Rogers v. Odell

Beklows, J. The plea having been received by order of court, a demurrer filed and issue joined, it is now too late to object to its reception. It must be presumed that it was rightfully received. Morgan v. Dyer, 10 Johns. 161. The bringing of the subsequent suit in New-Hampshire cannot affect this suit, either in abatement or in bar, inasmuch as it was rightfully commenced at the time, and cannot be defeated by the mere pendency of another suit, subsequently brought, in any jurisdiction. 1 Ch. Pl. 454, and cases cited; Davis v. Dunklee, 9 N. H. 545; Renner v. Marshall, 1 Wheat. 215. But if judgment is actually rendered in a second suit, the cause of action, unless a debt of record, is merged and determined, and the judgment may be pleaded in bar of the further maintenance of the suit. If the court had jurisdiction of the cause and the parties, such judgment has the same dignity, and is entitled to the same faith and credit, in every other State as it has by law and usage in the State from which it comes. Its character, under the constitution and laws of the United States, is substantially that of a domestic judgment, as to the merits of the claim and the subject matter of the suit. It is entitled to be treated as a debt of record, not examinable any where on its merits, and conclusive in every [458] State, except for such causes as would be sufficient to set it aside in the courts of the State in which it was rendered. It is true that the faith and credit which is extended to such judgment, as a debt of record, does not give efficiency to the final process of the court which renders it beyond the bounds of its jurisdiction. To obtain such final process it must, by suit, be made the judgment of a court in the State where such final process is wanted, and in doing it the judgment will be regarded, for all purposes of pleading and evidence, as a debt of the highest nature, and as having extinguished, like a domestic judgment, the original cause of action; and the same principles, as to pleading and evidence, apply to the case where a judgment of one State is pleaded in bar of a suit in another, founded upon the original cause of action, whether such judgment was rendered before or after the commencement of the suit in which it is pleaded. If the fact of jurisdiction be wanting, such judgment is void, and the defect may be collaterally shown to defeat it. In this respect it differs from a judgment of our own State courts, which cannot, for this cause, be collaterally attacked. These views are fully sustained by the adjudged cases, and among these are Mills v. Duryee, 7 Cranch 481; Hampton v. McConnell, 3 Wheat. 234; McElmoyle v. Cohen, 13 P.et. 324; Bissell v. Briggs, 9 Mass. 462; Story on Conflict of Laws, sec. 609; and so are many of the cases cited in a subsequent part of this opinion, upon the question touching the necessity of alleging jurisdiction. The case of Thurber v. Blackbourne, 1 N. H. 242, also recognizes such judgments, when sued in the courts of another State, as incontrovertible evidence of a specialty debt, and as standing upon the footing of a domestic judgment. Bell, J., holds this to be the natural construction of the law of Congress of May, 1790, which gives such records, when authenticated according to the act, “ such faith and credit in every court within the United States as they have, by [459] law or usage, in the courts of the State whence the said records are taken.” In the case before us, the action is assumpsit, and a judgment for the same cause, rendered in this State since its commencement, would be a good bar to the further maintenance of the action, without regard to the question of priority in the commencement of suit, because the matter goes not to the form but to the right of the plaintiff, which is gone forever by being merged in the judgment. This is directly settled in Nichol v. Mason, 21 Wend. 339. Such also is the doctrine of the common law, and such, doubtless, !he effect of such a judgment in Massachusetts, in respect to another suit there pending for the same original cause of action. And we are of the opinion that a judgment of a court of general jurisdiction of a sister State, under the same circumstances, will also be a good bar to the suit here. Weeks v. Pearson, 5 N. H. 324; Whittier v. Wendell, 7 N. H. 257; Goodall v. Marshall, 14 N. H. 161; and so is the law assumed to be in Taylor v. Barron, 30 N. H. 78, and also 35 N. H. 484. This view is fully sustained in Bank of the United States v. The Merchants’ Bank of Baltimore, 7 Gill 415, in an able opinion by Martin, J. That was assumpsit, and property was attached to respond to the judgment. Afterwards a suit was brought in Pennsylvania for the same cause of action, and judgment obtained by the plaintiff. And it was held that it was a good bar to the further maintenance of the suit in Maryland, and that, as the cause of action was extinguished by the Pennsylvania judgment, and one of a higher order given, the matter of priority was not material. The same doctrine is held also in Bixby v. Linah, 4 Harris 241, and American Leading Cases 820, and cases cited. In Andrews v. Montgomery, 19 Johns. 162, it was held that a judgment of another State, fairly obtained, is a debt of record, and assumpsit cannot be sustained upon it. So in Boston India Rubber Co. v. Hart, 14 Vt. 92. In Shumway [460] v. Stillings, 6 Wend. 447, it was held that a judgment of a court of general jurisdiction is equally conclusive upon the parties in all the other States as in the State where it is rendered; and so is the doctrine of Mills v. Duryee, 7 Cranch 481, and Wheeler v. Raymond, 8 Cow. 311. The judgment in Massachusetts, then, having extinguished the cause of action i n this case, may properly be pleaded in bar of the further maintenance of the suit. Such is the character of the plea before us, and the only remaining question is, whether, on general demurrer, the plea can be sustained. On the principles stated, the allegations in'the plea respecting the pendency of the subsequent suit are immaterial, and may be laid out of the case. The objections to the plea are : (1.) That it is not pleaded strictly puis darrein continuance; (2.) That it does not allege jurisdiction in the Massachusetts court. In regard to the former, the rule seems to be that matter arising after the suit, and after plea filed, must be pleaded strictly puis darrein continuance. But if before plea filed, it may be pleaded in bar of the further maintenance of the suit, as in this case. 1 Ch. Pl. 657; Kimball v. Wilson, 3 N. H. 96; Covel v. Weston, 20 Johns. 418; Com. Dig., Abatement, H, 23; United States Bank v. The Merchants’ Bank of Baltimore, 7 Gill 415. In this case it does not appear that any plea had before been filed; and besides, the objection is to the form of the j)lea, and the general demurrer does not reach it. In pleading the judgment of an inferior court, it is unquestionably necessary to aver that the cause of action arose within its jurisdiction, but in respect to superior courts and courts of general jurisdiction of other States, as well as our own, every presumption is in favor of their right to hold pleas and render the judgments they have rendered, until the contrary is alleged and proved by way of defence. Therefore, as the party setting up such judgment is not bound in the first instance to offer proof of [461] jurisdiction, lie is not required to state it in pleading; and the same rule applies to judgments of other States, which in this respect have the character of domestic judgments. Pennington v. Gibson, 16 How. 86; Wheeler v. Raymond, 8 Conn. 311; Shumway v. Stillman, 4 Cow. 292; Howe v. Sherrill, 16 Wend. 38; Williams v. Preston, 3 J. J. Marsh. 600; Rae v. Hurlburt, 17 Ill. 572; Reed v. Boyd, 13 Tex. 24; Caldwell v. Richards, 2 Bibb 331; Scott, Trotter and Fairfield v. Colman, 5 Litt. 350; United States Bank v. Merchants’ Bank of Baltimore, 7 Gill 415, and Bixby v. Linah, 4 Harris 241; 3 Cow. Phill. Ev., note 961, and cases cited note 694; Smith’s Leading Cases 816, 817, 836, 841; American Leading Cases 790, 797. The demurrer is therefore overruled and judgment rendered for the defendant.