Latterett v. Cook

1 Iowa 1

Opinion

Weight, C.- J.

The objections urged against the correctness of the judgment below, are quite numerous, and without specifying each in detail, we shall consider them in such connection as will best conduce to a clear -understanding of tbe points decided.

At tbe time tbe petition was filed, plaintiff accompanied it* with wbat purported to be a transcript of tbe judgment sued on. This consisted of a declaration in assumpsit and tbe judgment tbereon, being against defendant and in favor of plaintiff. Tbe authentication of tbis record we shall refer to hereafter. On tbe trial of tbe cause, it appears that said transcript, so attached to plaintiff’s petition, was introduced in evidence, as also a further or amended transmit, which, in addition to tbe declaration and judgment, contained in tbe first, also contained a copy of tbe original writ or summons, and tbe service tbereon. To tbe introduction of tbe second transcript defendant objected, for tbe reason that tbe first imported absolute verity on its face; and that no amended transcript could be introduced to supply any omissions or defects of tbe first — also, because it was not a transcript of tbe whole record, but only a portion thereof.

We think these objections were correctly overruled. While tbe first transcript did import verity, it did' not import to be all tbe record. Though it was certified to be a true transcript of the declaration and judgment, it did not profess to contain tbe whole truth of tbe record. Tbe second contained tbe same judgment — the same declaration-arid in addition thereto, copies of tbe original writ and service. It is not tbe evidence in tbe case that tbe plaintiff is to attach to bis petition, but a copy of tbe instrument or account on which be brings bis suit. Tbe object is, to give the defendant notice of tbe cause of action, and not to give him tbe evidence to sustain it. Suppose tbe plaintiff bad filed a copy of tbe judgment sued on, and bad afterwards obtained and introduced a transcript of tbe declaration, writ, service, judgment, and everything else that might be of file in tbe particular case. Wbat rule should exclude it ? .We are aware of none, nor do we see bow such a rule could be sustained by any fair and legitimate reasoning. Tbe obtaining of a perfect transcript of tbe entire record after suit brought, does not make tbe judgment sued on any less a verity than if obtained before. For the purposes contemplated by section 1750 of the Code, the record attached to this petition 'was sufficient. The subsequent transcript did not, nor was it designed to supply any defects in that record, so far as to change it, or to make it another and different cause of actionbut was only a more complete transcript of the same record and proceeding. Neither are we aware that it was necessarily incumbent on the plaintiff to obtain a transcript of the whole record; or, if it was, that it should all be in one transcript. He might have contented himself with introducing the last record, but he appears to have introduced both, and we see no reason for excluding the second. It was only necessary for the court to be satisfied with the verity of the record; and, if so satisfied, it has ever been held that it may be admitted, though the copy was on three distinct sheets of paper. 2 Wheel. Or. Cas. 326, 328; 4 Cowen & Hill’s Evidence, 322.

It was next objected that neither of the transcripts were admissible, by reason of defects in the certificates of the judge. - One transcript purports to have the certificate of “ Stephen R. Haines, a presiding judge,” and the other, that of “Zenas S. Crane, one of the judges,” &c. The objection is, that neither of these certificates appear to be signed and executed by the judge, chief justice, &c., as provided by the law of Congress on this subject. Without pretending to determine the sufficiency of these certificates under the act of May 26, 1790, we think they were sufficient under section 2348 of the Code. This section provides, “ that the judicial records of a sister state, may be proved by the attestation of the clerk and the seal of the court annexed, together with a certificate of a judge, chief justice or presiding magistrate, that the attestation is in due form of law.” This section merely regulates the admission of evidence, and we see no reason why it is not entirely competent for the legislature to control this matter as evidence within our own limits and in our own courts. The first certificate is signed by a presiding judge, and the second by “ one of the judges,” and inasmuch as the first uses the exact language of our law, and, as far as relates to tbe second, tbe officer could not be one of tbe judges, without being a judge, we think this objection was not well taken. Tbe method prescribed by Congress is not exclusive of any that tbe states may adopt with reference to such authentication in their own courts. See 1 Greenleaf Ev. §§ 489, 505, and cases cited in the last section.

It is further urged against the correctness of this judgment, that' the' record which was introduced in evidence and relied upon, does not show that the court rendering the judgment sued on, had jurisdiction of the person of the defendant, or subject matter of the suit.

So far as relates to the question of jurisdiction over the person, the record shows that a summons was issued in the case, under the seal of the inferior- court of Essex county, New Jersey, and returned by the officer “ served,” to which hq signs his name, and it appears that he was the sheriff of the county. Can our courts inquire into the sufficiency of that return, where there is no evidence offered by the defendant, by the statutes of New Jersey or otherwise, to show its incorrectness or contradict it? We think they cannot. Whether that return was sufficient evidence of service under the .1-aws of the state where the judgment was rendered, was a question that might be raised by the appellate court of such state, but not here, merely upon the record, without further or other proof. We are not prepared to say, that a judgment rendered -against a defendant upon such a return would be void or a nullity. The court rendering the judgment appears to have determined that there was such personal service as to authorize it to proceed to the rendition of a judgment, and until such cause was revised by the proper appellate court, we see no good reason against presuming at least in favor of the jurisdiction of the court over the person of the defendant, where no proof to the contrary is introduced. The case of Wilson v. Jackson, Adm'r, 10 Mis. 329, was in many respects very similar to this. In that case, the transcript showed that the writ had been returned by the sheriff “executed.” In a suit on such judgment rendered against tlie defendant in Virginia, the Supreme Court of Missouri held, that the judgment of a sister state is prima facie evidence of jurisdiction of the person, where the writ was returned “ executed,” though the writ may be informal. See also, as to the manner of taking advantage of a judgment rendered upon an imperfect return, 6 Pick. 232. Did this record show affirmatively that the writ was returned not found, it would present an entirely different question. On the contrary, in addition to the return above referred to, the judgment itself recites that it was rendered on the day On which the defendant had been held to answer. The cases in 2 Blackford, 82 and 108, will be found to be cases where there was no service, and the record disclosed that fact. They, therefore, have no fair analogy to the case at bar.

We next consider the question of jurisdiction over the subject matter, which has been raised here in the argument, as to courts of superior and inferior, special and limited jurisdiction, and the presumptions that do and do not arise in favor of the same. An examination of the doctrines that obtain on this subject becomes entirely unnecessary in this case. It appears that the defendant, in his answer, set up two defences — one denying the existence of any such record, •and the other alleging that he never was served with process in the original proceeding, and averring generally that the court in New Jersey had not jurisdiction of his person. There is no defence, answer or plea, urging or pretending that the court in New Jersey had not jurisdiction of the subject matter. Having made no such issue in the court below, he cannot now urge it in this court. It was his duty to have raised the question of jurisdiction as to the subject matter in the court below, so that plaintiff, if it was necessary, could have introduced other testimony, by the statutes of New Jersey or otherwise, to show such jurisdiction. We do not intimate an opinion as to the necessity of such proof outside of the record, even if such defence had been pleaded; but hold that pleas in bar of suits commenced on such judgments, must deny, by clear and positive averments, every fact which, would go to show jurisdiction, whether with, reference to the person or the subject matter. And this, we think, is clear from the reason of the thing, as well as from authority. 2 Kent, 261; 1 Hall, 155 ; Code, 1742.

The last question relates to the admission of the testimony of one Webster. It appears that the plaintiff introduced the deposition of this witness for the purpose of proving the statutes of New Jersey, or so much thereof as related to,, the manner of service of process and the return thereof. We think this testimony was inadmissible. Our'Code, section 2448, provides for the manner of proving- such statutes. This is done by producing printed copies. While this would not exelude other methods of proof, such as producing copies duly authenticated under the seal of the state, as contemplated by the act of Congress, yet we do not think that the method resorted to in this case was correct. The written law or statutes of another state cannot be so proved. We refer on this subject to 1 Greenleaf, 189 ; 4 Phil. Ev. (Cow. & Hill’s notes) 329-82 ; Robinson v. Clifford, 2 Wash. C. C. 1; Kenny v. Clarkson et al., 1 Johns. 385 ; 4 Wash. C. C. 531. We have, however, shown herein that the transcript, including the writ and the return, was properly admissible without reference to this testimony. No evidence appears tp have been introduced aliunde to impeach its verity or conclusiveness. This testimony was, therefore, entirely immaterial, and could not make more perfect the plaintiff’s right to recover. Without reference to it the judgment is correct, and should have been rendered, as it was, on the transcript alone. Under such circumstances; this court would not disturb the judgment below. We understand this rule to be well settled. See Wilkerson v. Daniels, 1 G. Greene, 179. Also, as to this point, and questions much analogous — as where it is apparent that no prejudice was worked to the party complaining-see Borby v. Chesapeake Ins. Co., 3 Gill & Johns. 450; Overby v. Paine, 3 J. J. Marsh. 717; Smith v. Rencastle, 3 Halst. 357; Billisime v. McCoy, 1 Mis. 318 ; Breckfold v. Gosham, 6 Mass. 445; Pate v. Spots, 6 Munf. 394; Hemmenway v. Hickes, 4 ; Miller v. Starks, 13 Johns. 517; Hunter v. Jonest 6 Rand. 541; Reed v. McGrew, 5 Ham. 375; Philips v. Jordan, 3 Stewart, 38; Fauleon v. Haines, 2 H. & M. 550 ; State v. Beeman, 5 Blackf. 222.

Having thus disposed of the various points urged by the appellant, we are brought to the conclusion that this judgment must be affirmed.

Judgment affirmed..