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Ferguson v. Crawford.

30 Conn. 190, was a scire facias on a judgment, and the defendant pleaded that the writ in the original action was never served upon him, etc.; and the court held, in an elaborate opinion, that a judgment of a domestic court of general jurisdiction could not be attacked collaterally, unless the want of jurisdiction appeared upon the face of the record, and that jurisdictional facts, such as the service of the writ and the like, were conclusively presumed in favor of such a judgment, unless the record showed the contrary, although this rule did not apply to foreign judgments, or judgments of the courts of sister States, or to domestic judgments of inferior courts, and that the only remedy in such a case was by writ of error or application to a court of equity.

The same rule is held in Penobscot R. R. Co. v. Weeks, 52 Me. 456; Wingate v. Haywood, 40 N. H. 437; Clark v. Bryan, 16 Md. 171; Callen v. Ellison, 13 Ohio St. 446; Horner v. Doe, 1 Ind. 131; Wright v. Marsh, 2 Iowa, 94, and Prince v. Griffin, 16 id. 552, and in numerous other cases which are referred to in the case of Hahn v. Kelly, 34 Cal. 391, which adopts the same rule and contains a full and instructive discussion of the question.

There are many cases in other States, and in the courts of the United States, containing expressions general in their character, which would seem to sanction the doctrine that a want of jurisdiction over the person or subject-matter may in all cases be shown by extrinsic evidence, and they are sometimes cited as authorities to that effect. Elliott v. Piersol, 1 Pet. 340; Hollingsworth v. Barbour, 4 id. 466; Hickey v. Stewart, 3 How. (U. S.) 750; Shriver v. Lynn, 2 id. 43; Williamson v. Berry, 8 How. 495; Same v. Ball, id, 566; Gwin v. McCarroll, 8 Sm. & M. 351; Enos v. Smith, 7 id. 85; Campbell v. Brown, 6 How. (Miss.) 106; Shaefer v. Gates, 2 B. Monr. 453; Wilcox v. Jackson, 13 Pet. 498; Miller v. Ewing, 8 Sm. & M. 421, and numerous other cases not cited. But an examination of these cases discloses that they all relate either to judgments of inferior courts, or courts of limited jurisdiction, or courts of general jurisdiction acting in the exercise of special statutory powers, which proceedings stand on the same footing with those of courts of limited and inferior jurisdiction (3 N. Y. 511), or courts of sister States, or to cases where the want of jurisdiction appeared on the face of the record, or to cases of direct proceedings to reverse or set aside the judgment. I have not found one which adjudicated the point now under consideration, otherwise VOL. XXVI-75

Ferguson v. Crawford.

than those to which I have referred. There are some cases which hold that the want of authority of an attorney to appear may be shown by extrinsic evidence, although the record states that an attorney appeared for the party, but those are placed expressly on the ground that such evidence does not contradict the record. Bodurtha v. Goodrich, 3 Gray, 508; Shelton v. Tiffin, 6 How. (U. S.) 186; 14 How. 340. Those cases are, however, in conflict with the decision of this court in Brown v. Nichols, 42 N. Y. 26, and in many other cases.

The learned annotators of Smith's Leading Cases, Hare & Wallace, 1 Sm. L. Cases, vol. 1, p. 842 (marg.), sum the matter up by saying: "Whatever the rule may be where the record is silent, it would seem clearly and conclusively established by a weight of authority too great for opposition, unless on the ground of local and peculiar law, that no one can contradict that which the record actually avers, and that a recital of notice or appearance, or a return of service by the sheriff in the record of a domestic court of general jurisdiction, is absolutely conclusive and cannot be disproved by extrinsic evidence."

It is quite remarkable, however, that notwithstanding the formidable array of authority in its favor, the courts of this State have never sustained this doctrine by any adjudication, but on the contrary, the great weight of judicial opinion, and the views of some of our most distinguished jurists, are directly opposed to it. As has been already stated, our courts have settled by adjudication in regard to judgments of sister States, that the question of jurisdiction may be inquired into, and a want of jurisdiction over the person shown by evidence, and have further decided (in opposition to the holding of courts of some of the other States) that this may be done, even if it involves the contradiction of a recital in the judgment record. In stating the reasons for this conclusion, our courts have founded it on general principles, quite as applicable to domestic judgments as to others, and, save in one case, Kerr v. Kerr, 41 N. Y. 272, have in their opinions made no discrimination between them. Borden v. Fitch, 15 Johns. 121; Starbuck v. Murray, 5 Wend. 148; Noyes v. Butler, 6 Barb. 613, and cases cited.

When we come to consider the effect of these authorities, it 18 difficult to find any solid ground upon which to rest a distinction between domestic judgments and judgments of sister States in

Ferguson v. Crawford

regard to this question, for under the provisions of the Constitution of the United States, which require that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State, it is now well settled that when a judgment of a court of a sister State is duly proved in a court of this State, it is entitled here to all the effect to which it is entitled. in the courts of the State where rendered. If conclusive there it is equally conclusive in all the States of the Union; and whatever pleas would be good to a suit therein in the State where rendered, and none others, can be pleaded in any court in the United States. Hampton v. McConnel, 3 Wheat. 234; Story's Com. on Const., § 183; Mills v. Duryee, 7 Cranch, 481.

In holding, therefore, that a defense that the party was not served and did not appear, although the record stated that he did, was good, our courts must have held that such is the law of this State and the common law, and consequently that in the absence of proof of any special law to the contrary in the State where the judgment was rendered, it must be presumed to be also the law of that State. The judgments of our courts can stand on no other logical basis. The distinction which is made in almost all the other States of the Union between the effect of domestic judgments and judgments of sister States, in regard to the conclusiveness of the presumption of jurisdiction over the person, is sought to be explained by saying that in regard to domestic judgments the party aggrieved can obtain relief by application to the court in which the judgment was rendered, or by writ of error, whereas, in the case of a judgment rendered against him in another State, he would be obliged to go into a foreign jurisdiction for redress, which would be a manifestly inadequate protection, and, therefore, the Constitution may be construcd so as to apply only where the persons affected by the judgment were within the operation of the proceeding. This explanation, however, does not remove the difficulty in making the distinction, for if there is a conclusive presumption that there was jurisdiction, that presumption must exist in one case as well as in the other. The question whether or not the party is estopped cannot be made to depend upon the greater inconvenience of getting rid of the estoppel in one case than in another.

But aside from this observation as to the effect of the authorities, an examination of them shows that our courts did in fact proceed

Ferguson v Crawford.

upon a ground common to both classes of judgments. The reasons are fully stated in the case of Starbuck v. Murray, 5 Wend. 148. In that case, which was an action upon a Massachusetts judgment, the defendant pleaded that no process was served on him in the suit in which the judgment sued on was rendered, and that he never appeared therein in person or by attorney, and this plea was held good, notwithstanding that the record of the judg ment stated that the defendant appeared to the suit. MARCY, J., in delivering the opinion of the court, and referring to the argument that the defendant was estopped from asserting any thing against the allegation of his appearance contained in the record, says: "It appears to me that this proposition assumes the very fact to be established, which is the only question in issue. For what purpose does the defendant question the jurisdiction of the court? Solely to show that its proceedings and judgments are void, and, therefore, the supposed record is not in truth a record. If the defendant had not proper notice of, and did not appear to, the original action, all the State courts, with one exception, agree in opinion that the paper introduced, as to him, is no record. But if he cannot show even against the pretended record that fact, on the alleged ground of the uncontrollable verity of the record, he is deprived of his defense by a process of reasoning that is to my mind little less than sophistry. The plaintiff in effect declares to the defendant--the paper declared on is a record, because it says you appeared; and you appeared because the paper is a record. This is reasoning in a circle. The appearance makes the record uncontrollable verity, and the record makes the appearance an unim peachable fact." And again at p. 160, he says: "To say that the defendant may show the supposed record to be a nullity, by showing a want of jurisdiction in the court which made it, and at the same time to estop him from doing so because the court has inserted in the record an allegation which he offers to prove untrue, does not seem to me to be very consistent."

This is but an amplification of what is sometimes more briefly expressed in the books that, where the defense goes to defeat the record, there is no estoppel. That the reasoning of MARCY, J., is applicable to domestic judgments, is also the opinion of the learned annotators to Phillips' Evidence. Cowen and Hill's Notes (1st ed.) p. 801, note 551. Referring to the opinion of MARCY, J., before cited, they say: "The same may be said respecting any judgment,

Ferguson v. Crawford.

sentence or decree. A want of jurisdiction in the court pronouncing it may always be set up when it is sought to be enforced, or when any benefit is claimed under it; and the principle which ordinarily forbids the impeachment or contradiction of a record has no sort of application to the case." The dicta of our judges are all to the same effect, although the precise case does not seem to have arisen. In Bigelow v. Stearns, 19 Johns. 41, SPENCER, C. J., laid down the broad rule that if a court, whether of limited jurisdiction or not, undertakes to hold cognizance of a cause without having gained jurisdiction of the person by having him before them in the manner required by law, the proceedings are void. In Latham v. Edgerton, 9 Cow. 227, SUTHERLAND, J., in regard to a judgment of a Court of Common Pleas, says: "The principle that a record cannot be impeached by pleading is not applicable to a case like this. The want of jurisdiction is a matter that may always be set up against a judgment when sought to be enforced or where any benefit is claimed under it." Citing Mills v. Martin, 19 Johns. 33. He also says (page 229): "The plaintiff below might have applied to the court to set aside their proceedings, but he was not bound to do so. He had a right to lie by until the judgment. was set up against him, and then to show that the proceedings were void for want of jurisdiction." In Davis v. Packard, 6 Wend. 327, 332, in the Court of Errors, the chancellor, speaking of domestic judgments, says: "If the jurisdiction of the court is general or unlimited both as to parties and subject-matter, it will be presumed to have had jurisdiction of the cause unless it appears affirmatively from the record, or by the showing of the party denying the jurisdiction of the court, that some special circumstances existed to oust the court of its jurisdiction in that particular case." In Bloom v. Burdick, 1 Hill, 130, BRONSON, J., says: "The distinction between superior and inferior courts is not of much importance in this particular case, for whenever it appears that there was a want of jurisdiction, the judgment will be void in whatever court it was rendered;" and in People v. Cassels, 5 Hill, 164, 168, the same learned judge makes the remark, that no court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts upon which jurisdiction depends. In Harrington v. The People, 6 Barb. 607, 610, PAIGE, J., expresses the opinion that the jurisdiction of a court, whether of general or limited jurisdiction, may be inquired into, although the record of

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