Pollard v. Baldwin

22 Iowa 328

• Court: Supreme Court of Iowa
• Decided: June 14, 1867
• Status: Published

Opinion

Dillon, J.

1. Judgment: foreign: how far conclusive. I. Annexed to the plaintiff’s petition, as an exhibit, is a certified copy of the judgment entry of the Circuit Court of Greene county, Missouri, the same as copied in the statement. Neither as an exhibit to the pleading, nor on the trial, was there an exemplified copy of the entire record of the cause in Missouri. There is no copy of the petition or complaint, summons or other process, or return, in the record on the present appeal. There is only the record or journal entry of a judgment against the defendant introduced in evidence on the trial in the court below. This, as will be seen by recurring to the statement, recites “ that it appeared to the satisfaction of the court that the defendant had been duly served with process.” How he was served, personally or by copy, or in some other mode, does not appear, and was not, shown by the partial record of the proceedings in Missouri, introduced in evidence on the trial of the present cause.

Under these circuínstances, the question is, whether the defendant, in an action on this judgment, is concluded by the above named recital in the judgment entry, from showing that he was in fact not served. In our opinion he is not thus concluded.

In an action on a foreign judgment, the better reason and the weight of modern authority alike are, that the judgment debtor may successfully defend by showing that he was not served with process; that is, as we understand the reason of the rule, he may, by evidence, establish the fact that the foreign court had no jurisdiction over him, and may do this, notwithstanding the record entry may recite that he was “ served ” or “ duly served.” If it is clearly shown that the foreign court had no jurisdiction over him its recitals are worthless. The presumption is in favor, and we may say thoroughly in favor, of the jurisdiction and the truth of the recitals in that respect. Therefore the contrary must be shown, and clearly shown, by the defendant. Until the contrary is shown, until the presumption of jurisdiction is met and clearly overthrown, the defendant is bound. If the jurisdiction of the foreign court is sustained tiren it may well be that the recitals of its records have the same force and conclusiveness that like recitals would have in a domestic judgment.

In full support of these views see Am. Law Beg., Vol. 6 (N. S.), 11; 5 Id., 388, and cases cited; Harshey v. Blackmarr, 20 Iowa, 161; Glason v. Dodd, 4 Met. (Mass), 333, and authorities cited ; Starbuck v. Murray, 5 Wend., 148; Holbrook v. Murray, Id., 161; Shelter v. Tiffin, 6 How. (U. S.), 163; Dozer v. Richardson, 25 Geo., 90; Kimball v. Merrick, 20 Ark., 12; Hess v. Cole, 3 Zabr., 116; Rogers v. Gwinn, June term, 1866; Pearce v. Olney, 20 Conn., 557.

We are therefore of opinion that the District Court did not err in allowing the defendant to show by verbal evidence that he was not served with process. How the defendant proved this we do not know, for the bill of exceptions does not contain the testimony on this point. We can only presume, since the court refused a new trial, that the proof was ample.

But the appellant argues that the answer and the evidence are insufficient in not negativing the idea or presumption that the defendant voluntarily appeared to the action and submitted to the jurisdiction of the court, citing on this point Struble v. Malone (3 Iowa, 586).

No such question was made in the District Court. The answer was not there objected to as insufficient. Besides, the record entry of the Missouri judgment itself fairly negatives the notion that the defendant voluntarily appeared. It shows that, in fact, he did not appear, that he failed to plead, and that the petition was accordingly taken as confessed.

Appellant also argues that the return of service by the sheriff is conclusive upon the parties, and cannot be contradicted. Admitting that to be true, the difficulty is, that the appellant did not show or prove any sheriff’s return whatever.

2. Evidence: military order. II. The plaintiff also assigns as error, the introduction of the evidence given by the witness, Burr. This evidence, so far as it showed or tended to show t]iat flie defendant was an officer in the service, of the United States, and that he was verbally ordered by his superior officer to seize plaintiff’s property, and that he did so, was clearly competent. We are aware of no law, military or otherwise, imperatively requiring such orders to be in writing. We have not been shown any rule or law which would have exempted the defendant from military arrest and punishment had he refused to obey such an order because not in writing. Therefore we cannot reasonably require written evidence of that which was never authenticated by writing.

It is also claimed by the plaintiff that the court erred in allowing the witness’ evidence to show that martial law existed and was in force at the time. A general statement to this effect was all that the witness deposed to; he does not undertake to say or testify to what extent martial law was in force, or whether it did or did not abrogate the ordinary civil jurisdiction of the courts.

The case evidently did not turn on this point. If we should concede that the appellant’s view of the law was the correct one, we would still, on well recognized principles1 governing our actions as an appellate tribunal, deem it to be our duty to affirm the judgment of the court below.

Affirmed.