Mayer v. Weiss ( 1925 )

Argued October 12, 1925. Judgment for want of a sufficient affidavit of defense was entered in this suit, brought on an exemplification of a judgment recovered in Missouri. The affidavit of defense averred that the court in Missouri had no "jurisdiction over the defendant, in that no service had been legally obtained on said defendant which would cause him to appear at the trial." A supplemental affidavit was filed, repeating that statement and adding that "he was not in St. Louis nor within the jurisdiction of Missouri" on the date of service shown in the exemplification or on the date of trial.

The exemplification shows "Summons Writ returned duly served. ....." It also shows that the trial of the case was twice continued and that at the time specified, the "parties appear ready for trial. ......"

The constitutional requirements that full faith and credit be accorded such a judgment would amount to little if the facts so certified had to give way to a mere traverse of the service or of defendant's presence at the trial because of absence from the state on the dates specified. Service may have been made at his residence in his absence (Rev. Stat. Mo. 1919, Chap. 12, art. 4, sec. 1186, p. 496) and in his absence he may have appeared by his authorized attorney at the trial; if not, why did he not so aver? If a party has a defence based on want of jurisdiction over the person and adequately avers it, he is of course entitled to a trial: Price v. Schaeffer, 161 Pa. 530.

Judgment affirmed.