Opinion
Spring Sessions, 1840.
Wales, for plaintiff.
M. W. and D. M. Bates, for defendant.
This was an action in the Superior Court of the State of Delaware by James C. Pritchett, surviving partner of James and William Pritchett, against Jehu Clark and Thomas Clark, on a judgment recovered against the said Jehu Clark and Thomas Clark, in the District Court of the city and county of Philadelphia, in the State of Pennsylvania.
To this action the defendant Jehu Clark, now pleaded (inter alia,) that at the commencement of the suit in which the said judgment was recovered, he the said Jehu Clark was not, nor was he at any time before or afterwards, an inhabitant of the said State of Pennsylvania, nor resident there, nor had property there; but was at the time of the commencement of said suit, and ever since hath been, and still is, an inhabitant of, and resident in the State of Delaware; that he was not served with any process in, and had no notice of, the said suit, and did not appear to or in the same, either in person or by an attorney or agent by him authorized.
The plaintiff in his replication set out the record of the Pennsylvania judgment, and pleaded it as an estoppel; and the defendant demurred.
The record of the District Court showed that the suit in which judgment was there recovered, was commenced by capias against Jehu Clark Thomas Clark, as partners." The writ was returned "C. C. and B. B." On motion of Thomas Budd, a rule was laid on plaintiff to show cause of action, and why defendant should not be discharged on common bail. Affidavit filed and rule dismissed; and special by entered by Thomas Clark alone. Affidavit of defence made by Thomas Clark. The declaration was filed against both defendants; and plea for both by "Thomas A. Budd, attorney for defendants." Depositions taken on both sides; the death of William Pritchett suggested; trial by jury, and verdict and judgment for plaintiffs for $485 45.
D. M. Bates, for defendant, in support of the demurrer. — The replication assumes that the defendant is precluded by the record from alledging that he did not appear, and was not summoned in the original action. We take these positions — 1st. That although the record did show an appearance of Jehu Clark in the original action, he is not concluded by that record from proving here to the contrary. 2d. That the record proves no such thing. The record of a judgment recovered in another State is not conclusive, unless it appear that the defendant was served with process, or appeared in the cause. ( Art. 4, sec. 1, Con. U. States.) "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State." This does not extend to extra judicial proceedings; it extends only to judicial proceedings inter partes, where both parties were heard or have the opportunity of being heard. The constitution was designed in this respect to raise a judgment recovered in one State, when sued upon in another, above the grade of a foreign judgment: because it looks to the intimate commercial relations between the States, and the easy change of domical front State to State; but it must reasonably be restrained to cases in which the party was heard, or had the opportunity to be heard. The greatest right of the citizen; that on which all other rights depend; is the right to a hearing in all cases affecting him. Nor should he be compelled to go to the jurisdiction rendering judgment against him for relief. That would be unreasonable, and would put the citizens of every State in the power of foreign jurisdictions. It would compel a citizen of Delaware to go to Maine and ask relief against a judgment recovered against him there, without notice: instead of bringing the plaintiff in such judgment here, to show either that his judgment was recovered there in a due course of judicial proceeding, with notice to the party defendant, or to support his claim de novo by evidence throughout. This is the view of the matter on principle: it is the same on authority. (1 Caine's Rep. 460; 1 Mass. Rep. 401; 3 Story's Com. 178, 183; 1 Kent's Com. 261, n. b., 9 Mass. Rep. 464; Bissel vs. Briggs; 6 Pick. Rep. 232, Hall vs. Williams; 5 Johns. Rep. 37, n.; 15 ib. 121, Borden vs. Fitch; 19 ib. 162, Andrews vs. Montgomery, 5 Wend. 148, Starbuck vs. Murray; 6 ib. 447, Shumway vs. Stillman; 13 ib. 407, Bradshaw vs. Heath; 2 Hall's N. Y. Rep. 358, Wilson vs. Miles; 4 Conn. Rep. 380, Aldrick vs. Kenny; 10 Serg. Rawle 240, Benton vs. Burgot.) To say then that the record itself shows these facts, is to beg the question. It is not conclusive without an appearance, and yet it is conclusive, for it shows an appearance. Here is the record of a judgment recovered in Pennsylvania against Jehu Clark Thomas Clark, sued upon in this State. The principle I have contended for, and which the authorities prove is, that this record is not conclusive on Jehu Clark, unless he was summoned or appeared. That is a pre-requisite to the validity of the judgment; and yet the record itself is replied as an estoppel; as proving itself that which is necessary first to be proved, that there was an appearance. It is a complete petitio principii. The pre-requisite must be proved before the record, by matter extraneous, else the qualification imposed by the eternal principles of justice to the conclusive character of the judgment is of no avail. (5 Wend. Rep. 148; 157, Starbuck vs. Murray.) Now I admit that when the record is produced, it is evidence in itself as to every thing contained in it, unless the jurisdiction he denied. If that be denied, that is the notice to or appearance of the party, it becomes necessary to prove the facts which make out the jurisdiction, before the record is even prima facie evidence. It must be made out by matter dehors, and in aid of the record. The record is of no use without it. (G Wend. 447, 452, Shumway vs. Stillman.)
2. The record does not show the appearance of Jehu Clark. The suit in Pennsylvania was instituted by capias against Jehu Clark Thomas Clark, and the sheriff's return is C. C. and B. B., which shows nothing. (17 Serg. Rawle 453.) The next step in the record is a motion by T. Budd, Esq., attorney, to show cause why the defendant should not be discharged on common bail. Rule discharged and the defendant, Thomas Clark, put in special bail. There is then no evidence of the arrest of Jehu Clark. Did he appear? T. A. Budd, who had been acting as attorney for the defendant, Thomas Clark, pleads for defendants; and thereupon judgment against the defendants. The question then is, whether the docket entry of the clerk of a plea for defendants, is to be taken as evidence of an appearance of all the defendants, in a case where one of the defendants was not arrested, and where the previous pleadings show that the attorney putting in the plea had been acting for one defendant alone. The record is very inaccurate in many other respects. The plaintiffs, though but two, are styled Pritchett and others, against Clark and others. Mr. Brown is marked as attorney for plaintiff, when there were two plaintiffs; and Mr. Budd is made to plead for defendants, when there is but one defendant in court. Before the judgment one of the plaintiffs died, and the death is suggested on the record: yet the record entry of judgment is for the plaintiffs. Now, either these docket entries are subject to correction by the other parts of the record and the pleading by Mr. Budd for defendants is to be restricted to the defendant, for whom he had appeared; or the entry of the judgment is flatly wrong, being for two plaintiffs after the death of one suggested on the record. I contend that the record must not only show a general appearance, but a particular appearance for the defendant not taken, by name, in order to bind him. Such an entry is necessary to make the attorney liable in case of his appearing without authority, for a party not served with process. The clerk's minute must be taken in reference to the other parts of the record, and if he writes defendants when it ought to be defendant, the court will construe it defendant. (1 Hen Munf. 302; 3 Dana's Rep. 214, 216: 1 Howard's Miss. Rep. 327; 1 Ark. Rep. 376, 384; 6 Pick. Rep. 232.) The replication does not set up the appearance of Thomas Clark as a sufficient appearance for Jehu Clark, his partner; it relies on an actual appearance of Jehu Clark, as well as of Thomas Clark; and it could not set up both, or it would be double.
3. If it does appear by this record that Thomas A. Budd appeared for Jehu Clark, it is competent for us now to deny that authority. Suppose the record to show an appearance for Jehu Clark, it does not assume to show any authority for that appearance. And if by the local law the appearance of counsel is taken to be on sufficient authority, it cannot be so out of the jurisdiction. (6 Wend. R. 447; 6 Pick. Rep. 232; 4 Conn. Rep. 380.)
4. On the plea of nul tiel record. Under this plea the plaintiffs are bound to show a sufficient record — sufficient in all its parts; showing enough to warrant the judgment. This record is defective — 1st. Because there was no appearance for J. Clark. 2d. There was no issue in the cause, and the verdict was rendered without any issue. 3d. The record shows no continuances.
Mr. Wales, for plaintiff. — 1. The first issue is nul tiel record. I consider this settled on the former argument. It was then decided by all the judges sitting in bane, that the record offered supported the declaration. I consider that the court went much further on that occasion. There were fourteen pleas, all of them setting out the record of the Pennsylvania suit as a suit against the defendants as partners, except the ninth, which did not refer to the record of the Pennsylvania judgment. The court in bane were all of opinion that the plea of nul tiel record was not sustained, and that none of the pleas were a sufficient answer to the plaintiff's declaration, except the ninth, as to which the record of the Pennsylvania judgment was not considered as admissible: the same not being replied to it, nor so alluded to in the plea itself as to allow the court to inspect the record. The fourth plea is now the same as the ninth original plea. It is, that Jehu Clark was and is a resident of Delaware — had no notice of the suit — was not served with process, and did not appear or authorize any other to appear. The replication is of the record of this judgment, which shows a regular proceeding in a suit against partners where one, if not both, were taken; where both appeared by attorney and one appeared personally; which is a good appearance for both; and where defence was taken for both.
Whatever the record certifies, as to matters necessary to constitute or support the judgment, is conclusive. The entry of an appearance by an attorney is sufficient authority on which to sustain a judgment, without filing his warrant. And the record cannot be denied by any averment of facts contradicting it, in any suit brought upon it as a record. The judgment necessarily includes an action of the court on all the matters necessary to support it; the sheriff's return of service, in a judgment by default; the appearance of the party, in a judgment after verdict: are all settled by the court in giving judgment; for without settling these the court could give no judgment. And these matters, being shown by the record, cannot be controverted. Was there an appearance? The act of an officer of the court filing a plea for the defendants, is an appearance for the defendants. It is not denied that Mr. Budd is an attorney of that court. His business is to appear for others, and he does here appear and act for both defendants. Thos. Clark had the right to authorize Mr. Budd to appear for both partners, and Mr. Budd's appearance for both is binding on both. I do not deny that a partner may restrict his appearance, and not appear for another; but unless the attorney appearing for defendants, who are partners, restrict his appearance to one, it will be an appearance for both.
My positions then are — 1st. That the judgment record is sufficient and conclusive as to all matters stated by it, which necessarily entered into the judgment; and no plea can. be allowed to such judgment contradicting such matters. (7 Cranch Rep. 481, Mills vs. Duryee; 3 Wheat. Rep. 234, Hampton vs. M'Connel; Peters Cir. C. Rep. 155, Field vs. Gibbs Gibbs; ib. 74, Green vs. Sarmiento.) The entry of an attorney's name, opposite the names of several defendants, without restriction, is an appearance for all. (1 Binn. 214. M'Cullough vs. Guetner; 5 Johns. Rep. 396, Denton et al vs. Noyes; 1 Binn. 469, Rhinholt vs. Alberty; 9 Law. Lib.; Ram. on Judg.) This doctrine of the effect of appearance and the conclusiveness of the record of a judgment after appearance, is not denied in any of the cases cited on the other side, except perhaps in the cases of Starbuck vs. Murray and Hall vs. Williams.
What is the evidence of an appearance? 1st. The defendants are sued as partners. One partner may appear for another. (7 T. Rep. 207; 3 Price 266, n.; 1 Scllon's Pr. 100; Gow on Part. 213; Collyer on Part. 411; 3 Dallas 331; 12 Serg. Rawle 250; Taylor et al vs. Coryel; 2 Troub. Ha. 432.) There is no particular form of appearance. The entry of the attorney's name opposite the defendant is an appearance. (1 Bin. Rep. 214; 13 Serg. Rawle 164.) Here Thomas A. Budd appeared without restriction; put in a plea for both defendants: went to issue for both; issued commissions for both defendants, and defended for both. These acts of the defendants, or of one for both defendants, in executing the commission for both, permitting a plea for both, and taking defence for both, is an appearance for both. The plea does not negative an appearance by one partner for another. It may be that Jehu Clark did not appear personally, and did not specially authorize any one else, even his partner, to appear for him to this particular suit; yet the general authority of his partner is sufficient, and binds him, if he did appear for both defendants. A party may appear without being served with process, and without coming into court.
Can we, under this replication, set up the appearance of Jehu Clark by his partner, as well as of Jehu Clark by authority given to Mr. Budd? The matter of estoppel replied must be a single answer, but may consist of several facts. The matter relied on here is, that the defendants appeared, as appears by the record; and whether the record shows a personal appearance of both, an appearance of both by attorney, or an appearance of one partner for both by attorney, it sustains the replication of an appearance. (1 Chit. Plead. 637; ib. 615 to 634.)
M. W. Bates, replied.
By the Court:
The demurrer in this case brings into question the validity and effect of a judgment recovered in the State of Pennsylvania, against a citizen and resident of this State, when made the foundation of a suit here for the purpose of enforcing the same. This question has often been considered in the several State courts, and courts of the United States, with somewhat different results. It is obviously one of great importance in principle, and one which must often arise in the intimate political and commercial relations subsisting among the several States of the Union.
Independently of the constitution and laws of the United States, it is not disputed that the judgments of the several States would be regarded only in the light of foreign judgments by the tribunals of any other State; and would be, at most, only prima facie evidence of the debt or promise. The merits would be fully open to examination on a plea of the general issue, which would be nil debet or non-assumpsit, and not nul tiel record.
But the constitution of the United States ( Art. 4, sec. 1,) requires 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 Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." By the act of May 26th, 1790, ( ch. 11,) Congress prescribed the mode of authenticating records; and declared that they "shall have such faith and credit given to them in every court within the United States as they have by law or usage in, the courts of the State from whence the said records are or shall be taken."
This would seem to be conclusive on the question now before us; but a difficulty still remains, one which has been often and ably discussed, and upon which there is a contrariety of opinion, if not a conflict of decisions. What shall be considered as a judicial proceeding within the meaning of the constitution? Shall every thing that comes duly authenticated as a judgment have the "full faith and credit" of a domestic judgment, without regard to the authority which gave it, or the proceedings by which it was obtained? Shall no want of jurisdiction in the court — no defect of notice to the party, though apparent on the record itself, prevent its having the full faith and unquestionable effect of a judgment? And shall the defendant be estopped from averring these matters against the record? On the one hand it is contended that full faith and credit must be given in each State to the judgments of every other without any inquiry further than to know if such judgment has been rendered; and that the same effect shall be given to it here as in the State where it was rendered. On the other hand, it is urged, that the faith and credit required by the constitution are to be given only to the judgments of a competent tribunal, having jurisdiction of the subject and the parties; as none other can be a judgment consistently with the first principles of justice and the rights of parties: and, therefore, that the record may be controverted as to the essentials of jurisdiction. The latter opinion seems to be better supported by authority, and more consonant with principle. Every court must feel a repugnance to holding as conclusive and incontrovertible, a judgment recovered in another State against one who had no notice of the suit, who made no defence, and had no opportunity of making defence. It is against the first principles of justice to condemn any one unheard — to render judgment where there are in truth no parties. Hence, almost all the State courts, in considering this question, have taken the ground, that this essential prerequisite of jurisdiction in the court, and notice to or appearance of the defendant, must appear; otherwise, the judgment is not such a judicial proceeding as the constitution accredits. and is not entitled to any respect whatever. "The want of jurisdiction makes it utterly void and unavailable for any purpose," and this "is a matter that may always be set up against a judgment." (Per Thompson, chief justice, in Borden vs. Fitch, 15 Johns. Rep. 121, 141.) The jurisdiction of the courts rendering them is subject to inquiry on the general issue. (Per Parsons, chief justice, in Bissel vs. Briggs, 9 Mass. Rep. 462-8-9.) The judgment is to have full faith and credit, and conclude every thing over which the court had jurisdiction, which may be inquired into. (Per Parker, chief justice, in Hall vs. Williams, 6 Pick. 232, 241.) In Borden vs. Fitch, it was decided, that a judgment rendered in another State against a defendant who never appeared, and had no notice of the proceedings, is void. And this, though the judgment record stated that the defendant had been duly notified to appear. In Shumway vs. Stillman, (4 Cowen, 292,) it was held that the defendant might plead against the record that he had no notice, and did not appear. And in a case between the same parties, reported in 6 Wend. 447, it was held, that though it appeared by the record that the defendant appeared by attorney he might deny the fact, or dispute the attorney's authority. The same point was ruled in Aldrich vs. Kenny, (4 Conn. Rep. 380;) and, in Starbuck vs. Murray, (5 Wend. 148,) the court, with great force and conclusiveness, maintains the position, that the defendant may show a want of notice, and that he did not appear to the suit, although in the judgment record it is averred that he did appear. See also Hitchcock vs. Aicken, 1 Caines' Rep. 460; Thurbur vs. Blackburn, 1 N. H. Rep. 246; Com. vs. Green, 17 Mass. Rep. 544; Benton vs. Burgot, 10 Serg. Rawle, 242; Killburn vs. Wood-worth, 5 Johns. Rep. 37; Cunningham vs. Buckingham, 1 Ham. Ohio Rep. 264; Hoxic vs. Wright, 2 Verm. Rep. 263; Pennington's Rep. 405; Hardin's Rep. 413; 3 Story's Com. 183; 1 Kent's Com. 261, n. b.
The cases which are supposed to conflict with these decisions of the State courts are Mills vs. Duryec, (7 Cranch, 481;) Hampden vs. M'Connel, ( 3 Wheat. 234;) Green vs. Sarmiento, (1 Pet. C. C. Rep. 74,) and Field vs. Gibbs, ( Ibid 155.) The leading case is that of Mills vs. Duryee noticed in almost all the other cases, and distinguished on the broad ground that the defendant had full notice of the suit, and appeared and gave bail. It may, therefore, though general in terms, have been intended only to decide that in such a case the judgment is incontrovertible, and no plea can be allowed but the plea of nul tiel record. Chief Justice Thompson, of New York (now of the Supreme Court,) so restricts it in Borden vs. Fitch; and he remarks, that Mr. Justice Johnson, who dissented from the rest of the court, evidently understood the court as going only that length. And Judge Story, who delivered the opinion in Mills vs. Duryee, qualifies it in his commentaries on the Constitution by the remark, that although that case puts these judgments on the same footing as domestic judgments, "this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was given to pronounce it, or the right of the State itself to exercise authority over the persons or the subject matter." (3 Story's Com. 183.)
The great leading case therefore in opposition to the numerous decisions of the State courts is not necessarily in conflict with them; and the subsequent cases of Hampden vs. M'Connel, and Green vs. Sarmiento, are like it. In the last case the record showed that the defendant was served with process and appeared to the action; these facts are not stated in the former, but the chief justice said it was precisely the same case with Mills vs. Duryee, and a note to the report says: "the question is still open in this court whether a special plea of fraud might not be pleaded, or a plea to the jurisdiction of the court in which the judgment was obtained." (3 Wheat Rep. 234.) The only remaining case is that of Field vs. Gibbs, in which the Circuit Court for the New Jersey district, refused to let the defendant plead against the record that he was not served with process, and did not appear in the cause, or authorize any one to appear for him; a decision which is in conflict with many of the decisions of the State courts.
I prefer following the latter, especially since I find the leading case in the Federal courts will admit of a qualification which harmonizes it with most of these, and that it has been so qualified by very high judicial authority. I would give full faith and credit to the judgment of a sister State, and the same effect to it as to a domestic judgment, if the jurisdiction which rendered it be not impeached, and it be shown that the party defendant had notice, or had an opportunity of defence, but without these pre-requisites I do not think the constitution places the judgment of a foreign court upon the high and unimpeachable ground contended for in this case. I am supported in this opinion by an array of authorities from the State courts that must be conclusive; unless they are directly overruled by the Supreme Court. These decisions place such judgments in the rank of domestic judgments, and give them the same effect, only where the court rendering them had jurisdiction of the person and of the subject matter; either of which may be denied by plea, and the judgment record is not conclusive on these points. To hold the record conclusive of the jurisdiction would be to give up the important qualification upon which it depends for its validity. The judgment has no force without the jurisdiction, which the defendant may deny and put in issue by his plea; and, until this issue is settled in favor of the record, it has no credit as a record; when so settled, it is conclusive, and the court is bound to give it the same faith, credit and effect of one of its own judgments. The merits are never open to inquiry; the record is never controverted as a record; but the essentials of jurisdiction may be put in issue by a special plea, and may be disproved though stated on the judgment record, which as to this matter is no estoppel.
If this view be correct, the replication of the plaintiff to the special plea in this case is bad. I regard that plea as sufficiently covering the whole ground, and denying the appearance in any form. It alledges that this defendant was not served with any process in and had no notice of the said suit, and did not appear to or in the same either in person, or by an attorney or agent by him authorized. Whether the record of the District Court shows an appearance or not, the defendant is not estopped to deny it; and the plaintiff was bound to take issue on the plea. It is doubtful however, whether this record shows any appearance. The capias was against two, and the return is "C. C. and B. B," which may be cepi corpus and bail bond, or cepi corpora and bail bonds. It is apparent, however, from the subsequent proceedings, that Jehu Clark was not arrested, and did not appear personally. Thomas Clark put in special bail for himself alone, after obtaining a rule to show cause why he should not be discharged on common bail. There is no evidence that he undertook to appear for both defendants other than the facts that they were sued as partners, and that Mr. Budd put in a general plea, and is styled "attorney for defendants." These are matters which might afford prima facie evidence of an appearance by this defendant, or in his behalf, but they are not conclusive, and he has a right, on the principles before stated, to controvert them by plea.
The Chief Justice concurred.
Judge Layton was absent.
Judgment for the defendant on the demurrer.