Harbin v. Chiles

• Decision Date: 31 January 1855
• Citation: 20 Mo. 314
• Parties: HARBIN, Defendant in Error, v. CHILES, Plaintiff in Error.
• Court: Missouri Supreme Court

20 Mo. 314

HARBIN, Defendant in Error,

v.CHILES, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1855.

1. A judgment was rendered in California against a resident of Missouri upon publication. Afterwards as shown by the record, the defendant appeared by attorney, filed an affidavit, and asked leave to answer, which was granted on condition of payment of costs, but he failed to answer, when the former judgment was re-instated. Held, the judgment was conclusive in this State.

Error to Jackson Circuit Court.

Hovey & Sheley, for plaintiff in error.

I. The judgment as originally entered in the Yulo District Court, was in the nature of a judgment in rem and an action cannot be sustained on the same in this State. (Sallee v. Hays, 3 Mo. 116.)

II. The final judgment in the cause, in the Yulo District Court, is not a general judgment, nor judgment of recovery, but merely a re-instating of the former judgment--a mere revivor. (4 Mo. 222; Ib. 10; 3 Yerg. 426.)

Adams, for defendant in error, cited 2 Am. Lead. Cases, 552; 5 Wend. 148; 6 Wend. 453; 2 Bay. 485; 7 Cranch, 418-81; 3 Wheat. 334; 5 Gill & J. 500.

RYLAND, Judge delivered the opinion of the court.

This is an action upon a transcript of a judgment of the District Court of Yulo county, in the state of California. Harbin sued Chiles in California, and had an order of publication in the newspapers of that state against him-- constructive service only. The plaintiff then proceeded under the laws of that state, and obtained against defendant a judgment by default. After this judgment by default, Chiles appeared in court by his attorney, and filed his affidavit, that is, Chiles' affidavit, and for reasons and causes therein set forth, moved the court to set aside the judgment by default, and for leave to answer to the plaintiff's action. This motion the court sustained, set aside the judgment, and granted defendant leave to file his answer in thirty days upon the payment of costs. The defendant failed to answer within the time allowed him, and the plaintiff, on his motion, had the original judgment reinstated against Chiles. This suit is upon a transcript of that judgment. The defendant relies upon his making no defense, no appearance to the action, never having been served with process, and that the California court had no jurisdiction of his person. The court below found the facts as stated, and declared the law to be against the defendant; that his appearance by attorney, and making his motion, and filing his affidavit in the court in California, gave that court jurisdiction over the person of said Chiles, and authorized a general...