Kincaid v. Storz , 52 Mo. App. 564 ( 1893 )

Smith, P. J.

The plaintiff in his petition alleged that in January, 1883, he recovered judgment against the defendant in the circuit court of the county of Henry, in the state of Illinois, which was a court of general jurisdiction. The defendant put these allegations in issue by the general denial contained in his answer. At the trial, to maintain the issues in his behalf, the plaintiff offered in evidence an authenticated copy of the record of the Illinois court in the case. To the introduction of which the defendant objected upon the ground that the Illinois court pronouncing the judgment was without jurisdiction for the reason that it appears by said record that the suit was begun in said county of Henry by the plaintiff against two defendants, the Henry County Coal Company, a resident of said county of Henry, and the said defendant herein, who was a resident of the county of Rock Island; that it further appears by said record that no summons ever issued in said cause for the defendant, the coal company, nor was there any appearance by the said coal company to the action; that the only party served was the defendant herein, who was served in the county of Rock Island and not in the county where the said action was brought; that the judgment was rendered against the defendant herein alone and not against him and the coal company; and for the further reason that the service of the summons upon defendant was void. The plaintiff to meet these objections introduced in evidence sections 2 and 10 of chapter 110, page 734, Revised Statutes of Illinois, and several decisions of the supreme court of that state (hereinafter cited) construing these statutory provisions. The defendant’s objections being overruled, exceptions were duly taken thereto. Judgment was given for plaintiff and defendant appealed.

The action which culminated in judgment in the Illinois court was in its nature local. Eevised Statutes •of Illinois, ch. 80, sec. 16. After the service of the .summons the procedure was the same as in actions by attachment. Bartlett v. Sullivan, 87 Ill. 219. The circuit courts of Illinois are courts of general jurisdiction and have power to award throughout the state and returnable to the proper county all writs and process which are necessary to the due execution of the powers with which they are vested. Kenney v. Greer, 13 Ill. 432; Champlin v. Morgan, 18 Ill. 292. In relation to courts of record the law is, that nothing shall be intended to be out of the jurisdiction of a superior eourt, but that which specially appears to be so, and on the contrary nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly alleged. The circuit courts of Illinois possess original and unlimited jurisdiction. Beaubien v. Brinkerhoff, 2 Scam. 272.

Upon the face of the Illinois record it appears that the defendant was served with process in a county other than that in which the suit was instituted. At the trial of this cause the defendant offered to prove that he was the resident of a county different from that in which the suit was brought, and we must proceed in the consideration of this case upon the theory that the defendant could have proved what he offered. In disposing of this appeal we must regard the defendant as a non-resident of the county where the suit was brought against him. If the defendant, as was the case, was served with summons in a county other than that in which the suit was brought, the jurisdiction of the court must be presumed until questioned by a plea, in abatement or motion interposed in proper time.

The general rule is that whatever matter of defense shows that plaintiff can have no cause of action must be pleaded in bar; but that which merely defeats the present suit, and does not conclude the plaintiff from maintaining an action upon the cause stated, should be pleaded in abatement. 1 Chitty on Pleadings, 446. Iff the fact that the suit was brought in a county where-the defendant did not reside, and that he was served with summons in the county in which he did reside, had been called to the attention of the court by timely plea, in abatement or motion, the only effect of this would have been to defeat that suit and to have compelled the plaintiff to sue where the defendant resided, or to have-summons awarded and served on the other defendant who did reside in the county where the suit was brought. Waterman v. Tuttle, 18 Ill. 292. These objections being of a dilatory character, and not having been interposed in the time and manner already indicated, must be considered as having been waived. Gillilan v. Gray, 14 Ill. 416; Hardy v. Adams, 48 Ill. 532. It thus appears according to the statutes of Illinois and the construction placed thereon by the superior court of that state, which were put in evidence in the court below, that the judgment in question is valid in that state.

The act of congress in relation to the authentication of records provides the manner in which the judicial records and proceedings of the courts of any state shall be proved or admitted in any other court within the United States, and that when so authenticated they shall have such faith and credit given them in every court within the United States as they have by law or usage in the courts of the state whence the said records-shall be taken. Now since the judgment is valid under the laws of Illinois, we are required by the act of congress to accord to it a like validity here.

It is not to be understood from what has been said that the Illinois record imports absolute verity. The rule is that such judgments are as conclusive as domestic judgments, with the exception that they are open to inquiry as to the jurisdiction and notice to the defendant. This doctrine has its foundation in natural justice. The property of no man should be taken from him by judicial sentence, without the privilege of showing, if he can, that the claim against him is unfounded. Want of jurisdiction, it is now held, may be shown either as to the subject-matter or the person or in the proceedings in .rem as to the thing, although the record may recite facts necessary to give the court jurisdiction. Upon the jurisdictional question the record is subject to be contradicted. Max v. Fore, 51 Mo. 75; Eager v. Stover, 59 Mo. 88; Barlow v. Steel, 65 Mo. 611; Napton v. Leaton, 71 Mo. 358. But while a foreign judgment may be impeached by showing that there was no notice, or that appearance by attorney was unauthorized, or perhaps for any other fraud committed against the rights of defendant in the acquisition of jurisdiction of the defendant or his property, yet defendant in this case does not fall within any one of these categories. He was served with notice of the commencement of the suit, though the service was in a county in which it was irregular to have made it; yet as he did not appear and plead this fact in abatement of the suit he must be deemed to have waived the objection. He cannot now call the validity of that judgment in question either in the courts of that state where rendered or in the courts of this state. It is conclusive on him within both jurisdictions.

It results that the judgment of the circuit court must be affirmed.

All concur.