Darling & Co. v. Burchard

• Decision Date: 03 April 1939
• Docket Number: No. 6585.,6585.
• Citation: 69 N.D. 212,284 N.W. 856
• Court: North Dakota Supreme Court
• Parties: DARLING & CO. v. BURCHARD.

69 N.D. 212

284 N.W. 856

DARLING & CO.

v.BURCHARD.

No. 6585.

Supreme Court of North Dakota.

March 16, 1939.

Rehearing Denied April 3, 1939.

Syllabus by the Court.

1. Neither the provision in the Constitution of the United States, U.S.C.A. art. 4, § 1, that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, nor the Act of Congress passed in pursuance thereof, 28 U.S.C.A. § 687, prevents an inquiry into the jurisdiction of the state court by which a judgment was rendered, in an action brought upon such judgment in a court of another state.

2. In a suit in a state court upon a judgment rendered by a court of another state the jurisdiction of the court which rendered the judgment is open to judicial inquiry; and, when the matter of fact or law on which jurisdiction depends was not actually litigated in the original suit, the defendant may plead and prove in the suit on the judgment that the court which rendered the judgment was without jurisdiction over his person.

3. In an action brought in a court of this state upon a personal money judgment rendered by a court of another state, the defendant, under proper averments in his answer, may show by extrinsic evidence that no summons was served upon him in the action in which the judgment was entered, notwithstanding any recitals in the record that such service was made.

4. In such action, the defendant, notwithstanding the record shows a return of the sheriff that he was personally served with summons, may show that he was not served, and that the court never acquired jurisdiction of his person.

5. The constitutional requirement that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state must be interpreted and applied in connection with the constitutional provision, adopted at a later date, which inhibits every state from depriving “any person of life, liberty or property without due process of law.”

6. Notice to a party whose rights are to be affected by a judicial proceeding, and an opportunity to be heard in such proceeding before judgment is rendered therein, are essential elements of due process.

7. In an action in a state court, wherein a personal judgment for money is sought, the defendant must be brought within the jurisdiction of the court by service of process within the state, or by his voluntary appearance in the action, and a personal money judgment rendered without such service or appearance is violative of the constitutional requirement of due process.

8. Subject to the requirements and inhibitions of the Constitution of the United States, each state may determine for itself what manner of service shall be sufficient to bring a person into its courts in a civil action.

9. In the instant case, the plaintiff seeks to recover upon a personal money judgment entered against the defendant in the circuit court of Antrim County, Michigan. The evidence is examined, and, for reasons stated in the opinion, it is held that the trial court was correct in finding that no summons had been served upon the defendant in Michigan; that the Michigan Court had no jurisdiction over the person of the defendant, and hence, had no authority to render judgment against him.

Appeal from District Court, Burleigh County; McFarland, Judge.

Action by Darling & Co. against Floyd Burchard on a judgment alleged to have been rendered in favor of the plaintiff against the defendant in another state. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment affirmed.

Hyland & Foster, of Bismarck, for appellant.

B. F. Tillotson and Harold Hopton, both of Bismarck, for respondent.

CHRISTIANSON, Judge.

Plaintiff brought this action upon a judgment alleged to have been rendered in favor of the plaintiff and against the defendant for the sum of $398.24 in the circuit court of Antrim County in the State of Michigan on November 12, 1934. The defendant answered, admitting the corporate capacity of the plaintiff, and further admitting that the court in which the judgment was obtained was a court of general jurisdiction, but, denying all the other material allegations of the complaint. The defendant further alleged that he at no time was served with process in the action in which the judgment is alleged to have been rendered; that consequently that court at no time acquired or had jurisdiction over the person of the defendant and that the judgment is null and void. From other allegations in the answer, it appears that the defendant made no appearance in the action in which the judgment was rendered. This case was tried to the court without a jury, and the court found that no service was made upon the defendant, Floyd Burchard, “of any process, summons or writ” in the action in the circuit court of Antrim County, Michigan, and that consequently that court “obtained no jurisdiction in said cause as to the said defendant Floyd Burchard; and that said court had obtained no jurisdiction therein to render any judgment or to enter the judgment” set forth in the complaint in this action, and that no valid judgment was entered, rendered, or docketed by the said circuit court of Antrim County, Michigan, against the defendant, Floyd Burchard. Judgment was entered pursuant to the findings and the plaintiff has appealed, and demanded a trial anew in this Court.

Plaintiff offered in evidence an authenticated copy of the judgment-roll in the action in Antrim County, Michigan. The record so offered and received in evidence contained copies of a Chancery Summons, with return of service endorsed thereon, affidavit of default by the attorney for the plaintiff, entry of default signed by such attorney, and the final decree.

The Chancery Summons is dated April 17, 1934, and contains a provision that “service of this summons and proof thereof shall be made on or before the 7th day of July, 1934.” There is endorsed on the summons a return by one B. W. Mitchell, Deputy Sheriff, wherein he certifies “that on the 18 day of June, 1934, at Village of Alba, Antrim County, in the State of Michigan, I served the within summons personally on Carl Heflin & Roy Anderson each, and on June 29, 1934, I served Summons on Floyd Burchard at same place, defendants named in said Summons, by then and there, at the place and on the date above mentioned, delivering to said defendant each a true copy of said Summons, * * * and by showing at the same time to the said above named Defendant the said Summons, with the seal of the Court impressed thereon, * * *.”

The affidavit of default and the entry of default are dated July 7, 1934, and were filed with the clerk of the court on that day. The Decree contains no recital that service was made upon the defendant, or that he made any appearance in the action. There is a complete absence of any such recital. The first sentences in the Decree read:

“At a session of said Court held at the village of Bellaire in said county on the first day of October, A. D. 1934,

Present, Hon. Parm C. Gilbert, Circuit Judge.

This cause came on to be heard upon the bill of complaint and proof taken in open court.”

Then follow statement of facts and conclusions of law, and the judgment ordered.

The defendant testified that the summons was not served on him at all. In this he is corroborated by other witnesses. There is, however, testimony to the effect that on the 29th day of September, 1934, the Deputy Sheriff who made the return called at a hotel where the defendant was then rooming, and gave a copy of the summons and the bill of complaint attached thereto to the landlady, and that she subsequently gave these papers to the defendant.

Appellant contends that the judgment of the Circuit Court of Antrim County, Michigan, was conclusive on the question that that court had jurisdiction over the parties to the action in which such judgment was rendered, and that evidence was not admissible to show that the defendant had not been served with process, or to contradict the return of the Deputy Sheriff showing that he had served the summons upon the defendant; and that the admission of such evidence is inhibited by the requirement of Article 4, Section 1, of the Constitution of the United States, U.S.C.A., 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 passed in pursuance thereof, prescribing “the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Act of May 26, 1790, Ch. 11, 1 Stat. 122, Rev.St. Sec. 905, 28 U.S.C.A. § 687. In Mills v. Duryee, 7 Cranch 481, 3 L.Ed. 411, decided in 1813, the Supreme Court of the United States had occasion to construe and apply these constitutional and statutory provisions. The language in the opinion in that case was interpreted by the courts quite generally as imparting to a judgment of a sister state “in all cases and in all localities the full effect of a domestic judgment” (3 Freeman, Judgts., 5th Ed., p. 2810), and as precluding any inquiry in any case into the question whether the court which rendered the judgment had jurisdiction over the person against whom it was rendered, unless want of jurisdiction appeared on the face of the record. 3 Freeman, Judgts., 5th Ed., p. 2810; Baker v. Baker, Eccles & Co., 242 U.S. 394, 402, 37 S.Ct. 152, 155, 61 L.Ed. 386, 392. But “the view soon came to prevail in the state courts that the case was not authority for so broad a proposition, and that whenever a judgment of a state court was produced as evidence, the jurisdiction of the court rendering it was open to inquiry; and if it appeared that the court had no jurisdiction, the judgment was entitled to no faith or credit.” Baker v. Baker, Eccles & Co., supra.

In Mills v. Duryee, supra, no question was presented as to jurisdiction over the person against whom the judgment had...