Norwood v. Cobb

• Decision Date: 01 January 1855
• Citation: 15 Tex. 500
• Parties: S. A. L. NORWOOD AND OTHERS v. S. S. COBB, ADM'R.
• Court: Texas Supreme Court

15 Tex. 500

S. A. L. NORWOOD AND OTHERS

v.S. S. COBB, ADM'R.

Supreme Court of Texas.

1855.

Where suit is brought upon the judgment of another state, rendered in a suit in personam, the defendant may prove that he was not served with process in such suit, although there appear in the record proper process regularly returned “executed;” and if such proof be made, the judgment cannot be enforced in this state. [20 Tex. 588, and 24 Tex. 551, same case; 8 Tex. 341;9 Tex. 469;20 Tex. 516;24 Tex. 317.]

Appeal from Gonzales.

Mills, for appellants.

A. S. Cunningham, for appellee.

LIPSCOMB, J.

This suit was brought on a decree of the court of chancery of the state of Mississippi against George Norwood. At the institution of this suit upon the decree, George Norwood was dead, and an administration on his estate had been taken. This suit was against his administratrix, one of the appellants in this court, and against the other appellants who held a portion of the slaves claimed to have been the property of the deceased, under conveyances or bills of sale alleged to have been made with a fraudulent intent, to defeat the payment and satisfaction of the decree sued upon. The deeds appeared and were alleged to have been made a few days before the death of George Norwood, and the administratrix did not inventory the property as appertaining to the estate of her intestate, and she was a beneficiary under one of the deeds. The petition sought to set aside these voluntary deeds and to subject the property so conveyed to the payment of amount decreed against the intestate by the decree of the court of chancery of the state of Mississippi. There was no controversy about the authenticity of the proceedings and the decree. There was no evidence of fraud, unless it was in the return of the sheriff to the subpœna executed, which the defendants alleged had never been served, and consequently the defendant in that suit in Mississippi had no notice of its pendency. Subpœna, returned executed, had issued against George Norwood and two others, Davis and Hall. There was a discontinuance as to them, and George Norwood not having appeared, a decree pro confesso was taken against him, and auditors appointed to take an account and report; and on the coming in of their report, the decree on which this suit is brought was entered up by the court. The doctrine is believed to be well settled, that if the party against whom the judgment or decree was rendered had no notice of the pendency of the suit, a judgment could not be rendered against him, and that if rendered, it could not avail against him, for want of jurisdiction. If he had been served with process, the judgment, however erroneous, could not be impeached so long as it was a subsisting judgment. This is so well established to be sound doctrine that it could not be questioned.

The suit in Mississippi was to recover two slaves or the value thereof. The slaves do not appear to have been attached, and the decree is for the slaves, or in default thereof, the value put upon them by the auditor. The suit in this state was for the money. Had the slaves been within the jurisdiction of the court of chancery of Mississippi, and a decree settling the right of property to be in the plaintiff, that decree would have operated in rem, and would have concluded the rights of the defendant; but it was not so rendered, and this suit does not treat it as a proceeding in rem, as it is not brought to recover them. Professor Greenleaf, commenting on the admissibility and effect of the judgments of one state in the tribunals of another, under the constitution and statutes of the United States, says: “By these provisions such judgments, authenticated as the statutes provide, are put upon the same footing as domestic judgments. But this, observes Judge Story, does not prevent an inquiry into the jurisdiction of the court in which the original judgment was rendered to pronounce, nor an inquiry into the right of the state to exercise authority over the parties or the subject matter, nor an inquiry whether the judgment is founded in and impeachable for a manifest fraud.” (1 Greenl. sec. 548.) Mr. Justice Story, in the preceding part of the same section from which the above extract is made by Professor Greenleaf (sec. 609, Conflict of Laws), says: “They are therefore put upon the same footing as domestic judgments.” He says the same in his Commentaries on the Constitution. (Sec. 1313.) This qualification is, however, given by the learned judge, that the constitution did “not make the judgments of other states domestic judgments ??o all intents and purposes, but only gave a general validity, faith and credit to them as evidence” (sec. above cited). The same learned author in the same book (sec. 609a) says: “In the sister states of America the effect of a judgment in one state when relied upon as a cause of action in another, has been frequently discussed of late, and the tendency of modern decisions is to restrict the force of such judgments in the courts of another state,” and he cites the case of Aradt v. Aradt (15 Ohio, 33), and the case of McVicker v. Beedy (31 Maine, 316) The former was a suit brought in Ohio on a judgment rendered in Pennsylvania. The only service in the original suit was an attachment levied on the defendant's real estate situated in the latter state. The defendant had no personal notice of the suit, and never appeared to the action, either by himself or attorney; neither had he ever been within the state of Pennsylvania. It was determined that such a judgment was not even prima facie evidence of debt in Ohio.

In the case of McVicker v. Beedy, the original suit was in the supreme court of Illinois, upon a contract made in that state, and the...