Mills & Co. v. Stewart , 12 Ala. 90 ( 1847 )

COLLIER, C. J.

If a plea commence as an answer to the whole declaration, and in truth the matter pleaded is only an answer to part, the whole plea is bad, and the plaintiff may demur; but if it begin as an answer to part, it is deemed an answer to that part only, although it may contain a legal de-fence to the whole declaration. So it is said, that if a plea begin only as an answer to part, and is in truth but an answer to part, the plaintiff cannot demur, but must take his judgment for the part unanswered as by nil dicit; and if he demur or plead over, the whole action is discontinued. [1 Chit. Pl. 509; Arch. Civ. Pl. 168, 173.] In the case before us, the plea objected to assumes to answer the entire declaration and to furnish a bar to the action, while it merely alledges the payment of the note in part, under the sanction of a judgment agaiust the defendant, at the suit of the payee’s creditors, in another State, for the amount thus paid; shows that when called on to answer that suit, he admitted an indebtedness upon the note for nine hundred and seventy-five dollars, with interest from the time of its maturity, for which the judgment was rendered; but does not state that the residue of his note to Henry had been paid. It cannot, according to any rule of pleading be intended that the defendant had previously paid the difference between the amount of the judgment, and the sum expressed upon the face of the note. For this difference, amounting to more than eight hundred dollars, the plea does not set out any legal objection to the plaintiffs’ recovery, and the demurrer should therefore have been sustained for this defect.

It is no objection to the plea, that it does not alledge in totidem verbis, that the defendant had no notice of the transfer of the note, before he answered the garnishment in the commercial court of New Orleans — he affirms in his answer an indebtedness to Henry, which he could not have declared consistently with truth, if he had been informed that another person had become the proprietor of the note. If he had notice, the plaintiff should have replied the fact, and establish it. It is matter of affirmation which it devolves upon the plaintiff to prove — the defendant cannot be required to disprove it, this would be to throw on him the burthen of making out a negative before any evidence was adduced from which the affirmative could be implied.

Where the record of the proceedings of one State are offered in evidence, authenticated pursuant to the act of Congress, in the courts of another, presumptions must be indulged favorable to its jurisdiction; especially where the form of the proceedings does not indicate that.it is a court of limited powers. If, in point of fact, the tribunal of the sister State had no jurisdiction either of the subject matter or the parties, it was competent for the plaintiff to have replied to it, and put the matter in issue. [Lucas v. The Bank of Darien, 2 Stewt. Rep. 280; Miller v. Pennington, Id. 399. See also Martin v. Nicholls, 3 Sim. Rep. 545; Hopkins v. Lee, 6 Wheat. Rep. 100; Mayhew v. Thatcher, 6 Wheat. R. 129; Field v. Gibbs, 1 Pet. C. C. Rep. 166; Shumway v. Stillman, 6 Wend. R. 447; Taylor v. Phelps, 1 Gill & Johns. Rep. 492; McElmoyle v. Cohen’s Heirs, 13 Peters’ Rep. 312; Hampton v. McConnell, 3 Wheaton’s Rep. 234.] But it: must be intended, in the absence of extrinsic proof, or any thing in the record impugning the regularity of the proceeding, that the court had jurisdiction of the matter adjudicated, and that the judgment was authorized by the facts and evidence upon which it was rendered. [Hughes v, Morris, 2 Ala. Rep. 269; Kennedy v. Kennedy’s Adm’r, 8 Ala. Rep. 391; Crawford v. Clute & Mead, 7 Ala. Rep. 157, and Crawford v. Slade, Adm’r. 9 Id. 887, are altogether inapplicable.] In these cases the defendant pleaded the pendency of an attachment in the circuit court of the United States, at the suit of creditors of the plaintiff, in which the debt sought to be recovered had been attached by service of garnishment on him (defendant). This court held, that such plea must aver all the facts necessary to give the court jurisdiction in which the suit is pending; whether the whole or what part of the debt had been attached. In these cases the garnishments, though pending in a federal court, were influenced in its proceeding by the legislation of this State in respect to attachments and garnishee process; and it was deemed essential to the defence to show, that, that tribunal was so proceeding as to vindicate its jurisdiction. [See cases cited in 3 Kinne L. Comp. 10.] But in the case at bar, the suit was instituted and prosecuted to judgment in another State, and every presumption must be indulged favorable to its authority; more especially when it is alledged to have been proceeded in according to the laws of that State; and there is an absence of proof, either intrinsic or extrinsic, to impugn the validity or correctness of the judgment. The fact that the note was negotiable, if it was not indorsed before its maturity, would not exempt it from an attachment or garnishment, at the suit of the payee’s creditors, so long as he remained its proprietor, or until the maker had notice of the transfer, if it was indorsed after it was past due.

The statement of the fact of the amount of the judgment against the defendant, its satisfaction, &c. made by the clerk of the commercial court of New Orleans, though certified as part of the record, cannot be treated as such. In the absence of proof of the laws of Louisiana making it part of the proceedings in the cause, it cannot be treated as evidence of payment. In this respect, then, the evidence was insufficient to make out the defence, as it was necessary to show not only a judgment, but also to prove that it had been satisfied.

To have justified the defendant,™ making the payment of the judgment, he need not have waited until he was coerced by an execution. It is enough if there was a regular judgment which could have been enforced by execution. In the predicament of the exemplification, we have seen that it will be intended that there was such a judgment, and that the payment of the money was not gratuitous merely.

The answer of the garnishee as certified in the record from Louisiana, was certainly evidence under the restritítions laid down by the county court — in fact the law was ruled quite as favorably to the plaintiffs on this point as they were authorized to ask.

We have seen that the plea is defective, and that the demurrer to it, instead of being overruled, should have been sustained. The judgment is therefore reversed, and the cause remanded.