Beale v. Berryman , 30 N.J.L. 216 ( 1862 )

The opinion of the court was delivered by

VREDENBURGH, J.

This was an action of debt, brought on a judgment against the defendant in the State of New York.

The defendant here pleaded nil debet, and gave notice that he should insist, at the trial, that no summons had been served on him in New York.

The plaintiff thereupon signed judgment as for want of a plea. Motion is now made to set aside this judgment upon two grounds.

1st. That the plea and notice were a good defence.

2d. That if they were not, there should have been a demurrer and motion to strike out the notice.

1st. Were the plea and notice a good form of pleading?

By the act of 1799, Nix. Dig. 681, § 227,^* it is provided, that it shall be lawful for any defendant in any action, except in eases of mutual dealing, to plead the general issue, and to give any special matter of defence in evidence, giving notice with the plea of such special matter. By the act of March 6th, 1852, Nix. Dig. 681,^† it is provided, that in any suit brought on a foreign judgment, or judgment of any court out of this state, it shall be lawful for the defendant to show that he was not summoned, notwithstanding it may be so recited in the foreign record of judgment.

I do not understand the objection of the plaintiff to be, that the matter set up in the notice is not a good defence. That question is too well settled to be seriously raised. Aldrich v. Kenney, 4 Con. 380, and cases there cited. But the objection is to the form of the pleading. It is said that the statute, Nix. Dig. 681, § 227, only allows a notice of the matter of defence upon a plea of the general issue, and that nil debet is not a plea of the general issue, and therefore the notice is irregular.

A judgment of another state, when brought to be enforced here, is undoubtedly a foreign judgment. Execution cannot issue on it here nor can it be enforced proprio vigore. The constitution of the United States, indeed says, that full faith .-and credit shall be given, in each state, to the records and judicial proceedings of any other state. But that does not ■make them judgments of this state. A properly certified record of a judgment in another state is a good foundation for a judgment here, but is not itself a judgment. It is, notwithstanding the United States constitution, a foreign judgment, but entitled to peculiar credit by virtue of the constitution.

It is also well settled that nil debet is the general issue in debt on a foreign judgment. 1 Ch. Pl. 485; Bissell v. Briggs, 9 Mass. 462. This is not a question whether the plea of nil debet, standing alone, is a good plea on a judgment from a sister state, for it has often been held that it was not; but the question merely is as to the form of pleading, whether nil ■debet is the general issue in debt on a foreign judgment.

If it is, then the notice is proper and regular under our statute.

The judgment must be set aside with costs.

* Rev.,p. 866, § 117.

† Rev., p. 380, § 15.