Page images

(5) Statute of Limitations.-A State may, by statute, limit the time within which an action on a judgment obtained in a sister State may be brought, and such statutes may be successfully pleaded to the action.i

(6) Defences Subsequent to Judgment.Payment, satisfaction or release of the judgment may be pleaded as a defence. So may an injunction against enforcing the judgment and any defence good in the State where the judgment was rendered.2

(7) Defences Pleadable to Original Action.The defendant may not set up any defence of which he could have availed himself in the original action.3 Whether this applies to the defence of set it is rendered can aver and prove that But a State statute that judgments he has a good defence upon the merits. recovered in other States against citiWhite z'. Crow, 110 U. S. 183.

zens of that State shall not be enforced When a judgment has been obtained in the tribunals of that State, if the in State A upon a judgment previously cause of action which was the foundarendered in State B, such judgment in tion of the judgment would have been State A may be enquired into for barred in its tribunals by its statute of equitable causes and equities in a direct limitations, is unconstitutional and void proceeding, and proceedings thereon, contravening, art. 4, § 1, of the Constimay be enjoined, if not for all, for most tution of the United States. Christof the causes which would authorize mas v. Russell, 5 Wall. (U. S.) 290. an injunction in equity to a judgment 2. Defences Subsequent to Judgment. of a court of law of State A. Black v. -Defences subsequent to the judgment, Smith, 13 W. Va. 780.

such as payment, satisfaction or release So a court of equity refused to enforce of the judgment not of the debt may be a judgment procured by fraud. Davis pleaded. Amory v. Amory, 3 Biss. 7. Headley, 22 N. J. Eq. 115.

(U. S.) 266, 271; Jacquette v'. Hugunon, 1. Statutes of Limitations.— States 2 McLean (U. S.) 129; Eaton z'. Hasty, may legislate upon the remedy on suits 6 Neb. 419; s. C., 29 Am. Rep. 419; on the judgments of other States, exclu- Savage v. Everman, 70 Pa. St. 315. sive of all interference with their merits. Also an injunction against proceedA plea of the statute of limitations be- ing on the judgment. Palmer ?', ing a plea to the remedy is determined Palmer, 2 Miles (Pa.) 373. And genby the lex fori. Consequently in an erally whatever plea would be good action on a judgment rendered in an- to a suit thereon in the State where it other State, the defendant may plead was rendered. Hampton ?'. McConthe statute of limitations of the lex fori nell, 3 Wheat. (U. S.) 234; Bank of in bar of the suit, though such statute North America 1. Wheeler, 28 Conn. is only applicable to judgments of other 433; Lawrence v. Jarvis, 32 Ill. 304. States. N'Elmoyle v. Cohen, 13 Pet. That the plea or defence is good in (l'. S.) 312; President etc. of Bank of the State where the judgment was renState of Alabama v. Dalton, 9 How. dered must be proved. In absence of (U. S.) 522; Bacon v. Howard, 20 How. such proof, a plea or defence not good (U. S.) 22; Randolph v. King, 2 Bond under the lex fori will not be admitted. (U. S.) 104; Jacquette v. Hugunon, 2 Bradford v. Rice, 102 Mass. 472. McLean (U.S.) 129; Duvall v. Fearson, 3. In an action on the judgment of 18 Md. 502; Kennard v. Alston, 62 another State, the defendant may not Miss. 763; Eaton v. Hasty, 6 Neb. 419; plead any defence which he had and s. C., 29 Am. Rep. 365; Nicholas v. failed to present at the time judgment Farwell, 24 Neb. 180; Marx v. Kilpat was rendered against him, such as rick, 25 Neb. 107; Packer v. Thompson, minority, coverture, discharge in bank25 Neb. 688; Miller v. Brenham, 68 N. ruptcy, want of consideration, payment Y. 83; Estes v. Kyle, Meigs (Tenn.) of claim, no cause of action, etc. Di37. There were a few early decisions mock v. Revere Copper Co., 117 U. S. to the contrary. Moore v. Paxton, 559; Lehman v. Glenn (Ala.), 6 South. Hemp. (U. S.) 51; Hinton v. Towns, I Rep. 44; Weir v. Vail, 65 Cal. 466; Hill (s. Car.) 439; cf. Jones' Admr. v. Drake 2. Granger, 22 Fla. 348; SharHook's Admr., 2 Rand. (Va.) 303. man z'. Morton, 31 Ga. 34; Johnson v'.

[ocr errors]
[ocr errors]
[ocr errors]

offi is not clear, but it does apply to the defence of the Statute of Limitations except where the judgment was entered on a warrant of attorney.2

(c) MANNER OF SETTING UP DEFENCES.—In an action on a judgment of a sister State, the general issue is nul ticl record,3 and not nil debct.4 Whether the general issue puts in issue the jurisdiction of the court is not clear, but when want of jurisdiction is to be proved by extrinsic evidence, that defence must be specially and fully pleaded.. Butler, 2 Iowa 535; Davis z'. Connelly's (N. Y.) 162; Benton t'. Burgot, 10 S. & Exrs., 4 B. Mon. (Ky.) 136; Packer z'. R. (Pa.) 239 (clearly overruling Evans Thompson, 25 Neb. 688; Pringle 2'. t'. Tatem, 9 S. & R. (Pa.) 252); Curtis Woolworth, 12 N. Y. W.D. 554; Good- '. Hubbell, @ Weekly Notes (Pa.) 367. rich 7'. Jenkins, 6 Ohio +3; Gilfry 2'. The issue on plea of nul tiel record Saarbach, 34 Leg. Int. (Pa.) 240; Bly- is for the court. Coffee 7'. Neely, 2 ler z'. Kline, 64 Pa. St. 130; Lance 2'. lleisk. (Tenn.) 301. Dugan (Pa.), 13 Atl. Rep. 972.

4. Nil Debet.-That nil debet is a bad 1. Counter claims.-A set off which plea, see Mills 7". Durvee, 7 Cranch could have been pleaded to the original (U. S.) 481; Hampton 1. McConnell

, 3 action and was not, may not be pleaded Wheat. (C. S.) 234; Maxwell z'. Stewas a defence in an action on the judg- art, 21 Wall. (L'. S.) 71, and 22 Wall. ment of another State. Crawford 2. (U. S.) 77; Reed '. Ross, Bald. (L'. S.) Simonton's Exrs., 7 Port. (Ala.) 110. 36; Jacquette ?'. Hugunon, 2 McLean

It has, however, been held that a (U. S.) 129; Westerweltt'. Lewis, 2 counter claim in the original suit, dis- McLean (Ć. S.) 511; Lawrence ?". missed for want of prosecution, being Jarvis, 32 Ill. 304; Buchanan z'. Port, 5 unlitigated may be pleaded as a defence. Ind. 264; Huglies 7'. Davis, 8 Md. 271; Rankin 7. Barnes, 5 Bush (Ky.) 20. Duvall ?'. Fearson, 18 Md. 502; Earth

When a statute allow's set off in ac. man 7'. Jones, 2 Yery. Tenn ) 484; tions "upon any contract or agree- Newcomb 7'. Peck, 17 V't. 302. Contra, ment," it has been held that an action Ilall 7'. Williams, 6 Pick. (Mass.) 232; on a judgment of another State is not Curtis a'. Gibbs, Penning. (X. I.) 200; within said statute. Raet. Hulbert, Hammond 7. Smith, i Brer, M. S. R. 17 Ill. 572.

S. Car, 112. 2. Statute of Limitations - An or- 5. The plea of nul tiel record only phans court sale may not be impeached draws into controversy the existence of collaterally in a United States court the record. Goodrich ?'. Jenkins, 6 sitting in the same State, on the ground Ohio 43. The jurisdiction of the court that the claim, to pay which the sale is put in issue under the general issue. was ordered, appears by the petition to Bissell z'. Briggs, 9 Mass. 162; Jacquette have been barred when sued on by r. Ilugunon, 2 McLean (U. S. Ĉ C.) the statute of limitations. Herron . 129. See Marr ?'. Wetzel, 2 Col. 2. Dater, 120 U. S. 164.

All matters anterior to the rendition Where, however, the judgment record of the judgment which operate to deny showed a judgment entered on a war- the jurisdiction of the court must be rant of attorney, and it was also appar- specially pleaded. Andrews 7'. Flack ent that the statute of limitations would (Ala.) 6 South. Rep. 907. have barred the judgment in the State 6. Extrinsic evidence to contradict where the warrant was executed, that the record of the court of another State State refused to enforce the judgment is not admissible under a plea of nul by confession. Brown v. Parker, 28 tiel record. A defence requiring evi

dence to contradict the record must be 3. General Issue.—The proper method formally pleaded and contain all alleof impeachment is by plea of rul tiel gations necessary to sustain it. Hill z'. record. Skinner 4. Noore, 2 Dev. & B. Mendenhall, 21 Wall.

Wall. (l'. S.) +53; Law (N. Car.) 138; Hall v. Williams, 6 Davis z'. Connelly's Exrs., + B. Mon. Pick. (Mass.) 232; Wright 2'. Weisin- (Ky.) 136; Wilson 7'. Jackson, 10 Mo. ger, 5 Sm. & M. (Miss.) 210; Shum- 329; Moulin i'. Trenton Mut. L. & F. way 7. Stillman, 4 Cowen (N. Y.) 292; Ins. Co., 4 Zab. (N.J.) 222; Shumway v. Andrews i'. Montgomery, 19 Johns. Stillman, 4 Cowen (N. Y.) 292; Bell z'.

W’is. 21.

(d) JUDGMENT IN SUCH ACTION-AMOUNT.—It seems that a State law allowing interest on judgments from the date of their rendition embraces judgments of other States. 1

8. Sister State Judgment, Plea of in Bar to Suit on Original Claim.The judgment of a sister State court may be pleaded in bar to an action between the same parties on the original claim,2 although the latter action was begun before the action in which such judgment was rendered,3 and although the sister State judgment in favor of the defendants was based on a Statute of Limitations, and not on the merits of the case. A judgment against an unserved defendant in a foreign attachment may not be pleaded in bar, but the judgment against the garnishee, if duly served, may.6 When so pleaded in bar, the plaintiff may, if the judgment is unsatisfied, allege in reply want of jurisdiction of the defendant appearing in the record, but not the pendency of an


[ocr errors]

Price, 20 Weekly Notes (Pa.) 45; Bow- Grayson (Ala.), 7 South. Rep. 122; ler 1. Huston, 30 Gratt. (Va.) 266; Stout z'. Lye, 103 U. S. 66; Rogers 7'. Williams Renwick, 12 S. w. Odell, 39 N. I. 152; Peak 7'. Ligon, 10 Rep. (Ark.) 331.

Yerg. (Tenn.) 469; McGilvray & Co. In an action on a foreign judgment, v. Avery, 30 Vt. 538; Low w. Mussey, a plea that the court in which the judg- 41 Vt. 393; Baxley v. Linah, 16 Pa. St. ment was obtained was a court of lim- 241; Bank of North America ited and inferior jurisdiction, that de- Wheeler, 28 Conn. 433. fendant was not served with process, 3. And this is so though the action never authorized an appearance by an sought to be barred was instituted first. attorney, and had no notice of the suit, Memphis etc. R. Co. 7. Grayson ( Ala.), is a good plea in bar of the action. 7 South. Rep. 122; Bank of l'. S. z'. Shufeldt v. Buckley. 45 Ill. 223.

Merchants' Bank, 7 Gill (Md.) 415; A plea to the jurisdiction of the court Paine v. Schenectady Ins. Co., 11 R. I. in personam must not only deny resi- 411. Contra, as to a foreign judgment. dence in the other State, but also show Wood 2. Gamble, us Cush. (Mass.) 8. that the party was not within the State. 4. A judgment of a sister State in Wilson v. Jackson, 10 Mo. 330.

favor of the defendant based on the It must deny every means by statute of limitations, when the court which jurisdiction might have been ac- had jurisdiction of the parties and the quired. Barkman v. Hopkins, 6 Eng. cause of action, is a bar to a suit in an(Ark.) 157; Struble 7. Malone, 3 other State on the same cause and beClarke (Iowa) 586; Price v. Ward, 25 tween the same parties. Weeks 2'. X. J. Law 225.

Harriman (N. H.), 18 Atl. Rep. 87 1. Interest.-A State law authorizing 5. Foreign Attachment.-Since a judgallowance of interest on judgments ment without service as in foreign atfrom the date of their rendition em- tachment will not be enforced in anbraces judgments of other States when other State, the plaintiff may bring a the foundation of proceedings in said second action on the original claim. State courts. Shickle '. Watts, 94 National Bank of St. Johnsbury v. Mo. 411; Wetherill v. Stillman, 65 Pa. Peabody, 55 Vt. 492. St. 105. Contra, Benton v. Burgot, 10 6. A judgment in a foreign attachS. & R. (Pa.) 240.

ment against the garnishee, and pay2. Plea in Bar.-A decree or judg- ment by him, is a good plea in bar to ment rendered in a court of one State an action by the defendant in the atmay be pleaded in bar to an action on tachment against said garnishee in anthe same cause and between the same other State. Campbell v. Home Ins. parties in another State, and will con- Co., I S. Car. 158; Melhop v. Doane, trol a decree or judgment subsequently 31 Iowa 397. rendered between the same parties and 7. Replication.- When, however, the upon the same subject matter in an- judgment of a court of another State other State. Memphis etc. R. Co. v. is pleaded in bar to an action, the plain


appeal from said judgment, or that both actions were begun wy attachment, and the property attached in either State alone was not sufficient to satisfy plaintiff's claim.2

IX. JUDGMENTS AS ÉVIDENCE.—As a rule, judgments are admissible against the parties thereto and their privies and not against strangers.3 A judgment is admissible in evidence against persons not parties to the action for the purpose of proving the fact of its rendition ;4 or as part of a chain of title, or to show the character of the possession of a party to the action ;5 or to prove the existence of some other collateral fact.6

As against grantees, creditors and others claiming under the judgment debtor, a judgment, in the absence of fraud or collusion, is evidence in favor of the judgment creditor of the fact and amount of his claim against the debtor.? tiff may allege in reply that the judg- 6. King v. Chase, 15 N. H. 9. ment was void for want of jurisdiction A judgment against the grantee of over the defendant, provided the judg- land is evidence against the grantor and ment was not satisfied. Middlesex Bank warrantor of an eviction. Marlatt v. v. Butman, 29 Me. 19; Whittier v. Wen- Clary, 20 Ark. 251; Gragg v. Richard


' dell, 7 N. H. 257; Rangely z'. Webster, son, 25 Ga. 570; Brooker z'. Bell, 3 Bibb I N. H. 299.

(Ky.) 175; s. c., 6 Am. Dec. 641; PatBut if such judgment does not appear ton 2. Kennedy, I A. K. Marsh. (Ky.) from the record to be absolutely void 389; s. C., 10 Am. Dec. 744. for want of jurisdiction over the de- A judgment against a person is evifendant, the defendant can successfully dence against one who has agreed to plead the same in bar of the action on indemnify him to show the damages the original demand, for by so doing he sustained. Copp'. McDougall, 9

? waives his right to avoid the judgment Mass. I; Lee 7'. Clarke, i Hill (N. Y.) on the ground that jurisdiction had not 56. actually been obtained over him. Hen- A judgment against an officer is eviderson v. Staniford, 105 Mass. 504. dence for him in an action against the

1. The judgment is a good plea in deputy and his sureties to show that he bar notwithstanding the pendency of an has been subjected to the payment of appeal therefrom. Paine ?'. Schenec- money by reason of the default of the tady Ins. Co., II R. I. 411; Bank of deputy. Cox z'. Thomas, 9 Gratt. (Va.) North America v. Wheeler, 28 Conn. 323; Lewis v'. Knox, 2 Bibb (Ky.) 453. 433

A judgment against the principal and 2. And it has been held no sufficient one surety is evidence against another replication to such a plea that the plain- surety in an action by the former tiff had, in the action sought to be against the latter for contribution by barred, caused the defendant's property way of inducement to other evidence to be attached, and that the defendant's showing that the first surety had disproperty in either State alone was in charged the liability on which the sufficient to satisfy the amount due the former suit was based. Preslar v. Stallplaintiff upon the cause of action set worth, 37 Ala. 405. forth in his declaration. Child A judgment against the maker of a Eureka Powder Works, 45 N. H. 547. note is admissible in a suit against en

3. See subtitle EFFECT OF JUDG- dorsers to show diligence on the part of MENTS UPON PERSONs. Supra this title. the endorsee. Lane v. Clark, i Mo.

4. Harrison v. Harrison, 39 Ala. 489; 657.
Williams v. McGrade, 13 Minn. 46; 7. Pickett 2'. Pipkin, 64 Ala. 520;
Spencer v. Dearth, 43 Vt.98; 2 Whart. Sidensparker ?'. Sidensparker, 52 Me.
Ev., § 823

481; Raymond v. Richmond, 78 N. Y. 5. Buckingham v. Hannah, 2 Ohio 354; Hersey 7. Benedict, 15 Hun (N. St. 551; Koogler v. Huffman, i McCord Y.) 285; Candee v'. Lord, 2 N. Y. 269; (s. Car.) 495; Barr v. Grattz, 4 Wheat. S. c., 51 Am. Dec. 294; Ludington's Pe

, (U. S.) 220; i Whart. Ev., 9 821. Seetition, 5 Abb. N. Cas. (N. Y.) 323; also Fowler v. Savage, 3 Conn. 90. Vogt v. Ticknor, 48 N. H. 242; Cham



[ocr errors][ocr errors][merged small][merged small]

A judgment may be competent evidence as an admission in favor of a stranger to the action. Judgments are competent evidence for and against strangers to the action of facts capable of being proved by common repute or other hearsay evidence.2

Ordinarily, a judgment of a court of record must be proved by the original record or a duly authenticated copy.3

At common law, a judgment could not be proved by the judg. ment book and mere docket entries alone ;4 but where a statute requires the formal entry of the judgment in the judgment book it is proper evidence of the judgment.5 Where the record is lost, a judgment may be proved by the best evidence which is attainable ;6 or if the lost record be ancient, its existence and contents may in a proper case be presumed.? Judgments of inferior courts may be proved by the books or papers containing the proceedings in the case, and when no such books or papers are kept, by the testimony of any competent witness.8

The records and judicial proceedings of any State, territory or country subject to the jurisdiction of the United States "shall be proved and admitted in any other court in the United States by the attestation of the clerk and the seal of the court annexed, if there be any seal, together with a certificate of the judge, chief justice or presiding magistrate, as the case may be, that the said attestation is in due form of law."9


State may, by law, disberlain z'. Carlisle, 26 N. HI. 540; Swi- authorized officer; 3rd, sworn copies.' hart 7'. Sharon, 24 Ohio St. 422; Good- See 1 Greenl. Ev., 99 501, 507, 508. now r. Smith, 97 Mass. 69; Inman v. See generally RECORD). Mead, 97 Mass. 310; Church z'. Chapin, 4. Goldsmith 7. Kilbourn, 46 Md.

' 35 At. 231; Garland v. Rives, 4 Rand. 289; Crone ?'. Dawson, 19 Mo. App. (Va.) 282; s. C., 15 Am. Dec. 756. 214; Brown i'. Hathaway, 10 Minn. Compare Troy '. Smith, 33 Ala. 469. 303; i Greenl. Ev., § 508. Compare i 1. Smith z. Shackleford, 9 Dana .

Dana Whart. Ev., § 826. (Ky.) 452.

5. Williams 7'. McGrade, 13 Minn. 46; Thus a judgment by default is an ad- Harrison 7'. Mfg. Co., 10 S. Car. 278. mission of the material facts stated in Compare Crone i'. Dawson, 19 Mo. the complaint. Cragin z'. Carleton, 21 App. 214. See also Russell z'. FarquMe. 492; St. Louis Ins. Co.z'. Cravens, har, 55 Tex. 355. 69 Mo. 72.

6. Nason i'. Bull, 26 Ark. 164; In re 2. Spencer I'. Dearth, 43 V't. 98; Warfield's Will, 22 Cal. 64; Jackson 7'. Vaughan 2. Phebe, I 7'

Mart. & Y Cullum, 2 Blackf. (Ind.) 228; s. C., 18 (Tenn.) 1; s. c., 17 Am. Dec. 770. Am. Dec. 158; Stockbridge 7'. West

Such evidence is admissible upon a Stockbridge, 12 Mass. 400; Tillotson 7. question of public highway, when Warner, 3 Gray (Mass.) 574; Pruden claimed by prescription. Fowler ?'. 7'. Alden, 23 Pick. (Mass.) 187; JackSavage, 3. Conn. 96; Reed z'. Jackson, son z'. Crawfords, 12 Wend. (N. Y.)


533; Newcomb 7'. Drummond, 4 Leigh A judgment upon the settlement of a (Va.) 57: Heany 2. Parker, 27 Q. B. pauper is conclusive against the town (l'. Can.) 513. Compare Walton v. in all other actions regarding the same McKesson, 64 N. Car. 77. See genquestion. Gibson z'. Nicholson, 2 S. & erally Lost PAPERS. Ř. (Pa.) 422; Dorset v. Manchester, 3 7.1 Greenl. Ev., $$ 84, 509. See

generally ANCIENT DOCUMENTS, vol. 3. i Whart. Ev., 9 824; Rutherford z'.

1, p. 565. Crawford, 53 Ga. 13S; State z'. Rugan, 8. Kerby 7'. Elliott, 13 Q. B.(U.Can.) 6S Mo. 214.

367; 1 Greenl. Ev., Š 513; 1 Whart. “Copies of the record are: Ist, ex- Ev. (3rd ed.), § 827 a. emplifications; 2nd, copies inade by an 9. The certificate must appear to be

1 East 355

Vt. 370.

« PreviousContinue »