McLaughlin v. Nichols — 13 Abb. Pr. 244

Majority

p. 244

McLAUGHLIN a. NICHOLS.

Supreme Court, Second District ;

General Term, Sept., 1861.

Headnote

Pleading Foreign Judgment.

A complaint on a judgment of a foreign court of inferior! jurisdiction must state, facts showing that the court had jurisdiction, both of the person and of the. ■ subject-matter.

A complaint on a judgment of a circuit court of another State—e. g., the Warren County Circuit Court in New Jersey—must either aver the fact of the existence of a general jurisdiction in that court, or of. a limited jurisdiction which ex- \ tended" to the cause of action for which the judgment was recovered, whatever it was, and also that the court had or obtained jurisdiction of the person.of the defendants.

Appeal from an order overruling a demurrer.

The action-was upon a judgment recovered in another State. - The complaint.was in the following form:

'■ The plaintiff states the following facts as constituting his complaint and cause of action herein, that the defendant is . justly indebted to him. in the sum-of, &c., together with interest thereon, from, &c., which said indebtedness arose and' accrued as follows ¡—That heretofore, to wit, on, &c.,in Warren County Circuit Court, State of Flew Jersey, the plaintiff, by the judgment and consideration of the said court then there, recovered a judgment against the defendants in said court for-the sum of, &c., as appears by the record of the said court, or to a duly, authenticated copy thereof will more fully and at large appear,

p. 245

and to which, for greater certainty,, refers, when the same shall be duly produced and proven, and the plaintiff says that he is the true and lawful owner and holder of the said judgment, and that the amount of the said judgment, together with interest thereon from the date of said judgment, is actually due and owing to the plaintiff from‘.the defendants, the same, nor no part thereof, having been paid or in any way satisfied, and that the said judgment is a subsisting judgment in full force and effect, being in no respect altered or modified.

To this complaint one of the defendants demurred, on the ground that it did not state facts sufficient to constitute a cause of action. •

Judgment having been given for the plaintiff on the demurrer, at special term, the defendant appealed.

C. Bainbridge Smith, for the appellant.

Waring & Sidell, for the respondent.

—This is an action on a judgment alleged to have been recovered “in Warren County Circuit Court, State of New Jersey,” by the plaintiff against the defendants. The complaint contains no averment of any facts to give jurisdiction to the court in which the judgment was rendered, either of the persons of the defendants or of the cause of action, nor does it state what the jurisdiction of, the court is. The defendants demurred on account of the absence of these averments. Their demurrer was overruled as frivolous, and they have appealed.

The complaint cannot be vindicated by the Code, since it does not conform to the rule given'by section 161, if that applies to foreign judgments or judgments of another State, which has been doubted. This pleading contains nothing but an averment that on a certain day, in Warren County Circuit Court, State of New Jersey, the plaintiff, by the judgment and consideration of the said court, recovered a judgment against the defendants for so much, as by the record of such judgment, or a duly authenticated copy thereof, when produced and proven, will appear,

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and to which the plaintiff refers. This does not make the judgment-record a part of the complaint, so - that, all which it may contain must be read as a part of the pleading. Hor is it a proferí of the-record, as has been suggested, so that giving oyer will cover any difficulties and supply any defects in the com-plaint. The plaintiff does not propose to bring his record into court; he refers to it or.to a copy of it, when produced and proven, as he would to any other evidence. Besides- oyer is no longer given of the records and proceedings of courts, if it was ever demandable. ( 2 Den., 104 .)

The judgment of a court of another- State is entitled, by the Constitution of the United States, and the Act of Congress of May 26, 1790,-passed in pursuance of the constitutional provision, to the same faith and credit as it would-have in the State in which it was rendered. Ho judgment, however, is of any avail, .if the court do not possess j urisdiction -of the parties or the subject-matter. If jurisdiction did not exist, the judgment is void, and there is no record. Facts to prove the want of jurisdiction, and even to contradict the averments of the record itself in that respect, may be pleaded and proved against any record. .If the court in which the judgment was recovered ■be one of general jurisdiction, it will be presumed to have had or acquired jurisdiction of the case. But if ikbe an inferior and limited jurisdiction, then the rule is that facts- -to show jurisdiction of the subject, as well as of the person, must be averred. -This is the rule as to judgments and proceedings of : domestic tribunals, and it is the rule for complaints and declarations, as well as pleas. (Willes, 413 ; 7 Hill, 35 , and cases cited in note ; 3 Comst., 193.) The general rule is, that a declaration on a judgment of a court- of inferior jurisdiction .must state facts showing that the court had jurisdiction; both of the person and the subject-matter. -

We are not informed, by this pleading, of the jurisdiction of the Warren County Circuit Court in Hew Jersey, nor whether it has jurisdiction of the subject of the suit which it is alleged was brought in it by the plaintiff against the defendants. It is not stated whether it is a court of general or limited jurisdiction, and we have -no'judicial knowledge upon that subject, for its jurisdiction depends upon the statutes of Hew Jersey, of which we can. only take notice .when they are pleaded and

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proved as facts.^[2] The complaint should have averred the fact of the existence of a general jurisdiction in this court, or of a limited jurisdiction, which extended to the cause of action for which the judgment was recovered, whatever it was. It should also have stated that the court had or obtained jurisdiction of the person of the defendants. The present complaint is, therefore, defective, and the demurrer should have been allowed.

The judgment for the plaintiff should be reversed, and judgment rendered for the defendants, with costs, with leave to the plaintiff to amend on the usual terms.

* Compare Foot a. Stevens ( 17 Wend., 483 ), where it is said that Courts of Common Pleas and County Courts of other States, are to be presumed of general jurisdiction.

Footnotes

* Present, Emott Brown, and Scrugham, JJ.