Warren v. McCarthy

Walker, J. The first question presented by this record is, whether an action of debt may be maintained for money found and ordered to be paid by a decree of a court of chancery. It is conceded that such an action cannot be sustained on a decree for the performance of acts other than the payment of money. As a general proposition, it is undeniably true that debt lies for the recovery of any liability, when the sum is certain, or is capable of being readily reduced to a certainty. Then why should the decree of a court of equity, having jurisdiction of the person, and of the subject matter, finding the amount due from one person to another, and ordering its payment, and when thus found conclusive upon the parties to the proceeding, form an exception to the rule ? We .are unable to perceive any analogy' of the law which requires that there should be a distinction which should exclude it from the general rule. The courts of Great Britain hold that this action cannot be maintained on a decree of the courts of that country, because they have the necessary means of enforcing their orders by appropriate process, but that it is otherwise with a decree of a foreign or colonial court. 1 Chit. Pl. 111; Hurly v. Sopor, 8 Barn. & Cress. 16. The court in that case assign as a reason for the distinction, that a foreign or colonial court has no power to enforce their decrees beyond the limits of their jurisdiction, and that if an action at law was not given, there must be a failure of justice. The same reason applies with its full force why a recovery should be had on a decree rendered by a court of a sister State. Such a court has no power to enforce its decrees beyond the territorial limits of its jurisdiction. So, for this reason, if for no other, the action must be maintainable. But notwithstanding adjudged cases in this country are in conflict on the question whether an action of debt will lie on a money decree, we are of the opinion that the action may be maintained, where the decree ascertains the amount, and orders its payment. The sufficiency of the third and fifth pleas, is established by the cases of Bimeler v. Dawson, 4 Scam. 541, and Horton v. Crutchfield, 18 Ill. 135. These pleas aver, that after the rendition of the decree in November, 1846, defendant was not a resident of Kentucky, but was, from that time until the institution of this suit, a resident of Illinois, and had not been in the State of Kentucky ; that he had not been served with process, or notice, either actual or constructive, nor had he in person or by attorney ever entered his appearance to the proceeding in which the decree of October, 1853, was rendered by the Mason Circuit Court. In the case of Bimeler v. Dawson, it was held that, “ When the record shows neither service of process, nor notice to the defendant, nor appearance by him, the judgment is a nullity, when attempted to be enforced in another State, the record not affording even a presumption in favor of the jurisdiction. But if the record shows that there was a service of process, a notice to the defendant, or an appearance for him, not amounting in either case to personal notice or appearance, then the presumption from the record is, that the court had jurisdiction, and proceeded in conformity to the laws of the State; and until such presumption is rebutted by the defendant, the judgment is conclusive.” The decree of 1853 fails, by recital or otherwise, to show any service, notice, or appearance of the defendant. And these pleas aver that he was not within the State after 1846, and the total want of service, notice or appearance. But it is urged that the decree of October, 1853, was the final decree in the case, and that the decree of November, 1846, was only interlocutory. The decree of 1846 was on a hearing on the bill, answers, exhibits, depositions, and master’s report. It found the sum due from the defendant to the complainant, ordered its payment, awarded execution, and ordered a sale of the attached property. The cause was then continued. This decree contains every requirement to render it final. At the next March term the master’s report was filed and approved, and his costs allowed. The record fails to show that the cause was then coninued, or .even again on the docket, until in October, 1853, when he decree was rendered upon which this suit is instituted. We re clearly of the opinion that the decree of the court in November, 846, was final and conclusive between the parties, and, so far appears from this transcript, is still in full force; and that after a lapse of six years and a half, the court had no power to docket the cause, and render any order or decree binding on the defendant, without having acquired jurisdiction of his person in the same manner as if the proceeding had related to a different subject matter. For the want of such jurisdiction, the decree of October, 1853, must be regarded as a nullity, upon which the plaintiff below has no right of recovery. The remaining question is, whether interest is recoverable on the decree of a court of another State, unless the declaration contains an averment that such a decree bears interest, by the law of the State where it was rendered. Our interest laws do not allow interest in terms upon decrees of our courts as well as on those of foreign jurisdictions, and omit to name foreign judgments. In the case of Prince v. Lamb, Breese R. 298, it was held that a judgment is a debt, and may be assimilated to a contract to pay a sum of money with interest. And that it may be recovered on a judgment of the court of another State, as damages, without any averment in the declaration, that it is allowed by the statute of the State in which it was recovered. And that it might be recovered as a part of the contract, although the judgment does not award interest. The practice does not require that there should be an averment that the cause of action bears interest, unless it is expressed in the agreement. The law gives it as damages, for the detention of the principal sum. If a judgment may be assimilated to a contract for the payment of the money recovered, the same is undeniably true of a decree for the payment of money. In either case the court finds the sum due, and it surely must at least have as conclusive an effect as to the amount, as if it had been ascertained and the balance struck by the parties themselves. The practice in this State is believed to be uniform, to allow interest on decrees rendered in this State, and yet they are not named by the statute. And this court has held that decrees rendered in this State are governed by the interest laws, like judgments at law. Aldrich v. Sharp, 3 Scam. 261. We are therefore of the opinion that to entitle a recovery on a decree' of a sister State, an averment in the declaration, that interest is allowed by the laws of the State in which it is rendered, is unnecessary. The judgment of the court below is reversed, and the cause remanded, with leave to file an additional count, and with leave to plead to it. Judgment reversed.