Wilson v. Jackson

• Decision Date: 31 January 1847
• Citation: 10 Mo. 329
• Court: Missouri Supreme Court
• Parties: WILSON v. JACKSON, ADM'R.

10 Mo. 329

WILSON

v.JACKSON, ADM'R.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO LAFAYETTE CIRCUIT COURT.

HAYDEN, for Plaintiff.

1st. The court in Virginia had no jurisdiction of the person of the defendant, and could not have had, without the actual - service of the original process upon the defendant by the sheriff according to the command of the capias. It is the service of the process upon the defendant which could alone give the court jurisdiction, unless the defendant had appeared to the action. See 2 Cowen, 477, and note to the case; 2 Mass. R. 195; Graham's Pr. 121-2.

2nd. That if the court had no jurisdiction of the person of Wilson, the judgment is void, and the record of the judgment is no record against him, and consequently is no evidence that he owes the debt therein adjudged against him.

3rd. The fact of the service of the process upon the defendant by the sheriff according to the command of the writ, is a fact which should appear from the record itself and cannot be supplied by parol proof on the part of the plaintiff: but if it appear from the record, the fact thus appearing is not conclusive, but is only prima facie evidence of the truth of the fact, and may be contradicted by proof on the part of the defendant. See 19 Mass. R. 388; 2 Mass. R. 154; 9 Mass. R. 236; 1 Mass. R. 86.

4th. The issue upon the special plea of the defendant which denies the jurisdiction of the court in Virginia, requires of the plaintiff to prove the fact of jurisdiction from the record itself, and the record furnishes no such evidence. It should show as evidence that the sheriff, by virtue of the writ, took or arrested the defendant by his body before the return day of the writ, within the body of his county, and that he read the writ to him, or declared to him the contents thereof, at the time of the service of the writ. 6 Bacon, 168, note. The question is a mixed question of law and fact, and a proper question for the decision of a jury under the instruction of a court; and the pleas of the defendant which raise the question, are good pleas. The question does not depend upon the mere fact whether the defendant had notice of the suit against him in the sister State, but the question is, whether the party had legal notice, such as would give jurisdiction to the court. If the pleas had been that the defendant had no notice, the pleas would have presented a broader issue than the law of the case required, and the defendant was not bound to make such issue with the plaintiff. See 6 Wend. 447. The plea in the case in Wendell is identical with the plea in the case at bar, and was demurred to, and decided good. See 5 Wend 157-8.

5th. All returning officers, such as sheriffs, are bound to return facts-- specifically showing how, when, &c., they execute process placed in their hands to execute. See 12 Pick. 211; 1 Mass. R. 87-8.

6th. As the pleas at bar are both good against the whole action, and one is demurred to, and the facts thereby admitted as stated in the plea, this court is bound to render such judgment here as the Circuit Court ought to have rendered, viz: a judgment of nil capiat for defendant. This is the judgment of the law upon such a state of pleadings, and which the court was required to pronounce, and not having so done, the defendant has appealed to this court to pronounce the same, or to reverse the judgment, and remand the cause and require the judge below to pronounce the judgment of law in lieu of his own judgment, which was against law. See 1 Saund. 80-1, note (1); 109, note (A); 2 Saund. 300, note (3).LEONARD & BAY, for Defendant.

1st. The plea is bad. It seeks to avoid the judgment on the ground that the notice given the defendant was not a legal notice, and refers the question of the legality of the notice to a jury, instead of submitting it to the court. 1 Chitty's Pl. 244; Starbuck v. Murray, 5 Wend. R. 159.

2nd. If it be a good plea, it is substantially the same as the fourth plea, and upon that plea issue was taken, tried, and found against the defendant; he had, therefore, under that plea the benefit of the same defense he has set up in his third plea, and, of course, the decision of the court against the plea upon the demurrer did not prejudice him, and cannot be assigned for error.

3rd. If it be insisted that the fact of “non-residence,” stated in the third plea and omitted in the fourth plea (which is the only difference between the two pleas), is essential to constitute the other facts in the plea a good defense, it is now apparent that the rejection of the third plea has not prejudiced the defendant, for on the third trial the fourth plea has been found against him, and of course his third plea must have shared the same fate.

4th. The transcript of the Virginia judgment was rightly received in evidence, and if the defendant was subject to the jurisdiction of the State of Virginia, that judgment has the same effect in all respects in this State that it possesses in the State of Virginia. Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnell, 3 Wheat. 234; Shumway v. Stillman, 6 Wend. R. 453; Gleason v. Dod, 4 Met. 333; Hall v. Williams, 6 Pick. R. 232; Bissell v. Briggs, 9 Mass. 462; Aldrich v. Kinney, 4 Conn. 380; Miller v. Miller, 1 Bailey, 244; Clark v. Day, 2 Leigh, 172.

5th. The sheriff's return upon the capias is evidence that the defendant had notice of the suit against him, and the court therefore properly so declared. 8 Mo. R. 209, State, use of Relfe, v. Perryman.

6th. The record expressly alleges that the defendant was arrested; and if this be not conclusive, it is certainly prima facie evidence of the fact of notice, and there was no evidence to repel that presumption.

7th. If all this be otherwise, the presumption from the fact of the judgment itself is, that the defendant was duly notified, unless the contrary appears on the transcript, or is established in proof, and neither of these positions are assumed. Shumway v. Stillman, 4 Cowen, 292; same case, 6 Wend. 447; Scott v. Coleman, 5 Litt. 350; Williams v. Preston, 3 J. J. Marshall, 600.

NAPTON, J.

Mary S. Jackson, administratrix of John G. Jackson, deceased, brought an action of debt against Wilson, the plaintiff in error, on the record of a judgment rendered in Virginia. The defendant below pleaded nul tiel record, nil debet, and two special plcas. The first special plea set up as a defense, that the defendant was not a resident of the State of Virginia at the time of the commencement, or at any time during the pendency of the suit in the said Circuit Superior Court of law and chancery, of Harrison county, in the State of Virginia, in which said suit the said judgment was rendered, and that he (the defendant), had no legal notice served on or given to him, to appear and defend the said suit, and never waived notice or appeared to the said action in the said court, or in any manner submitted himself to the jurisdiction of said court. The second special plea was, that the defendant had no legal notice, and never waived notice, or appeared to the said action, or in any manner submitted himself to the jurisdiction of the court, &c. The plaintiff demurred to the plea of nil debet, and the two special pleas; the plea of nil debet, was withdrawn, and the demurrer sustained to the first special plea, and overruled as to the last. Issue was joined on the plea of nul tiel record, and the plaintiff replied to the last special plea first, that the said defendant did have legal notice, &c., and secondly, that before the recovery of the judgment in the Harrison court, the plaintiff sued out her writ of capias, by which said writ the sheriff was commanded to take the body of the said Wilson, &c., which said writ was to deliver to the said sheriff to be executed, and was duly and legally served, and was on the return day thereof, according to the law of Virginia returned “executed,” and so the defendant had legal notice, &c. To this second replication the defendant demurred, and the demurrer was sustained.

The case was submitted to the court without the intervention of a jury. The plaintiff gave in evidence a record of the judgment of the Superior Court of law and chancery in Harrison county, Virginia. The return to the writ of capias was “executed.” The plaintiff also read parts of certain Virginia statutes from the Revised Code of 1817. The court, at the instance of the plaintiff, declare the law to be, that the return of the sheriff on the writ of capias in the transcript of the record in evidence, was evidence that the said defendant had notice to defend said suit. The court also, at the defendant's instance declared its opinion, that the issue must be found for the defendant, unless the evidence was satisfactory that he was served with process, and had notice to appear in the said Circuit Superior Court of Harrison county. The issues were found for the plaintiff, and a judgment rendered accordingly. A motion for a new trial was unsuccessful, and the case comes here by appeal.

Since the case of Mills v. Duryee, 7 Cranch, 481, the courts of the several States have assumed to act upon the principle, supposed to be decided in that case, that the judgment of one of the State courts is of the same dignity in every other State, as in the one where it was pronounced. In that case it appeared from the record that the defendant had been arrested and given bail, and therefore had full notice of the suit. In Bissell v. Briggs, 9 Mass. 462, which was decided about the same time with the case of Mills v. Duryee, the Supreme Court of Massachusetts considered the record of the judgment conclusive as to everything except the jurisdiction of the court, which was allowed to be questioned under the plea of nil debet. In this respect, that court admitted a distinction between judgments of another State and domestic judgments. Previous to these decisions, it had been repeatedly held in New York, that the judgments of sister States stood upon the...