Bliss, Judge,
delivered the opinion of the court.
This was a suit upon the record of- a judgment rendered in Mississippi, and though many questions are raised, I will consider but one. For one of his defenses the defendant set forth the alleged indebtedness for which the judgment was rendered, charged that it was paid off and discharged before the suit was instituted; that he had left Mississippi and was not a resident of that State when it was instituted; that no service of process was had upon him; that he did not know of the suit and never authorized any one to appear to it for him. The Mississippi record shows appearance by attorney and plea, and that part of the answer setting forth the above facts was, on motion of plaintiff, stricken out. The present record shows that it was not stricken 'out for defect or informality, but upon the ground that the judgment could not be thus impeached.
Counsel have discussed the vexed question whether this Mississippi record imported absolute verity, so that the recital of service and defendant’s appearance could not be contradicted, and have cited authorities upon both sides. The affirmative of this question was taken by this court in Warren v. Lusk, 16 Mo. 102, and if the language of Judge Scott is to be taken literally, a judgment, though rendered without appearance in fact or notice to defendant, must be paid by him, or he must go to the State where it was . rendered — perhaps to Oregon or Maine — and move to set it aside.
But we are not to understand the language of the court as shutting off equitable defenses. That question was not before it, and when the judge says that recitals import absolute verity, and that defendant is estopped from disputing them, he only means [74]*74that the judgment is to have the force of a domestic one, which must he attacked by a direct proceeding.
That a judgment may be impeached for fraud or mistake cannot be questioned. (Rogers v. Gwinn, 21 Iowa, 58; Pierce v. Olney, 20 Conn. 544; Christmas v. Russell, 5 Wall. 270.) If it be a domestic one, a motion, if made in season, will reach it, and is a proper remedy. (Downing v. Still, 43 Mo. 309.) It may also be set aside by error or bill. “ Courts are in the constant habit of relieving parties upon equitable terms from judgments rendered against them in consequence of the fraudulent acts of the successful party or his attorney” (Rogers v. Gwinn, supra); and what greater fraud than falsely to enter an appearance in order to obtain jurisdiction over a defendant ?
The only question, then, is, whether the judgment may be attacked, and the want of jurisdiction and the fraudulent simulated appearance be shown by answer, or whether the party, who is not supposed to know of its existence until sued upon it, shall be compelled to go to the State where it was rendered, and there proceed directly to overthrow it. I infer that the latter will not be required, from several considerations. First, the suit is upon a judgment. If obtained by fraud and without jurisdiction, it is no judgment — is void, and will be so declared if the fact is made to appear; the defense goes to its very existence. Second, citizens are not driven to foreign States to protect their’ rights. If they have a legal right, or are being subjected to a wrong, they may look for protection to the tribunal having jurisdiction over them and the subject-matter, if the opposite party has placed himself within this jurisdiction. Third, it would, in many cases, be oppression or an absolute denial of justice. The inconvenience and expense of going to a distant State, of there employing counsel and litigating the matter, would often be so great that the "suffering party would rather pay a pretty large judgment, although fraudulently obtained, than to undertake to set it aside. And "besides, he might not succeed in his direct proceeding abroad until long after it had been collected at home. Fourth, the statute expressly authorizes equitable defenses, and provides for affirmative relief, where, under the old system, a bill was necessary under [75]*75which a suit in chancery was instituted. Now, i£ the subject-matter of the bill shows a defense to a pending suit, it maybe set ■out as a defense by way of answer.
The error of the court below was in striking out a defense of this character. It did not distinguish between the old plea in bar and the setting forth of facts which in equity should destroy the ■judgment. We may adhere to Warren v. Lusk, and still permit a party to allege and show that the judgment was obtained by such fraud as went to the jurisdiction of the court, and to do this we will not compel him to go to the situs of a foreign judgment, but permit him to make it as a defense whenever and wherever such judgment is sought to be enforced. I say nothing of any 'other fraud except that which would go to the jurisdiction. If that was obtained, the party may be required to attack the judgment where rendered. But in this view it would not be sufficient to simply set out the fraudulent appearance, but he must show that he was injured by it; for if he has no defense to the claim, there is no warrant for equitable interference. In the case at bar he has done both, and if the facts set forth in the answer which was stricken out are true, the plaintiff is not entitled to judgment.
I have said nothing to impugn the authority of Warren v. Lusk in a proper case. But if it is considered to warrant the action of the court below in the case at bar, it so far goes beyond the received interpretation of the constitutional provisions requiring credit to be given to the judgments of other States. The rule is that they are to be just as conclusive as domestic judgments, with this exception, that “they are open to inquiry as to the jurisdiction and notice to defendant” (Christmas v. Russell, 5 Hall, 305), and this inquiry can be made notwithstanding the recitals. (Harris v. Hardman, 14 How., U. S., 334, quoting and approving the emphatic language of Marcy, Justice, in Starbuck v. Murray, 5 Wend. 156; Kerr v. Kerr, 41 N. Y. 272; Rape v. Heaton, 9 Wis. 328; Pollard v. Baldwin, 22 Iowa, 328.)
The reasoning of Marcy in Starbuck v. Murray, as quoted and approved in Harris v. Hardman, is unanswerable. After citing many authorities he says: “ This doctrine does not depend merely iipon adjudged cases. It has a better foundation; it rests upon [76]*76a principle of natural justice. No man is to be condemned without the opportunity of making a defense, or to have his property taken from him by a judicial sentence without the privilege of showing if. he can the claim against him to be unfounded.
“ But it is contended that if the other matter may be pleaded by defendant, he is estopped from asserting anything against the allegation contained in the'record. It imports perfect verity, it is said, and the parties to it cannot be heard to impeach it. It appears to me that this proposition assumes the very fact to be established which is the only question in issue. For what purpose does the defendant question the jurisdiction of the court? Solely to show that its proceeding's and judgments are void, and therefore that the supposed record is in truth no record.
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Bliss, Judge,
delivered the opinion of the court.
This was a suit upon the record of- a judgment rendered in Mississippi, and though many questions are raised, I will consider but one. For one of his defenses the defendant set forth the alleged indebtedness for which the judgment was rendered, charged that it was paid off and discharged before the suit was instituted; that he had left Mississippi and was not a resident of that State when it was instituted; that no service of process was had upon him; that he did not know of the suit and never authorized any one to appear to it for him. The Mississippi record shows appearance by attorney and plea, and that part of the answer setting forth the above facts was, on motion of plaintiff, stricken out. The present record shows that it was not stricken 'out for defect or informality, but upon the ground that the judgment could not be thus impeached.
Counsel have discussed the vexed question whether this Mississippi record imported absolute verity, so that the recital of service and defendant’s appearance could not be contradicted, and have cited authorities upon both sides. The affirmative of this question was taken by this court in Warren v. Lusk, 16 Mo. 102, and if the language of Judge Scott is to be taken literally, a judgment, though rendered without appearance in fact or notice to defendant, must be paid by him, or he must go to the State where it was . rendered — perhaps to Oregon or Maine — and move to set it aside.
But we are not to understand the language of the court as shutting off equitable defenses. That question was not before it, and when the judge says that recitals import absolute verity, and that defendant is estopped from disputing them, he only means [74]*74that the judgment is to have the force of a domestic one, which must he attacked by a direct proceeding.
That a judgment may be impeached for fraud or mistake cannot be questioned. (Rogers v. Gwinn, 21 Iowa, 58; Pierce v. Olney, 20 Conn. 544; Christmas v. Russell, 5 Wall. 270.) If it be a domestic one, a motion, if made in season, will reach it, and is a proper remedy. (Downing v. Still, 43 Mo. 309.) It may also be set aside by error or bill. “ Courts are in the constant habit of relieving parties upon equitable terms from judgments rendered against them in consequence of the fraudulent acts of the successful party or his attorney” (Rogers v. Gwinn, supra); and what greater fraud than falsely to enter an appearance in order to obtain jurisdiction over a defendant ?
The only question, then, is, whether the judgment may be attacked, and the want of jurisdiction and the fraudulent simulated appearance be shown by answer, or whether the party, who is not supposed to know of its existence until sued upon it, shall be compelled to go to the State where it was rendered, and there proceed directly to overthrow it. I infer that the latter will not be required, from several considerations. First, the suit is upon a judgment. If obtained by fraud and without jurisdiction, it is no judgment — is void, and will be so declared if the fact is made to appear; the defense goes to its very existence. Second, citizens are not driven to foreign States to protect their’ rights. If they have a legal right, or are being subjected to a wrong, they may look for protection to the tribunal having jurisdiction over them and the subject-matter, if the opposite party has placed himself within this jurisdiction. Third, it would, in many cases, be oppression or an absolute denial of justice. The inconvenience and expense of going to a distant State, of there employing counsel and litigating the matter, would often be so great that the "suffering party would rather pay a pretty large judgment, although fraudulently obtained, than to undertake to set it aside. And "besides, he might not succeed in his direct proceeding abroad until long after it had been collected at home. Fourth, the statute expressly authorizes equitable defenses, and provides for affirmative relief, where, under the old system, a bill was necessary under [75]*75which a suit in chancery was instituted. Now, i£ the subject-matter of the bill shows a defense to a pending suit, it maybe set ■out as a defense by way of answer.
The error of the court below was in striking out a defense of this character. It did not distinguish between the old plea in bar and the setting forth of facts which in equity should destroy the ■judgment. We may adhere to Warren v. Lusk, and still permit a party to allege and show that the judgment was obtained by such fraud as went to the jurisdiction of the court, and to do this we will not compel him to go to the situs of a foreign judgment, but permit him to make it as a defense whenever and wherever such judgment is sought to be enforced. I say nothing of any 'other fraud except that which would go to the jurisdiction. If that was obtained, the party may be required to attack the judgment where rendered. But in this view it would not be sufficient to simply set out the fraudulent appearance, but he must show that he was injured by it; for if he has no defense to the claim, there is no warrant for equitable interference. In the case at bar he has done both, and if the facts set forth in the answer which was stricken out are true, the plaintiff is not entitled to judgment.
I have said nothing to impugn the authority of Warren v. Lusk in a proper case. But if it is considered to warrant the action of the court below in the case at bar, it so far goes beyond the received interpretation of the constitutional provisions requiring credit to be given to the judgments of other States. The rule is that they are to be just as conclusive as domestic judgments, with this exception, that “they are open to inquiry as to the jurisdiction and notice to defendant” (Christmas v. Russell, 5 Hall, 305), and this inquiry can be made notwithstanding the recitals. (Harris v. Hardman, 14 How., U. S., 334, quoting and approving the emphatic language of Marcy, Justice, in Starbuck v. Murray, 5 Wend. 156; Kerr v. Kerr, 41 N. Y. 272; Rape v. Heaton, 9 Wis. 328; Pollard v. Baldwin, 22 Iowa, 328.)
The reasoning of Marcy in Starbuck v. Murray, as quoted and approved in Harris v. Hardman, is unanswerable. After citing many authorities he says: “ This doctrine does not depend merely iipon adjudged cases. It has a better foundation; it rests upon [76]*76a principle of natural justice. No man is to be condemned without the opportunity of making a defense, or to have his property taken from him by a judicial sentence without the privilege of showing if. he can the claim against him to be unfounded.
“ But it is contended that if the other matter may be pleaded by defendant, he is estopped from asserting anything against the allegation contained in the'record. It imports perfect verity, it is said, and the parties to it cannot be heard to impeach it. It appears to me that this proposition assumes the very fact to be established which is the only question in issue. For what purpose does the defendant question the jurisdiction of the court? Solely to show that its proceeding's and judgments are void, and therefore that the supposed record is in truth no record. If the defendant did not have proper notice of and did not appear to the original action, all the State courts, with one exception, agree in opinion that the paper introduced as to him is no record; but if he cannot show, even against the pretended record, that fact, on the alleged ground of the uncontrovertible verity of the record, he is deprived of his defense by a process of reasoning that to my mind is little less than sophistry. ’ The plaintiffs in effect declare to the defendant the paper declared on is a record because it says you appeared, and you appeared because the paper is a record.”
Reliance is had, in favorof the doctrine of absolute verity, upon Mills v. Duryee, 7 Cranch, 418; but that case has not been generally followed, at least in the sense now sought to be given it. A party about to perpetrate a fraud by obtaining judgment against one without his knowledge, would of course see that the record showed an appearance, and to estop the latter from showing the record to be a nullity would offer a bounty to such frauds. Counsel rely upon Christmas v. Russell, 5 Wallace, but the question could not arise in that ease, inasmuch as the party had appeared and made defense, and upon other questions the record was conclusive.
Judge Adams concurring,
the judgment will be reversed and the cause remanded.
SEPARATE OPINION OF
JUDGE ADAMS.
The general allegation that the judgment was fraudulently [77]*77obtained, taken in connection with the specific charges of the total want of notice and the fraudulent entry of the defendant’s appearance by an attorney not appointed by him, together with the facts alleged in regard to payment, must be looked to as constituting a good equitable defense to this action. Without impugning the doctrine laid down by the Supreme Court of the United States in Mills v. Duryee, 7 Cranch, 481, and afterwards affirmed by this court in several cases, I maintain that judgments of courts of record, whether foreign or domestic, may be impeached and declared void for fraud in actions brought to enforce them in this State. It is the peculiar province of courts of equity to ferret out all questions of fraud, and to set aside all transactions founded in fraud, whether they be the acts of parties in pais, or the solemn adjudications of courts.
It would be strange, indeed, if no redress could be afforded by our own courts against foreign judgments, or judgments of sister States obtained by fraud and imposition, and brought here to be enforced. It may be conceded that at law, where there is no apparent irregularity, such judgments import absolute verity; but in equity they may be set aside when obtained by undue and fraudulent contrivances, in the absence of and without notice to the opposite parties. Our citizens cannot be driven to a foreign court to seek a remedy against such judgments, but may, whenever an action is brought here, set up this equitable defense as a complete bar.
The case of Christmas v. Russell, 5 Wall. 290, is not in conflict with these views. The court admits in that case that judgment obtained by fraud may be impeached in a court of chancery by a direct proceeding for that purpose. Here our code of practice allows parties to set up equitable defenses by way of answer, and they may do so, and thus impeach judgments upon which they are sued, without resorting to an independent action in the nature of a bill in chancery for that purpose.
For these reasons I concur in the opinion of Judge Bliss.