Wright v. Andrews

130 Mass. 149, 1881 Mass. LEXIS 30

Opinion

Gray, C. J.

The record of the judgment in Maine is only prima fade evidence of the jurisdiction of the court there over the defendants; and that record showing that they resided in this Commonwealth when sued, and were not served with process in Maine, it is open to them to prove that they did not appear, in person or by attorney, in the action in which the judgment was rendered. Carleton v. Bickford, 13 Gray, 591. Gilman v. Gilman, 126 Mass. 26.

The evidence offered at the trial was not sufficient in law to prove that the court in Maine had no jurisdiction over Oren Andrews. It was admitted that the action was defended in his behalf by counsel employed by him; and evidence that his sole purpose in employing counsel was to protect his property, which had been attached, was immaterial, without further showing that he limited the authority of his counsel accordingly, or instructed him to appear specially.

But as to Sumner Andrews the evidence offered was that he never employed counsel, nor authorized any one to employ counsel for him, and that at the trial of the case he appeared and testified as a witness only, and not as a party. This evidence was competent and sufficient in law to show that the court in Maine had no jurisdiction over him; for it tended to show that, not having been brought within the jurisdiction of the court as a party defendant by service of process, he had never voluntarily submitted himself as such to its jurisdiction. Phelps v. Brewer, 9 Cush. 390. McDermott v. Clary, 107 Mass. 501. May v. Shumway, 16 Gray, 86.

If that court had no jurisdiction of one defendant, its judgment, being entire and unqualified, is, in the absence of any evidence of the law of Maine upon the subject, void against both. Hall v. Williams, 6 Pick. 232, 247. Knapp v. Abell, 10 Allen, 485, 490.

Exceptions sustained.