Marx v. Fore

• Decision Date: 31 October 1872
• Citation: 51 Mo. 69
• Parties: MOSES MARX, Defendant in Error, v. CHARLES J. FORE, Plaintiff in Error.
• Court: Missouri Supreme Court

51 Mo. 69

MOSES MARX, Defendant in Error,

v.CHARLES J. FORE, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1872.

Error to Cape Girardeau Court of Common Pleas.

J. B. Dennis, for plaintiff in error.

Fraud charged in general terms is a good defense, and it is error to exclude proof of it (Edgell v. Seigerson, 20 Mo. 494), more especially where, as in the case at bar, a replication had been filed to this count. But the error mainly relied on in this case as a ground for reversal, is the refusal of the court to hear parol proof denying service of process, and of the authority of any one to enter an appearance for defendant in the suit in Mississippi. To his counsel, plaintiff in error earnestly insists that he “knew nothing whatever of any suit pending against him in Mississippi;”“that he was never served with process in this suit,” and that “the return of the officer, and pretended appear ance of some one for him, is a base fraud.”

The act of Congress of May 26, 1790, chapter 11, provides that “the records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court in the United States, as they have by law or usage in the courts of the State from whence the said records are or shall be taken.” And the question presented by this record is, are the recitals which a record contains conclusive of its jurisdiction, and may it be controverted by extrinsic evidence? The constitution says that Congress may prescribe the ““effect” of records, etc., from other States. “The effect of records must in its very nature apply to them as evidence, because no one will contend that an execution would issue on the record alone.” At common law a domestic record imports absolute verity, but during the last century a very different rule prevailed as to foreign records, etc., under which rule, if a party recovered judgment in one State or country, he might be put to the risk and delay of trying the case over again in another country; and it was to remedy this evil that the clause above cited was ingrafted in our constitution.

In the case of Monroe v. Douglas, 4 Sandf. Ch. 126, 181, the court held that a foreign judgment was conclusive as a defense, but only affords a presumption when made the foundation of a suit. It is true that the English courts now hold that a foreign judgment rendered on due notice, and by a competent tribunal, is equally as conclusive, whether it was for plaintiff or defendant, but such was not the rule when this constitutional amendment was adopted. The constitution only had reference to such judgments as are valid, not to those which are void. “It did not mean to confer a new power or jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within the territory.” (Sto. Confl. Laws, 7th ed., 609; Sto. Com. Const., § 183; McElmoyle v. Cohen, 13 Pet. 312.) It is a well-settled rule that an ex parte judgment from another State is void in this State. (Gillet v. Camp, 23 Mo. 375; Winston v. Taylor, 28 Mo. 82; Latimer v. Union Pacific R.R. Co., 43 Mo. 105.)

In regard to the question at bar, there are but three cases directly in point in this State. In Wilson v. Jackson's Adm'r, 10 Mo. 329, this court held that a judgment of a sister State is prima facie evidence of the jurisdiction of the person, where the writs were returned “executed,” although such return is informal. In Warren & Dalton v. Lusk, 16 Mo. 102, Judge Scott bases his decision on the case of Mills v. Duryee, 7 Cranch, 481, It is submitted that the case cited by his honor did not decide that point. (See opinion itself by Judge Story; dissenting opinion by Justice Johnson; Hare & Wallace Am. Lead. Cas. 620; Sto. Confl. Laws, 7th ed., § 609 et seq.) On the contrary, the case of Starbuck v. Murray, 5 Wend. 148, was cited and relied on as an authoritative exposition of the law by the Supreme Court in the case of Harris v. Hardeman, 14 How. 336, 340. Same in Noyes v. Butler, 6 Barb. 613; Wilson v. Bank, etc., 6 Leigh, 570; Pollard v. Baldwin, 22 Iowa, 328. In Norwood v. Clarke, 24 Texas, 551, proof that the defendant was not served with process was in like manner held admissible, although the record set forth that service was effected. And the courts obviously inclined to this opinion in the case of Rape v. Heaton, 9 Wis. 328; Rogers v. Gwin, 21 Iowa, 58; Gleason v. Dodd, 4 Metc. 133. In the case of Barney v. White, 46 Mo. 137, this court seems to incline to the same opinion. The weight of authority sustains the affirmative of the proposition that “parol testimony may be admitted to deny jurisdiction.” (Hare & Wallace's Am. Lead. Cas. 642, 646, citing Cait v. Haven, 30 Conn. 190, 198.) The reason assigned by Judge Marcy in the Starbuck-Murray case, as to why parol proof should be admitted, has never been refuted; and if a contrary rule is to prevail in this case, it seems to me to be little less than a premium offered to fraud. It is submitted that if the views here advanced are sustained, and Marx cannot recover on his judgment for want of notice, it will not bar his right of recovery on the original contract. (Sto. Confl. Laws, 7th ed. 609 b.)

G. H. Green and Louis Houck, for defendant in error.

I. The record of the Copiah Circuit Court shows an appearance of the defendant by attorney. The defendant cannot contradict that record by parol as to that point, in a suit upon the judgment in this State. Where the record of a judgment recorded in another State shows that the defendant voluntarily entered his appearance by attorney, he will not be permitted, in a suit upon the judgment, to disprove the authority of the attorney. (Warren v. Lusk, 16 Mo. 102; Baker v. Stonebreaker, 34 Mo. 172.)

II. The matter stricken out and the evidence excluded were properly stricken out and excluded. It was an attempt to inquire into the merits of the case. Whatever constitutes a defense to the action ought to have been pleaded in the Copiah Circuit Court. (Destrahan v. Scudder, 11 Mo. 484; Grover v. Grover, 30 Mo. 400; Sto. Confl. Laws, § 600; Sto. Const., § 183; Mills v. Duryee, 7 Cranch, 481, where it is expressly held that the merits of the judgment cannot be investigated. (Harrington v. Cornel, 3 Wheat. 234; Christmas v. Russell, 5 Wall. 290; Sweet v. Barckley, 53 Me. 346; McFarland v. White, 13 La. Ann. 394; Milne v. Van Buskirk, 9 Iowa, 558; Benton v. Burgot, 10 Serg. & R. 240.)

BLISS, Judge, delivered the opinion of the court.

This was a suit upon the record of a judgment rendered in Mississippi, and though many questions are raised, I will consider but one. For one of his defenses the defendant set forth the alleged indebtedness for which the judgment was rendered, charged that it was paid off and discharged before the suit was instituted; that he had left Mississippi and was not a resident of that State when it was instituted; that no service of process was had upon him; that he did not know of the suit and never authorized any one to appear to it for him. The Mississippi record shows appearance by attorney and plea, and that part of the answer setting forth the above facts was, on motion of plaintiff, stricken out. The present record shows that it was not stricken out for defect or informality, but upon the ground that the judgment could not be thus impeached.

Counsel have discussed the vexed question whether this Mississippi record imported absolute verity, so that the recital of service and defendant's appearance could not be contradicted, and have cited authorities upon both sides. The affirmative of this question was taken by this court in Warren v. Lusk, 16 Mo. 102, and if the language of Judge Scott is to be taken literally, a judgment, though rendered without appearance in fact or notice to defendant, must be paid by him, or he must go to the State where it was rendered--perhaps to Oregon or Maine--and move to set it aside.

But we are not to understand the language of the court as shutting off equitable defenses. That question was not before it, and when the judge says that recitals import absolute verity, and that defendant is estopped from disputing them, he only means that the judgment is to have the force of a domestic one, which must be attacked by a direct proceeding.

That a judgment may be impeached for fraud or mistake cannot be questioned. (Rogers v. Gwinn, 21 Iowa, 58; Pierce v. Olney, 20 Conn. 544; Christmas v. Russell, 5 Wall. 270.) If it be a domestic one, a motion, if made in season, will reach it, and is a proper remedy. (Downing v. Still, 43 Mo. 309.) It may also be set aside by error or bill. “Courts are in the constant habit of relieving parties upon equitable terms from judgments rendered against them in consequence of the fraudulent acts of the successful party or his attorney” (Rogers v. Gwinn, supra); and what greater fraud than falsely to enter an appearance in order to obtain jurisdiction over a defendant?

The only question, then, is, whether the judgment may be attacked, and the want of jurisdiction and the fraudulent simulated appearance be shown by answer, or whether the party, who is not supposed to know of its existence until sued upon it, shall be compelled to go to the State where it was rendered, and there proceed directly to overthrow it. I infer that the latter will not be required, from several considerations. First, the suit is upon a judgment. If obtained by fraud and without jurisdiction, it is no judgment--is void, and will be so declared if the fact is made to appear; the defense goes to its very existence. Second, citizens are not driven to foreign States to protect their rights. If they have a legal right, or are being subjected to a wrong, they may look for protection to the tribunal having jurisdiction over them and the subject-matter, if the opposite party has placed himself within this jurisdiction. Third, it would, in many cases, be oppression or an absolute denial of justice. The inconvenience...