Wetherill v. Stillman , 1870 Pa. LEXIS 206 ( 1870 )

The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

The question here and as it was below is mainly as to the sufficiency of the affidavit of defence filed below.

The plaintiff’s cause of action was upon a judgment against the defendant and others in the Common Pleas of the city and county of New York. The record of that judgment was certified and filed in the court below, as the copy of plaintiff’s claim, accompanied by his affidavit of indebtedness on part of the defendant, as required by the rules of court of Northampton county. The affidavit of defence may be stated in substance as denying any indebtedness whatever by the defendant to the plaintiff; charging that the judgment of the Court of Common Pleas of the city and county of New York was unjust and illegal; that no writ of summons or other legal process in that action was ever, within the defendant’s recollection, served on him; that he never appeared to said action, nor authorized any one to appear for him ; “ that at no time did he employ as counsel either Abraham S. Lawrence, Jr., or Albert Day, whose names are affixed to the record as counsel, to appear for him in that action; and that he is informed and believes that the record of said judgment is informal, incomplete and not certified according to Act of Congress.”

It has not been shown wherein the certificate is deficient according to the requisition of the Act of Congress. On the contrary, we think it strictly complies with the act. It is very doubtful whether a deficiency in this respect would' avail to prevent judgment for want of a sufficient affidavit of defence, even if it existed. I incline to think it would not, and Moore v. Fields, 6 Wright 471, sustains this view. No doubt a well-founded objection of this kind would prevent it being evidence in a trial at law; but that is quite another thing from the purpose it serves, as the foundation of the plaintiff’s claim under the affidavit-ofdefence law or rule of court.

But as there is a denial in effect of the jurisdiction of the Court of Common Pleas of the city and county of New York of the person of the defendant, when judgment is certified and is the foundation of plaintiff’s claim, we must look at the certificate of the record and its effect in order to determine how far the affidavits of defence may have an operation in that direction.

The Constitution of United States, Art. 4, § 1, 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 that Congress may prescribe a mode of authentication of such records.^ Accordingly by Act of the 26th of May 1790, Congress prescribed that the said records and judicial proceedings authenticated as therein directed, “ 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 from whence said records are or shall be taken.”

Now the effect of the record of the case in hand being, as already said, properly authenticated according to the Act of Congress, is to give the same conclusiveness here which it has in the state of New York. Without it were shown that the court which rendered the judgment was a court of special or limited jurisdiction, no averment can be made against the conclusiveness of its record. That is not pretended. We are therefore bound to regard what it has adjudicated upon as incapable of contradiction collaterally here, because that would be the effect upon the record there.

' The judgment roll of the court in New York recites most distinctly that the parties were personally summoned, and that after trial and verdict, judgment was entered on the verdict against them for the amount of the verdict and costs. This recital shows conclusively the jurisdiction of the parties in that suit of which the defendant was one, and it cannot be contradicted or averred against in an action on the record without denying the effect which ■ by the Constitution and Act of Congress it is entitled to have conceded to it. Consequently the defendant’s affidavit in this particular amounted to nothing against the record to which it referred. The supplemental record, showing the return of the officer of the service of process on the defendant, neither helped nor harmed the record just filed. As it was filed before the affidavit of defence was made by the defendant, it might have had the effect of inducing greater caution in insisting on want of memory, as persuasive that no service had been made; and it further shows how much at fault memory often is.

As to the jurisdiction by the court in New York of the cause of action, that is concluded by the legal maxim always applicable to judicial proceedings: “ Omnia prcesumuntur rite esse acta." It must be presumed that the court has exercised jurisdiction legally; a contrary presumption would necessarily imply usurpation on part of the court. To require proof of jurisdiction when the court is a court of general jurisdiction, would be to countenance the idea of the possibility of usurpation on part of the court, and would overthrow at once the conservative maxim alluded to. The conclusiveness of such records as this, is sustained by many decisions: Baxley v. Linah, 4 Harris 241; Hampton v. McConnell, 8 Wheat. 234; Mills v. Duryee, 7 Cranch 481; Westernell v. Lewis, 2 McLean 511; 2 Amer. Lead. Cases 774. Neither, therefore, as to the jurisdiction of the person nor the subject-matter of the action, was the affidavit effectual to raise an inquiry into the judgment, and the court below very properly granted judgment against the defendant for want of sufficient affidavit of defence.

The record of the judgment from New York shows that the plaintiff’s costs were included in, and formed parcel of, the judgment. We are to presume that this is in conformity with' the laws of that state. Indeed the Code of Procedure, sect. 311, shows it to be so. Being therefore lawfully part of the judgment, interest would be as certainly an inciden^ of that portion of it as any other. The judgment is a unit. It all bears interest or none. As a rule it bears interest, and the affidavit shows no reasons to the- contrary. The court committed no error, therefore, in entering judgment with .interest on the judgment record. Nor was there error in granting judgment for want of a sufficient affidavit of defence after a former rule had been discharged. There were doubtless good reasons for discharging the first rule, as we see there was for granting a second and making it absolute.

Seeing no error in the record, the judgment is affirmed.

Shaeswood, J., dissented.