Price v. Schaeffer , 161 Pa. 530 ( 1894 )

Opinion by

Mr. Justice Mitchell,

How far section first of article 4 of the constitution of the United States, and the act of Congress of May 26,1790, passed to carry it into effect, operate to preclude a defendant from offering evidence against the judgment of one state when sued upon it in another, has been the subject of much discussion and difference of opinion. A distinction has always been made however between facts going to the jurisdiction of the court, and those relating to the merits, and the tendency has been strong to open the door to evidence upon the former. The earlier view was that the mere presumption in favor of jurisdiction might be contradicted, but that evidence could not be received against the affirmative recitals of jurisdictional facts in the record. In Hampton v. McConnell, 3 Wheaton, 234, Chief Justice Marshall said, “ whatever pleas would be good to a suit thereon in such state, and none others, could be pleaded in any other court in the United States.” And a similar view is indicated by the decisions in Mills v. Duryea, 7 Cranch, 481, (as to which see the remarks of Bradley, J., in 85 U. S. 462,) and Landes v. Brant, 10 How. U. S. 348, 371. “ It was undoubtedly the purpose [of the constitutional provision] to give to the judicial proceedings of each state the same faith and credit, in every other state, to which they were entitled in the state in which they took place.” Story on the Constitution, sec. 1310, n.

In Thompson v. Whitman, 85 U. S. 457, however, the question came directly before the Supreme Court of the United States, and Justice Bradley, admitting that thére was no previous express decision on the point, made an elaborate review of all the authorities, and announced for the court the conclusion that jurisdiction was always open to question, even upon facts affirmatively asserted in the record. This decision was affirmed and followed in Knowles v. Gaslight Co., 86 U. S. 58, and Pennoyer v. Neff, 95 U. S. 714, and has been considered as settling the law, by the highest court, on the subject. The great weight of authority in the state courts is to the same effect, and so are the text-books: McDermott v. Clary, 107 Mass. 501; Gilman v. Gilman, 126 Mass. 26; Wright v. Andrews, 130 Mass. 149 ; Grover & Baker Co. v. Radcliffe, 66 Md. 511; Fairfax Mining Co. v. Chambers, 75 Md. 614; Eager v. Stover, 59 Mo. 87; and Napton v. Leaton, 71 Mo. 358; Wharton on Conflict of Laws, sec. 823; Story on Conflict of Laws, sec. 609 ; Story on the Constitution, sec. 1310, note a, ed. by M. M. Bigelow, 1891; 12 Am. and Eng. Ency. of Law, 148 x, and cases there cited.

Our own cases have not been in entire harmony. In Wetherill v. Stillman, 65 Pa. 105, the earlier doctrine was enforced with great strictness, and, the record reciting an appearance by counsel, it was held, Sharswood, J., dissenting, that an affidavit by defendant that he had never been served with process, or authorized any one to appear for him, was not sufficient to prevent judgment, Thompson, C. J., saying, “ the recital shows conclusively the jurisdiction of the parties. . . . consequently the defendant’s affidavit in this particular amounted to nothing against the record to which it referred.” In Noble v. Thompson Oil Co., 79 Pa. 354, however, it was held that notwithstanding the recital in the record of an attachment in rem in New York, it might be shown that the property was not there and the court therefore acquired no jurisdiction. And in Guthrie v. Lowry, 84 Pa. 533, it was distinctly held that “ whatever doubts may have been at one time entertained, it is now an incontrovertible position . . . that the record may be contradicted by evidence of facts impeaching the jurisdiction of the court,” citing among others the cases in 85 and 86 U. S., supra, though in the particular case the foreign court was held as a matter of law to have had jurisdiction. This would seem to be a formal recognition and adoption, even if partially obiter, of the later and presently prevailing doctrine. But in Lance v. Dugan, 22 W. N. 132, the court again reverted in a brief per curiam to the old rule, saying that as the record showed a service on defendants the judgment was conclusive notwithstanding an affidavit in denial.

In this condition of the law we have the point in the present case for final settlement. Whatever our individual views upon the true spirit of the constitutional provision, we have no hesitation in conforming to the prevailing rule. It would be sufficient to say that it is now the established rule in the Supreme Court which is the ultimate authority on all questions depending on the constitution and statutes of the United States. But, in addition to that, the same rule now prevails in the courts of a majority of the states, and it is a question on which uniformity is desirable. It would be contrary to sound policy to deny to our own citizens a defence against judgments obtained in other states, out of a comity which such states refused to us. An apt illustration is afforded by the present case, in which it appears that the court of chancery in Maryland denied the appellant relief against the original judgment on the ground that the same defence would be open to him here.

The affidavit of defence avers that the appearance recited in the record of the judgment sued on' was merely constructive, and that in fact the appellant was not served with process, did not appear, and had no knowledge of the suit until recently when demand was. made upon him for payment. ‘ These being facts going to the jurisdiction of the court the record could be contradicted in regard to them.

The affidavit' presented a prima facie defence and was sufficient to prevent judgment.

Judgment reversed, and procedendo awarded.