Perry v. Miltimore Elastic Steel Car Wheel Co.

• Decision Date: 27 July 1899
• Citation: 45 A. 1035,71 Vt. 457
• Court: Vermont Supreme Court
• Parties: PERRY et al. v. MILTIMORE ELASTIC STEEL CAR WHEEL CO. et al.

45 A. 1035

71 Vt. 457

PERRY et al.

v. MILTIMORE ELASTIC STEEL CAR WHEEL CO. et al.

Supreme Court of Vermont. Bennington.

July 27, 1899.

Exceptions from Bennington county court.

Action by Charles H. Ferry and others against the Miltimore Elastic Steel Car Wheel Company and others. From a judgment sustaining a demurrer to the declaration, plaintiffs except. Exceptions sustained.

Argued May term, 1890, before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, THOMPSON, and WATSON, JJ.

F. G. Swinington, for plaintiffs.

Barber & Darling, for defendants.

TYLER, J. The declaration is in debt upon a judgment rendered by the circuit court of Cook county, 111., March 15, 1897. It alleges that the defendants are residents of this state; but it does not allege that they ever were residents of Illinois, nor that they were served with process summoning them to appear in said cause, nor that they appeared therein, nor that that court in any manner obtained jurisdiction of them, nor that it had jurisdiction of the subject-matter of the suit. The case here stands upon a general demurrer to the declaration.

It is well settled by the decisions of this court, and by those of the supreme court of the United States, that it is competent for a defendant to contradict and impeach the judgment of a court of another state by proof that that court had not jurisdiction of the matter in controversy, or that the judgment was rendered without the defendant's appearance, or notice to him to appear. Wood v. Augustins, 70 Vt. 637, 41 Atl. 583; Machine Co. v. Radcliffe, 137 U. S. 287, 11 Sup. Ct. 92, 34 L. Ed. 070. The defendant does not controvert this rule of law, but contends that the question of jurisdiction cannot be raised by general demurrer. It would be more in compliance with the requirement of the constitution of the United States that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, and with the acts of congress passed in pursuance thereof, and more in accord with the spirit of comity that exists between the courts of the different states, to presume that 'the Illinois court had proper Jurisdiction, until the contrary is shown by proof under a proper plea, than to require the plaintiff to allege these Jurisdictional facts in his declaration. We have been referred to no case decided by the United States supreme court, and have found none, which aids us upon this question of pleading. The cases go no further than to declare that under the constitution and laws of the United States a judgment or decree of one state, made by a court having jurisdiction of the parties and the subject-matter, has the same force when pleaded or offered in evidence in the courts of any other state as in the state where it was rendered. Cheever v. Wilson, 9 Wall. 108, 19 L. Ed. 604; Chew v. Brumagen, 13 Wall. 497, 20 L. Ed. 663; Insurance Co. v. Harris, 97 U. S. 331, 24 L. Ed. 959. In Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897, it was held that the jurisdiction of the court by which a judgment is rendered in any state may be questioned in a collateral proceeding. In that case, under a law of the state of New Jersey by which nonresidents were prohibited from raking clams and oysters in the waters of that state, and two justices of the county in which the seizure of the vessel was made were authorized, upon information, to try and determine the case, it was held that it might be shown by parol evidence that the seizure was not made in the county where the prosecution was had. It is laid down in the text in 11 Enc. PI. & Prac. 1131, that the jurisdiction of a superior common-law court is presumed, unless the contrary appears, and therefore in an action upon a judgment of such a court, although of a foreign or a sister state, it is not necessary to aver that such court had jurisdiction either of the subject-matter or of the person. A large number of cases are cited in the notes as sustaining this rule,—among them, Wilbur v. Abbot, 58 N. H. 272; Mink v. Shaffer, 124 Pa. St. 280, 16 Atl. 805; Jarvis v. Robinson, 21 Wis. 524. The rule in Massachusetts is that the record of the judgment of another state is prima facie evidence that the court had jurisdiction of the defendant, but that it is open to the defendant to prove that he did not appear in person or by attorney in the action in which the judgment was rendered. Bissell v. Wheelock, 11 Cush. 277; Wright v. Andrews. 130 Mass. 149. In 12 Enc. PI. & Prac. 173, it is stated as the general rule "that nothing shall be...