COOPER, C.
This action was brought to recover upon two judgments, rendered by a justice of the peace in the city of St. Louis, in the state of Missouri.
Plaintiff! recovered judgment, from which defendant appeals. The record shows that the defendant, as a defense to the judgments, alleged affirmatively in his answer that the judgments were procured in the justice court, in the state of Missouri, upon two certain promissory notes, which notes had been by defendant fully paid at the time the judgments were procured; that although the said notes had been so paid, the holder thereof had kept them, refused to surrender them, and ■on the tenth day of August, 1897, the day this defendant was leaving the city of St. Louis, the suits were brought in the justice court, and summons served on defendant. In other words, the affirmative part of the answer contained matter which, if true, would have constituted a defense to the original actions in the justice’s court. The court below, on motion of plaintiff, struck out such affirmative part of the answer, and this ruling is the principal question in the case. Can a defendant, when served in this state upon a judgment rendered in a justice court in a sister state, interpose a defense going to the merits of the action in which the justice’s judgment was rendered? In the earlier cases the courts of England treated foreign judgments as only
prima facie
evidence, and allowed a defense to them upon the merits of the original case in which the judgments were obtained. One of the old familiar eases is
Walker
v.
Witter,
1 Doug. 1, decided in the court of Kings Bench in 1778, upon appeal from a judgment given upon a judgment rendered in the supreme court of Jamaica. After much argument, it was finally held by Lord Mansfield, the other judges agreeing, that while such judgments constituted good grounds of action, they might be examined upon their merits and the facts fully gone into. In
Galbraith
v.
Neville,
1 Doug. 5, (note,) Lord Kenyon expressed serious doubts concerning the doctrine of
Walker
v.
Witter,
and in course of time the
English judges receded from the rule of that case. As disapproving its doctrine, and affirming the conclusiveness of foreign judgments as to the merits, we find the language of Lord Ellenborough, in
Tarleton
v.
Tarleton,
4 Maule & S. 20; of Lord Hardwicke, in
Boucher
v.
Larson,
Cas. t. Hardw. 85, 89; and of Lord Chancellor King, in
Burroughs
v.
Jamineau,
Mos. 1, until, in 1844, in
Henderson
v. Henderson, 6 Q. B. 288, Lord Denman intimated that a plea to an action on a colonial judgment ought to steer clear of the merits, in which case he said: “For whatever constituted a defense in that court ought to have been pleaded there.”
Finally; the doctrine of
Walker
v.
Witter
was overthrown in
Bank of Australia
v.
Nias,
16 Q. B. 717, and the rule directly adjudged that a plea to the merits upon a colonial judgment otherwise valid was bad, and the law has since been regarded as so settled in England.
In discussing the question, it is said in Bigelow on Estoppel (p.261): “The result, then, finally reached in the courts of England is, that foreign judgments, strictly so called, and colonial judgments stand in the same category and on a perfect equality, so far as the matter of conelusiveness is concerned. In either case any plea which goes to the merits of the action upon which the judgment was rendered, whether impeaching the ruling upon the law or the decision upon the facts, is bad, provided the judgment was not otherwise subject to impeachment.”
The doctrine of the early English cases was at first almost universally accepted in this country, particularly before the adoption of the constitution.
The fourth article of the constitution, in the first section, provides that full faith and credit shall be given in each state to the records and judicial proceedings of every other state. The American courts have, since the adoption of the constitution, almost without exception, followed the modern English rule and the plain dictates of the constitution. In
Taylor
v.
Bryden,
8 Johns. 175, decided in 1811, Chancellor Kent said: “To try over again, as of course, every matter of fact which had been duly decided by a competent tribunal, would be disregarding the comity which we justly owe to the courts of other states, and would be carrying the doctrine of re-examination to an oppressive extent. It would be the same
as granting a new trial in every case and upon every question of fact.”
In
Lazier
v.
Wescott,
26 N. Y. 146,
the question is fully discussed, and the rule adopted that the judgment of a foreign court is conclusive upon the merits, subject to be impeached by proof that the court had no jurisdiction of the subject-matter or of the person of the defendant, or that the judgment was fraudulently obtained. Among the many cases affirming the rule may be mentioned
Silver Lake Bank
v.
Ha/rding,
5 Ohio, 545;
Glass
v.
Blackwell,
48 Ark. 50;
Beal
v.
Smith,
14 Tex. 305;
Monroe
v.
Douglas,
4 Sand. Ch. 126.
In Chitty on Contracts (11th Am. ed., vol. 2, p. 1177) the rule is thus clearly stated: “But the rule may now be taken to be: that if a question has been decided by such a court, in a proceeding
in personam,
between parties properly brought before it, this will preclude an inquiry in our courts between the same parties into the merits of the case upon the facts so found; for this reason, that whatever constituted a defense in the foreign court, ought to have been pleaded there. ’ ’
The rule as above stated is made the rule in this state by our codes. It is provided in the Code of Civil Procedure (sec. 1913) that, with certain exceptions, the effect of a “judicial record of a sister state is the same in this state as in the state where it was made.” It is provided in the Code of Civil Procedure (see. 1908) that a judgment in this state, by a court having jurisdiction, is conclusive in respect to the matter directly adjudged “between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity, provided they have notice, actual or constructive, of the pendency of the action or proceeding. ’ ’
And section 1916 provides that “'Any judicial record may be impeached by evidence of a want of jurisdiction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings. ’ ’
In this case the justice court had jurisdiction. The defendant alleges that he was served with summons. He ap
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COOPER, C.
This action was brought to recover upon two judgments, rendered by a justice of the peace in the city of St. Louis, in the state of Missouri.
Plaintiff! recovered judgment, from which defendant appeals. The record shows that the defendant, as a defense to the judgments, alleged affirmatively in his answer that the judgments were procured in the justice court, in the state of Missouri, upon two certain promissory notes, which notes had been by defendant fully paid at the time the judgments were procured; that although the said notes had been so paid, the holder thereof had kept them, refused to surrender them, and ■on the tenth day of August, 1897, the day this defendant was leaving the city of St. Louis, the suits were brought in the justice court, and summons served on defendant. In other words, the affirmative part of the answer contained matter which, if true, would have constituted a defense to the original actions in the justice’s court. The court below, on motion of plaintiff, struck out such affirmative part of the answer, and this ruling is the principal question in the case. Can a defendant, when served in this state upon a judgment rendered in a justice court in a sister state, interpose a defense going to the merits of the action in which the justice’s judgment was rendered? In the earlier cases the courts of England treated foreign judgments as only
prima facie
evidence, and allowed a defense to them upon the merits of the original case in which the judgments were obtained. One of the old familiar eases is
Walker
v.
Witter,
1 Doug. 1, decided in the court of Kings Bench in 1778, upon appeal from a judgment given upon a judgment rendered in the supreme court of Jamaica. After much argument, it was finally held by Lord Mansfield, the other judges agreeing, that while such judgments constituted good grounds of action, they might be examined upon their merits and the facts fully gone into. In
Galbraith
v.
Neville,
1 Doug. 5, (note,) Lord Kenyon expressed serious doubts concerning the doctrine of
Walker
v.
Witter,
and in course of time the
English judges receded from the rule of that case. As disapproving its doctrine, and affirming the conclusiveness of foreign judgments as to the merits, we find the language of Lord Ellenborough, in
Tarleton
v.
Tarleton,
4 Maule & S. 20; of Lord Hardwicke, in
Boucher
v.
Larson,
Cas. t. Hardw. 85, 89; and of Lord Chancellor King, in
Burroughs
v.
Jamineau,
Mos. 1, until, in 1844, in
Henderson
v. Henderson, 6 Q. B. 288, Lord Denman intimated that a plea to an action on a colonial judgment ought to steer clear of the merits, in which case he said: “For whatever constituted a defense in that court ought to have been pleaded there.”
Finally; the doctrine of
Walker
v.
Witter
was overthrown in
Bank of Australia
v.
Nias,
16 Q. B. 717, and the rule directly adjudged that a plea to the merits upon a colonial judgment otherwise valid was bad, and the law has since been regarded as so settled in England.
In discussing the question, it is said in Bigelow on Estoppel (p.261): “The result, then, finally reached in the courts of England is, that foreign judgments, strictly so called, and colonial judgments stand in the same category and on a perfect equality, so far as the matter of conelusiveness is concerned. In either case any plea which goes to the merits of the action upon which the judgment was rendered, whether impeaching the ruling upon the law or the decision upon the facts, is bad, provided the judgment was not otherwise subject to impeachment.”
The doctrine of the early English cases was at first almost universally accepted in this country, particularly before the adoption of the constitution.
The fourth article of the constitution, in the first section, provides that full faith and credit shall be given in each state to the records and judicial proceedings of every other state. The American courts have, since the adoption of the constitution, almost without exception, followed the modern English rule and the plain dictates of the constitution. In
Taylor
v.
Bryden,
8 Johns. 175, decided in 1811, Chancellor Kent said: “To try over again, as of course, every matter of fact which had been duly decided by a competent tribunal, would be disregarding the comity which we justly owe to the courts of other states, and would be carrying the doctrine of re-examination to an oppressive extent. It would be the same
as granting a new trial in every case and upon every question of fact.”
In
Lazier
v.
Wescott,
26 N. Y. 146,
the question is fully discussed, and the rule adopted that the judgment of a foreign court is conclusive upon the merits, subject to be impeached by proof that the court had no jurisdiction of the subject-matter or of the person of the defendant, or that the judgment was fraudulently obtained. Among the many cases affirming the rule may be mentioned
Silver Lake Bank
v.
Ha/rding,
5 Ohio, 545;
Glass
v.
Blackwell,
48 Ark. 50;
Beal
v.
Smith,
14 Tex. 305;
Monroe
v.
Douglas,
4 Sand. Ch. 126.
In Chitty on Contracts (11th Am. ed., vol. 2, p. 1177) the rule is thus clearly stated: “But the rule may now be taken to be: that if a question has been decided by such a court, in a proceeding
in personam,
between parties properly brought before it, this will preclude an inquiry in our courts between the same parties into the merits of the case upon the facts so found; for this reason, that whatever constituted a defense in the foreign court, ought to have been pleaded there. ’ ’
The rule as above stated is made the rule in this state by our codes. It is provided in the Code of Civil Procedure (sec. 1913) that, with certain exceptions, the effect of a “judicial record of a sister state is the same in this state as in the state where it was made.” It is provided in the Code of Civil Procedure (see. 1908) that a judgment in this state, by a court having jurisdiction, is conclusive in respect to the matter directly adjudged “between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity, provided they have notice, actual or constructive, of the pendency of the action or proceeding. ’ ’
And section 1916 provides that “'Any judicial record may be impeached by evidence of a want of jurisdiction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings. ’ ’
In this case the justice court had jurisdiction. The defendant alleges that he was served with summons. He ap
peared in the original eases before the justice and defended the actions, and then and there was the time for him to have shown, if he could do so, that the notes had been paid. He will not now be heard as to the merits of the cases in which the judgments were rendered.
It is earnestly contended that the plaintiff was required to prove that the justice court was legally brought into existence, by being divided into a justice district of the city of St. Louis, under the act providing for its creation, and a report of certain judges of the city. The claim is made that the evidence received was not the primary evidence, and that the report duly filed, or a certified copy thereof, was the best evidence; but that the court allowed the deposition of the justice for the purpose of proving such jurisdiction and districting the city. We deem it sufficient to say that it is expressly provided in the Code of Civil Procedure (sec. 1922) that “such judgment, proceedings, and jurisdiction may also be proved by the justice himself, on the production of his docket, or by a copy of the judgment, and his oral examination as a witness.” Not only this, but the objection made to the evidence was, that it is irrelevant, incompetent, and immaterial. It was not objected to upon the ground that it was not the best evidence.
(Braly
v.
Reese,
51 Cal. 463;
Everson
v.
Mayhew,
85 Cal. 10.)
The general objection that the “court erred in all respects to which exceptions were taken by this appellant, as described in the record herein,” does not demand of us an examination. We will not, upon such assignment, examine the record to see what exceptions were taken by appellant.
(People
v.
Cebulla,
137 Cal. 314.)
The judgment should be affirmed.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
McFarland, J., Henshaw, J., Lorigan, J.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 28th of February, 1903:—