Harper v. Nichol , 13 Tex. 151 ( 1854 )

Hemphill, Ch. J.

The first ground assigned for error is the refusal of the Court to dismiss the petition.

The grounds of the motion to dismiss are that there was no authenticated copy of the judgment sued upon filed with the petition, nor were the costs likely to accrue, together with a tax fee of twenty-five dollars cash for the use of the State, paid to the Clerk of the District Court at the commencement of the suit.

The motion was based upon the first and second section of the Act of June 25th, 1845, prescribing the mode of authenticating foreign judgments and limiting suits thereon ; (Arts. 1625, 1626, Hart. Dig.) and bad the judgment sued upon been rendered anterior to the date of that Act, it would become a serious question whether the probable costs and tax fee as required by the second section should not have been paid anterior to suit, without which (if they were in fact requisites) the suit must in the language of the statute be held as if it had never been brought. In the case of McElmoyle v. Cohen, 13 Peters, 328, it is declared as settled that the effect*intended to be given by the Constitution of the United States to judgments of sister States is that they are conclusive only as regards the merits, and that there is no constitutional inhibition upon the States, nor can it be plausibly inferred from the Constitution, that they may nut legislate upon the remedy in suits upon the judgments of other States, exclusive of all interference with their merits.

Whether the burthens imposed by this statute, upon suits on judgments of another State affect only the remedy, and that within snch limits as not, in a legal sense, to impair the right, are points which can be determined when they properly arise in a cause, and their decision becomes necessary. They do not arise in this case, as this suit is upon a' judgment rendered long subsequent to the passage of the statute. That the Act was intended to be limited to judgments of a date anterior to its passage is obvious, and especially so from the provisions of the fourth section, (Art. 1628,) by which limitations are imposed on all suits which may be brought on foreign judgments, decrees or adjudications; requiring these suits to be brought in so many days and months after the passage of the Act, the utmost limit being one year for judgments under two years standing at the date of the Act. No other judgments were contemplated by the law, but those already rendered ; and upon these, limitations were placed. No provision or limitation was affixed to those subsequently to be rendered. They were not the subject of any even remote allusion ; and we must infer that they were not embraced in the Act, nor intended to be affected by its provisions. Antecedent to the passage of the Act, suits could not have been brought upon foreign judgments, and the scope and object of the statute appears to have been to provide a remedy where none had previously existed and on judgments of a past date, leaving consequently suits upon judgments of other States of a subsequent date to be regulated (after annexation, then in progress, should be completed,) by the general laws in relation to suits upon judgments and the provisions of the Constitution and laws of the United States upon the subject matter. It was not necessary in any of our previous decisions on this statute, to consider whether it embraced judgments other than those anterior to its passage; and no intimation is to be found in any of them to that effect. The question in those cases was whether the limitations of the statute were, after annexation, effectual against judgments anterior to the Act; and the affirmative decision of that point cannot avail the position of the appellant in this case. (4 Tex. R. 278; 8 Tex. R. 74, 250, 253.)

We are of opinion that the first ground was not well taken, and that there was no error in refusing to dismiss.

The second ground of error was the overruling of the demurrer".

The special cause of exception was that the residence of the plaintiff' was not set forth with sufficient certainty. The statute requires the plaintiff, in his petition, to set forth the names of the parties and their residence if known. (Hart. Dig. Art. 671.) The object of requiring the plaintiff to specify the place of his residence is not very apparent. His place of domicil can affect neither the remedy nor the right. It may afford some guide to his locality, should judgment be against him on the merits or for costs; but there is no certainty that his place of residence at the commencement of suit will be his domicil at its termination, and the successful defendant might be compelled to seek elsewhere for the satisfaction of his judgment.

There is more of substance and benefit in the requisition that the defendant’s place of residence should be specified. This is the locality in which the suit must be brought, unless authorized or required to be instituted elsewhere, under some of the exceptions of the statute; and it might appear on the •face of the petition whether the suit, in this particular, was brought in conformity with law. The plaintiff in the petition described himself as a resident citizen of the State of Tennessee. This we deem sufficiently specific. If the defendant had desired to secure the payment of costs in the event that judgment should bo eventually against the plaintiff, he could have attained that object by requiring security, and in that event a knowledge of the precise locus of the plaintiff’s domicil could have been of no possible advantage to the defendant.

There was no error in overruling the demurrer.

The third ground is the admission of the transcript in evidence to the jury.

The objections to the transcript are two fold, viz:

1st. That it was not properly authenticated, &c.

2nd. That the Court rendering the judgment had no jurisdiction of the cause.

The objection to the authentication is, that the transcript purports to be the transcript of a judgment rendered at a Term of the law side of the Common Law and Chancery Court of the city of Memphis, begun and held at the Court House in the city of Memphis for the fifth, thirteenth and fourteenth Civil Districts of the County of Shelby and State of Tennessee, whereas the certificates of the Clerk and Judge show only that the first is the Clerk of the law side of the Common Law and Chancery Court of the city of Memphis, and the second that the Judge is the presiding Judge of the Common Law and Chancery Court of the city of Memphis, but without specifying any connection with the Courts for the oth, 13th and 14tli Civil Districts of Shelby county.

There is some plausibility in this objection. The certificates of the Clerk and Judge must show that they are the Clerk and the Judge of the Court in which the judgment was rendered. But though the attestation of the Clerk and certificate of the Judge might have assumed a more satisfactory form, yet we deem them sufficient, under the law, to have authorized the admission of the transcript in evidence.

The attestation of the Clerk commences with “The State of Tennessee, Shelby county," thereby shewing that the city of Memphis, where the Court was held, is in that county and State. The certificate shews, also, that he was Clerk of the law side of the Common Law and Chancery Court of that city. There is no reasonable presumption that there could be more than one Clerk for the law side of a Court held in one place or city, no matter how many may be the Districts for which the Court may be held. This certificate must be presumed to be in the usual form of attestating to the judgments of that Court. The Judge certifies that the attestation is in due form of law. This is evidence that the authentication is in the usual form, and in fact is the only evidence which can be received that such is the form of authentication. The certificate of the Judge also shows that he is the presiding Judge of the Common Law Court of the city of Memphis, and of course is the presiding officer whether the Court be held for one District or another.

The second objection, that the Court rendering judgment had no jurisdiction, is not tenable. The cause, after its transfer to the Common Law side of the Court for the city of Memphis, remained on docket for several Terms, and was tried several times without any objection being made to the jurisdiction. In fact all objections to the jurisdiction were waived by agreement when the cause was transferred. True, this consent would not give jurisdiction if by law the Court in Memphis could not have jurisdiction of the cause. ' But the presumption is to the contrary. The suit was commenced in a Common Law Court, and the Court to which it was transferred was a Court of Common Law. If the Court had no jurisdiction it must arise from some provision of law which ought to have been shown.

We are of opinion that there is no error in the judgment, and that it he affirmed.

Judgment affirmed.