Aultman, Miller & Co. v. Mills , 9 Wash. 68 ( 1894 )

Hoyt, J.

(dissenting). — In my opinion the answer was not sufficient to entitle the defendant to put in proof want of jurisdiction in the court in which the original judgment was rendered. If the plaintiff had only alleged the fact of the existence of the judgment record, it is conceded by the majority of the court that a simple denial of such record in the answer would not authorize such proof. I am unable to hold that the answer should be more liberally construed by reason of the fact that there were some unnecessary allegations in the complaint. To enable a defendant to attack a judgment of a court of competent jurisdiction by proof of the falsity of the recitals therein, there should be the clearest specifications of the grounds relied upon as the foundation for such attack. The record having been shown, it prima facie established the liability of the defendant, and his right to defeat the same should be founded upon direct affirmative allegations in his answer as to the facts relied upon to relieve from such liability. That such is the fact was shown by the course of the trial in the case at bar, as the plaintiff was allowed to introduce the record of its judgment without objection on the part of the defendant, without having first proved the facts necessary to establish the jurisdiction of the court in which it was rendered. This could only have been done upon the theory that the allegations in the complaint as to jurisdiction were immaterial. If they were material it was a necessary part of plaintiff’s case to prove them, as they were denied in the answer, and if no proof in reference thereto had been introduced on the part of the plaintiff, the court should have instructed the jury to find a verdict for the defendant. This the court did not do, nor was there any motion looking to such action made by the defendant. It follows that the trial proceeded upon the theory that the plaintiff had established its case when it introduced the record, and that it would be entitled to judgment unless such case was overcome by affirmative proof on the part of the defendant. But affirmative proof going to questions not required to be put in evidence by plaintiff as a part of its case could only be introduced under affirmative allegations contained in the answer. The defendant having without objection allowed a prima facie case to be established by the plaintiff without entering into the question of jurisdiction of the court in which the original judgment was rendered, could not overcome it under the general denials of his answer excepting by proof tending to contradict the evidence put in by plaintiff as a part of its case, and as no proof in reference to jurisdiction had been so put in, none upon that subject should have been allowed by the defendant. In my opinion the judgment should be reversed.