#### Peter Kimmel, Plaintiff in Error, v. Conrad Shultz, Frederick Konig, and Lewis Mayer, Defendants in Error.

ERROR TO JACKSON.

Where a suit is brought against several joint debtors, a recovery must be had against all or none, unless one or more of the defendants interpose a defense which is personal to himself, such as infancy or bankruptcy. (1)

A judgment rendered in a sister state, is to be regarded in the same light here, as it would be in the state where it was rendered. (2)

The court can not notice a judgment record on which suit is brought, unless it is made a part of the record by bill of exceptions.

(1)

In an action of debt or assumpsit against several, when all are served with process, the judgment must be against all or none, unless some of them interpose a defense personal to themselves, such as infancy or bankruptcy; and it is immaterial whether the liability is joint, or joint and several. Owen et al. v. Bond, ante, p. 128. Russel v. Hogan, 1 Scam., 552. Hoxey v. County of Macoupin, 2 Scam., 36. McConnell v. Swailes, id., 571. Tolman v. Spaulding, 3 Scam., 14. Frink et al. v. Jones, 4 Scam., 170. Wright et al. v. Meredith, id., 361. And if a writ is issued against several and served on part only of the defendants, the plaintiff must show a right of action against all, or he can not recover against such as are served with process.

A judgment against several is a unit, and if erroneous as to one, must be reversed as to all. Brockman v. McDonald, 16 Ill., 112.

(2)

■ (2) Under the constitution of the United States, and the laws of Congress, the judgments in personam of the different states,-are placed on the footing of domestic judgments ; and they are to receive the same credit and effect, when sought to be enforced in different states, as they have by law or usage in the particular state where rendered. A judgment fairly and duly obtained in one state, is conclusive between the parties when sued on in another state. Bimeler v. Dawson et al., 4 Scam., 542. Welch v. Sykes, 3 Gilm., 199. Buckmaster v. Grundy et al., id., 626. Fryrear v. Lawrence, 5 Gilm., 325. McJilton v. Love, 13 Ill., 491. The cases of Mills v. Duryee, 7 Cranch, 481, referred to in the opinion of Justice Lockwood, and Hampton v. McConnel, 3 Wheaton, 234, are to the same effect.

The defendant may show, in bar of an action on the record of a judgment, in another state, that the judgment was fraudulently obtained, or that, the court pronouncing it had neither jurisdiction of his person, nor of the subject matter of the action. If he succeed in establishing any one of these defenses, the judgment is entitled to no credit, and the plaintiff is driven to his suit on the original cause of action. See the cases cited above: also Harrod v. Barretto, 2 Hall, 302. Shumway v. Stillman, 6 Wend., 447. Starbuck v. Murray, 5 Wend., 148.

In an action on a record which shows that the appearance of the defendant was entered by an attorney, the authority of the attorney will be presumed; but it may be shown by the defendant that the attorney had no such power, and thereby defeat a recovery. Thompson v. Emmert, 15 Ill., 415. And the same opinion is intimated in Welch v. Sykes, 3 Gilm., 197.

The record of a judgment is used as evidence on the trial; and when introduced, affords conclusive evidence of the facts stated in it. Thus, if the record shows affirmatively that the defendant was personally served with process, or personally appeared to the action, it furnishes conclusive evidence of the fact stated, and the defendant can not controvert it. Rust v. Frothingham, post. Welch v. Sykes, 3 *170 Gilm., 197. Thompson v. Emmert, 15 Ill., 415. Hall v. Williams, 6 Pickering, 232. 6 Wend., 447.

In Owens v. Ranstead, 22 Ill., 161, the reasoning of the court is apparently in conflict with the cases above cited. They there held that the return of an officer to a writ, is only prima facie evidence of the facts stated in it; and in a proper case equity would relieve against the effects of it. Perhaps the better reason is, and consistent with the various decisions on the subject, that although, in an action at law on the record, the defendant can not controvert it, yet if it be untrue in fact, he may obtain relief in equity.

Opinion of the Court by

Justice Lockwood.

This is an action of debt brought on a judgment obtained in the state of Pennsylvania against the plaintiff in error, and Henry G. Pius, and *170Henry A. Kurtz. The writ and declaration in this suit, are also against all of the judgment debtors, but this judgment is rendered against Kimmel only. It appears from the sheriff’s return, that the writ was executed on all the defendants, and ■no reason is assigned why the judgment was not rendered against the whole.

Several errors have been assigned, but it will be unnecessary to take notice of more than the second error, which is, that judgment was given against Kimmel on the plea of nul tiel record. This was clearly erroneous. The rule is well settled, that where a suit is brought against several joint debtors, you must recover against all the defendants or none, unless one or more of the defendants interpose a defense which is personal to himself, such as infancy or bankruptcy. Robertson v. Smith and others, 18 Johns. Rep., 459.

In this case it does not appear that Pius and Kurtz made any defense, consequently judgment ought to have been taken against them by default. The judgment for this error must be reversed with costs, and the cause remanded, with liberty to both parties to amend their pleadings.

As difficulty may arise in the further prosecution of this suit, the court think proper to remark, that according to the decision of the supreme court of the United States, in the case of Mills v. Duryee, 7 Cranch, 481, the plea of nil debet is not a good plea in an action of debt founded on a judgment recovered in any of the courts of the several states, and upon the principles assumed in that case, the third plea would be bad. Such judgments, according to that case, are to be regarded in the same light they would have been, had they been sued upon in the courts of the state where they were originally recovered. No other defense can here be made, but what could have been made in Pennsylvania, and if the common law doctrine in relation to judgments prevails in that state, the question in relation to the partnership of Kimmel, Pius and Kurtz, must be considered as conclusively settled, so far as regards this suit, by the judgment in Pennsylvania.

The decision in the case of Mills v. Duryee, has by courts *171of great respectability, in several of the states, been regarded as a harsh decision, and may lead to many oppressive consequences if adopted in extenso. The court, in delivering that opinion, seemed to be aware that there was a description of judgments, such as judgments obtained on attachments without notice, that ought to be an exception to their rule, and they appear to lay stress on the fact that in the case under consideration the defendant had notice and appeared in the suit.

Eddy, for plaintiff in error.

Cowles, for defendants in error.

It istherefore suggested by the court to the counsel for the defendants in error, whether it ought not to appear from the declaration what the notice in the original suit was, and what is the effect of the judgment in Pennsylvania. The laws of the several states are to be considered as facts, and in general, like other facts, ought to be averred and proved. If the law, however, presumes that the judgment was obtained upon sufficient notice of the pendency of the suit, it would probably be proper for the defendant, by plea, to allege such facts as would be sufficient to show that the judgment ought not to be clothed with its conclusive character as at common law.

The court would also remark that in case this suit should be brought again before them in regard to the effect and nature of the record produced in evidence, that the record ought to be brought up by a bill of exceptions. As it is presented to them in this case, they could not notice it. From any thing that appears on the record, it was received as evidence in the court below, without objection, (a)

(a)

See Browder v. Johnson, ante, page 96.