Corby v. Wright

• Decision Date: 13 November 1877
• Citation: 4 Mo.App. 443
• Parties: FRANCIS P. CORBY, Appellant, v. JOHN W. WRIGHT, Respondent.
• Court: Missouri Court of Appeals

4 Mo.App. 443

FRANCIS P. CORBY, Appellant,

v.JOHN W. WRIGHT, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 13, 1877.

1. In an action upon a foreign judgment, the jurisdiction of the court by which the judgment was rendered may be enquired into.

2. Any service of process, lawful in the state in which it is made, even though not personal, made upon one subject to the laws of the state and the territorial authority of the court, is sufficient foundation for a judgment, to which full faith and credit must be given. Semble, that service by publication would be insufficient where there was no appearance.

3. The trial court is not bound to permit an amendment to the answer, at the close of plaintiff's case, which substantially changes the defence.

4. Where a question to a witness upon the main fact in the case is general and indefinite, and is objected to as incompetent and irrelevant, and the answer it elicited, and was manifestly intended to elicit, was merely hearsay, the objection is sufficient to save the point.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

J. D. JOHNSON, for appellant: Jurisdiction may be enquired into in an action on a foreign judgment.-- Marks v. Fore, 51 Mo. 69; Eagar v. Stover, 59 Mo. 85; Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas-light and Coke Co., 19 Wall. 59. The want of service may be shown by the record.-- Allen v. Blunt, 1 Blatchf. 480; Rangley v. Webster, 11 N. H. 304; The Commonwealth v. Blood, 97 Mass. 538. Where the record shows no proper service, though had in accordance with the law of the State where judgment was rendered, it will be held that the court had no jurisdiction.-- Foote v. Newell, 29 Mo. 400; Lattimer v. Union Pacific R. Co., 43 Mo. 105. Unless it be reasonably probable that the service gave the defendant “notice of what was going on against him,” it will not give the court jurisdiction.-- The State v. Williamson, 57 Mo. 197; Rafe v. Heaton, 9 Wis. 329; Cooley on Const. Lim. 404; Fithian v. Monks, 43 Mo. 515. Amendment of pleadings.-- Krech v. Pacific R. Co., 64 Mo. 174; Turner v. Chillicothe & Des Moines R. Co., 51 Mo. 508; Fischer v. Max et al., 49 Mo. 405; Martin v. Martin, 27 Mo. 229; Millman v. Glasscock, 42 Mo. 101; Thompson v. Moseley, 29 Mo. 477.

THOROUGHMAN & WARREN, for respondent: Judgments of foreign courts import absolute verity.-- Warren v. Lusk, 16 Mo. 102; Baker v. Stonebreaker, 34 Mo. 176. Actual and constructive service.-- Sturgis v. Fay, 16 Ind. 429; Pigg v. Pigg, 43 Ind. 117. Amendment of pleadings.-- Irwin v. Chiles, 28 Mo. 576.

BAKEWELL, J., delivered the opinion of the court.

This is an action on a judgment rendered on May 17, 1858, against defendant, in favor of plaintiff, by the Circuit Court of the United States for the District of Indiana, for $1,677.99. The answer admits that the judgment was rendered, but denies that the summons was returned duly served by the marshal of the district, or that said judgment was duly rendered; and says that the United States Circuit Court had jurisdiction neither of the person of defendant nor of the subject of the action, and that the judgment has been paid and satisfied.

On the trial, plaintiff introduced in evidence a transcript of the judgment sued on, which shows that the summons was returned by the marshal, “served by leaving a copy of the within summons at the last and usual place of residence of the defendant, John W. Wright, that being his present residence, this 25th day of January, 1858.” The record also shows that defendant did not appear, and that judgment was entered against him by default. The Indiana statute in force at the date of the service was introduced, and provides that summons shall be served “either personally on the defendant, or by leaving a copy thereof at his usual, or last, place of residence.” It is provided by act of Congress that the mode of service of summons in the United States courts shall be the same as that of the State in which the court is held. Plaintiff then rested his case, and defendant offered an instruction in the nature of a demurrer to evidence, which was overruled. Defendant testified, in his own behalf, that, in 1857, being indebted to plaintiff on settlement, he turned over to plaintiff a claim for $915 against one Buckingham, which plaintiff accepted, upon the agreement that the Buckingham claim, if collected, should be in satisfaction of the claim against defendant; if not collected, it was to be reassigned to defendant. Defendant then moved to Kansas, where he remained for nineteen months; and on his return to Indiana he was told by plaintiff that he had received nothing on the Buckingham claim, and had returned to defendant's attorneys the order he had for the same, and that he had obtained the judgment sued on herein. This, defendant says, is the first intimation he had that he had been sued. Plaintiff then, on September 5, 1859, addressed to defendant this letter: “I write to request you to send me the copy of assignment of the claim you made in my favor against one Goodsall Buckingham. If I have this, I can settle up that part of the claim I hold against you; and, when done, will receipt to you for the same, in satisfaction of said judgment.” Defendant again assigned the Buckingham claim to plaintiff, who then agreed to release defendant from the judgment now sued on, and to satisfy the same when he collected the Buckingham judgment. At this point defendant asked leave to amend his answer, so as to plead accord and satisfaction. On the objection of plaintiff this leave was refused. Defendant then offered evidence tending to prove that plaintiff subsequently collected the Buckingham claim; and also that defendant, at the time of service of summons in the action in the United States Circuit Court, was a resident of Kansas, and not of Indiana.

Plaintiff, in rebuttal, testified that when he received the order for the Buckingham judgment it was looked upon as a very doubtful claim, and defendant would not, or could not, prosecute it to collection; that he agreed to credit the net amount received on the judgment against defendant, and did so (the amount being $950) in October, 1865. Plaintiff then offered evidence tending to prove that defendant, when served, was a resident of Logansport, Indiana.

Francis Smith, sworn on behalf of plaintiff, testified that in January, 1865, he was a deputy United States marshal for the district of Indiana, and that he served the summons in the original suit. The following question was asked: “Where and how did you serve the summons?” Defendant objected, on the ground that it was incompetent, irrelevant, and immaterial. The court overruled the objection, and defendant excepted. The witness was permitted to answer as follows: “I served the summons by leaving a copy of the same at what I was informed was then the residence of Judge Wright, the defendant, in the city of Logansport, Indiana, with a man who was in the house at the time, and who received it, and as stated in my return on the summons. I arrived in Logansport about dusk in the evening of January 25, 1858, and stopped at the Barrett House, and from there went to the house I was informed was the residence of Judge Wright, and there asked of the person who came to the door if that was Judge Wright's residence; and being given to understand--I don't remember the exact language--that it was, I asked for Judge Wright, and was told he was not in. I delivered the summons, read and explained what it was,--a summons to the United States Court for Judge Wright. The man received it. I don't know whether he said any thing or not. What the reply was I could not say with any certainty now.” Witness also said that it was not the defendant whom he saw at the house; that the house was a wooden building, fronting north and west, standing on a corner, three or four squares north-west from the Barrett House.

W. H. Cost, for plaintiff, testified that defendant's house was situated three or four squares north-east from the Barrett House.

The court, at the instance of plaintiff, gave the following instructions, to which defendant excepted:

“1. If the jury believe from the evidence that on January 25, 1858, the defendant was a resident of the State of Indiana, and that a copy of the summons in the action in favor of plaintiff against defendant in the Circuit Court of the United States for the District of Indiana, in the petition mentioned, was left at the last and usual residence, in said State, of the defendant, then said court thereby acquired jurisdiction of said defendant in said action, and had jurisdiction of said action.

2. Although the jury may believe from the evidence that the defendant, on January 25, 1858, contemplated

changing his residence from said State of Indiana, and had previously thereto left the State to make arrangements for such removal; yet if they further believe from the evidence that the subsequently returned to his residence in said State, and did not in fact remove, with the intention of changing his domicile permanently, until after said date of return, then he still remained, within the meaning of the law, a resident of Indiana, up to the time of such removal with intent to transfer his residence.

3. If the jury find from the evidence that, since the recovery of the judgment sued on, the plaintiff recovered a judgment against one Corwine, or other, upon a claim assigned to him by defendant, and has acknowledged satisfaction of said judgment upon the record, then defendant is entitled to be credited with the amount so entered satisfied at the date of such satisfaction, unless they believe from the evidence that it was agreed by the defendant with plaintiff that only the amount actually received by the plaintiff thereon should be so accredited, in which case the amount the jury find from the evidence was so received by plaintiff...