Elsasser v. Haines

— 12 — The opinion of the court was delivered by Beasley, Chief Justice. The two questions involved will be considered seriatim, as they are raised upon the record. The first count of the declaration is based on a judgment upon a recognizance rendered in the District Court of the city and county of Philadelphia. Erom this narration of the ground of action it is shown that the plaintiff obtained a judgment in the court just mentioned against one Owens; that by a statute of Pennsylvania a defendant was entitled to a stay of execution for a definite period by giving security in a certain mode for the sum recovered, and that the defendant, in order to obtain for said Owens the benefit of that provision, “ in his own proper person,” in the language of the pleading, “ came before the said District Court, and then and there, in open court, acknowledged himself to be holden and bound to the said plaintiff in the sum of six hundred dollars, upon condition that if the said William E. Owens should not pay the amount of the said debt, interest and costs which had been rendered against him as aforesaid, in the District Court' aforesaid, before the expiration of nine months from the third Monday of September, in the year of our Lord one thousand eight hundred and sixty-eight, then the said defendant would pay the amount of the debt, interest and costs aforesaid for him, the said William E. Owens.” It is then averred that the time specified having elapsed without payment, two successive writs of scire facias, according “ to the practice of said District Court and the rules of the common law,” were issued, and which having been respectively duly returned nihil habet, a judgment was thereupon entered in said court on such recognizance in favor of the plaintiff against the defendant. The defendant, by the force of his plea, does not deny that he made the recognizance in question, nor that it was forfeited and that judgment was entered upon it by the methods and in the manner stated, but, by way of avoidance of it, sets up that he was not served with process in the suit; that he — 13 — did not appear thereto by person or by attorney, and that he was not resident or present within the jurisdiction of the said court, &c. It is obvious from this summary of the pleadings that the contention of the defence is, that although the judgment in question may possibly be valid in the State of Pennsylvania,, where it was rendered, it is destitute of all legal force outside of that domain, for the reason' that the adjudicating court had no jurisdiction over the person of the defendant. Inasmuch as the judgment referred to has all the effect of a judgment in personam, there can be no doubt touching the correctness of this position if the fact upon which it rests be conceded. The declaration in the constitution of the United States, “ that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state,” and the act of congress supplementing this provision, do not apply to the instance of a general j-udgment against a person over whom the court had no judicial authority. Such an unauthorized magisterial procedure in a state is regarded in all the other states as a nullity, and to which, consequently, the constitutional mandate is not applicable. This doctrine is so absolutely settled by a train of decisions in both the federal and state courts, that it must be assumed as an admission in every discussion of the. subject. Therefore the only point for decision in the present case relating to this subject is, whether the judgment now in question is one of those just mentioned; that is, a judicial determination against a person with respect to whom the court had no right of judicature. The suit in question was based upon a recognizance, the procedure being two successive writs of soire facias, returned nihil habet, and judgment thereupon. This was plainly a proceeding in conformity with the practice of the common law; consequently, it will be observed that the proposition on which the defence rests is this, that all judgments obtained by force of this ancient method were coram non judice, and therefore absolutely void. If this be so, then the startling fact is ex — 14 — hibited that from the remotest antiquity it has been customary for the English courts to sanction judgments of this abnormal character, and this, so far as appears, without protest or even criticism. And yet it is certain that the act of rendering & personal judgment against a defendant who was without notice of the proceeding, and who had not been afforded an opportunity to be heard, would have been as repugnant to the genius of the common law as it would be to the principles of natural justice. The entire procedure of outlawry stands as a monument of the truth of this observation, for that formula originated in the theory that before a cause could go to judgment, the defendant should not only be summoned, but should be present in court, and that such presence should be manifested by the record. Evidently, if these proceedings on recognizances be liable to the stigma now sought to be cast upon them, they were and are mere excresences upon the system of which they formed a part; and, in this view, the circumstance seems absolutely unexplainable that in the whole compass of legal literature, neither in commentary nor in report, is there any intimation that such a course of judicial action was regarded as being incompatible with the methods of ordinary practice or with the rules of legal science. And if we add to this weighty consideration the further fact, that this form of judgment, now so harshly denounced g.s being incongruous with one of the indispensable rudiments of law, has not only thus been accepted by the courts at Westminster for a period beginning before the Year Books, but has been also so accepted by the courts of almost every state of the union, as well in Pennsylvania, in which the present procedure originated., as in this state, in which it is now challenged, we have a situation which of itself would strongly incline the mind to the belief that there must, of necessity, be some error in the contention that the procedures in question are, in point of fact, judgments in personam by courts having no jurisdiction over the person against whom they are rendered. The great importance of this question is obvious, for if it be true that a judgment entered against a defendant in his — 15 — absence in the old mode, or its equivalent, is a proceeding in a -court devoid of all jurisdiction in the matter, the result must be, that all these various recognizances are unenforceable as long as the conusor absents himself from the state in which they were entered into. Such a doctrine must necessarily abrogate all the statutory regulations that exist in this state on the subject. If in these instances it be conceded .that the court has no jurisdiction, it follows as a necessary consequence thaf'the entire proceeding culminating in the judgment cannot be possessed of a shade of legality, even within the territory in which it was transacted, for assuredly no part of such procedure would constitute due process of law; and that being the case, the recent amendment to the federal constitution illegalizes the entire affair, so that in a legal point of view it is an absolute nullity. Eormerly a judgment entered in the way provided by the statute of a state was sometimes held to be enforceable in such state, even though the court officiating were not possessed at the time of jurisdiction over the person of the defendant according to the general principles of law and justice, as where such defendant was a non-resident and no process had been served upon him, and no notice had been given except by way of public advertisement, at the same time it being conceded that-such judgment would not be recognized exterritorially * but now, by force of the addition to the federal constitution just adverted to, such judgment would be of no legal avail either at home or abroad. In Pennoyer v. Neff, 95 U. S. 714, it was conclusively settled that a sale of land under execution by force of a judgment obtained in a state court, in conformity with the local statute, against a nonresident, who was not served with process and who did not appear, was a void act, so that no title passed. It is, therefore, undeniable that if the procedure now in question is to be rejected as inoperative and void, so must every judgment on a recognizance be similarly everywhere rejected that is not founded on a personal summons to the party, or on his voluntary appearance. Under the prevalence of such a principle there would seem to be no possible process — 16 — that could be devised whereby a judgment could be legally entered úpon a recognizance in the court in which it had been given, in case the conusor had left and remained out of the state. In the present case it seems to me that in all essential respects the strict line of the common law practice was pursued. The defendant being absent, there were two successive writs of scire facias regularly returned “ nil habet.” According to the ancient course this warranted the judgment. It is true that by force of a statute of Pennsylvania a judgment quod recupo'et has been substituted for the award of execution to the conusee. But this is a mere difference of form; the two judgments appear to be precisely equipollent. At common law the award of execution on the record of the debt confessed established conclusively the existence of such record, and that the debt established by it remained at the time unpaid and undischarged, and that the conusee was entitled to raise such money by any of the ordinary writs of execution. A judgment quod recuperet would appear to be possessed of no greater efficacy than this. In both cases the judgments are in personam, and they are equally operative on the lands and chattels of the conusor within the jurisdiction of the court which are owned by him at the time or which he may subsequently acquire, and the one judgment, as well as the other, under the same circumstances, will support a ca. sa. It would seem, consequently, quite unreasonable to maintain that a procedure that will validate one of such judgments will not have a similar efficacy with respect to the other. The two procedures are, as to substance, alike, and it does not seem to me that the idea ought to be tolerated that the judicial action of the court of a sister state is to be rejected on a shadowy distinction founded on a form of entry. In settling these judicial transactions between the states, resting as they do, in part, upon constitutional mandate, and in part upon international comity, matters of procedure should, as far as practicable, be put out of sight, and the questions presented should be tested by a reference as little as possible to mere — 17 — form, and as much as possible to the fundamental principles and maxims of jurisprudential justice. Referring to this subject, Judge Story forcibly says: “Every such judgment ought to be presumed to be correct and founded in justice.” Story Confl. L., § 1304. In my estimation, the judgment now in question, with respect to its legal effect, is substantially the same as a common law judgment of the same class, and while a distinction between them may be predicated, no real difference can be shown. And, indeed, if even a marked and substantial difference could be exhibited, it is not perceived how such fact could, in any degree, affect the determination of the present inquiry. That inquiry relates altogether to the question, whether, tinder the circumstances presented, the District Court of Philadelphia, by force of the procedure adopted, had such jurisdiction over the person of the defendant as to warrant the rendition of the judgment1 now before us. It would seem self-evident that if such jurisdiction existed, so as to validate the entry of a common law judgment awarding an execution, the same scope of cognizance over the person would, of necessity, legalize the entry of this statutory judgment quod recuperet. The result is that, in my view, we have here a judgment entered in entire confoi’inity with the principles and practice of the common law, and from such conclusion it seems to me the necessary corollary that such procedure cannot be impugned exterritorially by the court of any state, on the ground that it was coram non judice. The English common law forms the basis of American jurisprudence, and, for my part, I am ready to adopt it as an axiom, that every judgment rendered in the court of a state in a civil proceeding, according to that system and with the assent of the local law, must, by force of the federal constitution and statute, be accepted by the tribunals of every other state as possessed of an unquestionable legality. It is not perceived that this broad proposition, in the most distant — 18 — degree, conflicts with anything that is possessed of judicial authority. It is obvious that the principle thus formulated altogether excludes the idea that at the common law any judgment of a civil nature which was coram non judice was authorized or regarded as valid. To give even the semblance of obligation to judicial action, it was necessary, according to the ancient English system, that a man should have been summoned, or Should have voluntarily appeared, to the action before his rights could be adjudged. The inquiry, therefore, arises, and it involves the entire issue now before the court, How was it J that judgment could go against a conusor who had not been served with the scire facias ? The answer is, that by the form of the procedure, of which •Jthe writs of scire facias formed a part, the conusor voluntarily made himself a party to the proceeding. -He went into court and confessed a debt subject to a condition, with the knowledge that if he absented himself from the jurisdiction a judgment might be taken against him on the return of two unserved writs of scire facias. Such was the legal effect of the act done by him, and in intendment of law he was held to have assented to such effect. If, when he confessed the debt, he had expressly consented, in pursuance of a local statute, to </ the entry of a final judgment of this nature on the return of two unserved writs of scire facias, it is presumed it would not be contended that a judgment entered in accordance with such stipulation would not have been of unquestionable validity; and yet as he is chargeable with the knowledge when he entered into this recognizance that such result would obtain, according to the laws then in force, the tacit assent to such procedure wants but little of the force that would have resided in such supposed positive agreement. Nor is there any hardship which can arise out of such an interpretation of this legal procedure. If the conusor has any defence which he desires to interpose to the movement to enter judgment against him, he has his day in court for that purpose, for he is aware that he has, to that end, until the return — 19 — ■of the second writ of scire facias, and by the exercise of ordinary diligence he can keep himself informed with respect to the running of such writs. In such a course of law nothing is perceived of which the defendant can justly complain; at all events it is a proceeding to which he has voluntarily submitted himself, and has thereby impliedly assented to it from its inception to its obvious conclusion. And, indeed, as long ago as the Year Book (10th ed., 3, 18), this method of judgment emanating from the recognizance appears to have been referred to as resting in the assent of the conusor. This method of proceeding that we are now considering has its analogues in other departments of the law. This is exemplified strikingly in the case of proceedings by writs of error. In Nations v. Johnson, reported in 24 How. 195, the question was presented whether a notice by publication to a defendant in error, who had removed out of the state in which the judgment had been rendered, was sufficient to make the final judgment binding and conclusive on him. The state court of last resort in the case had set aside the original judgment and substituted a new one materially affecting the interest of the defendant in error. It is plain that a proceeding in error has more of the semblance of an independent action than, has the course pursued on a recognizance by scire facias. The latter is but a judicial writ, whereas process in error is by original. The defendant in error could plead the general joinder to the assignment of errors, or he could put in a special plea, or he could demur. He could raise up an issue of fact, as, for example, a release of the errors, or the statute of limitations. Notwithstanding these qualities and attributes of the procedure, the Supreme Court of the United States, in the case cited, declared that it was to be regarded as a continuation of the suit in the court of the first instance rather than as a separate action, the principle of - decision being defined in these words: “And where, as in this case, the record shows that the defendant appeared in the subordinate court and litigated the merits there to final judgment, it cannot be admitted that he can defeat an appeal — 20 — by removing from the jurisdiction, so as to render a personal service of the citation impossible. On that state of facts, service by publication, according to the law of the jurisdiction and the practice of the court, we think is free from objection,, and is amply sufficient to support the judgment of the appellate court.” It seems manifest that if the appearance of the defendant in-the inferior court, complemented by a publication in a gazette, could legalize this ultimate judgment, no reason can be shown' why a similar effect should not be given to the present recognizance and the process and judgment founded upon it. With respect to the state of the authority, there appears to-be but a single pertinent case, which is that of Delano v. Jopling, 1 Litt. (Ky.) 118. This decision is directly in point, the court holding that a judgment similar to the present one was of unquestionable authority everywhere within the United States. . There were some decisions cited from the New York reports,, touching which it is sufficient to say that none of them have, so far as is observed, the least relevancy to the question above considered. The demurrer on this point must be sustained. The second question to be determined is, whether the statute of limitations of this state is applicable to a recognizance. This inquiry relates to the fourth section of the act relied on, which, as far as applicable, is as follows, viz.: “ That every action of debt, or covenant for rent founded upon a lease under seal, whether indented or poll, and every action of debt upon any single or penal bill for the payment of money, or upon any obligation with condition for the payment of money only, or upon any award under the hands and seals of arbitrators for the payment of money only, shall be commenced and sued within sixteen years next after the cause of such action shall have accrued, and not after; but if any payment shall have been made on any such lease, specialty or award within or after,” &c. — 21 — From the foregoing citation, it is manifest that if this section applies to a recognizance, it is altogether by reason of the force of the phrase “ obligations for the payment of money only.” Plainly, there can be no denial that the expression “ obligation,” in its common acceptation, will embrace every duty imposed by law, whether such be the creature of a statute, of .a record, of a recognizance, of a sealed instrument, or of a simple contract. But that the word was not used with this compass of import in this context is self-evident. Possessed of such wide meaning, the term would stand in this section •of the act not only as an incongruity, but, in view of any rational construction of it, as an impossibility. Indeed, any attempt to give it so wide a scope would appear to be the reductio ad absurdum, for it would be applicable not only to all the cases regulated by the section in which it is found, but also almost to all of the cases regulated in the other sections of the statute. Therefore it requires no argument to show that the term, as here used, cannot be possessed of that wide reach of import that inheres in it in common use. But the term has in law a secondary and limited signification, whereby it is made to express but a single class of instruments, those which are under seal and stipulate for the payment of money. That the word has both this general and particular meaning cannot be questioned. Thus, Lord Coke says: “ Obligation is a word in its own nature of a large extent, but it is commonly taken in the common law for a bond containing a penalty with condition for the payment of money,” &c. In the accurate abridgement of Bacon, under the title “ Obligation,” no instruments are treated of except such as are under seal; and Littleton employs the terms “recognizance” and “obligation” by way of antithesis, his language being: “A judge or justice may take a recognizance of the party, but the sheriff cannot take anything more than an obligation." Similarly the same two words are put in opposition by Mr. Brown in his learned work on the practice of the law, in that part of it that treats of the marshaling of — 22 — assets in the administration of estates, the passage referred to being as follows: “Notwithstanding the case in 40 Elis., it is clear at common law that a statute or reeognisance might be of equal dignity with a judgment and allowable before debts by obligation or simple contract.” That the term had the restricted force thus indicated when-used strictly according to legal terminology, cannot be doubted,, and it seems to me it is plain that it was thus used in the statutory clause under criticism. Accepting the word as here used in this sense, it becomes-of course apparent that the legislative purpose in this section was to establish a rule with respect to actions of a single class,, that is to say, actions upon sealed instruments for the payment of money only. On this assumption the language of the clause becomes clear, appropriate, definite and entirely congruous, so much so that it does not call so much for construction as simply for interpretation. The statutory adjustment stands, on this theory, thus: first, a provision for limiting actions in four specified cases, viz., on sealed leases, on single and penal bills and on sealed awards. If the clause had stopped at this point it would have been incomplete, for a number of other sealed instruments for the payment of money would have remained unregulated, and hence the necessity for its extension to suits on “ obligations for the-payment of money only.” In this view every word, as it stands in the section, is apt and perspicuous, and all parts of' the section coherent and harmonious. But, on the contrary, if we impute to this word “ obligation” its common instead of its technical signification, we are-in the midst of discord, as has heretofore been shown. As the phrase actions on “obligations for the payment of money only” would thus comprehend every suit that could be brought on a money demand, and as it is obvious that it could not be-enforced in that scope, how is the proper field of its operation to be defined? The work would be attended with difficulty. Let us look at a single example. It is now claimed that the expression “ obligations for the payment of money ” is compre — 23 — liensive of recognizance for the payment of money. If this be so, will it not also embrace money claims by force of a statute? And yet it has never been supposed such latter claims had been subjected to any legislative regulation. It would appear to be incontestable that the phrase must extend itself over both of such causes of action or over neither, for it would be a singular canon of construction whereby one of the two would be included and the other excluded. It should likewise be observed that there is nothing in the nature of a recognizance of this character that would give rise to a presumption that the intention must have been to include it among the subjects regulated in this section. A recognizance has more of the nature of a judgment than of a contract; it exists in a judicial record, and as soon as it is enrolled, like a judgment, it becomes a lien upon the lands of the conusor. Actions on judgments and recognizances, in most of the states, are uncontrolled by statutory limitations, being left to the regulation of the common law, which presumed payment after the lapse of twenty years. In New Hampshire, by statute, judgments and recognizances, in this respect, are put upon an equal footing. There is no natural probability, therefore, that it was the legislative design in this section to classify recognizances with sealed instruments, and to, regulate them on the same basis. There is also a further indication in this section that seems to me to antagonize such a supposition. The ear-mark referred to appears in the clause that defines the force of part payment of the claims previously put under regulation. The language is this: “But if any part payment shall have been made on any such lease, specialty or award,” &c. By looking at the regulating clause it will appear that the term “specialty” is, here applied to the three following money claims, viz., to single bills, to penal bills, and “ obligations for the payment of moneyand thus we have the express declaration of the legislature that the term “ obligation,” as it stands in this section, is synonymous with “ specialty,” a word which, in its technical signification, imports an instrument under seal for — 24 — the payment of money. The term “ specialty,” it is true, is sometimes employed in a loose way of being invested with a more extensive meaning; but when precision is important the term is used with, the limited force just assigned to it. In the present ease we find the word introduced with the nicest discrimination ; it is not applied to leases under seal, which may or may not be specialties, nor to awards which are not specialties, but to single or penal bills, and to obligations, which are plainly specialties, construing the last term in its technical sense. That these words, “ obligation ” and “ specialty,” were used in their technical sense, seems to me clear. The section is remarkable for the perspicuity and propriety of its language; it was drawn by Judge Paterson, and in all its parts exhibits the hand of that master of legal phraseology; and under the conditions of the case, it would be, in my judgment, an unreasonable assumption to hold, that, in this section, both the term “obligation” and the term “specialty” were used loosely, and not in their purely legal sense. My conclusion is, that a recognizance is not affected by our statute of limitations, and that consequently the plaintiff is 'entitled to judgment on the demurrer in question.