Evans ex rel. Bell v. Instine

6 Ohio 117

• Court: Ohio Supreme Court
• Decided: December 15, 1833
• Status: Published

Opinion

Judge Wright

delivered the opinion of the court:

Counsel have argued this demumsr, as if it raised the question, how far a judgment, rendered in a sister state, without service of ^process, or appearance by the defendant, was conclusive in [118-its character? But, in our opinion, that question is not before us. The two judgments upon which the plaintiff counts, he alleges remain in full force of record in Virgin^.

The defense impeaches the plaintiff’s right to recover, because-the process was not served upon him, and because he never appeared to, or had knowledge of the suit. This matter, if true, appears on the record, which, by the profert, is offered to the defendant’s inspection. It can only be brought to the view of the court, as a defense by oyer, and setting it out in the plea. All allegations, in pleading of matter of record, present an issue for the court, to be determined by inspection; but this record is not yet presented to our view. The pleader can not, as in this case, rely upon things of record, as if they were in pais. The rules of pleading ■do not permit such a course. The demurrer only admits what is well pleaded ; and as this defense is not well pleaded, it receives no aid from the technical admission. Taking the plea as upon a general demurrer, a majority of us think it insufficient. This opinion renders it unnecessary to examine the cause offered for demurrer. Judgment for plaintiff.