Rogers v. Burns

• Decision Date: 01 January 1856
• Parties: Rogers versus Burns, Administrator of Lynch.
• Court: Pennsylvania Supreme Court

27 Pa. 525

Rogers versus Burns, Administrator of Lynch.

Supreme Court of Pennsylvania.

ERROR to the District Court of Philadelphia.

Gerhard, for plaintiff in error.—The exemplification should set forth a warrant of attorney — the party to be bound by a judgment must have notice: Purd. Dig. 670, Act of 14th April, 1851; Thurber v. Blackbourne, 1 N. H. Rep. 242; Steel v. Smith, 7 W. & S. 447; Gleason v. Dodd, 4 Metc. 333; Wood v. Watkinson, 17 Conn. 500. The judgment of a court of another state is but a simple contract debt, and in this case is barred by the statute of limitations: Atkinson v. Lord Baybrooke, 4 Camp. 380; Const. of U. S., Art. IV., sect. 1; 3 Story on Const. 182-3; Act of 27th March, 1713, Purd. 539.

Interest is not recoverable on the judgment in Mississippi: 2 Dallas 105, note; Mullin v. Morris, 2 Barr 87; Winthorp v. Carleton, 12 Mass. 4; Arrington v. Gee et al., 5 Iredell 590; Hamer v. Kirkwood, 25 Miss. R. 96; Rowland v. Hoover, 2 Howard's Miss. 769; Harrison v. Harrison, 20 Ala. 630; Wood et al. v. Corl, 4 Metc. 203; Allen v. Watson, 2 Hill 319; Act of 1700, § 2, Purd. Dig. 451; McCausland v. Bell, 9 S. & R. 388; Fries v. Watson, 5 S. & R. 220; Maus v. Maus, 5 Watts 318; De Haviland v. Bowerbank, 1 Camp. 50; 14 Vin. Abr. 458. If interest can be recovered, it is as damages by the verdict of a jury: Eckert v. Wilson, 12 S. & R. 398; Dodge v. Perkins, 9 Pick. 368; Willings v. Consequa, Peters's C. C. Rep. 179.

D. W. C. Morris, for defendant in error.—An attorney is presumed to act by the authority of those he represents: Compher v. Anawalt, 2 Watts 493; Field v. Gibbs, Pet. C. C. R. 155; Shumway v. Stielman, 6 Wend. A judgment of a United States court is not a foreign judgment, and not a simple contract debt: Barney v. Patterson, 6 Har. & J. 182; Wernway s. Pawling, 5 Gill. & Johns. 500; Bissell v. Briggs, 9 Mass. 462; Jordan v. Robinson, 3 Shep. 167.

The opinion of the court was delivered by LEWIS, C. J.

This is an action of debt on a judgment recovered in the state of Mississippi. That judgment is to have such faith and credit here as it has there: Mills v. Duryee, 7 Cranch 481. It is settled that in such a case we are to take notice of the law of Mississippi, as fully as the Supreme Court of the United States the tribunal of final review, would take notice of it: Baxley v. Linah, 4 Harris 241. To entitle a judgment recovered in another state to this degree of credit here, it is essential that it be rendered by a tribunal having authority over the person of the defendant, or over the subject-matter. Where the state has no authority over the person of the defendant, the judgments rendered by its judicial tribunals, although conformable to its legislative enactments, can have no extra-territorial operation. Hence, in a state proceeding according to the civil law, a judgment in solido against several, on a citation served on only one (the others residing out of its jurisdiction), is not entitled to credit elsewhere. Steel v. Smith, 7 W. & S. 451. Even an appearance by attorney, procured by such an assumption of authority, will not cure the defect arising from the want of jurisdiction: Id. The same result follows where the proceeding is according to the course of the common law, and a judgment is rendered against several on a writ served on only one, the others residing beyond the limits of the state: D'Arcy v. Kitchem et al., 11 Howard's U. S. Rep. 165. But in the case before us, there is no such assumption of authority on the part of the state of Mississippi. The present defendant, instead of being forced into the courts of that State by process issued under unauthorized enactments, voluntarily appeared as plaintiff, not in the state court, but in the United States court. He lost his cause, and judgment was rendered against him for the costs. He now complains that the attorney who brought the suit in his name and conducted it to its final termination, did not file his warrant of attorney. This might have been ground for an application to open the judgment, or perhaps for a writ of error, or for an action against the attorney, if he appeared without authority. But it is no ground whatever for impeaching the judgment in this collateral action: Cyphert v. McLune, 10 Harris 195; Coxe v. Nicholls, 2 Yeates 546; Denton v. Noyes, 6 John. 296; Compher v. Anawalt, 2 Watts 490.

The plea of the statute of limitations goes to the remedy, and not to the right; and its value as a defence must therefore be determined by the lex fori: McElmoyle v. Cohen, 13 Peters 312; Townsend v. Jameson, 9 Howard 409. It is scarcely necessary to say that there is no statute of limitations in this state against an action of debt on a judgment rendered in a sister state.

The judgment was recovered on the 9th May, 1839. This action was brought on the 2d June, 1849. There was a delay of ten years and nearly one month. This was not sufficient to raise a presumption of payment. Where the presumption depends upon time alone, nothing short of twenty years is sufficient for the purpose. It is true that circumstances tending to induce a belief that the debt is paid are frequently given in evidence in connexion with a delay short of twenty years. But evidence that the debtor resided in Philadelphia does not tend to prove payment of a judgment in Mississippi. On the contrary, absence from the jurisdiction where the judgment was rendered, tended to account for the delay. The wealth of the debtor will not justify a jury in finding the debt paid. Neither of these circumstances, nor both together, can be received as sufficient to dispense with the rule which excludes all presumption of payment founded on a less period than twenty years. On this subject we are unwilling to adopt one rule for the rich and a different one for the poor, and to hold that a judgment shall stand good against...