Gilman v. Gilman

• Decision Date: 25 November 1878
• Citation: 126 Mass. 26
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Anna K. Gilman & another v. George F. Gilman

126 Mass. 26

Anna K. Gilman & another v. George F. Gilman

Supreme Court of Massachusetts

November 25, 1878

Suffolk. Contract upon a judgment recovered by the plaintiffs against the defendant in the Supreme Judicial Court of Maine. Answer, "that said court never had or acquired jurisdiction of the person or property of the defendant so as to make the judgment set out a valid judgment."

At the trial in this court, before Colt, J. without a jury, the plaintiffs put in evidence a duly certified copy of the judgment declared on, and partial satisfaction of the same on execution, by which it appeared that no personal service was made on the defendant, who was a citizen of New York, but that an attachment of his property was made, and an order of notice to him duly published; that thereupon the defendant appeared by attorney and answered to the action; and that the action was continued from term to term for a period of about sixteen months, when the attorney withdrew his appearance and the defendant was defaulted.

The defendant was permitted, against the objection of the plaintiffs, to introduce evidence upon which the judge found as a fact that the appearance of the attorney was without authority from the defendant. The plaintiffs asked the judge to rule that full faith and credit should be given to the judgment; that the record should be held to be conclusive that it was not to be controlled by parol or other evidence and that, if the appearance of the attorney was unauthorized, the defendant's remedy was in the court in which the record existed, and not in this court. But the judge refused so to rule; and found for the defendant. The plaintiffs alleged exceptions.

Exceptions overruled, with double costs.

S. C. Maine & J. E. Carpenter, for the plaintiffs.

R. D. Smith & M. M. Weston, for the defendant, moved for double costs.

Gray, C. J. Colt & Morton, JJ., absent.

OPINION

Gray, C. J.

It has been often decided by this court, that the record of a judgment of a court of another state is entitled to full faith and credit in this Commonwealth, under art. 4, § 1, of the Constitution of the United States, only when the court had jurisdiction of the cause and of the parties; and that the defendant, when sued upon the judgment here, may plead and prove, notwithstanding any recitals in the record thereof, that he was not duly served with process, and did not authorize an attorney to appear for him, in the action in which the judgment was rendered. Gleason v Dodd, 4 Met. 333. Phelps v. Brown, 9 Cush. 390. Carleton v. Bickford, 13 Gray 591. McDermott v. Clary, 107 Mass. 501. It is only in the case of a domestic judgment that ...