Miller v. Dungan

[390] The opinion of the court was delivered by Dalrimple, J. This action is upon a judgment of this court. It is averred in the declaration that the plaintiff, by the consideration and judgment of the court, recovered against the defendant as well a certain debt as certain damages, which by the said court were adjudged to the plaintiff for his damages, which he had sustained as well by reason of the detention of said debts as for his costs and charges by him about his suit in that behalf expended. The defendant in brief, pleads that he is a non-resident, and that judgment was rendered against him without the court having acquired, by service of process, appearance, or otherwise, jurisdiction of his person. The question presented is, whether the judgment, the defendant being a 11011-resident, is subject, in this state, to the same defence as the judgment of a foreign state, and in an action thereon its effect destroyed by averment and proof of want of jurisdiction in the court by which it was pronounced. In my opinion, we must treat this judgment in all respects as a domestic judgment. Its averments and recitals cannot be contradicted in an action thereon, nor in. any collateral proceeding; on the contrary, every intendment will be made in its favor. The presumption, in this case, is conclusive that before the court pronounced judgment against the defendant, it required, in some legal mode, jurisdiction of his person. I understand the declaration to be founded upon a judgment in personam, and not in rem. I do not see that it makes any difference that the defendant is a non-resident. The same rule applies to non-residents and our own citizens. There is no maxim of natural justice or principal of comity which requires us to allow a non-resident to aver a fact contrary to the record, while we deny the same privilege to our own citizens. I11 the case of Mackay et al. ads. Gordon et al., 5 Vroom 291, the Chief Justice, delivering the opinion .of the court, says: “Every independent government is at liberty to prescribe its own methods of judicial process, and to declare in what forms parties shall'be brought before its tribunals. But, in the exercise of this power, no government. [391] if it desire extra territorial recognition of its acts, can violate those rights which are universally esteemed fundamental and essential to society. Thus, a judgment by the court of a state against a citizen of such state in his absence, and without any notice, express or implied, would, it is presumed, be regarded in any external jurisdiction, as absolutely void and unenforceable. Such would certainly be the case, if such judgment was so rendered against the citizen of a foreign state.” The extract above quoted, it will be seen, refers entirely to the (¡fleets of judgments in the courts of a foreign state. We have not been referred to auy precedent or authority for a plea of want of jurisdiction, pleaded in an action on a domestic judgment rendered by a superior court of general common law jurisdiction. The general rule on this subject is very clearly stated by Judge Redfield, in the case of Dimick v. Brook, 21 Vt. 578, as follows: “It is of the very essence of debt upon judgment or upon any matter of record, that the obligation should result from the record itself. The record imports absolute and complete verity. It is neither to be increased nor diminished by averment out of, or beyond, the record. It is to the record as the law and the testimony, upon which the pleader refers his claim. The record is generally vouched in the conclusion of the declaration as the basis of the claim. The defendant may crave oyer of the record, and have it set forth in terms, as part of the pleading, and if ili do not sustain, and fully sustain, the declaration, may demur.” 1 do not mean to intimate that if the averments contained in this plea are true, the defendant is without remedy. It is only now necessary to decide that a judgment of this court, such as it has the competency to pronounce, cannot, in an action thereon, he impeached in our courts, by citizen or foreigner, by averment and proof that the court had not jurisdiction of the person of the defendant. The plea cannot be sustained, and must be stricken out, with costs.