Norwood v. Cobb

• Decision Date: 01 January 1859
• Citation: 24 Tex. 551
• Parties: SARAH A. L. NORWOOD AND OTHERS v. SAMUEL S. COBB.
• Court: Texas Supreme Court

24 Tex. 551

SARAH A. L. NORWOOD AND OTHERS

v.SAMUEL S. COBB.

Supreme Court of Texas.

1859.

The defendant may impeach the judgment of another state, upon which he is sued, by averment and proof that he was not served with process, and did not appear in person or by attorney, although the record contain the return of process executed, and the judgment recite that he was served or appeared.

The authorities on this question cited; and shown to sustain the former decision of the court in this case. 15 Tex. 500.

If the court had jurisdiction of the person of the defendant, the judgment imports absolute verity, and precludes further examination, unless fraudulently obtained; but if it had not jurisdiction, the proceedings lose the character of a record, and are not entitled to faith and credit as such; and this is open to examination.

The facility with which, by mistake or design, an absent defendant might be precluded by the recitals of the judgment, show the necessity of permitting him to impeach it, by proof that he was not served with process.

ERROR from Gonzales. Tried below before the Hon. Fielding Jones.

This was a suit by Samuel S. Cobb, the defendant in error, as the administrator of William J. Norwood, deceased, against Sarah A. L. Norwood, the widow and administratrix, and the other plaintiffs in error, the children of George Norwood, deceased, on a judgment of the chancery court for the northern division of the state of Mississippi, in favor of William and Indiana Green, as the administrators of the said William J. Norwood, deceased, against the said George Norwood, in his life-time, for two slaves, if to be had, and if not, for their value, amounting with hire, to the sum of $1,752.25.

The only question in this case, was as to the right of a defendant sued upon a judgment from another state, to impeach it, by proof that he had not been served with process or notice, when, from the return by the sheriff of the process, copied in the transcript of the record, and from the recitals in the judgment entry, it appeared that he had been duly served.Stewart & Mills, for the plaintiff in error. This cause was previously before this court on precisely the same points, together with others, now presented (Norwood v. Cobb, 15 Tex. 500), and it was then held, that the defendants below might show that George Norwood had no service or notice in the Mississippi suit, notwithstanding the transcript recited service; and further, that they might show it by parol.

The defendants below offered to show by four witnesses, that George Norwood had no service or notice of the Mississippi suit, which was refused. That this was error, see this case, 15 Tex. 500; D'Arcy v. Ketchum, 11 How. (S. C.) 165; Story, Confl. Laws, § 609; 1 Greenl. Ev. § 548. It is only where the jurisdiction of the court, which rendered the judgment, is not impeached, either as to the subject-matter, or the person, that the record of the judgment is entitled to full faith and credit, under the act of 26th May, 1790. 1 Kent, Com. 261, note c.

The defendants below offered to prove the material averments in their answers, filed at the spring and fall terms, 1858; among others: no service or notice in the suit; no appearance or defense in the said suit; that the judgment was fraudulent; and the equitable considerations for opening the same; all of which were refused. The defenses presented on this trial, were not presented and disposed of by the decision of this case in 20 Texas Rep. 588. The points of service and notice were therefore not decided; and while the defense of fraud was decided against plaintiffs in error then, as the case was presented, the grounds, as to the fraud, are now presented in a more definite and specific form, the proof of which we offered to give in evidence, but it was excluded.

Can it be, at this day, that a defendant cannot impeach the original justice of a judgment rendered against him in another state, by showing that the court had no jurisdiction; or that he never had any notice of the suit; or that it was procured by fraud; or even bad by the local law? We think the well digested opinion of Lipscomb, J., in 15 Tex. 505, puts the proposition at rest.

It will be seen by the bill of exceptions, that his honor's view of the law, in cases like this, is, that if the transcript disclosed service on a defendant, parol evidence is inadmissible to show the contrary; thus following the rule in Ewer v. Coffin, 1 Cush. 23, and a like principle in Wood v. Watkinson, 17 Conn. 300, and Roberts v. Caldwell, 5 Dana, 512, which held, that a recital of appearance cannot be traversed. It is due to his honor, however to say, that the decision of this case in 15 Tex. 500, was not called to his attention at the trial.

Parker & Wall, for the defendants in error. The third error assigned, is, that the court refused to hear evidence, going to show that there was no service on defendant, Norwood, in Mississippi. The allegation of want of service on Norwood, in Mississippi, is fully answered by the judgment itself, showing personal service on him; and there is no allegation of fraud in the officers of the court, so as to let in parol proof, to contradict the record of the judgment. See Topp v. Branch Bank, 2 Swan, 184; 2 Am. Lead. Cas. 188, where the cases are digested and collated. The record of a foreign judgment, cannot be contradicted by oral testimony. 1 Williams, 26;3 How. 317;2 Mich. 165.

WHEELER, C. J.

The decision of the court, refusing to admit evidence in support of the plea, that there was no service of process, or notice to the defendant, in the Mississippi judgment, was directly contrary to the decision of this court in this case, when the record was before us on a former appeal. Norwood v. Cobb, 15 Tex. 500. On examination of the authorities, cited in the opinion of the court on the former appeal, they are found not to be directly in point to the question, whether the judgment of another state may be impeached, by averment and proof of the want of service, where the record contains the return of process executed, and the record of the judgment recites, that the defendant was served with process, as in the present case. And as the case has again come before us on this question, we have been induced to look further into the authorities, for cases directly in point, and we find them fully sustaining our former decision. The authorities will be found collected, and the subject learnedly examined, in the notes to the leading cases of Mills v. Duryee, and McElmoyle v. Cohen, in 2 Am. Lead. Cas. 3d ed. ...