2 Mich. 165 | Mich. | 1851
The action in this case is debt, and the first count is upon a judgment rendered in the Supreme Court of the State of New York, in favor of the plaintiffs against the defendants. To this count the defendant Kassick, pleaded md tiel record, and also a special plea, setting forth that at the time of the commencement of the suit in New'York, and at the time of the recovery of the judgment, and during all the intermediate time, he was and has been, and that he still is a resident of the State of Michigan; and that he did not appear in person, or otherwise, and defend the suit in which the judgment was obtained, nor submit himself to the jurisdiction of the Court by any actual arrest in "said suit; or any notice thereof to him personally, or by any voluntary appearance in such suit, either in person, or by any attorney by him authorized in that behalf.
The defendant, Kassick, demurred to this replication, and the plaintiffs joined in demurrer. Thus the question is now distinctly presented to this Court, whether, in an action upon the judgment of a Court of general common law jurisdiction in a sister State, the record of such judgment, showing a personal service of the process by which the suit was commenced, and the appearance of the defendant by an attorney of the same Court, it is competent to contradict the facts which show jurisdiction of the person of the defendant, thus appearing on the face of the record.
By section 1 of article 4 of the constitution of the United States, it is declared that “ full faith and credit 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 proceeding’s shall be proved, and the effect thereof.”
The act of Congress of May 26th, 1?90, provides the mode of authenticating the records and judicial proceedings of the State Courts, and declares that “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.” Upon the construction of these provisions of the constitution and laws of the United States, depends the decision of this question.
From the adoption of the constitution and the enactment of the law before referred to, and prior to 1813, great contrariety of opinion pre
The question as to the effect of a judgment rendered in a Court of record of one State, when sued on in another Court within the United States, was first brought before the Supreme Court of the United States, and elaborately examined, and finally settled in the case of Mills vs. Duryee, (1 Crunch, 481,) in the same year; since which time the question has frequently been presented to the United States Courts, in various ways, and in their decisions there appears to be no conflict. To these Courts, and especially to the Supreme Court of the United States, in which resides the power of ultimate determination of questions arising under the constitution and laws of the United States, we are to look for controlling authority in all cases of this nature, so far as their judgment has been promulgated. A careful examination of the casse in which this point has arisen, and been adjudicated upon in the federal Courts, will enable us satisfactorily to apply the ■ principles they establish, to the case before us.
The question in the case of Mills vs. Duryee, was, whether nil debel was a good plea to an action brought in the district of Columbia, upon a judgment rendered in a Court of record of the State of New York; and the Court held that it was not a good plea, but that the proper plea was nid del record, Mr. Justice Story, in delivering the opinion of the
The case of Hampton vs. McConnel, (3 Wheaton, 234,) was decided in the year 1818; and Chief Justice Marshall delivered the opinion of the Court, as follows:
“ This is precisely the same case as that of Mills vs. Duryee. The Court cannot distinguish the two cases. The doctrine there hold, was that the judgment of a State Court should have the same faith, 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 others, could be pleaded in any other Court in the United States.”
The case of Field vs. Gibbs & Gibbs, (1 Peters C. C. R., 156,) was an action of debt, in the Circuit Court of the United States for New Jersey, on a judgment of a Court of Common Pleas in Pennsylvania. Martin Gibbs, one of the defendants, pleaded specially that he had never appeared in, or had notice of the suit, &c. To this plea a demurrer was interposed, in which the defendant joined. It appeared by the record that both the defendants were attached in that suit, to 'answer the plaintiff, and that they both appeared by their attorney, and pleaded several pleas. Judge Washington, in his opinion in that case, remarks, that “to allow the defendant, (Martin Gibbs,) to show that he did not appear i^ the cause, or authorize any person to appear for him, would be to allow him to contradict the record;” and this the Court held was inadmissible. Tho Judge . cites and applies to that caso, the language of Lord Coke, that “ a record imports in itself such ineontrollable credit and verity, that it admits of no averment, plea or proof to the contrary;
In Jacquette vs. Hugunon, (2 McLean, 129,) decided in the Circuit Court of the United States, for the District of Illinois, in 1840, it was. determined that nil debet was not a good plea to an action on a judgment obtained in New York. The opinion of the Court in that case is very brief, and the doctrine is treated as well settled in the Courts of the United States. In the following year, the question whether it was. competent, by plea, to controvert the statement in the record of a judgment rendered in Massachusetts, that the defendant was served with process, or appeared in the suit, was presented to the same Court, in the case of Lincoln vs. Power, (2 McLean, 473,) and the Court decided it was incompetent. The Court say, “ the appearance of the defendant is a material fact, and so is the service of process. It is admitted that the allegations in a record which were not material nor traversable, are not conclusive on the parties. But the record is conclusive of all matters in relation to the judgment which were material, and which might have been traversed, and these cannot be contradicted.”
In the same Court and during the same term, the case of Westervelt vs. Lewis & Tooker was decided. That was an action of debt brought on a judgment obtained by the plaintiff against the defendants in the State of New York. The defendants pleaded: first, nil debet; second, that no notice was served on the defendants before the rendition of the judgment; to both of which the plaintiff demurred, and the defendants joined in demurrer. The Court sustained the demurrer, and in their opinion say, that when the fact that the Court had jurisdiction of the person of the defendant appears by the record, it cannot
With this array of harmonious decisions of the Courts of the United States before us, and with the concession on the part of the State Courts, that they are bound by the determinations of the Supreme Corut of the United States upon questions of this character, and that the decisions of the Circuit Courts of the United States are entitled to great respect, it would seem that the question now under consideration in this Court, ougkt to be considered as settled beyond dispute; but an examination of a few of the more recent decisions of the State Courts, will show that while some of them seem to have yielded a reluctant assent to the principles established in Mills vs. Duryee, and Hampton vs. McConnel, others have either boldly questioned their soundness, or adopted them with much qualification.
The ease of Starbuck and others vs. Murray, (5 Wend., 148,) was-decided in 1830. It was an action of debt on a judgment rendered in a Coiut of Common Pleas of the State of Massachusetts. The defendant pleaded specially, that the suit in which the judgment was rendered was commenced no otherwise than by attachment of certain goods and chattels, then being at Boston, in the State of Massachusetts; that at the time of the commencement of such suit, he was, and ever since had been, and still was a resident and inhabitant of the State of New York;, that no process of any kind had ever been served upon him in the suit, and that he never appeared thereto, in person or by attorney. To this plea the plaintiffs replied, that the defendant ought not to be admitted to plead, &c., “because the judgment record declares and avers, that at
This replication was demurred to by the defendant, and the plaintiffs joined in the demurrer. Thus the question was distinctly presented for adjudication, whether a fact stated in the record, showing jurisdiction of the Court over the person of the defendant, could be controverted by plea, a,nd the Court sustained the plea, controverting such fact. See also Borden vs. Fitch, (15 J. R., 121;) Andrews vs. Montgomery, (19 J. R., 162.) In Shumway vs. Stillman, (6 Wendell, 447,) the Court held, that in an action of debt brought on a judgment of a Court of Massachusetts, the defendant might deny the authority of an attorney who appeared for him in the suit in which the judgment was rendered, though the fact of such appearance was stated in the record. The Court say, in substance, that this is not a contradiction of the record, the authority of the attorney to appear, being no part of such record, and the appearance of the attorney being only prima fade evidence of his authority. Chief Justice Savage, in delivering the opinion of the Court, after an extensive review of the adjudged cases in the Courts of New York, Massachusetts, and of the United States, sums up the result as follows: “An examination of the cases results in the establishment of the following proposition: that the judgment of a Court of general jurisdiction in any State in the Union, is equally conclusive upon the parties in all the other States, as in the State in which it was rendered. This, however, is subject to two qualifications: T. If it appear by the record that the defendant was not served with process, and did not appear in person or by attorney, such judgment is void: and 2. If it appear by the record that the defendant appeared by attorney, the defendant may disprove the authority of such attorney to appear for him.” This case was followed • by several others, in which the Supreme Court of New York gradually receded from the general doctrine, that any fact might be pleaded in opposition to the record, showing a want of jurisdiction over the person of the defendant, as laid down in broad terms in the case of Starbuck vs. Murray, and supported with much earnestness by Mr. Justice Marcy, (23 Wendell, 303; 1 Hill, 597.) And though the question has not been definitely settled in that State,
This language shows pretty clearly what was then the opinion of the judges of that Court, and that if the question had heen distinctly presented, they would have 'decided that no material fact stated in the record, could be controverted by plea.
The Supreme Court of Pennsylvania, in the case of Benton vs. Burgot, (10 Serg. & Rawle, 240,) in 1823, decided that pleas to an action on the judgment of a Court of a sister State, sotting up fraud, imposition and mistake in obtaining it, and a want of consideration, were had on demurrer. Duncan, Chief Justice, iu delivering the opinion of the Court in this caso, refers to the 'opinion of the Supreme Court of the United States in the eases of Mills vs. Duryee and Hampton vs. Mc-Conuel, giving a construction to the provisions of the Constitution and act of Congress, upon which the decision of those cases depended, and acknowledges the controlling authority of that Court in their construction.
In Vermont, the Supreme Court in the case of Hoxie vs. Wright, (2 Vermont R., 263,) decided in 1828, acknowledged the doctrine of the cases decided in the Courts of the United States, to its full extent
In the Supreme Court of Massachusetts, the first case after the decis5n Mills vs. Duryee was promulgated, in which the question was again presented, was that. of the Commonwealth vs. Green, in 1822. (17 Mass., 545.) In this case, Ch. J. Parker, after referring to the opinion delivered by Parsons, Ch. J., in Bissell vs. Briggs, says: “ The Supreme Court of the United States have carried the sanctity of judgments
In those cases where the Courts have held that facts appearing upon the record, showing jurisdiction, might be controverted in an action upon the judgment in another State, it has been argued in favor of such conclusion as in the case of Starbuck vs. Murray, before cited, that unless a Court has jurisdiction, it can never make a record which imports uncontrollable verity to the party over whom it has usurped jurisdiction, and he ought not, therefore, to be estopped by any allegation in that record, from proving any fact that goes to establish the truth of a plea alleging a want of jurisdiction; that to say that the defendant may show the supposed record to be a nullity, by showing a want of jurisdiction in the Court which made it, and at the same time to estop him from doing so, because the Court have inserted in the record an allegation which he offers to prove untrue, seems to be inconsistent; and that under the operation of such a rule a Court could always sustain its jurisdiction, if it had any solicitude to do so; or rather, that the party who had the benefit of its decision, and who, by the practice of most tribunals, is entrusted with making the record, would not fail to put it beyond the power of his opponent to show a want of jurisdiction. (5 Wend., 148.) In considering the validity of this course of argument, the question forces itself upon' the mind irresistibly, whether the Supreme Court of New York or of Massachusetts, ever adopted, or would for a moment listen to such, or any similar argumente, in a suit brought
That the Courts of New York would not allow the fact of personal service of the declaration and notice of rule to plead, appearing upon the record in the case before us to be controverted by plea or proof, in an action brought upon the judgment in that State, there can be no doubt. (Adams vs. Gilbert, 9 Wend.; Jackson vs. Stewart, 6 J. R., 34; Denton vs. Noyes, 6 J. R., 296; Green vs. Ovington, 16 J. R. 55.) Seo also (Smith vs. Bowditch, 7 Pickering, 137.) But it is said that the doctrine that the jurisdiction of the Court rendering a judgment may he inquired into when a suit is brought in the Courts of another State on that judgment, notwithstanding what may appear upon the record, does not depend merely upon the authority of adjudged cases, but has a better foundation; that it rests upon a principle of natural justice; that no man is to be condemed without the opportunity of making a defense, or to have his property taken from him by a judicial sentence, without showing, if he can, the claim against him to he unfounded. This great principle of natural justice will never he denied here; hut is the right which it acknowledges and protects violated, by making the record conclusive ? In the case of Hoxie vs. Wright, the Supreme Court of Vermont say, that if the defendant was entitled to relief, he might, on good cause shown, have obtained a stay of proceedings in the action then pending, while he had pursued, or had time to pursue, any remedy open to him; and if he had paid the demand on which the judgment was rendered, &c., it would unquestionably have
The conclusions to which I have arrived and which I think are well sustained by the authorities are: First, That in an action in one State upon the judgment of a Court of general jurisdiction of another State, no plea or proof can be received in contradiction of any material fact appearing by the record, unless such plea or proof would be received in an action upon it in the Court in which it was rendered.
Second, That if the record shows a want of jurisdiction, the judgment is a nullity.
Third, That if the record does not show, either that the Court had, or that it had not, jurisdiction, the jurisdiction will be presumed; but in such case, facts showing a want of jurisdiction may be alleged by plea, and if established a recovery may thus be defeated; and
Fourth, That when the record shows that the process was not personally served, and that the defendant did not appear in person in the suit, but that an attorney of the Court appeared for him and made defence, the authority of such attorney so to appear will be presumed.
Whether however, inasmuch as the authority of the attorney does not appear by the record, and might be controverted without denying any fact directly stated therein, it may be controverted, does not seem to be settled. It is pretty clear however, that in New York, in an action upon judgment of their own Courts, a defendant would not be allowed to question the authority of the attorney who appeared for him, and defended the suit; but if there were a fraudulent collusion between the attorney and the other party or his attorney, or if such attorney were worthless and unable to respond in damages, the party aggrieved would
Applying the principles just stated, to the case under consideration, it follows that the replication to the second plea to the first count of 'the declaration, is good; and that the demurrer thereto must be overruled. ;
Two other questions of law are presented by the pleadings in this case, about which there can be no doubt. The Gist is, whether the defendant’s plea to the second count of the declaration, of another suit for the same cause of action pending in the Supreme Court of New New York, is a good plea in bar. It is certainly not a plea to the merits, and if the matter of it would be good by way of plea at all, it could only be pleaded in abatement. (Gould’s Pleadings, 2d ed., 283; 1 East., 634; 9 J. R., 221; 12 Ib., 99.) The other question is, whether the defendant’s plea of the statute of limitation to the second, third and common counts of the declaration is sufficient to bar the plaintiff’s action. The plea sets forth that the said several supposed causes ■of action in the second, third and common counts of the said amended ■declaration mentioned did not, nor did any or either of them, accrue to the said plaintiffs at any time within six years next before the filing of the said amended declaration, &c. This plea is clearly bad. It is the commencement of the suit which fixes the rights of the parties, so for as the statute of limitations is concerned, and there is no precedent of a plea referring to a date subsequent to that time. No case has been referred to, which by any analogy appears to sustain such a plea, nor have I been able to find one; on the contrary, the authorities on this point seem to be all the other way. (6 Hill, 488; 6 Wend., 506; 1 Ib., 93.) The case of Green vs. Gill, (5 Mass., 379,) referred to by defendant’s counsel, affords no countenance, so far as I can discover, to the doctrine contended for by him; neither does the case of Granger vs. George. (11 Eng. Com. L. R., 185.)
Finally, it is the opinion of this Court, that judgment should be rendered in favor of the plaintiffs and against the defendant, upon all the demurrers. *