Knapp v. Abell

Gray, J. This case presents for our consideration an important matter of practice, since in many of the United States, as is well known, the strict forms of the common law have been departed from, and files of papers or entries on a docket have been allowed to take the place and have the weight of a more formal record. Washington, &c. Steam Packet Co. v. Sickles, 24 How. 341. 2 Phil. Ev. (4th Amer. ed.) 360. We might almost adopt the words used by Lord Tenterden in speaking of courts in the English colonies, “ If we were to require in the proceedings of foreign courts all the accuracy for which we look in our own, hardly any of their judgments could stand.” Henley v. Soper, 8 B. & C. 20. It behooves us, therefore, to be careful not to allow our own regard for forms to induce us to refuse effect to a record of the action of the court of another state, which is sufficient in substance and contains all the essential requisites of a judicial record. The record of a case need not state all the proceedings in detail; it is enough that it shows the subject matter of the suit, jurisdiction over the parties, and the final judgment of the court. Grignon v. Astor, 2 How. 340. It is settled beyond doubt that the laws of a foreign country or another state are facts, of which the courts of this commonwealth cannot take notice until they are duly proved. Ennis v. Smith, 14 How. 426, 427. Haven v. Foster, 9 Pick. 130. Holman v. King, 7 Met. 388. Palfrey v. Portland, &c. Railroad, 4 Allen, 56. Gen. Sts. c. 131, §§ 61-65. In Cragin v. Lamkin, 7 Allen, 395, the trustee’s answer, upon which the case was submitted to the court, referred to the laws of Illinois, and it does not appear that any objection was made at the argument to the citations from the Illinois Reports as evidence of the law of that state. This bill of exceptions does not show that either party at the trial offered to prove the laws of New York; and no new evidence can be admitted at the hearing before this court on the exceptions to [489] the ruling of the court below. We were therefore compelled to restrain the counsel from citing the statutes of that state as evidence of those laws at the argument, and are deprived of their assistance in deciding this case. The defendant makes two objections to the sufficiency of the copy annexed to the declaration, and admitted in evidence at the trial: 1st. That it does not purport to be a record or judicial proceeding of any court; 2d. That it does not show that any court in New York had acquired jurisdiction of the person of the defendant. In examining the paper produced, to see whether either of these objections is well founded, it is necessary to bear in mind the well established presumption in favor of the lawfulness and regularity of the proceedings of any court of general jurisdiction. County courts, courts of common pleas and circuit courts of another state have been held by this court to be courts of general jurisdiction, within the rule. Bissell v. Wheelock, 11 Cush. 279. Carleton v. Bickford, 13 Gray, 593. Buffum v. Slimpson, 5 Allen, 592, 593. The caption of “ Supreme Court, Clinton County” sufficiently shows that the court was one of general jurisdiction. It is not denied that the cause of action is sufficiently set forth in the complaint. The last part of the paper is entitled a “ judgment roll on failure to answer,” and sets forth a “judgment," which recites that the summons with a copy of the complaint has been personally served on the defendant Abell more than twenty days previously, that no answer or demurrer has been served on the plaintiffs’ attorney, as required by the summons, and that the clerk has assessed the amount due to the plaintiffs; and thereupon declares that “ it is hereby adjudged ” that the plaintiffs recover of the defendants that amount and costs. This “judgment roll” is manifestly intended to be a record of a judicial disposition of the case. The omission to name any term is ■inmaterial. The completeness of the record is shown by the certificate of the clerk that he has compared the various parts <.£ the copy with the originals on file in his office, and that they “ are true copies thereof and of the whole of said originals." [490] The statement that “it is hereby adjudged” implies action of the judge, and not merely of the clerk. If the affidavit of service by the plaintiffs’ attorney does not show that the place of service was within the jurisdiction of the court, the recital in the judgment that Abell had been personally served with a summons is prima facie, and, in the absence of anything to contradict it, sufficient evidence of service upon Abell, and, taken in connection with the further recital of his failure to answer, of default. This defendant however contends that the judgment was wholly void for want of service upon the other defendant, and the cases which he cites show that such is the law when the judgment of the other state is entire and unqualified against both defendants. Hall v. Williams, 6 Pick. 232. Rangely v. Webster, 11 N. H. 299. By the existing law of this commonwealth, when several defendants are sued jointly on a contract, and part only served with process, the action may proceed to judgment against those alone, and the others remain liable to a new action upon the original contract; and this whether the original judgment is rendered within or without the state. Gen. Sts. c. 126, §§ 14, 15. Shirley v. Shattuck, 13 Met. 260. Odom v. Denny, 16 Gray, . The plaintiffs contend that, in the spirit of this law, the judgment of the New York court may be treated as a qualified judgment, binding on the defendant Abell, though not on the other; defendant Stone. But the difficulty with this view is, that our law authorizes a judgment against no defendant who is not served with process; whereas this judgment is general against both defendants, and the qualification is only of the execution which may issue thereon. If, as the plaintiffs’ counsel now suggest, the statutes of New York authorized a judgment in this form in such a case as this, it should have been proved at the trial. If it had been, this action might have been maintained. See Catskill Bank v. Hooper, 5 Gray, 585. But as it was not, we cannot judicially know or presume that the law of New York upon this point differs both from the common law and from our own. Legg v. Legg, 8 Mass. 101 Thurston v. Percival, 1 Pick. 417. Upon this bill of exception? the judgment must therefore be Exceptions sustained.