Gunn v. Howell

GOLDTHWAITE, J. The first question presented upon the record, is as to the sufficiency of the sixth plea. This plea sets out a judgment against the appellant, Gunn, who was the plaintiff below, and one Jones, in favor of James M. Calloway, rendered in the Superior Court of Taliaferro county, Georgia, which court (it avers) had jurisdiction. It then avers, that the administrators of Calloway, Malcolm Johnston and Samuel Johnston, made affidavit, pursuant to the statute of the State of Georgia, of the amount of the indebtedness, &c., and at the same time gave bond and security, as required by the laws of Georgia, conditioned, &c._ the issue of the summons of garnishment, service of the same on the defendant, a judgment of condemnation on his answer, and the payment of such judgment, — all'before the institution of the present action; and it also alleges, that the court rendering the judgment upon the proceedings by garnishment had jurisdiction, and that the debt condemned is the same with that sued for. [674] We do not understand it to be insisted that the facts alleged in the plea would not have been a full defence, if the laws of Georgia which governed the proceeding had been set out, and it had appeared from those laws that the court which rendered the judgment upon the garnishment had jurisdiction. This is, iu fact, a settled question in this court, — Mills v. Stewart, 12 Ala. 90. The objection urged is, that the law of the State in which the proceedings were had is not set out, either literally or substantially. It may be conceded, as a general rule, that where a party claims a right, based not upon the common law, but the law of a foreign jurisdiction, it devolves upon him to prove, as a fact, the law upon which the claim or right which he asserts depends (Cockrell v. Gurley, at the last term); and under the application of this principle to the rules of pleading, he would be required to set out the law or statute under which he claimed, in order that the court might see that the right claimed was in conformity to it. This rule, however, is not of universal application, and, if it applies to foreign judgments proper, does not< extend to judgments of a sister State, which by the constitution of the United States (Art. IY, § 1), requiring “ full faith and credit” to be given them, are placed rather on the footing of domestic judgments, and, when duly authenticated and proved, are evidence prima facie of jurisdiction ; so that, in pleading them, it is not necessary to set out affirmatively.the facts upon which the power and authority of the court pronouncing the judgment, depends. — Mills v. Stewart, supra; Scott v. Coleman, 5 Litt. 350 ; Bank of the United States v. Merchants’ Bank at Baltimore, 7 Gill, 415, and cases cited. We are aware that decisions are to be found recognizing a contrary doctrine, but they are founded upon the principles of the common law with reference to foreign judgments proper, and in all of them which we have found in the American' courts, the effect of the constitutional clause we have referred to does not appear to have been considered. On the other hand, the cases which we. have cited rest, as we think,, upon sound principle, and are conclusive as to the sufficiency of the plea. On the trial of the cause, as appears from the bill of excep [675] tions, certain portions of the statutes of Georgia, which it is supposed authorized the proceeding in relation to the garnishment, were read in evidence, as well as the first section of the third article of the constitution of that State, which invested the superior courts with general and unlimited jurisdiction in all civil cases ; and it is insisted, that, under these statutes, the judgment rendered upon the garnishment was void, and this question is raised by the charges asked. The act of 23d December, 1822, (Prince's Dig. pp. 36, 37,) by its' first section, authorizes the plaintiff in any suit pending, or his attorney, on making affidavit of the debt or demand supposed to be due, and that he is apprehensive of the loss of the same, or some part thereof, unless a summons of garnishment issue, to issue such summons, directed to any person supposed to be indebted to the defendant, requiring the garnishee to appear at the nest term of the court, and answer to such indebtedness. The second section is in these words: “ In all cases, where judgment has heretofore been obtained, or may hereafter bo obtained, it shall be lawful for the plaintiff, his agent, or attorney, to issue summons of garnishment, returnable to the superior, inferior, or justice's court, as the case may be, to be directed, and requiring the garnishee to depose, in like manner as in the preceding section ; provided, that the plaintiff, his agent, or attorney, shall, if required by the defendant, or garnishee, or by any plaintiff holding a younger judgment or execution, or his attorney, swear that he believes the sum apparently due and claimed on said judgment or execution is actually due ; and provided, further, that the sheriff, or his deputy, or constable, shall enter on said execution that there is no property of the defendant to be found.” The last proviso to this section certainly contemplates that, before a summons of garnishment can be sued out, an execution must first issue, and be returned “ no property.” This is necessary to entitle the plaintiff to the remedy given by the act, which is not in conformity with the course of the common law. The rule is, that where a court of general jurisdiction has a special authority conferred upon it by statute, it is, quoad hoc, an inferior or limited court. — Stevens v. Wilson, 5 Har. & Johns. 130; Thatcher v. Powell, 6 Wheat. 119; Den676 ning v. Corwin, 11 Wend. 647; Smith v. Fowle, 12 ib. 9. In our own court, in affirmation ox this principle, we have invariably held, in summary proceedings based upon a statute, that everything required by the statute essential to the exercise of the right, was necessary to the jurisdiction of the court, and must appear from its proceedings. — Bates v. P. & M. Bank, 8 Port. 99 ; Ford v. Bank of Mobile, 9 ib. 471; Andrews v. Branch Bank at Mobile, 10 Ala. 375; Levert v. P. & M. Bank, 8 Port. 104; Clements v. Branch Bank at Montgomery, 1 Ala. 50. So, in Taliaferro v. Lane, 23 Ala. 369, we held an attachment against a domestic administrator, where the affidavit of the plaintiff did not show that the intestate, at the time of his death, was a resident .of the State, void, on the same ground. In the case at bar, the statute of Georgia under which the administrators of Calloway asserted the right to proceed by garnishment, did not confer that right upon them, unless, as we have seen, an execution had been issued upon the judgment, and returned “ no property.” It is not necessary by the act, that this should appear, either in the affidavit, or the summons, but ifc'is a fact upon which the authority’of the party and of the court to proceed depends ; and as it is the duty of the latter to determine, whether the law in this respect had been complied with, it is necessary that the record should affirmatively show that it was done. If the court should determine the fact incorrectly, it would be error, but it would not affect the validity of the judgment. In a case like the present, whether -the jurisdictional fact actually existed, cannot be collaterally inquired into, if the tribunal to whose cognizance the question is referred, determined it to exist; but if the record fails to show the fact, either actually, or by the determination of the court, then the basis on which the right to the special remedy rests is wanting, and the whole proceeding is void. The record of the case would properly consist of the affidavit and summons, with the return of the officer, the answer of the garnishee, either incorporated into the judgment or the bill of exceptions, or identified by an entry of the court.— Saunders v. Camp, 6 Ala. 73 ; Jones v. Howell, 16 Ala. 695. Neither the judgment against the original debtor, nor the [677] execution issued upon it, is, properly speaking, any portion of the record upon the proceeding in garnishment. They are simply evidence, and, unless shown in one of the modes indicated above to have been legitimately made a part of the record, cannot be regarded as such, when they do not appear to be connected with the proceedings in any way, merely from the fact that they are certified as such by the clerk of the court. — Bates v. P. & M. Bank, supra; Mills v. Stewart, supra. But, were we to regard the judgment against Gunn and'^ Jones, and the execution, which is certified with the proceedings on the garnishment, as forming a portion of that record, we are still of the opinion, that they fail to show the essentials necessary to the jurisdiction of the court. The judgment against the garnishee fails to show that the action of .the court was based in any respect on that execution; and in proceedings of this character, nothing is to be taken by intendment. Per Ormond, J., in Bates v. P. & M. Bank, supra. It cannot be regarded as evidence of the existence of the jurisdictional fact, for the reason, that it does not correspond with the judgment, which is in favor of James M. Calloway, while the execution is, in legal effect, in the name of different persons, and purports to be on a judgment recovered by them. Even were we to regard it as issued upon the judgment recovered by Calloway in the name of his administrators, the execution, without a revival of the judgment by them, would be void (Stewart v. Nuckles, 15 Ala. 225), and could not, therefore, be regarded as a valid foundation for a right. It not appearing from the record that an execution had issued on the judgment in favor of the creditor, we are of opinion, that the judgment against the garnishee was void for want of jurisdiction.; and in arriving at this conclusion, we have not considered it necessary to refer particularly to the other portions of the laws of Georgia which the bill of exceptions shows wore in evidence, for the reason, that they do not affect that part of the act of December, 1822, which we have already examined, and which, in the absence of evidence showing its repeal, must be regarded as controlling the case. As the questions we have considered will probably be decisive of the caso npon another trial, we deem it unnecessary to consider any other'question. Judgment reversed, and cause remanded.