Lockhart v. Locke , 42 Ark. 17 ( 1883 )

OPINION.

Eakin, J.

It appears from the admissions and statements of the answer, that the District Court of Texas had undoubted jurisdiction of the subject matter of the suit, in which the judgment, sued upon here, was rendered; and also had obtained, by personal service, jurisdiction of the person of the defendant, who was then a resident of Texas.

The presumption is in favor of the continuing jurisdiction of the court until judgment, unless it be clearly shown that jurisdiction was lost. In the absence of any showing to the contrary, the comity of States forbids us to presume that the superior courts of sister States would pursue any course not justified by their own laws and course of practice. The jurisdiction being granted, the Constitution of the United States then requires that “full faith and credit shall be given, in each State, to the public acts, records and judicial proceedings of every other State.” They can not be impeached or their verity denied in collateral proceedings. Nunn v. Sturgis et al., 22 Ark., 389.

It is obvious that mere error in the proceedings will not vitiate a judgment which stands uncorrected by any appellate, revisory or direct proceedings. It is at most only voidable — not void. It must be respected until avoided, and it can not be avoided in any collateral proceeding.

The law of Texas regulating the practice in cases like the one in question, has not been brought judicially to our notice, and even if it were of importance, we could not say even that there was error in allowing the plaintiff’s intestate to become the party plaintiff', without a revivor in the name of the personal representative of the original plaintiff' and proceeding, without additional or further notice against the defendant. There would be nothing unreasonable in such practice. Certainly nothing unconstitutional. It is fit that defendants once summoned should attend the suits till judgment, and take notice of every step; and it is in fuz'therance of justice for courts to permit the real party in interest to become plaintiff', instead of one merely nominal, on being satisfied of the fact. Whether the defendant really appeared at the rendition of the judgment, as the record recites, or not, is a matter of indifference. He should have been there in person or by attorney, and his removal to Arkansas need not have prevented that, nor will it excuse a failure.

The substitution of a plaintiff is not an original suit, but an incident of an existing one. A step in it, and nothing more.

The answer showed nothing invalidating the record. This view of the case relieves us from the discussion of the much mooted question, whether the recital of the defendant’s appearance can be traversed. It is not, in this case, a jurisdictional point, as the original service, appearance and defense are all admitted.

The demurrer to the answer should not have been overruled. Eor errbr in this, reverse and remand for further proceedings consistent with law and this opinion.