Gilman v. Gilman

126 Mass. 26, 1878 Mass. LEXIS 158

• Court: Massachusetts Supreme Judicial Court
• Decided: November 25, 1878
• Status: Published

Opinion

Gray, C. J.

It has been often decided by this court, that the record of a judgment of a court of another state is entitled to full faith and credit in this Commonwealth, under art. 4, § 1, of the Constitution of the United States, only when the court had jurisdiction of the cause and of the parties; and that the defendant, when sued upon the judgment here, may plead and prove, notwithstanding any recitals in the record thereof, that he was not duly served with process, and did not authorize an attorney to appear for him, in the action in which the judgment was rendered. Gleason v. Dodd, 4 Met. 333. Phelps v. Brown, 9 Cush. 390. Carleton v. Bickford, 13 Gray, 591. McDermott v. Clary, 107 Mass. 501. It is only in the case of a domestic judgment chat the defendant is put to his writ of error. Bodurtha v. Goodrich, 3 Gray, 508. Finneran v. Leonard, 7 Allen, 54. Hendrick v. Whittemore, 105 Mass. 23, 28. Brainard v. Fowler, 119 Mass. 262. 265.

The same view of the effect of a judgment of a court of one state, when sued on in another, has heen affirmed, upon full consideration, by the Supreme Court of the United States, in two recent decisions, in one of which the court said that “ the party assailing the judgment should have shown that the counsel who appeared was not employed by the defendant,” and in the other, that “ in the case of non-residents, like that under consideration, personal service cannot be dispensed with, unless the defendant voluntarily appears.” Thompson v. Whitman, 18 Wall. 457, 464. Knowles v. Gaslight & Coke Co. 19 Wall. 58, 62.

The attachment and levy of execution upon the defendant’s property in the State of Maine did not make the judgment bind ing upon him personally. Woodward v. Tremere, 6 Pick. 354. Boyd v. Urquhart, 1 Sprague, 423.

Exceptions overruled, with double costs.