Elasser v. Haines

Citation52 N.J.L. 10,18 A. 1095
CourtUnited States State Supreme Court (New Jersey)
Decision Date05 December 1889
PartiesELASSER v. HAINES.

(Syllabus by the Court.)

Demurrer to pleas.

The declaration contained two counts. In substance, the first stated the following facts, viz.: That the plaintiff, on the 10th of October, 1868, obtained a judgment in the district court for the city and county of Philadelphia, in the state of Pennsylvania, for a certain sum of money, against one William E. Owens. That a fieri facias was issued thereon. That afterwards, on the 20th of October, 1868, at the September term of the said district court for, etc., the said defendant, in his own proper person, came before the said district court, and then and there, in open court, acknowledged himself to be holden and bound to the said plaintiff in the sum, etc., for the said William E. Owens, upon condition that if the said William E. Owens should not pay the amount of the said debt, interest, and costs, which had been recovered against him as aforesaid, in the district court aforesaid, before the expiration of nine months from the third Monday of September, 1868, then the said defendant would pay the amount of the debt, interest, and costs aforesaid, for him, the said William E. Owens. That said recognizance was approved of by said court, and was entered into for the purpose and in conformity of an act of the legislature of Pennsylvania, the substance of which was set out, to the effect "that every defendant in any judgment obtained as aforesaid may, upon entering security in the nature of special bail, have a stay of execution thereon during thirty days from the rendition of such judgment; and if, during that period, he shall give security, to be approved by the court, or by a judge thereof, for the sum recovered, together with interest and costs, he shall be entitled to the stay of execution" for a time specified. That, said judgment remaining unpaid after the lapse of the time specified, a writ of scire facias, "according to the practice of the said district court and the rules of the common law, upon said recognizance, issued out of said court," directed to the proper officer, against the said defendant, and was duly returned to the said court by said otlicer nihil habet. That a second scire facias was similarly issued and returned; and thereupon judgment was rendered on said recognizance, against said defendant, by said district court, etc. To this count the defendant pleaded actio non, because he was never served with process in said suit; that he did not appear to said suit in person or by attorney; that he was not resident nor present within the jurisdiction of the said district court at any time pending said suit, or when judgment was rendered thereon; and this he is ready to verify, etc. This plea was demurred to. The second count was founded on the recognizance itself, mentioned in the first count above set out; and to this count the defendant pleaded that the supposed cause of action did not accrue within 16 years before the commencement of this suit, etc. This plea was also demurred to.

C. H. Beasley, for plaintiff. M. R. Sovy, for defendant.

BEASLEY, C. J., (after stating the facts as above.) The two questions involved will be considered seriatim, as they are raised upon the record. The first count of the declaration is based on a judgment upon a recognizance rendered in the district court of the city and county of Philadelphia. From this narration of the ground of the action, it is shown that the plaintiff obtained a judgment in the court just mentioned against one Owens; that by a statute of Pennsylvania a defendant was entitled to a stay of execution for a definite period by giving security in a certain mode for the sum recovered; and that the defendant, in order to obtain for said Owens the benefit of that provision, "in his own proper person," in the language of the pleading, "came before the said district court, and then and there, in open court, acknowledged himself to be holden and bound to the said plaintiff in the sum of six hundred dollars, upon condition that if the said William E. Owens should not pay the amount of said debt, interest, and costs, which had been rendered against him as aforesaid in the district court aforesaid, before the expiration of nine months from the third Monday of September, in the year of our Lord one thousand eight hundred and sixty-eight, then the said defendant would pay the amount of the debt, interest, and cost aforesaid, for him, the said William E. Owens." It is then averred that, the time specified having elapsed without payment, two successive writs of scire facias, according "to the practice of said district court and the rules of the common law," were issued; and which having been respectively duly returned nihil habet, a judgment was thereupon entered in said court, on such recognizance, in favor of the plaintiff, against the defendant. The defendant, by the force of his plea, does not deny that he made the recognizance in question, nor that it was forfeited, and that judgment was entered upon it by the methods and in the manner stated, but, by way of avoidance of it sets up that he was not served with process in the suit; that he did not appear thereto by person or by attorney; and that he was not resident or present within the jurisdiction of the said court, etc.

It is obvious, from this summary of the pleadings, that the contention of the defense is that, although the judgment in question may possibly be valid in the state of Pennsylvania, where it was rendered, it is destitute of all legal force outside of that domain, for the reason that the adjudicating court had no jurisdiction over the person of the defendant. Inasmuch as the judgment referred to has all the effect of a judgment in personam, there can be no doubt touching the correctness of this position, if the fact upon which it rests be conceded. The declaration, in the constitution of the United States, "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 supplementing this provision, does not apply to the instance of a general judgment against a person over whom the court has no juridical authority. Such an unauthorized magisterial procedure in a state is regarded in all the other states as a nullity, and to which, consequently, the constitutional mandate is not applicable. This doctrine is so absolutely settled by a train of decisions in both the federal and state courts that it must be assumed as an admission in every discussion of the subject. Therefore, the only point for decision in the present case, relating to this subject, is whether the judgment now in question is one of those just mentioned, that is, a judicial determination against a person with respect to whom the court had no right of judicature.

The suit in question was based upon a recognizance, the procedure being two successive writs of scire facias returned nil habet, and judgment thereupon. This was plainly a proceeding in conformity with the practice of the common law Consequently, it will be observed that the proposition on which the defense rests is this: that all judgments obtained by force of this ancient method were coram non judice, and therefore absolutely void. If this be so, then the startling fact is exhibited that from the remotest antiquity it has been customary for the English court to sanction judgments of this abnormal character; and this, so far as appears, without protest, or even criticism. And yet it is certain that the act of rendering a personal judgment against a defendant who was without notice of the proceeding, and who had not been afforded an opportunity to be heard, would have been as repugnant to the genius of the common law as it would be to the principles of natural justice. The entire procedure of outlawing stands as a monument of the truth of this observation; for that formula originated in the theory that before a cause could go to judgment the defendant should not only be summoned, but should be present in court, and that such presence should be manifested by the record. Evidently, if these proceedings on recognizances be liable to the stigma now sought to be cast upon them, they were and are mere excrescences upon the system of which they formed a part; and in this view the circumstance seems absolutely unexplainable that in the whole compass of legal literature, neither in commentary nor in report, is there any intimation that such a course of judicial action was regarded as being incompatible with the methods of ordinary practice, or with the rules of legal science. And, if we add to this weighty consideration the further fact, that this form of judgment, now so harshly denounced as being incongruous with one of the indispensable rudiments of law, has not only thus been accepted by the courts at Westminster for a period beginning before the Year-Books, but has been also so accepted by the courts of almost every state of the Union, as well in Pennsylvania, in which the present procedure originated, as in this state, in which it is now challenged, we have a situation, which of itself would strongly incline the mind to the belief that there must of necessity be some error in the contention that the proceedings in question are in point of fact judgments in personam, by courts having no jurisdiction over the person against whom they are rendered. The great importance of this question is obvious; for, if it be true that a judgment entered against a defendant in his absence, in the old mode, or its equivalent, is a proceeding in a court devoid of all jurisdiction in the matter, the result must be that all these various recognizances are unenforceable as long as the conusor absents himself from the state in which they were entered into. Such a doctrine must necessarily abrogate all the statutory regulations that exist in this state on the...

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28 cases
  • Gill v. More
    • United States
    • Alabama Supreme Court
    • June 14, 1917
    ... ... without jurisdiction over the person "is of no legal ... avail at home or abroad." Elsasser v. Haines, ... 52 N.J.Law, 10, 15, 18 A. 1095, 1097. The sufficiency of ... averment of jurisdictional facts to enable the tribunal to ... hear and ... ...
  • United States v. Green
    • United States
    • U.S. District Court — Northern District of New York
    • March 13, 1905
    ...101. Hence, within this decision, if a check is the same as a draft, it is not an obligation for the payment of money. In Elsasser v. Haines, 52 N.Y.Law, 10, 18 A. 1095, action was upon a recognizance entered into in open court by which Haines bound himself that if Owen did not pay a certai......
  • United States v. Jacobs, Civ. No. 254-56.
    • United States
    • U.S. District Court — District of New Jersey
    • June 29, 1957
    ...County, 1952, 10 N.J. 398, 91 A.2d 729, wherein that court approved the conclusions of Chief Justice Beasley in Elsasser v. Haines, Sup.Ct.1889, 52 N.J.L. 10, 18 A. 1095, to the effect that the words "obligation" and "specialty", as used in the statute of limitations, import an instrument u......
  • State v. Canfield
    • United States
    • Florida Supreme Court
    • March 16, 1898
    ... ... or ascertained by judicial determination.' To the same ... effect is Elsasser v. Haines, 52 N. J. Law, 10, 18 ... A. 1095. Similar reasoning is applied also in the case of ... Adams v. Rowe, 11 Me. 89. In ¢ ... We ... ...
  • Request a trial to view additional results

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