Bigger v. Hutchings

2 Stew. 445

Opinion

By JUDGE CRENSHAW.

*

By the opinion pronounced at the present term in the case-of Miller v. Pennington, it is settled, “that the exemplification of a judgment in attachment from a sister State, is prima faeié evidence of its validity, and that to shew it to be otherwise, it is necessary that the defendant should impugn it by special plea.” According to this adjudication, the presiding Judge was correct in giving judgment for the plaintiffs, on the plea of nul tiel record, and the plaintiff in error has consequently abandoned this assignment.

On the second assignment of error, we are of opinion, that it was erroneous to sustain the demurrer to the plea of the defendant, which alleged that her intestate was a citizen resident in Alabama, and had no notice of the commencement of the suit in Georgia.

The decision in the case of Miller v. Pennington, to which reference has just been had, and I might add, the reasoning in the determination at the present term, in the case of Lucas v. The Bank of Darien,b strongly imply that this was a good plea in bar to the action. In the mer case, it is expressly said, that the validity of such judgment may be impeached by special plea, and in the latter, the principles settled maintain the position, that where -the defendant is out of the jurisdiction of the Court, and lias no opportunity to defend the suit, no personal service of the writ, or no notice of its commencement, he may plead those facts and circumstances in bar, to an ac-^on on the judgment. If the defendant continually reShumvoay v. Stillman,a this is recognised as the correct doctrine in New York, and it was determined that a plea similar to the present on„e Would be good, though in that case, the plea was held bad, because it did not aver that the defendant had no notice. sided in Alabama, and had no notice of the commencement of the suit in Georgia, it is a legal inference that he had no opportunity to defend the suit there, and that consequently the judgment cannot be conclusive on him. In

As to the third assignment of error, we are convinced that the presentation of the demand was not such an one as is contemplated by the statute. The statute declares, that claims not presented to the administrator within eighteen monlhs alter the grant of administration, shall be forever barred from a recovery, except debts contracted out of the State, Sic.

The Legislature who enacted the law, intended something more certain and definite than a mere notice that there was a claim against the estate. They clearly intended that the administrator should be furnished with such vouchers or reasonable evidence, as might induce a belief that the claim was just; with something more than the mere service of a writ. The original bond, note, or contract on which the debt accrued, or at least an abstract, or copy, should be presented as evidence of the claim, and if the claim arise on an open account, unliquidated demand, verbal contract, or legal liability, it should be reduced to writing, and be so presented.

We are further of opinion, that if the debt were contracted out of the State, this would be a matter of special replication to the defendant’s plea, and cannot be legally-inferred from the circumstance that the judgment was obtained in Georgia.

From the foregoing premises, the following deductions are the necessary result, and may now be considered as settled; 1st. That a judgment obtained in attachment in another State, is prima facie evidence of its validity; 2d. That such a judgment may be impeached by the plea, that the defendant continually residing here, had no notice of the commencement of the-suit; and 3d. That the suing out a previous writ for the same demand, within the eighteen months, does not take the case out of the statute of non-claim. **”

It will be readily perceived, that some of the principles decided by the 'opinion which was pronounced in this case two years ago, are now overruled. New lights since that time received, subsequent decisions, and mature reflection, have brought us to our present conclusion. The question was then new; it has been since debated in several cases, and many convincing- authorities have been adduced which would well warrant a change of opinion in a few particulars.

For the reasons above mentioned, this Court are now unanimous in reversing the judgment of the Cii-cuit Court, and remanding the cause.

Judge Saffold not sitting.

Ante p.289.

This case was argued at the last term, and retained under advisement and re-argued the present term.

4 Cow. 392.