Roberts v. Caldwell

• Decision Date: 14 October 1837
• Parties: Roberts v. Caldwell.
• Court: Kentucky Court of Appeals

35 Ky. 512

Roberts v. Caldwell.

Court of Appeals of Kentucky.

October 14, 1837

FROM THE CIRCUIT COURT FOR CHRISTIAN COUNTY.

Mr. J. T. Morehead for plaintiff.

Messrs. Fry and Page for defendant.

OPINION

ROBERTSON, CHIEF JUSTICE.

This is an action of debt on a judgment of Tennessee; and the declaration being good, and the record from Tennessee substantially corresponding with and sustaining it--the only question to be considered, is whether the Circuit Court erred in sustaining a demurrer to a plea denying that the defendant had either appeared, or been cited to appear, to the suit in which the judgment now sued on was rendered.

A judg't of another state, rendered when the def't had not appeared, nor been cited, must be deemed void here, for want of jurisdiction in the court that rendered it. But--

A recital in the record of a judg't, that the parties appeared by their counsel, must be accredited, is conclusive, and can not be denied by plea, nor disproved by other evidence; a demurrer to such a plea must be sustained.

If there was no such notice or appearance, the judgment should here be deemed void for want of jurisdiction in the Court that rendered it. But, as the record recites that " the parties appeared by their counsel," that fact, thus certified, must be accredited as long as the judgment shall remain unreversed for error; and can not be denied by plea, or disproved by matter in pais, so as to defeat the judgment.

And therefore, in our opinion, the Circuit Judge did not err in sustaining the demurrer to the plea.

And though--as argued--the last judgment now called in question, is for about two dollars more than the evidence authorized, still we cannot, on that ground reverse it, because no such error is complained of in the assignment of errors.

For errors not assigned, there can be no reversal.

Wherefore, the judgment by the Circuit Court must be affirmed.