court in which this judgment was rendered, it may be set aside, if the facts are as alleged. This is tbe most equitable mode of dis - posing of this controversy. Such a motion is addressed to the discretion of the court, and in acting upon it, tbe parties may be laid under terms, which will subserve tbe ends of justice. He was a resident of Illinois and made the contract concerning real estate which has given rise to this controversy in that state, and we are not satisfied but that the ends of justice will be promoted by remitting him to tbe jurisdiction of tbe lex loci rei sitse.
No question was made, as to tbe right of a party to maintain an action on a decree for the payment of money. It was not controverted. Tbe other Judges concurring, the judgment will be reversed.