Olson v. Mackolite Fire Proofing Co. , 116 Ill. App. 573 ( 1904 )

Mr. Justice Baker

delivered the opinion of the court.

The sufficiency of the fourth, fifth, sixth and eighth pleas to bar the action is not questioned. Demurrers to the replications to each of these pleas were sustained and the plaintiff elected to stand by his replications. Upon this record the defendant was entitled to a judgment of nil capiat against the plaintiff, although there were .issues joined upon other pleas. Mt. Carbon C. & R. R. Co. v. Andrews, 53 Ill. 177.

The decision in the case turns upon the question of the sufficiency of the replications to the fourth, fifth, sixth and eighth pleas. The replications in effect confess that the District Court of Nebraska never in any way acquired jurisdiction of the person of the defendant and rely solely upon the averment .that the record of the judgment sued on shows an adjudication by that court, made in the cause, that the defendant therein was duly served with summons in the cause. Counsel for plaintiff in error rely upon the case of Zepp v. Hager, 70 Ill. 226, in which it was held that where the record of a judgment of a court of general jnrisdictionof another state shows personal service of summons on the defendant no evidence will be heard to impeach the record. The decision in that case was based upon the decision of the Supreme Court of the United States in Mills v. Duryee, 7 Cranch, 481. But the case of Mills v. Duryee can no longer be regarded as authority for the rule declared in Zepp v. Hager. In the case of Thompson v. Whitman, 85 U. S. 457, the Supreme Court of the United States after a careful examination of Mills v. Duryee and a great number of other cases held :

1. Neither the constitutional provision, that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevents an inquiry into the" jurisdiction of the court by which a judgment offered in evidence was rendered.

2. The record of á judgment rendered in another state may be contradicted as to the facts" necessary to give the court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist.

3. Want of jurisdiction may be shown either as to the subject-matter or the person, or, in proceedings in rem, as to the thing.

The doctrine laid down in Thompson v. Whitman, supra, is still the doctrine of the Supreme Court of the United States.

The decision of the question depends altogether upon the construction of the constitution and laws of the United States. Without that provision of the constitution which declares that “ full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state ” and the act of Congress passed to carry it into effect, it is well settled that the record in question would not in this state be conclusive as to the facts necessary to give the District Court of Nebraska jurisdiction, for it would be regarded like any other foreign judgment and as to a foreign judgment the inquiry is always open whether the court by which it was rendered had jurisdiction of the person of the defendant. Thompson v. Whitman, supra. The Supreme Court of the United States must be regarded as the highest and best authority as to the construction of the constitution and laws of the United States.

The decision of the Superior Court is in accordance with the last declaration of the Supreme Court of the United States upon the questions involved in this case and the judgment of that court will be affirmed.

Affirmed.

Mr. Justice Stein took no part in the decision of this case.