Gates v. Newman

• Decision Date: 31 March 1897
• Docket Number: 1,972
• Citation: 46 N.E. 654,18 Ind.App. 392
• Parties: GATES v. NEWMAN ET AL
• Court: Indiana Appellate Court

46 N.E. 654

18 Ind.App. 392

GATES v. NEWMAN ET AL

No. 1,972

Court of Appeals of Indiana

March 31, 1897

Rehearing denied November 2, 1897.

From the Marion Superior Court.

Reversed.

Baker & Daniels and Edward E. Gates, for appellant.

Charles Martindale, for appellees.

ROBINSON J. BLACK, J., dissents.

OPINION

ROBINSON, J.

This suit was brought in room three of the Marion Superior Court, by the appellees against the appellant on a judgment rendered by the circuit court of Cook county, Illinois. A demurrer to the complaint for want of facts was overruled, and an answer and counterclaim in three paragraphs filed by appellant. A demurrer was sustained to the second paragraph, and overruled as to the third. Appellees filed a reply in two paragraphs to the third paragraph of the answer and counterclaim. The cause was then transferred to another judge presiding in room one of said court, where there was a trial by jury, and under an instruction by the court to that effect, a verdict was returned in favor of appellees. Over appellant's motion for a new trial, judgment was rendered on the verdict for $ 1,450.00.

The errors assigned are, the overruling of the demurrer to the complaint, sustaining appellees' demurrer to the second paragraph of appellant's answer and counterclaim, and the overruling of the motion for a new trial.

The complaint contains the following averments: "The plaintiffs, complaining of the defendant, say that heretofore, to wit: on the 15th day of July, 1893, in the circuit court of Cook county, in the State of Illinois, at a term thereof begun and held in Chicago in said county and state, on the third Monday, being the 19th day of June, in the year of our Lord eighteen hundred and ninety-three (1893), the same being a court of general jurisdiction, said plaintiffs recovered a judgment against said defendant herein for the sum of thirteen hundred dollars ($ 1,300.00), together with costs and charges in that behalf expended; that said judgment is unpaid, unappealed from, unreversed and not superseded and is in full force and effect, and that there is now due and unpaid to plaintiffs thereon the sum of, to wit: fourteen hundred dollars ($ 1,400.00). Wherefore, plaintiffs pray judgment against the said defendant herein for the sum of fourteen hundred dollars ($ 1,400.00) and costs."

Appellant's counsel insist that the complaint does not show that the circuit court of Cook county had jurisdiction of the person of the defendant in that suit.

It has been held that notwithstanding that provision of 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," the jurisdiction of the court rendering a judgment in any state may be questioned in a collateral proceeding and that the jurisdiction of a foreign court over the person or the subject-matter is always open to inquiry. Grover, etc., Machine co. v. Radcliffe, 137 U.S. 287, 34 L.Ed. 670, 11 S.Ct. 92.

For the purpose of the demurrer to the complaint, it is admitted that the Illinois court rendering the judgment is a court of general jurisdiction.

One of the leading cases in the United States on the subject of the presumptions in favor of the jurisdiction of a court, is Galpin v. Page, 18 Wall. (U.S.) 350, 21 L.Ed. 959, in which it is said that "A superior court of general jurisdiction, proceeding within the general scope of its powers, is presumed to act rightly. All intendments of law in such cases are in favor of its acts. It is presumed to have jurisdiction to give the judgments it renders until the contrary appears. And this presumption embraces jurisdiction not only of the cause or subject-matter of the action in which the judgment is given, but of the parties also."

In the case of McLaughlin v. Nichols, 13 Abb. Pr. 244, cited by appellant, there was no averment that the court rendering the judgment had or obtained jurisdiction of the person of the defendants, nor did the complaint aver the fact of the existence of a general jurisdiction in the court, or of a limited jurisdiction which extended to the cause of action for which the judgment was recovered. So, in the case of Gebhard v. Garnier, 12 Bush 321, there was no averment in the complaint about the jurisdiction of the court rendering the judgment, nor was there any averment that the court was one of general jurisdiction. The case of Ashley v. Laird, 14 Ind. 222, was a suit on an Iowa judgment. At that time in bringing suit on a judgment it was necessary to make the transcript of the judgment a part of the complaint. But the record there set out contained none of the pleadings, nor did it in any manner disclose what was the cause of action or the subject of the controversy. This case, however, holds that where the subject-matter of the suit appears, and the court rendering the judgment is one of general jurisdiction, it may, perhaps, be presumed that the court had jurisdiction of the subject-matter thus appearing.

In cases of domestic judgments of courts of general jurisdiction, where they come collaterally in question, the rule is that where the record discloses nothing upon the subject, jurisdiction of the person and of the subject-matter will be presumed. Horner v. Doe, 1 Ind. 140, and cases cited.

"Any proceeding to have a judgment declared void, on account of matters not appearing on the face of the record, is a collateral attack on the judgment." Lewis v. Rowland, 131 Ind. 103, 29 N.E. 922; Exchange Bank v. Ault, 102 Ind. 322, 1 N.E. 562; Harman v. Moore, 112 Ind. 221, 13 N.E. 718.

Whether the judgment on which suit is brought is a foreign or domestic judgment, the same rule applies as to necessary averments in the complaint. In 2 Freeman on Judgments (4th ed.), section 453, the learned author says: "The presumptions in favor of jurisdiction are the same whether the judgment relied upon is domestic, foreign, or of one of the sister states of this Union. The allegations in a complaint seeking to recover upon a judgment rendered in another state need not differ from those in a complaint on a domestic judgment. Neither the authority of the court to act, its jurisdiction over the subject-matter, nor the steps taken to acquire jurisdiction over the parties, need be stated." 2 Black on Judgments, section 835, and cases cited.

We think the allegations in the complaint that the circuit court of Cook county in the state of Illinois, was a court of general jurisdiction, is sufficient to raise the presumption that the court had jurisdiction of the subject-matter and of the person of the defendant. Whether that presumption might be overcome, and if so, in what manner, would present a very different question from that raised by the demurrer to the complaint.

A demurrer was sustained to the second paragraph of appellant's answer, and this ruling is assigned as error. It is alleged in this paragraph of answer that the declaration in the circuit court of Cook county, Illinois, was a common count for work and labor, and that Alfred B. Gates and Harry B. Gates were joint defendants and charged as liable jointly; that to this declaration Harry B. Gates pleaded an answer of non-assumpsit, and the issue thus joined remained unchanged until the day of trial, "on which day the plaintiff in said action in said Cook county circuit court dismissed said action as to the said defendant, Alfred B. Gates, he not having been served with process in said court and not having appeared therein in person or by attorney, and after the dismissal of said action as to said Alfred B. Gates the court proceeded to the trial of said action upon the theory that the declaration charged a several and individual liability against the said Harry B. Gates, and the trial proceeded upon that theory, and no other." * * *

The contrary not having been shown it will be presumed that the common law prevails in the state of Illinois. The suit was originally brought on a joint cause of action, but at the time of the trial, as disclosed by this paragraph of answer, it had become a suit against Harry B. Gates alone, and proceeded to judgment upon that theory. This paragraph of answer shows that the appellant appeared and joined issue on a plea of non-assumpsit. It does not appear that he made any objection to the dismissal of the action as to his co-defendant, and the court having the power to permit the declaration to be amended, it will be presumed the amendment was made. It is true, as claimed by appellant's counsel, that jurisdiction of the person may be given by consent of the parties, and that jurisdiction of the subject-matter cannot be so given; but where it is disclosed that appellant entered a general appearance, and with no objection on his part the cause was tried on the theory that he was individually liable, it will be presumed that the pleading was so amended as to give jurisdiction of the subject-matter. 1 Black on Judgments, section 264; Reynolds v. Stockton, 140 U.S. 254, 35 L.Ed. 464, 11 S.Ct. 773; Warren v. Glynn, 37 N.H. 340.

The first reason assigned for a new trial was error of the court in admitting in evidence the transcript of the Illinois judgment. The first objection to the transcript is that it shows upon its face a matter still pending in that court. The transcript itself shows that a final judgment was entered and the judgment not having been satisfied at the time the transcript was made, the words "pending in said court" could mean no more than that the cause was still pending in so far as the collection of the judgment was concerned. Thus it is held that "pending" applies to a judgment on which successive fieri facias venditionis have been issued, but not fully satisfied, and...