Warren ex rel. Warren v. Lusk

• Decision Date: 31 March 1852
• Citation: 16 Mo. 102
• Parties: WARREN & DALTON, TO USE OF WARREN, Plaintiffs in Error, v. JULIAN H. LUSK, Defendant in Error.
• Court: Missouri Supreme Court

16 Mo. 102

WARREN & DALTON, TO USE OF WARREN, Plaintiffs in Error,

v.JULIAN H. LUSK, Defendant in Error.

Supreme Court of Missouri.

March Term, 1852.

1. In the absence of the knowledge of what the law of a sister state is, on questions of common law, our courts presume that the law of such state corresponds with our own.

2. Under the act of Congress of May 26th, 1790, in a suit upon a judgment of another state, whose laws, as to the effect of judgments, correspond with our own, when it appears from the face of the record that the defendant appeared by his attorney, evidence to show that the attorney had no authority to appear, is not admissible.

Error to St. Louis Court of Common Pleas.

J. C. Richardson, for plaintiffs in error.

I. Judgments of sister states have the same force and effect in all the other states of the Union that they have in the state where rendered. 1 Greenleaf Ev., section 604; 1 Kent, 260; Mills v. Duryee, 7 Cranch, 481.

II. The judgment or record imports absolute verity, and cannot be contradicted; it is conclusive upon both parties. Appearance by attorney cannot be contradicted. Lindell v. Bank of Missouri, 4 Mo. 228; Weber v. Schmeisser, 7 Mo. 600; Vaughn v. Reed, 15 Mo. 137; 1 Binney, 469, 214; Field v. Gibbs, 1 Peters, C. C. 158; Town of St. Albans v. Bush, 4 Vt. 310, 68 (in point)--afterwards recognized by the same court in 17 Vt. 310, 532; Rust v. Frothingham, Breese, 260; Lincoln v. Power, 2 McLean, 483 (in which Judge McLean expressly dissents from Starbuck v. Murray, 5 Wend. 148); Westervill v. Lewis & Looker, 2 McLain, 515; Halbert v. Montgomery's Adm'r. 5 Dana, 16 (directly in point); Roberts v. Caldwell, 5 Dana, 512; Jones v. Hunter, 4 Howard (Miss.) 342; Miller v. Ewing, 8 Smedes & M. 428, in which Judge Sharkey reviews Hall v. Williams, 6 Pickering; and Starbuck v. Murray, 5 Wend. 148 (directly in point); Bright v. Ross, 11 Smedes & M. 300; Munikuyson v. Dorsett, 2 Harris & Gill, 377; Denton v. Noyes, 6 Johns. 297.

In Massachussetts it is held that the authority to an attorney to appear in the courts of that state cannot be contradicted. Smith v. Bowditch, 7 Pick. 137. So, also, in New York, the record of a domestic judgment, showing an appearance by attorney, cannot be contradicted, 2 Hill, 66. There can be no propriety, then, in discriminating against the judgments of a sister state, if the Supreme Court of the United States is to be followed in the declaration that the judgment of one of the states is of the same dignity in every other state as in the one where it is rendered. 7 Cr. 481.

The New York and Massachusetts courts, and others under their lead, have held that the judgments of other states were on the same footing as foreign judgments; that they were only prima facia evidence in favor of the party in whose favor they were rendered, and could be impeached on any ground that would have been available in the original suit. But, under the authority of the Supreme Court of the United States, it is submitted that no defense can be made to a suit on a judgment of a sister state, which could not be made had the suit been brought in the state in which the judgment was rendered. Mills v. Duryee, and Hampton v. McConnell, 3 Wheat. 204.

The record does not derive its virtue from the fact of notice to the parties, but in consequence of its being the judgment of a court of competent jurisdiction; and if the record can be assailed because there was no authority to the attorney to appear, with equal propriety the sheriff's return can be disputed; or any other fact which it will be presumed the court passed upon before the rendition of the judgment

It is in proof, that as early as 1842, the defendant had knowledge of the decree against him, and if there was any irregularity in the proceeding, it was his duty to have sought relief by proper steps in the courts of Illinois. The plaintiffs had every reason to believe that the decree was final and conclusive. They took no steps to save their original demand from the operation of the statute of limitations, and the defendant ought not to be encouraged into the trap he set for them. He knew of the decree and made no objection to it; had no visible property out of which the decree could be enforced-- but allows the decree to sleep in dangerous peace, and when the statute of limitation has barred an action on the original demand, and the plaintiffs attempt to enforce the decree, because they discover a hope to make it, the defendant is heard for the first time to say that the decree is a nullity, and if he succeeds in this court he may laugh at the plaintiffs if they venture upon the experiment, in the face of the statute of limitations, of bringing a suit upon the original demand.

III. The legitimate mode for relief against the unauthorized appearance by attorney is by a proper proceeding in the court which rendered the judgment, if the attorney is irresponsible. Peters' C. C. 158; 2 McLain, 514; 2 Yeates (Pa.) 547; 6 Johnson. 297.

IV. But if the attorney is responsible, the defendant must look to him. 2 Breese, 260; 5 Dana, 16; 7 Pick. 138; 2 Harris & Gill, 378; 6 Johns. 34 and 297.

T. Polk, for defendant in error.

I. The record of the Illinois court, given in evidence by plaintiffs, showing that McDougal & McConnell filed a demurrer to the bill, in the name of both of the defendants, is not conclusive proof that Julian H. Lusk, the defendant in this case, appeared to the suit. It is only prima facia evidence, and may be disproved. 1. T. R. 62; 6 Leigh, 570; 3 A. K. Marshall, 41; 4 Day's Conn. R. 380; Aldrich v. Kinley, 9 Mass. R. 462; Bissell v. Briggs, 6 Pick. 232; Hall v. Williams, 5 Wend. 148; Starbuck v. Murray, 5 Wend. 161; Holbrook et al. v. Murray et al. 6 Wend. 447; Shumway v. Stillman, 1 Ohio (Ham.) Rep. 124; Spencer v. Brockway, 6 Howard, 164; Shelton v. Tiffin.

To make a judgment binding on a party, he must either have been served with process or appeared to the action.

J. A. Kasson, for the same, contended that with the single exception of proceedings in rem, a judgment cannot be valid, except when the defendant has had a legal opportunity to be heard, by means or notice served within the jurisdiction from which it issues, or by a voluntary appearance. The statute of 1790 does not affect judgments of other states, rendered without notice or appearance of the defendant. Thurber v. Blackbourne, 1 N. H. Rep. 242; 11 N. H. Rep. 304; Bissell v. Briggs, 9 Mass. R. 462; Hall v. Williams, 6 Pick. 232; Gleason v. Dodd, 4 Met. 338; Holbrook v. Murray, 5 Wend. 161; Smith v. Ross & Strong, 7 Mo. 465; Moore v. Farrow, 3 A. K. Marsh. 44; 5 Mason, 35, 42-3; Sutton v. Hayes, 3 Mo. 84.

A party is at liberty to put in issue the notice or appearance upon which the validity of the judgment depends, even where the record recites an appearance; unless it was a fact adjudicated upon, so as properly to partake of the nature of a judgment upon an issue. Gleason v. Dodd, 4 Met. 338; Story's Conflict of Laws, sections 608, 609; Whittier v. Wendell, 7 N. H. 259; Shumway v. Stillman, 6 Wend; Noyes v. Butler, 6 Barb. Sup. Ct. Rep. 615; People v. ____, 5 Hill, R. 168; Aldrich v. Kinney, 4 Conn. 380; Kelly v. Hooper, 3 Yerg. 395; Pritchartt v. Clark, 3 Harring. 517; Wilson v. Mt. Pleasant Bank, 6 Leigh, 570; ____ v. Porter, 3 Ham. O. Rep. 520; Holt v. Holloway, 2 Blackf. 108; Shelton v. Tiffany, 6 How. U. S. Rep. 186.

The provision of the U. S. constitution is nearly copied from the old articles of confederation. (See Art. IV.) It was proposed under those articles to make these judgments conclusive, but the motion was voted down. (See 1st Secret Journal of Congress, 386.)

Glover & Campbell, in reply.

As there is almost an indefinite amount of authority on both sides of this question, it is better to re-examine the subject on principle.

It is a maxim of the common law, that a record imports absolute verity as to all parties to it, and, therefore, cannot be contradicted. This is not grounded upon any supposed infallibility of the ministers of justice, but on another maxim deduced from common experience: Expedit reipublicœ ut sit finis litium.

The defendant contends that he cannot be estopped by the act of an attorney, who was not authorized to act for him.

But, the record says, it was “ his attorney,” and he cannot contradict it.

Why should a party not be concluded by the act of an attorney? An attorney, like the judge, clerk, or sheriff, is an officer of the court, acting under oath.

All the analogies of the law are against the position taken by the defendant, that he cannot be bound by the act of an officer of the court. When the sheriff returns a writ executed, though he has not executed it, the defendant is not allowed to put the truth of his return in issue.

If the clerk enters of record that the defendant appeared, it admits of no denial. The acts of the judge, as entered of record, are to be taken as stated. Why should the acts of attorneys of the court be an exception?

Those cases which hold that, if the record says “the defendant appeared,” that is conclusive; but, if it says, “defendant appeared by attorney,” that is open to controversy, take a distinction not founded in reason. It assumes that the clerk must know the personal identity of all defendants, and that the case of a false personation is impossible.

The doctrine contended for, on the other side, is a trap for the unwary. If the judgment is voidable, it can only be avoided at the election of the defendant. The right to avoid is not reciprocal. The plaintiff, then, having been so unfortunate as to get such a judgment, has no recourse but to sue upon it, as he has done in this case. Had he sued on the original account, the judgment being voidable only, at the will of the defendant, might have been used as a defense. When he sues on the record, the defendant exercises his election and avoids it. In the meantime, the statute of limitations has barred the plaintiff's demand.

Again, suppose...