Mink v. Shaffer

[289] Opinion, Me. Justice Green: The defendant in this case filed no affidavit of defence whatever and is therefore subject to every necessary inference and every material fact sufficiently expressed, or appearing, upon the record. The action is brought under the new procedure act of 1887. The third section of that act provides that the plaintiff’s declaration shall consist of a concise statement of the plaintiff’s demand, as provided by the fifth section of the act of March 21, 1806. As this is not an action upon a note, contract, book entry, or a record of the county of Lehigh, neither a copy nor a particular reference to such record is required. The fifth section of the act of 1806 provides that the statement shall be one “ particularly specifying the date of the promise, book account, note, bond, penal bill, or all or any of them on which the demand is founded, and the whole amount which he, she, or they believe is justly due to him, her, or them from the defendant.” It is not disputed and has been several times decided that an action of debt upon a foreign judgment is within the affidavit of defence law, and it is only necessary to consider whether there is enough appearing upon the record of the foreign judgment, and the plaintiff’s statement, in this case, to put the defendant upon an affidavit of defence in order to prevent judgment. The statement avers that the action is founded upon a judgment recovered in the District Court of Benton county, Iowa, on the 26th of March, 1878, for the sum of $5,000 and $15.80 costs. It further alleges a payment of $4,400 on the judgment, and the costs, that the original plaintiff has assigned the judgment to the present equitable plaintiff, and refers to an annexed transcript of the judgment which is made part of the statement. The statement further alleges that there is now due and owing to the plaintiff by the defendant on said judgment the sum of $2,100 with interest at six per cent from the 27th of March, 1888, and that this is the amount he seeks to recover in the present suit together with costs. The transcript of the judgment contains the names of the plaintiff and defendant, the names of the counsel appearing for each, the date of the trial, and verdict, as also the date of the judgment on the verdict and its amount. It cannot be doubted, and requires no discussion to prove, that so far as specification of the cause of [290] action is concerned, with all its particulars of character and amount of the plaintiff’s demand, the statement is entirely sufficient to put the defendant to his affidavit of defence. It is contended for the defendant that the statement is defective in not setting 'out that the court in Iowa had jurisdiction of the subject matter, or of the person of the defendant, or the nature of the action. In the case of Wetherill v. Still-man, 65 Pa. 105, we said, in reference to a similar objection, on p. 115: “As to the jurisdiction by the court in New York of the cause of action, that is concluded by the legal maxim always applicable to judicial proceedings, ‘ Omnia prássumuntur rite esse acta.’ It must be presumed that the court has exercised jurisdiction legally; a ’contrary presumption would necessarily imply usurpation on part of the court. To require proof of jurisdiction when the court is a court of general jurisdiction, would be to countenance the idea of the possibility of usurpation on part of the court and would overthrow at once the conservative maxim alluded to.....Neither therefore as to the jurisdiction of the person, nor the subject matter of the action, was the affidavit effectual to raise an inquiry into the judgment.” All this was said after an affidavit had been filed raising the question of jurisdiction and denying service of the writ and the authority of the counsel of record to appear for the defendant. But in the present case there is no denial of the cause of action, or of the jurisdiction of the court, either over the subject matter or the person of the defendant. Nor is there any denial by the defendant of his identity with the defendant in the judgment, or of the plaintiff’s identity, or of the authority of the counsel of record to appear for him. In these circumstances we could not sustain this objection without presuming against the maxim, and, in the absence of any assertion by the defendant that there was no cause of action, that there was no jurisdiction of the person or of the subject matter, and in effect that there was no valid trial, this of course we cannot do. On the contrary, the maxim requires us to presume, as we do, that there was a cause of action, that the court did have jurisdiction, both of the person and subject matter, and that there was a valid trial. It is also argued that the judgment was not certified according to the act of congress and therefore no judgment can be [291] entered for want of an affidavit of defence. But while the insufficiency of the certifícate must be conceded, and while this would have constituted a valid objection to its admission in evidence on the trial, it has been well decided by this court that it is unavailing in an affidavit of defence: Moore v. Fields, 42 Pa. 467, and Wetherill v. Stillman, supra. In the latter case Thompson, C. J., said: “No doubt a well founded objection of tbis kind would prevent it being evidence in a trial at law ; but that is quite another thing from the purpose it serves as the foundation of the plaintiff’s claim under the affidavit of defence law or rule of court.” We tbink the learned court below was right in entering judgment for want of an affidavit of defence, and therefore The judgment is affirmed.