Midwest Piping & Supply Co. v. Thomas Spacing MacHine Co. ( 1933 )

I concur in the judgment entered in this case, but in addition to the ground relied on in the opinion of the court, I base my action on the further ground that the plaintiff's statement shows on its face that the alleged exemplified copy of the judgment sued on is not a full and complete copy of the record in the municipal court of Chicago, but only an exemplified copy of some of the proceedings in that action, to wit, a copy of the appearance or court docket entry in the case showing the entry of judgment; and hence is not self-sustaining and cannot support a judgment by default.

Our Supreme Court, in construing the Practice Act of 1887, (May 25, 1887, P.L. 271), held that a statement of claim, which was based on a judgment or decree of a court of another state, or of a United States Court, sitting in another county, was defective if it did not set out the "full record" of that suit: Finch v. White, 190 Pa. 86, 42 A. 457; Campbell v. Pittsburgh Western Ry. Co., 137 Pa. 574, 20 A. 949. The same rule applies to the Practice Act of 1915, (May 14, 1915, P.L. 483): Clark v. Davidson, 83 Pa. Super. 79, 83.

Neither the constitutional provision that "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. . . . . ." (Art. IV, sec. 1), nor the Act of Congress of May 26, 1790, (U.S. Rev. Stat. sec. 905; U.S. Code, Title 28, sec. 687) passed pursuant to it, and providing how "the records and judicial proceedings ofthe courts of any state" shall be proved or admitted in any other court within the United States, gives to such a mere docket entry the force and effect of the record of a judgment, to which full faith and credit must be given.

A "record" of a court is a memorial or history of the judicial proceedings in a case, commencing with the writ or complaint and ending with the judgment (15 C.J. 971); "A precise statement of the suit from its commencement to its termination, including the conclusion of law thereon, drawn up by the proper officer, for the purpose of perpetuating the exact state of facts": Bouvier's Law Dictionary, 3 Rawle Revision 2843. The docket is only a court book in which the judicial proceedings constituting the record are briefly noted, (15 C.J. 972). A copy of the docket entries is not a copy of the record.

Judgments in judicial proceedings, within the Act of Congress, are only such as have been rendered by a competent court, having jurisdiction of the cause and the parties.

Hence in a litigated action the record, a copy of which is to be attached to the plaintiff's statement, must show the writ, the fact and manner of service on the defendant, the pleadings and the verdict and judgment. The testimony does not form part of the record proper.

In a judgment by confession on warrant of attorney, if the note and warrant remain in the court as part of the judicial proceedings, they must be set forth at length in the exemplified copy, to be attached to the plaintiff's statement; if they do not so remain, they need not be copied at length into the record; but then the declaration or narr. and the confession or subsequent proceedings leading up to the judgment must be included in the exemplified record. In Finch v. White, supra, the original judgment of a court of Maryland sued upon was a confessed judgment, and the exemplified copy attached to the plaintiff's statement was only a copy of the docket entries (see appellee's brief, p. 88); and the statement was held to be insufficient on demurrer, but leave was given to amend. It is controlling of this case.

While it has been said that the record of the judgment sued upon need not show a warrant of attorney (Rogers v. Burns, Admr. of Lynch, 27 Pa. 525), care must be taken not to extend this too broadly. The original action in that case was an adverse suit brought by Rogers against Lynch in the District Court of the United States for the District of Mississippi, and it was held that the judgment could not be impeached because the exemplification of the record did not show a warrant of attorneyto institute the suit. I practiced law actively for twenty-five years before I went on the bench, and I do not recall that I ever filed a warrant of attorney either to bring, or defend, a litigated action. It is not usually or commonly done in this state. But if a rule had been entered requiring an attorney either for the plaintiff or defendant to file his warrant of attorney, and he had done so, then the rule and the warrant of attorney would have formed part of the record of the judicial proceedings and would have had to be exemplified as part of the record.

So if in judgments by confession or cognovit the entry of the judgment refers to and is based on a warrant of attorney, which is filed in the court and becomes part of the proceedings in the case, then the warrant of attorney forms part of the record and must be exemplified in the proceedings sued upon in another state.

A copy of whatever forms the "record proper" of the judicial proceedings in the court of original jurisdiction must, under our Practice Act, aforesaid, be exemplified and attached to the plaintiff's statement in order to sustain an action in this state on the judgment rendered in the court of original jurisdiction.

This is clear not only from the decisions before cited, but also is apparent from the statements of facts and the opinions in the cases in this state dealing with actions on judgments of courts in sister states. See, in addition to cases cited above, inter alia, Price v. Schaeffer, 161 Pa. 530,29 A. 279; Cushing v. Perot, 175 Pa. 66, 34 A. 447; Ratterree v. Schonhardt, 105 Pa. Super. 321, 161 A. 461.

The record sued on must, on its face, show that the court which entered the judgment had jurisdiction of the parties and of the subject matter. This is not accomplished by an exemplification of a mere docket entry of the judgment.

In this particular case, the exemplified copy of the record does not purport to be a "true, perfect and complete copy" of the judgment record entered in the case or action between the plaintiff and defendant, but only of "certain proceedings made and entered of record" in that case, and it is apparent from its face that "it is only a copy of the docket entry showing the entry of judgment." The exemplified copy of the docket entry referred to a warrant of attorney filed in the cause and to a cognovit filed therein by an unnamed attorney who appeared for the defendant, "confessing the action of the plaintiff against the defendant" and that "plaintiff has sustained damages herein against the defendant in the sum as set forth in the cognovit;" showing that the plaintiff had filed a pleading setting forth a cause of action, that a warrant of attorney had been filed by defendant, and that acting under its authority, an attorney had appeared for the defendant and by a cognovit filed confessed the action, on which judgment had been entered for the plaintiff for the amount demanded. It was these papers, remaining of record in the office of the clerk of the court, — and not the docket entry concerning them — which constituted the "judicial proceedings" to which full faith and credit must be given, when exemplified in accordance with the Act of Congress, and, which, with the docket entries, formed the record which must be attached to the plaintiff's statement in an action based upon it in this Commonwealth. As a duly exemplified copy of this record was not attached to the plaintiff's statement in this case, but only such a copy of the docket entry of those proceedings, the statement was insufficient to support a judgment for want of a sufficient affidavit of defense: Chestnut St. Natl. Bank v. Ellis, 161 Pa. 241,28 A. 1082; Finch v. White, supra.

I have gone into the matter at this length because, while our modern practice acts have done away with many formalities in pleading, they still have some basic requirements which must be observed, and lawyers must not mistake what constitutes the record of the judicial proceedings culminating in a judgment in another state which must be exemplified and attached to the plaintiff's statement, under our Practice Act, in order to found an action upon it in this State.