Page images

Bull a. Melliss.

Appeal from an order denying leave to issue execution against the persons of the defendants.

The court had ordered the arrest of the defendants during the pendency of this action, and upon appeal the order was

be ground for allowing execution against the person, on a judgment recovered for the whole debt.

The cause came up on defendant's motion to set aside an execution which had been issued against his person.

Emott, J.—This is a simple action on contract, for the price of goods sold by plaintiffs to defendant, between the first of October, 1860, and the first of April, 1861.

The plaintiffs obtained an order of arrest on an affidavit, alleging that the debt was fraudulently contracted. This order was vacated on motion, but with leave to the plaintiffs to apply again for an order of arrest after the complaint was served.

The grounds upon which the order of arrest was set aside, do not positively appear, nor do I distinctly remember what they were; but I presume the principal, if not the only reason, was that the facts relied upon to show fraud were stated on the information and belief only of the plaintiffs or of the persons making the affidavits, and without giving the sources of information.

There was no further application for an order of arrest before judgment, and the complaint was simply upon contract containing no allegations of fraud. Judgment went for the plaintiffs by default for the amount of the debt, and having issued an execution against the defendant's property, which was not satisfied, they have now issued one against his person, which the defendant moves to set aside.

The defendant's counsel contends that, as the plaintiffs have never availed themselves of the privilege afforded them to renew their application for an arrest, the order vacating the first arrest is conclusive against them that the action is not one in which the defendant might have been arrested. There is much force in the suggestion, but I do not think it necessary to put the decision of the present motion on that ground. There are other reasons why I think this execution must be set aside.

The defendant's counsel further contends, that no execution against the person can be issued in an action in which the right to arrest grows out of extrinsio facts (as in the present instance, where the debt is alleged to have been contracted by fraud), and does not follow from the nature of the action itself, unless an order of arrest has been obtained in the action before judgment. That is, that where the plaintiff sues on a contract, and obtains a judgment for his debt, and has obtained no order of arrest against the defendant for fraud or otherwise, he cannot, after judgment, issue an execution against the person of the defendant, and justify it by affidavits, as he would an order of arrest. I have great doubts whether a contrary result does not follow from the reasoning and decision of the Court of Appeals, in Corwin a. Freeland (6 N. Y. (2 Seld.), 560) ; but the later cases have not deduced such a conclusion from that authority, and I shall not attempt to do so now. In Humphrey a. Brown (17 How. Pr., 481), Judge Hogeboom expresses the opinion that no ca. ta. can issue in an action not bailable in its own nature, unless an order of arrest has been obtained before judgment. In KenBull a. Melliss.

affirmed by the general term, upon facts which are fully stated in our report of this case. (9 Ante, 58.) The plaintiff having subsequently recovered judgment, moved at special term for leave to issue execution against the person, upon the same state <*f facts. The motion was denied, and the plaintiff appealed.

William E. Curtis, for the appellant, insisted that an order of arrest having been granted and enforced, and sustained at general term, plaintiff was entitled to leave to issue execution . against the person. (17 How. Pr., 481.)

James T. Brady, for the respondent, urged that the decision of the court at general term did not conclude the justice to whom the application for leave to issue execution was made, because the determination of the latter was founded on the report of the referee in the cause; and that of the court at general term was founded on conflicting affidavits.

Br The Court.*Ingraham, J.—The general term having decided that the defendants were liable to arrest, it was not necessary to make any new motion for leave to issue execution against the person in the same case.

Even if such motion is made, so long as the order of arrest stands, and that order is made or affirmed by the general term, a judge at chambers should be bound by such decision, where the same has been decided upon the merits. Such an order

denburg a. Morgan (18 lb., 469), Judge Bosworth, of the Superior Court of New York, decides the very point now presented, in favor of the construction claimed by the defendant here. I shall follow this rule, and hold for this reason this execution must be set aside.

There is also a difficulty upon the facts which are relied upon by the plaintiffs. The credit was given by the plaintiffs, and the goods sold, as appears by the complaint at various times, between October 1,1860, and April 1,1861. The representations which are charged to be fraudulent, were made in January, 1861, and afterwards. It can hardly be said upon these allegations, that the whole of the debt for which the plaintiffs have recovered judgment was fraudulently contracted, and it would not be sufficient to justify a at. ta. upon this judgment that part of it was so.

The execution is set aside, with $10 costs, to be deducted from the plaintiffs' recovery. The plaintiffs may have a stipulation that the defendant will not bring an action for false imprisonment, as a condition of vacating the execution, if they desire it.

* Present, Ingraham, Clkgkb, and Leonard, JJ.

McLaughlin a. Nichols.

ought not to be reversed at special term, unless some new matter arising since the order was made is shown to warrant granting the motion.

This ^notion was unnecessarily made, and should have been dismissed. The order denying the motion should be reversed, and an order dismissing the motion made, without costs.

Mclaughlin a. Nichols.

Supreme Court, Second District; General Term, Sept., 1861. Pleading Foreign Judgment.

A complaint on a judgment of a foreign court of inferior jurisdiction most state facts showing that the court had jurisdiction, both of the person and of the subject-matter.

A complaint on a judgment of a circuit court of another State—e. g., the Warren County Circuit Court in New Jersey—must either aver the fact of the existence of a general jurisdiction in that court, or of a limited jurisdiction which ex. tended to the cause of action for which the judgment was recovered, whatever it was, and also that the court had or obtained jurisdiction of the person of the defendants.

Appeal from an order overruling a demurrer.

The action was upon a judgment recovered in another State. The complaint was in the following form:

The plaintiff states the following facts as constituting his complaint and cause of action herein, that the defendant is. justly indebted to him in the sum of, &c, together with interest thereon, from, &c, which said indebtedness arose and accrued as follows:—That heretofore, to wit, on, &c, in "Warren County Circuit Court, State of New Jersey, the plaintiff, by the judgment and consideration of the said court then there, recovered a judgment against the defendants in said court for the sum of, &c, as appears by the record of the said court, or to a duly authenticated copy thereof will more fully and at large appear,

McLaughlin a. Nichols.

and to which, for greater certainty, refers, when the same shall be duly produced and proven, and the plaintiff says that he is the true and lawful owner and holder of the said judgment, and that the amount of the said judgment, together with interest thereon from the date of said judgment, is actually due and owing to the plaintiff from" the defendants, the same, nor no part thereof, having been paid or in any way satisfied, and that the said judgment is a subsisting judgment in full force and effect, being in no respect altered or modified.

To this complaint one of the defendants demurred, on the ground that it did not state facts sufficient to constitute a cause of action.

Judgment having been given for the plaintiff on the demurrer, at special term, the defendant appealed.

C. Bainbridge Smith, for the appellant.
Waring cfe SideU, for the respondent.

By The Court.*Emott, J.—This is an action on a judgment alleged to have been recovered "in Warren County Circuit Court, State of New Jersey," by the plaintiff against the defendants. The complaint contains no averment of any facts to give jurisdiction to the court in which the judgment was rendered., either of the persons of the defendants or of the cause of action, nor does it state what the jurisdiction of, the court is. The defendants demurred on account of the absence of these averments. Their demurrer was overruled as frivolous, and they have appealed.

The complaint cannot be vindicated by the Code, since it does not conform to the rule given by section 161, if that applies to foreign judgments or judgments of another State, which has been doubted. This pleading contains nothing but an averment that on a certain day, in Warren County Circuit Court, State of New Jersey, the plaintiff, by the judgment and consideration of the said court, recovered a judgment against the defendants for so much, as by the record of such judgment, or a duly authenticated copy thereof, when produced and proven, will appear,

• Present, Emott, Brown, and Scbuouam, JJ.

McLaughlin a. NichoU.

and to which the plaintiff refers. This does not make the judgment-record a part of the complaint, so that all which it may contain must be read as a part of the pleading. Nor is it a prolert of the record, as has been suggested, so that giving oyer will cover any difficulties and supply any defects in the complaint. The plaintiff does not propose to bring his record into court; he refers to it or to a copy of it, when produced and proven, as he would to any other evidence. Besides oyer is no longer given of the records and proceedings of courts, if it was ever demandable. (2 Den., 104.)

The judgment of a court of another State is entitled, by the Constitution of the United States, and the Act of Congress of May 26, 1790, passed in pursuance of the constitutional provision, to the same faith and credit as it would have in the State in which it was rendered. No judgment, however, is of any avail, if the court do not possess j urisdiction of the parties or the subject-matter. If jurisdiction did not exist, the judgment is void, and there is no record. Facts to prove the want of jurisdiction, and even to contradict the averments of the record itself in that respect, may be pleaded and proved against any record. If the court in which the judgment was recovered be one of general jurisdiction, it will be presumed to have had or acquired jurisdiction of the case. But if it be an inferior and limited jurisdiction, then the rule is that facts to show jurisdiction of the subject, as well as of the person, must be averred. This is the rule as to judgments and proceedings of domestic tribunals, and it is the rule for complaints and declarations, as well as pleas. {Willes, 413; 7 ITiU, 35, and cases cited in note; 3 Comst., 193.) The general rule is, that a declaration on a judgment of a court of inferior jurisdiction must state facts showing that the court had jurisdiction, both of the person and the subject-matter.

We are not informed, by this pleading, of the jurisdiction of the Warren County Circuit Court in New Jersey, nor whether it has jurisdiction of the subject of the suit which it is alleged was brought in it by the plaintiff against the defendants. It is not stated whether it is a court of general or limited jurisdiction, and we have no judicial knowledge upon that subject, for its jurisdiction depends upon the statutes of New Jersey, of which we can only take notice when they are pleaded and

« PreviousContinue »