McCormick v. Deaver

• Decision Date: 31 October 1864
• Citation: 22 Md. 187
• Parties: PROVINCE MCCORMICK AND GEORGE W. BRADFIELD v. HENRY T. DEAVER.
• Court: Maryland Court of Appeals

22 Md. 187

PROVINCE MCCORMICK AND GEORGE W. BRADFIELD v. HENRY T. DEAVER.

Court of Appeals of Maryland.

October 31, 1864

APPEAL from the Circuit Court for Frederick County:

This was a suit brought on a decree of the Circuit Court for Clarke County, in the State of Virginia, on which the appellants declared. The appellee,-- defendant below, pleaded nul tiel record, and issue was joined. The record of proceedings of the Virginia Court was offered in evidence before the Court below, to sustain the issue on the part of the plaintiffs, the present appellants. The appellee objected to the record, and the Court below (NELSON, J.) rejected the same and this appeal was taken from such rejection. For further statement of the case see the opinion of this Court.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J Jos. M. Palmer, for the appellants.

The only question submitted to the Court under the pleadings in this case, is a question of evidence, and it will be insisted on the part of the Appellants, that the ruling of the Court below, in refusing to admit the record of the judgment, upon which the action was brought in evidence, was clearly erroneous. The plea of " nul tiel record " is the general issue plea to an action of debt on a judgment of a Court of a general jurisdiction of any other in the United States. The record of such a judgment, if authenticated according to the provisions of the Act of Congress of the 26th of May, 1790, is in the Courts of this State, entitled to full faith and credit, and purports absolute verity, in all cases, where the Court rendering the judgment had, at the time of rendering it, jurisdiction of the cause and the parties. The judgments of other States of the Union, are, by the constitution, put upon the same footing as domestic judgments. The judgment and decree upon which this action was brought, is entitled to the same faith and credit in this State, as it was entitled to in Virginia. If the judgment in this case is conclusive in Virginia, it is equally conclusive everywhere in the States of the Union, and the Courts in this State are bound to give to it full faith and credit. 3 Story Com., 183.

In Keighler vs. Savage Manufacturing Co., 12 Md Rep., 415, it is said: " A judgment imports absolute verity, and is conclusive, unless fraud, & c. be shewn," and the policy of the law and the reasons for it, are briefly and forcibly vindicated.

The law is well settled both in England and this State, that the plea of " nul tiel record " is only proper where there is either no record, or where there is a material variance between the declaration and the judgment declared upon. The plea of " nul tiel record " puts in issue only the existence of the record of the judgment upon which the action is brought. This is the settled principle of the Common Law. The only question involved in this case is: under the pleadings, does there exist such a record of the Circuit Court for the County of Clarke, in the State of Virginia, as is recited in the Plaintiff's declaration in the Court below? 1 Ch Pl., 8 A. M. Ed., 486, 487. Com. Digest " Pleader, " 2 W., 13.1 Tidd's Pract., 651. Marsh vs. Cutler, 3 Mod. R., 41. Coy vs. Hymas, Strange R., 1171. Pitt vs. Knight, 1 Saund. R., 92, (note 3.) 3 Ch. Pl., 1181, 1182. In 2 Saunders' Pl. and Ev., part 1, p. 256, and part 2, 751, 752, these principles are clearly defined. Mr. Saunders says, that " on nul tiel record pleaded, the plaintiff will only have to prove the judgment." The effect of the record, if it had been received, is quite a different matter. The solution of this question depends entirely upon two distinct propositions.

1st. Is the record of the judgment of the Circuit Court for the County of Clarke, in the State of Virginia, upon which the action was brought, authenticated according to the Act of Congress of 26 May 1790? If it is, the ruling of the Circuit Court is erroneous.

2nd. Is there a material variance between the declaration and the said judgment?

As to the first proposition, the question as to the conclusiveness of a judgment of any other State, when the record is authenticated according to the Act of Congress of 1790, is no longer a matter of debate. Entertaining these views, we deem it useless to do more than simply to refer the Court to the authorities. Harris vs. Hardeman, 14 How., 336. Armstrong vs. Carson, 2 Dallas' R., 302. Coburg vs. Hammond, 2 H. & G., 49. Mills vs. Duryee, 7 Cranch, 481. State vs. Fridge, 3 G. & J., 103. Hampton vs. McConnel, 3 Wheaton, 234. Powles vs. Dilley, 2 Gill, 241. Benton vs. Burgot, 10 Ser. & Rawle, 241. Randolph vs. Griffith, 3 Md. Rep., 54. Ridgely vs. Crandall, 4 Md. Rep., 441. McEmoyle vs. Colhen, 13 Peters, 312-330. 3 Story's Com. on the Constitution, 183. Starbuck vs. Murray, 5 Wend., 148.

The leading cases on this subject, are collected and analyzed in a note to the case of Mills vs. Duryee, & c., in the 2nd vol. of American Leading Cases, 551 to 567.

The real question in this case, we submit, has been settled by the Court of Appeals of this State. Bank of the U. S. vs. Merchants Bank of Baltimore, 7 Gill, 417, 426. 7 Cranch, 481. 3 Wheaton, 234. 13 Peters, 314. (above cited.) Wernwag vs. Pawling, 5 Gill & Johnson, 434. Case vs. McGee, 8 Md. Rep., 10. In this case we insist that the authentication is a literal compliance with the Act of 1790, and that there was error in the Court below, in refusing to admit the record in evidence. 1 Greenleaf's Evidence.

If the clerk attest that the record of the judgment is truly taken from the records of the Court, and the presiding judge certify it to be in due form, it is conclusive, and no other evidence can be admitted to show that it is not in due form. Ferguson vs. Harwood, 7 Cranch, 408. 1 Burr's Trial, 98. 1 Peter's C. C. Rep., 418. Pettibone vs. Derringer, 4 Wash. C. C. R., 215. United States vs. Amedy, 11 Wheaton, 392. The St. Lawrence, 9 Cranch, 122.

The true meaning of the words " in due form" by the Act of 1790, is that of the State or of the Court from whence the record comes. Craig vs. Brown, 1 Peters' C. C. Rep., 35. Sergent's Constitutional Law, 388.

If the copy produced as evidence purports to be a record, with a proper certificate from the clerk and presiding judge, it will be presumed that the paper is a full and complete copy of the entire record. 7 Cranch, 408, (above cited.) Edmiston vs. Schwarts, 13 Ser. & Rawle, 135.

Every legal intendment is to be made in favor of the judgment and decree of the Circuit Court for the County of Clarke, in Virginia. Wernwag vs. Pawling, 5 Gill & John. 500. Bringle vs. McClellan, 7 Gill & John., 434. 2 Harris & Johnson, 41.

The record of the judgment and decree offered in evidence in this case, being authenticated strictly according to the requirements of the Act of Congress of 1790, as we have conclusively shown, was admissible in evidence, and the ruling of the Circuit Court was wrong.

It is admitted that a judgment, of a sister State, rendered by a Court having no jurisdiction over the cause or the parties, is a nullity, and not binding anywhere; but the want of such jurisdiction in an action upon such judgment, in another State, can only be taken advantage of by special plea. 5 Wend., 154, (cited above.) Wilson vs. Bank of Mt. Pleasant, 6 Leigh's Rep., 575.

In this State nil debet is not a proper plea in an action on a judgment of another State, therefore the defendant would be compelled to plead the want of jurisdiction specially. Hughes vs. Davis, 8 Md. Rep., 271.

As to the second proposition. There, certainly, is no material variance between the declaration and the judgment and decree upon which the action is brought. They are not only substantially, but literally alike. The declaration recites the judgment and decree with perfect accuracy, as the Court will see by a careful examination of the declaration and the decree.

G. Eichelberger, for the appellees.

The pretended record does not, in fact, show that any such decree was passed as the appellees now assume to base their action upon; that is, there is no record at all of any such decree as is declared upon. The record proceedings in the case in Virginia are recited in the declaration; and even if a genuine decree was actually certified by the clerk, it would be necessary that the whole record should be properly set forth. Otherwise the clerk might alter or omit whatever he thought proper. Mere extracts will not answer. 2 Phil. Ev., 183 and 426. Christine vs. Whitehill, 16 S. & R., 98. Burch vs. Scott, 7 H. &. J., 67. 2 Saund. Pl and Ev., 317. 1 Id., 352, Title " proceedings in Chancery. " 1 Greenleaf, Ev., secs. 506 and 511. See also the following cases where the existence of the record is the question. Randall vs. Jones, Cowp. Rep., 17. 7 Johns., 514. Gilb. Ev., 920. The record must not even contain abbreviations. Pow. Ev., 245, 246.

It is argued on the other side that: " If the copy produced as evidence purports to be a record, with a proper certificate from the clerk and presiding Judge, it will be presumed that the paper is a full and complete copy of the entire record." This would have been good law if it had continued--" provided the contrary does not appear from the face of the record."

As to the power of Courts to examine a record notwithstanding the certificate--as to whether it be perfect on its face, see: 2 Phil. Ev., 424. Beauchamp vs. Mudd, 1 Lit. Sel. Ca., 142. (5 Lit. Ky. Rep., Supplement. ) Edmiston vs. Schwartz, 13 Serg. & Rawle, 135. Voris vs. Smith, Id., 335. Christine vs. Whitehill, 16 Id., 107. Hampton vs. Spekenagle, 9 Id., 221. Ingham vs. Creary, 1 Pa . Rep., (Rawle, Penrose & Watts, ) 394. 2 Phil. Ev., 344.

The record shows no evidence of a decree of the Court of...