Opinion
May 5, 1926.
Appeal from the Municipal Court, Borough of Manhattan, Ninth District.
Charles Firestone, for the appellant.
Henry S. Goodspeed, for the respondent.
The action is to recover on a foreign judgment obtained by plaintiff against defendant. The answer pleads a general denial and a defense that the complaint is defective in that it does not allege that the Justices' Court of Los Angeles township, county of Los Angeles, State of California, is a court of general jurisdiction and that said court had jurisdiction over the subject-matter of the action.
The judgment roll put in evidence by plaintiff and on which it relies to establish jurisdiction contains the certificate of the presiding justice of the Justices' Court, Los Angeles township, Los Angeles county, State of California, to the effect that Justice HOWARD R. HINSHAW, who took the default judgment herein, had jurisdiction of the action. As our Civil Practice Act contains no provision as to the authentication of records of courts of other States in this country, we are relegated to the provisions contained in the Federal Constitution and statutes of the United States relative thereto. ( Trebilcox v. McAlpine, 46 Hun, 469, 471.) Section 1, article 4, of the Constitution of the United States provides: "Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State;" and section 905 of the United States Revised Statutes provides the manner of proving same. The judgment roll in question, received in evidence over the objection of defendant's counsel, if properly authenticated would have been competent evidence, but it was not. The statute cited provides that the record or proceeding shall be proved by the "attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form." From all that appears in the judgment roll in question the action was brought in the Justices' Court of Los Angeles township, in the county of Los Angeles, State of California, and an inquest taken therein by a justice of the peace and the judgment entered thereon signed by him. The clerk's certificate is made by the "Clerk of Los Angeles County," not by the clerk of the trial court, and the seal attached is the seal of the Superior Court of Los Angeles county, Cal. Furthermore, the certificate of the justice of the Superior Court is to the effect that the attestation is regular in form and that the signature of the county clerk is regular. I conclude, therefore, that the record was improperly authenticated, and on account thereof should not have been received in evidence. ( Van Deventer v. Mortimer, 56 Misc. 650.)
Another point involved herein is as to the right of defendant to assail the jurisdiction of the foreign court to render judgment by showing that she was not served with process and did not appear. In Smith v. Central Trust Company ( 154 N.Y. 333, 338) the court said: "A judgment rendered by the courts of another State, however, is always open to impeachment for the want of jurisdiction either over the subject-matter or the parties." (See, also, the opinion of this court on the same subject in Malone v. Bocker, 82 Misc. 438.)
The learned court below ruled to the contrary and excluded proof that the defendant was not served. This was error, and on the whole record I conclude that the judgment should be reversed and a new trial granted, with thirty dollars costs to appellant to abide the event.
All concur; present, BIJUR, DELEHANTY and WAGNER, JJ.