Gibson v. Gillespie , 22 F.2d 807 ( 1927 )

MORRIS, District Judge.

Relying upon the recent amendment to the rules of this court with respect to pleadings in common-law actions, wherein it is provided that the general issue shall not be pleaded, the plaintiff has moved to strike out the plea of nul tiel record as a defense to an action on a foreign judgment. In opposition to the motion the defendant asserts that the plea is not a general issue, though it is sometimes so called, but is in law and in fact a special traverse, putting in issue nothing but the existence of the record sued upon. This contention of the defendant is supported by Hill v. Nendenhall, 21 Wall. 453, 22 L. Ed. 616. Under an issue of nul tiel record the court can only inspect the record of recovery, and unless the want of jurisdiction or some other insufficiency affirmatively appears on the face of the record, which would destroy the force and effect of the judgment in the state in which it was rendered, judgment must be given for the plaintiff. Hunt v. Mayfield, 2 Stew. (Ala.) 124, 128.

The plea raises no issue as to the validity of the declaration (Dudley v. Lindsey, 9 B. Mon. [Ky.] 486, 50 Am. Dec. 522), or the justice (Gay v. Lloyd, 1 G. Greene [Iowa] 78, 46 Am. Dec. 499) or the ownership (Marx v. Logue, 71 Miss. 905, 15 So. 890) of the judgment sued upon. Nor can its payment (East St. Louis v. Canty, 65 Ill. App. 325), or satisfaction (Tunstall v. Robinson, 24 Fed. Cas. 324, No. 14,238a), unless the record put in evidence by the plaintiff shows payment or satisfaction (Blair v. Caldwell, 3 Mo. 353), or fraud in procuring the judgment (Clemons v. Clemons, 69 Vt. 545, 38 A. 314), be put in evidence under such plea. Because the plea of nul tiel record puts in issue only the fact of the existence of the record described in the declaration, to be determined by the court upon an inspection of the record itself (Wittemore v. Malcomson [C. C.] 28 F. 605), I think that plea is not a general issue.

The motion to strike is denied.