Kilburn v. Woodworth — 5 Johns. 37

Majority

p. 37

Kilburn against Woodworth.

Headnote

An action cannot hr- maintained ’n state, on a judgment recovered in J^JlSSHCllHSettSy in an acnoncommenced by an attachment of summons or actual notice to the defendant; and who was at the time ofissuminima resident in this state.

THIS was an action of debt, on a judgment recover- 7 jo ed in the court of common pleas of the county of Lenox # 1 r flzf- , , . --- m the state or Massachusetts, m April, 1801, for 118 1 if j , - rni i dollars and 40 cents. Inere was also a count on a mu tuatus. The defendant pleaded nil debeU

At the trial, the plaintiff produced an exemplification of the record of the judgment. The defendant’s counsel , • „ . . . objected to its admission as evidence, and offered to , , , , , „ prove by parol, that at the time the first process was ?erved in Massachusetts, the de/endant was a resident

p. 38

in this state. This was objected to on the part of the piajQtiffj but admitted by the chief justice.

The defendant then .proved, that in. May, 1800, he sold his house, &c. to the plaintiff, and removed with part of his goods, See. into the county of Seneca, in this "state, where he purchased a farm, on which he settled, cleared and cultivated a part, and built a house ; that he was assessed and paid taxes in the town in 1800, and had not been in Massachusetts since his removal into this state; that in October, 1800, he sent one of his sons to Massachusetts, for the rest of his family, who had remained on the farm he had sold to the plaintiff since May, and that his son returned with his wife and two children, and the residue of his goods, into the county of Seneca, the latter end of October, 1800 ; and that he did not know of any summons having been served on his wife. It appeared that the suit was commenced by an attachment, which was served by attaching a bedstead belonging to the defendant, accompanied with a summons to appear, which had been served on the wife of the defendant, the day after she left the place in Massachusetts, and while on her way to join her husband in Seneca. On this the chief justice decided, that the record offered by the plaintiff, was not competent evidence.

The counsel for the plaintiff, then offered to prove, that by the laws of Massachusetts, and the practice of the court in which the judgment was rendered, the judgment was-regular and valid, and would be so considered in Massachusetts. The chief justice said, the evidence was' unnecessary, it being ceded by the defendant’s counsel, that the judgment was to be presumed to be regular in that state.

The plaintiff then offered to prove the original demand but there appearing to be no count in the declaration, to which such evidence was thought applicable, it was rejected by the judge, and the plaintiff was nonsuited.

A motion was made to set aside the nonsuit, on the following grounds:

p. 39

1. That the evidence given by the defendant was inadmissible, under the plea, without notice, and also, because of the conclusive nature of the evidence offered by the plaintiff.

2. The facts proved by the defendant, did not render the exemplification of the record of the judgment incompetent evidence.

3. The plaintiff ought to have been permitted to give evidence of the original demand, under the count, on the j udgment.

Whiting, for the plaintiff.

I do not contend that the record of the judgment, is absolutely conclusive here : but if by the laws of Massachusetts, the record would have a certain effect there, this court is bound by the law of the United States, to give it the same effect here. If by the laws of Massachusetts, the first process is by attachment, and such a mode of service is held to be a sufficient notice to the debtor, so that a judgment so obtained is regular and valid, the court here ought to give it the effect of a regular judgment. There is no more impropriety in considering such a service of an attachment as notice, than the ordinary mode of proceeding by scire facias against bail, or the taking judgment by default, in an action of ejectment, against the casual ejector. A mistaken notion has arisen on this subject, from supposing that this was a proceeding in rem,; a notion derived from the case of Phelps v. Holker, in 1 Dallas’s Rep. 261. but it is not properly a proceeding in rem; but a mode adopted by the law of Massachusetts, for giving notice to the defendant in a suit.

Again, this defence did not arise out of the issue, nil debet; and it being special, notice ought to have been given under the plea. Under the plea, the court can only inquire, whether the judgment was regularly obtained.

Still, if the plaintiff failed in supporting his count on the judgment, he ought to have been allowed to prove . the original debt.

p. 40

Henry, contra.

1. The record of a judgment in another state, is merely prima facie evidence of a debt; and if the party was not within the jurisdiction of the court, or was not personally summoned to appear, the record is no evidence at all; the judgment is a nullity. The fourth article of the present constitution of the United States, was intended merely to follow a similar clause in the articles of confederation, by which it was declared, that “ full faith and credit shall be given in each of these states, to the'records, acts and judicial proceedings of the courts and magistrates of every other state and the journals of congress (vol. 3. p. 389.) furnish a contemporaneous exposition of this article of the confederation; for on a motion made to amend the clause, so as to allow an action of debt to be brought in one state on a judgment in another state, the amending clause contained a proviso, that the party against whom such judgment may have been obtained, had notice in fact of the service of the original writ, on which such judgment was founded; thus plainly showing, in the opinion of congress, that an actual notice, or personal summons to the party, was requisite to give the judgment any validity or effect in another state. The constitution of the United States, or the act of congress, has not so altered the principles of the common law, as to give effect to a judgment obtained without notice. If the defendant has received no personal summons or notice, the judgment must be, on general principles of law and justice, irregular and void. The meaning of the words of the constitution of the United States, and the act of congress, has been settled by the decisions of the courts of several of the states.^[1]

2. There could be no other plea in this case, than nil debet. The plea of nul tiel record, would have been improper. The evidence was therefore admissible, under the plea of nil debet.

p. 41

8. The plaintiff could not have been allowed to prove his original demand, under his declaration, without a sacrifice of all the established principles on this subject.

The nonsuit was properly directed. The defendant was not a resident of Massachusetts, when the Suit was commenced ; his domicil was in this state, and being in person here, and not within the jurisdiction of the court in Massachusetts, he was not, and could not have been served with process. The attachment of an article of his property could not bind him ; it could only bind the goods attached, as a proceeding in rém, and the judgment obtained by default, in pursuance of such an attachment, cannot be the ground here of an action against the defendant. To bind a defendant personally by a judgment when he was never personally summoned, or had notice of the proceeding, would be contrary to the first principles of justice. So it was decided in Fisher v. Lane. (3 Wils. 297.) In the case of Phelps v. Holker, (1 Dallas, 261.) a judgment obtained under the like proceeding, was held in Pennsylvania, not to be binding and conclusive; and in the case of Kibbe v. Kibbe, (Kirby, 119.) the supreme court of Connecticut went further, and denied operation to a judgment so obtained in Massachusetts. The English courts have established the same rule. In Buchanan v. Rucker, (9 East, 192.) the court of K. B. declared that the law would not raise an assumpsit, upon a judgment obtained in the island of Tobago, by default, when it appeared on the face of the proceedings, that the defendant was not in the island, when the suit was commenced ; and that he had been summoned by nailing a copy of the declaration on the court-house door. The court there said that it would have made no alteration in the case, if such proceedings were admitted to have been valid by the laws of Tobago. The motion to set aside the nonsuit mtyjt be denied.

Judgment of nonsuit».