Warren ex rel. Warren v. Lusk

Scott, Judge, delivered the opinion of the court. This was an action of debt, on a decision rendered in the State of Illinois, against Julian H. Lusk & Edward Lusk, in favor of the plaintiffs in error. The plea was a formal one, without any meaning, under which, by the statute then in force, all defences to actions were required to be made. On the issue in the cause there was a verdict for the defendant, and after judgment the plaintiffs sued out their writ of error. It appears from the record, on which this suit was instituted, that neither Julian H. Lusk, the defendant in this action, nor Edward Lusk, were served with the original process in the cause. The record states, that the defendants filed their — 109 — demurrer. The language of the demurrer is such, as would be employed by a plurality of persons, and is signed by the solicitors of the demurrants. At a subsequent day, the record recites, that “this day came the parties, by their solicitors, the defendants having filed their demurrer to the complainants’ bill, &c.” The demurrer was overruled, and leave given to/ the complainants to amend their bill; and Julian H. Lusk failing further to answer, the bill was taken pro confesso, as-to him. Edward Lusk, on leave, withdrew his demurrer and filed a plea in his own defence. He finally got rid of the proceeding, and the decree against Julian H. Lusk was confirmed, and he was adjudged to pay the sum of $3,238. The defence of Julian H. Lusk to this action is, that he was never served with process in the original suit; that he never appeared thereto in person, or by any authorized solicitor, and that he was not, at the time of the bringing of this suit, or at any time during its pendency, a resident of the state of Illinois. These facts being in evidence under the pleadings in the cause, a verdict was rendered for the defendant. The only question in this caséis, whether the defence offered by the defendant was admissible, in an action on a judgment or decree of a sister state, rendered under the circumstances detailed in the foregoing statement. When the mind, in considering a question, is relieved from the anxiety of taking a view of it which may be different from that entertained by all others, and is conscious that whatever course it may pursue, it will have the weight of respectable opinions in its support in forming a conclusion, under such circumstances it is the part of wisdom to ascend to first principles, and take that view which, while it avoids any encroachment on the established principles of law, is reconcilable to the dictates of sound policy. Melius est petere foutem quam seciari rivulos. When the nature of the human mind is considered, and its unwillingness to depart from ways of thinking to which it has been long accustomed, it is not remarkable that some repugnance should have been entertained by the old lawyers of the day, to the act — 110 — of Congress of 26tb May, 1790, which., after presenting the mode by which judicial records shall be authenticated, declares, that the said record and judicial proceedings shall haye such faith and credit given to them in every state within the United States, as they have by law and usage in the courts of the state from which such records are or shall be taken. Cotempora-neously with the formation of the federal constitution, the question of the effect of foreign judgments was discussed in England and continental Europe, and different opinions in relation to it were entertained by eminent jurists. The opinion most favorable to their effect did not make them more than ‘prima facie, evidence of the justice of the demand which they evidenced. The legal mind had not progressed beyond this point. The framers of our constitution, having this state of things before their eyes, and reflecting on the intimate relations which would be created among the states of this confederacy, by the form of government about which they were deliberating, determined, that “ full faith and credit should be given in each state to the public acts, records and judicial proceedings of every other state, and that congress should, by general laws, prescribe the manner in which said acts, records and proceedings shall be proved, and the effect thereof.” It was in pursuance to this provision of the constitution, that the act above recited was passed; and the constitutional competency of con-gréss to enact it has never been questioned, though some contrariety of opinion is entertained, as to the meaning of the words, “ and the effect thereof,” whether they related to the effect of the record or of the proof. But this is deemed unimportant. Now, it would seem, that whenever an action is brought on the judgment of a sister state, the first question that would present itself to the mind of him who was meditating a defence to it, would be, what plea could he set up against that judgment, if this suit had been brought in the state in which the judgment was rendered ? 1. In the record of the case before us, the laws of the state of Illinois, giving effect to the judgment of her courts of gen — 111 — eral jurisdiction, do not appear. We know that this is a matter regulated by the course o£ the common law, and in the absence of the knowledge of what the law of a sister state is, on questions of common law, it is an established principle of American jurisprudence, that our courts will presume that the law of such state, on such questions, corresponds with our own. Holmes v. Broughton, 10 Wen. 75. Legg v. Legg, 8 Mass. 99. 2. Now, if this were a domestic judgment, and suit was brought upon it, would it admit of question, that this defence would be inadmissible ? In the case of Hampton v. McConnell, 3 Wheat. 234, Judge Marshall says: “ The judgment of a state court should have the same credit, validity and effect in every other court of the United States, which it had in the state courts where it was pronounced, and that whatever pleas would be good to a suit thereon in such state, and none others, could be pleaded in any court in the United States. ” In the case of Landes v. Perkins, 12 Mo. Rep., this court maintained, that a judgment could not be impeached in a collateral proceeding, by showing a want of jurisdiction of the person of the defendant; and the same judgment coming up in a kindred case, in the Supreme Court of the United States, that court held the same doctrine, and decided that it could not be impeached collaterally, and expressed an entire concurrence with the views on this point entertained by this court. Landes v. Brant, 10 Howard 371. We are free to admit, that there are decisions of courts, the eminence of whose judges entitle them to the greatest respect, which maintain that while the judgment of a sister state is conclusive, on the merits of the subject of controversy, yet, the facts which give jurisdiction of the person of the defendant, may be put in issue, and if it is found that they do not exist, the proceeding will be invalidated. The different views entertained of this matter are perplexing. Some of the courts hold, that if the appearance is entered as being in person, the fact cannot be contradicted, but that the authority of the attorney may be disproved, when — 112 — tbe appearance is by attorney. Others reject this distinction, and admit proof of facts showing the want of jurisdiction over the person of the defendant, let the recitals be as they may ; while there is not wanting a considerable weight of authority in support of the opinion, that when it appears from the face of the record that the defendant had notice of the proceedings, that fact could not be controverted, as a record imports absolute verity. To this opinion we incline, as being consonant to the established rules of law. In considering this matter, it is well enough to look somewhat to the rights and interests of plaintiffs, as well as defendants. If a judgment is obtained against a defendant in one state, and he after-wards removes to another and is sued on the original cause of action, he may, it seems, plead the former recovery in bar of the action. Green v. Sarmiento, Pet. C. C. R. 74. It is not perceived how one, who appears as plaintiff in such a record as that in the present case, would show its invalidity, if the defendant would hold him to it. The original cause of action being merged in the first judgment, if the plaintiff sues on it, he may be defeated by the defendant, using the judgment as conclusive against him ; while if he sues on the judgment, the defendant may impeach its validity, by denying the existence of the facts which conferred jurisdiction. So there is no reciprocity in the thing. The plaintiff is bound by the record, and the defendant is bound or not, as it suits his purposes. If he is sued upon the original cause of action, the plaintiff' is defeated by the production of the record; if upon the record, he is permitted to show its nullity, by controverting the facts which confer jurisdiction. The proceedings on a writ of error at common law, furnish no argument in favor of the notion, that the authority of an attorney to appear for a party to the'record may be controverted. By the common law, the want of a warrant of attorney, which was an instrument under seal, might be assigned for error, as might the want of the original writ, declaration, or any other paper necessary to perfect the record. But that is a very different thing from dis — 113 — puting tbe fact, that tbe attorney bad authority to enter an appearance for a party. Tbe want of a warrant of attorney is now cured by tbe statute of jeofails. No matter, tending to negative tbe appearance of an attorney, or of bis authority to appear, could be assigned as error to obtain a reversal of tbe judgment. Bradburn v. Taylor, 1 Wil. 85. Norris v. Fletcher, Croke, Carr, 53. But where is this matter of disputing tbe verity of tbe record to end ? If tbe authority of tbe attorney may be denied, why not deny tbe identity of tbe defendant with tbe person appearing, for be may be personated? So, tbe sheriff may be mistaken and summon another person for tbe defendant; and be may, in effect, have no notice of tbe proceedings. Can any reason be given why one of these facts should be controverted and not tbe other ? There would seem to be no distinction between tbe cases. Terming one of tbe facts a recital, does not make a difference. Eecitals are a part of tbe record. Story and Kent, in their commentaries on tbe constitution, say, that tbe truth of tbe facts, which give jurisdiction of tbe person of tbe defendant, may be denied, in order to destroy tbe effect of a record; but they do not say that this can be done when tbe effect of it may be to impeach tbe verity of tbe record. If a judgment should be rendered against a party, and it should appear upon tbe face of tbe proceedings that be bad no notice of them, their doctrine might come into play ; but we cannot overturn tbe solemn decision of tbe Supreme Court of tbe United States, whose province it is, under tbe constitution, to settle tbe question, for tbe opinion of any commentator, whatever respect may be entertained for bis learning and abilities. Nor should consequences be entirely disregarded in settling this question. If a judgment in one state is tbe extinction of tbe original cause of action, when suit is brought on it in another, we may easily perceive tbe difficulties that will be interposed to tbe recovery of just demands, by permitting tbe verity of records to be impeached, now that tbe facilities for travelling have been so multiplied and space annihilated, as it were, by tbe improved modes of transportation, — 114 — making tlie states of tbe union occupy tbe same position to each other, as it respects distance, as was formerly occupied by tbe counties of tbe same state. It sufficiently appears upon tbe face of tbe record, that tbe court bad jurisdiction of tbe person of tbe defendant, and if suit bad been brought on sucb a judgment rendered in our own courts, tbe fact of notice could not be controverted; so the laws of Illinois, being the same as ours with respect to the effect of judgments, in a suit on a record ¿rom that state, the truth of a fact appearing on tbe record, cannot be controverted. Tbe defendant is not without redress. In tbe court in which this judgment was rendered, it may be set aside, if the facts are as alleged. This is tbe most equitable mode of dis - posing of this controversy. Such a motion is addressed to the discretion of the court, and in acting upon it, tbe parties may be laid under terms, which will subserve tbe ends of justice. He was a resident of Illinois and made the contract concerning real estate which has given rise to this controversy in that state, and we are not satisfied but that the ends of justice will be promoted by remitting him to tbe jurisdiction of tbe lex loci rei sitse. No question was made, as to tbe right of a party to maintain an action on a decree for the payment of money. It was not controverted. Tbe other Judges concurring, the judgment will be reversed.