29 F. Cas. 294 | U.S. Circuit Court for the District of Connecticut | 1875
This is art action of debt brought by the Warren Manufacturing Company, a body corporate, duly incorporated by a law of the state of Maryland, located and doing business in Baltimore,- and all the stockholders, residents and citizens of the state of Maryland, against the Etna Insurance Company, a body corporate, duly incorporated by a law of the state of Connecticut, doing business in Hartford, in the state of Connecticut, the stockholders residing in, and being citizens of the state of Connecticut.: and the action is founded upon a judgment recovered in the county court of the Sixth judicial district of the state of Maryland, on the first day of January, in the year 1836, for the sum of $20.000. The defence set up in the case is embraced under four pleas: (1) Nil debit. (2) Nul tiel record. (3 and 4) Special pleas, stating in substance that the defendants, at the time of the commencement of the suit, were, and ever since have continued to be, inhabitants of the state of Connecticut, located, established and resident, at Hartford, and were not, during said time, or at any other time, inhabitants of, or located, established or resident in the state of Maryland, or within the jurisdiction of the said state or the laws-thereof, or any of the courts thereof; and that the defendants were never served with any process in said suit, nor had any notice thereof, and never answered thereto or appeared or defended therein, nor in anywise authorized any other person in their behalf to appear and answer, and defend the same; that they were incorporated by the legislature of the state of Connecticut, and were never in any otherwise incorporated than by the legislature of Connecticut.
The plaintiffs demur to the plea of nil debit, and take issue upon the plea of nul tiel reccord; and to the third and fourth pleas, the plaintiffs reply, setting out the incorporation of the defendants: and that, from the time of their incorporation up to the time of the commencement of the suit in the Maryland county court, they had an agent residing in Baltimore, invested with powers to receive proposals for insurance against loss by fire, by policies signed by the president of said company, and attested by their secretary and
The cause came on to argument upon the demurrer to the plea of nil debit, and upon the admission of certain facts in relation to the issues of fact made by the pleadings in the cause. From the transcript of the record in the Maryland judgment, it appears that the suit was commenced on the 10th day of April, in the year 1835;- and the declaration is upon a policy of insurance against fire, bearing date the 16th day of October, in the year 1830, and renewed from time to time, according to the provisions in the policy, and continued until the 16th of October, 1834; and the loss is alleged to have occurred on the 21th day of January, in 1831; and from the said record, and the return of the sheriff of Baltimore county, it appears that the writ was served on William Hope, agent of the Etna Insurance Company, on the 11th day of April, 1835; and that a copy of the writ and declaration was served on Thomas K. Brace, president of the Etna Insurance Company, on the 15th day April, in the year 1835, and the agency of William Hope, under the power of attorney, set out in the transcript of the record, is admitted, bearing date on the 18th day of March, 1833, giving him full powers to receive proposals for insurance against loss by fire, to act as surveyor of buildings, and insurance thereon to make, by policies signed by the president, and attested by the secretar}-, and countersigned by the said William Hope. It is admitted that Thomas Iv. Brace was president of the company, and that service of the writ and declaration was made on him, and the other proceedings had, as set forth in the transcript of the record, and that the. court of Maryland had jurisdiction of the subject-matter of the suit in which judgment was rendered. The law of Maryland is also admitted.
Under this stare of the pleadings and the admitted facts in the case, the cause must turn principally upon the effect and operation of the Maryland judgment, and the construction to be given to the law of that state regulating proceedings against foreign corporations doing business within the state. Prior to the adoption of the confederation and the constitution of the United States, the several states were considered entirely independent of each other: and the judgments recovered in their respective courts were foreign judgments in every respect, as in any separate and independent government: and whatever changes now exist in this respect must be sought for in the constitution and laws of the United States. The constitution declares that full faith and credit shall he given in each state
But whatever diversity of opinion may have existed on this subject, the question in this court would seem to be settled by the cases of Mills v. Duryea, 7 Cranch [11 U. S.] 481, and Hampton v. McConnel, 3 Wheat. [16 U. S.] 234, decided in the supreme court of the United States. The doctrine of those cases is, that the judgment of a state is to have the same credit, validity and effect in every other court in the United States which it had in the state where it was pronounced; and that whatever pleas would be good to a suit thereon in such state, and none other, could be pleaded in any other court in file United States. In the case of Mills v. Duryea. it was held that nil debit was not a good plea to an action founded on a judgment of another state; and it has been supposed by some that this decision went the length of laying down the general doctrine that the plea of nul tiel record was the only proper plea to an action upon a state judgment. But such is not the conclusion to be drawn from that ease, but only that nil debit was not a proper plea in that case, but nul tiel record should have been pleaded. “For,” say the court, “beyond all doubt the judgment of the supreme court of New Xorlt was conclusive upon the parties in that state, for the defendant was arrested and gave bail in the suit’,” and there can be no doubt that, where the judgment is conclusive, nul tiel record is the proper plea. But if the record is not conclusive, it is open to such plea as will let in the defence which the party has a right to set up; and it would be competent for the defendant to show that the judgment was obtained by fraud, or that the court in which the judgment was obtained had not jurisdiction of the cause. Such defence might, in some cases, be set up to a suit upon the judgment in a court of the state in which it was rendered. In the case of Andrews v. Montgomery, 19 Johns. 162, Spencer, C. J., observed, that with the qualifications that the party may show that the judgment was obtained by fraud, or that the state court had not jurisdiction of the person of the defendant, we are bound, by the authority of the case in the supreme court of the United States, to consider a judgment fairly obtained in another state as conclusive evidence of the matter adjudicated; and in the case of Bissell v. Briggs, 9 Mass. 462, Parsons, C. J., in considering the construction to be given to the constitution and law of the United States upon this subject, observes that judgments rendered in any other of the United States, are not, when produced here as the foundation of actions, to be considered as foreign judgments, the merits of which are to be inquired into, as well as the jurisdiction of the court rendering them; neither are they domestic judgments, rendered in our own courts of record, because the jurisdiction of the court rendering them is put in issue, but not the merits of the judgment. That when a record of a judgment of any court of any state is produced as conclusive evidence, the jurisdiction of the court rendering it is open to inquiry; and if it should appear that the court had no jurisdiction of the cause, no faith or credit whatever will be given to the judgment; and that if the court of any state should render judgment against a man not within the state, nor bound by its laws, nor amenable to the jurisdiction of its courts, if that judgment should be produced in any other state against the defendant, the jurisdiction of the court might be inquired into; and if a want of jurisdiction appeared, no credit would be given to the judgment;
If the judgment has no binding effect or operation, and that appears upon the face of the record, the plea of nil debit may be a good plea. It is the general issue, denying the whole cause of action, and leaves the question of jurisdiction open to inquiry. But it is not important, in the present ease, to decide whether the plea of nil debit is a good plea or not; for there can be no doubt that, under the constitution and act of congress, the question of jurisdiction remains open as at common law; and it may be shown by proper evidence, that the court rendering the judgment had no jurisdiction; and the pleadings may be so shaped as to admit such evidence; and if nil debit is not a proper plea for that purpose, the want of jurisdiction may be pleaded specially.
In the case of Shumway v. Stillman, 4 Cow. 292, it was decided by the supreme court of New York, that in an action upon a state judgment, it was competent for the defendant to show, 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; and in the present case the defendants have plead specially the want of jurisdiction in the Maryland court which rendered the judgment; and from the record itself, it appears that the process to bring the defendants before the court was served on their agent in the city of Baltimore, and a copy thereof delivered to the president of the company in the state of Connecticut; and unless such service of the process was sufficient to bring the party before the court, the judgment was obtained without any notice of the suit being given to the defendants. It is admitted, in the present case, that the Maryland court had jurisdiction of the subject-matter of the suit; but jurisdiction over the person was also necessary in order to sustain the judgment; and to give jurisdiction of the person, due notice of the suit or service of the process must be shown, or the judgment is a nullity, except in cases of proceedings under the statute process of foreign attachment, which is in the nature of a proceeding in rem, and subjects the goods attached to the judgment when recovered. But, in such case, if the goods attached are insufficient to satisfy the judgment, no suit can be sustained upon the judgment for the deficiency, because the defendant, in such ease, is not personally amenable to the jurisdiction of the court rendering the judgment. The language of the courts, on the subject of notice to the party in order to give any validity to the judgment, is veiy strong.
In the case of Thurber v. Blackbourne, 1 N. H. 243, the court say, the common law never recognizes judicial proceedings-as foreign judgments, unless rendered by a court of record, upon personal notice given to the defendant, or his appearance to the action. And in Kilburn v. Woodworth, 5 Johns. 37, the court refused to permit such a judgment to be given in evidence; and they say, to bind a person by a judgment when he was never personally summoned or had notice of the suit, would be contrary to the first principles of justice; and numerous other cases might be cited to the same effect. 10 Coke, 70; 1 Conn. 45; 9 Mass. 462; Kirb. 119. It may, therefore, I think, be assumed as the settled doctrine of the law, that a judgment either strictly foreign or coming within the operation of the constitution and law of
Judgment for the defendant.
Such inquiry is always allowable when a foreign judgment, or the judgment of a neigh boring state, comes in question (Rose v. Himeley, 4 Cranch [8 U. S.] 241, 269, per Marshall, C. J.; Cheriot v. Foussat, 3 Bin. 220; Moren v. Killibrew, 2 Yerg. 376, 379, 380; The Neuva Anna and Liebre, 6 Wheat. [19 U. S.] 1931; but to what length is not very clearly defined. In Bank of North America v. McCall, 4 Bin. 371, an objection was started as to the jurisdiction of a court, acting at St. Domingo, which was said not to have been derived from the proper authority; and it was held sufficient that the court was one de facto, deriving its authority from those in whom the power of the country was for the time being vested; and, therefore, it was deemed to have the jurisdiction of a legitimate court. S. P., Ingram's Heirs v. Cocke, 1 Overt. 22. See, per Best, C. J., Yrisarri v. Clement 2 Car. & P. 223. If the origin of the foreign court does not appear, it seems that it will lie presumed legitimate; but where the source of its authority is stated, the tribunal before which its judgment is produced will examine it; and if it be contrary to the usual mode of constituting courts, it shifts the onus pro-bandi upon the party who would sustain the judgment. and it will then be for him to establish that the foreign court was properly organized. See, per Washington, J., Snell v. Faussatt [Case No. 13,138], 3 Bin. 239.
In Obicini v. Bligh, 8 Bing. S35, a suit was instituted in England to recover damages awarded by the vice-admiralty of the Island of Malta; and it was held, that the decree, in order to be evidence of indebtedness, must show expressly, and not by mere inference, that the defendant was brought within the jurisdiction of the vice-admiralty court, and that the court where the suit was pending would not presume it. So, also, in Thurber v. Blackbourne, 1 N. H. 242, 246, where debt was brought, in New Hampshire, upon a judgment of the common pleas of Rhode Island, held, that inasmuch as it did not appear by the record that the defendant had personal notice of the suit, or appeared to the action in the court where the judgment was pronounced, the judgment must be regarded as obtained without jurisdiction, for these facts would not be presumed. In Bradshaw v. Heath, 13 Wend. 407. the plaintiff. Mary Bradshaw, brought ejectment in New York, for dower, and in answer to proof on the part of the defendant, that the plaintiff, previous to the marriage in virtue of which she claimed dower, was a married woman, and that her first husband was still alive, the plaintiff produced a record of the superior court of Connecticut, containing a sentence of divorce, on her petition, from her first husband. The petition, as stated in the record, alleged that the first husband had deserted the petitioner, and had ever since been to parts unknown. No appearance on the part of the husband was shown by the record, nor did it state that he was served with process, or had notice of the proceeding: but, on the contrary, the adjudication was alleged to have been made on hearing “the plea and evidence produced by the plaintiff.” The defendant proved that the first husband, at the time of the presentation of the petition. and of the granting of the divorce, was an inhabitant of the state of New York; and the court held, that although the record of a court of competent jurisdiction of another state, granting a divorce, is conclusive, and entitled to full faith and credit, yet it is so only as to matters clearly and distinctly stated in it. and not as to those which are merely inferrible by argument from the judgment; that in the particular ease, the record of divorce was no evidence of the jurisdiction of the court over the person of the defendant in those proceedings, because no fact was stated giving jurisdiction; and if jurisdiction was inferrible at all, it was only so by argument from the judgment; and consequently, that the presumption under the circumstances was against the validity of the decree. See Harding v. Alden, 9 Greenl. 140 et seq. Whether jurisdiction lie founded upon the pei’son being within the territory, or the property being there, the judgment will be deemed valid, so far ns that jurisdiction could legitimately extend; but no farther. Thus, a very common course, in many of the United States and in many other countries, is to proceed against non-residents, by an arrest or attachment of their property within the territory. Judgment obtained upon process of this kind, will generally bind the property so arrested or attached: for to that extent the court has or can have jurisdiction. But such judgment will not be regarded by neighboring states or other nations as evidence of indebtedness or as operative in any measure in personam: and for this very obvious reason, viz., that except so far as
