#### Joseph M. Bimeler v. Robert Dawson et al.

Error to Brown.

1. Action — on personal judgment. The judgments in personam of one country can be enforced by suit in the judicial tribunals of another country.

2. Foreign judgment — impeachable. A foreign judgment is to be received as prima facie evidence of indebtedness, and the defendant is allowed to impeach the justice of it, or to show that it was unduly or irregularly obtained.

3. Same — for causes. Under the constitution and laws of the United States the records and judicial proceedings of the several states have such faith and credit given them in every court in the United States as they have by law or usage in the courts of the state from whence taken, or where rendered, (a) If a judgment in personam is conclusive in the courts of the stale where rendered it has the same conclusive effect when sued in the courts of a different state ; but the defendant may impeach the judgment by showing that it was fraudulently obtained, or that the couit rendering it had no jurisdiction of the person of the defendant or of the subject matter of the suit, (b)

4. Same — when. Where the record of a court of general jurisdiction shows either

*5555. Same — presumptions. Where the exemplification of the record of a judgment rendered in the court of common pleas of Ohio showed that process was served upon the defendant, by leaving a copy of the summons at his residence, and the defendant, in an action upon the judgment, pleaded that he was not personally served with process and had no notice of the pendency of the suit in which the judgment was rendered, and issue was taken upon the fact of notice: Held, that the presump'tion from the record was that the defendant was a citizen of Ohio when the judgment was rendered, and that the court had jurisdiction, and that its proceedings were in conformity with the laws of that state, and the judgment valid; but that the record was not conclusive, but only prima facie evidence of the jurisdiction of the court and its right to render judgment, and that the defendant might controvert both of these questions; that he might show that at the time of the institution of the suit and the rendition of the judgment he was not an inhabitant of Ohio, and not within the jurisdiction of the court, or that by the laws, of that state the mode of service adopted did not give the court jurisdiction of his person, or that it had not jurisdiction of the subject matter of the suit, or that the judgment was fraudulently obtained; and unless he could show one of these facts the judgment was conclusive against him. (d)

that the defendant was personally served with process or personally appeared to the action, then the record is conclusive and the defendant is estopped by it from denying the jurisdiction of the court over his person; but if the record fails to show affirmatively this service on or appearance by the defendant, it furnishes, at most, but prima facie proof of the jurisdiction of the court and its authority to render the judgment. Where the record shows neither service of process nor notice to the defendant, nor appearance by him, the judgment is a nullity when attempted to be enforced in another state, the record not affording even a presumption in favor of the jurisdiction; but if the record shows that there was a service of process or notice to the defendant, or an appearance for him, not amounting in either case to personal notice or appearance, then the presumption from the record is that the court had jurisdiction and proceeded in conformity to the laws of the state, and until such presumption is rebutted by the defendant the judgment is conclusive, (c)

6. Statute — not operate extra-territorially. The laws of a state cannot operate extra-territorially or on the citizens of other states, unless they go voluntarily within its limits; but it may make such regulations as it sees fit in relation to judicial proceedings against its own citizens, and such regulations will be binding on them, (e)

This cause was heard in the court below at the September term, 1842, before the Hon. Stephen A. Douglass, without a jury. Judgment was rendered for the defendant, and the cause brought to this court by the plaintiff by writ of error.

J. A. McDougall, for the plaintiff in error:

First. The presumption of- law is that the proceedings, notice, [*537] etc., in this case, as they appear upon the Ohio record, were in conformity with the laws of Ohio. Story’s Conflict of *556Laws 505, note; Bequet v. McCarthy, 22 Eng. Com. Law XL 221-2 ; Thompson v. Ketchum, 8 Johns. 189.

Second. Every presumption is in favor of the jurisdiction of the court rendering the judgment, and every fact which may give the court jurisdiction must be expressly negatived. Harrod v. Barretto, 1 Hall 155; Shumway v. Stillman, 4 Cowen 292.

Third. By comity a foreign judgment is conclusive in a personal action, where the parties are subjects of the sovereignty where the judgment is rendered; and in this case, the defendant being at the time of judgment a resident of Ohio, the judgment is conclusive upon him as a foreign judgment, without the aid of the legislation of congress. Bequet v. McCarthy, 22 Eng. Com. La!w XL 221; Story's Conflict of Laws 506, 510.

Fourth. The citizens of every nation are considered parties to all its public acts, and to the judgments of its courts. Such, at least, is the case in judgments of confiscation. Conway v. Grey, 10 East 546 ; Flindt v. Scott, 15 East 528; Mewrett v. Bonham, 15 East 494, 499.

Fifth. The constitution and laws of congress in pursuance thereof give judgments the same effect in every other state that they have in the state where they are rendered. 3 Story’s Com. on Const. 182-3 ; Mills v. Duryee, 2 Peters’ Cond. R. 578; Kim-mel v. Shultz, Breeze 128.

Sixth. In the case at bar, the defendant was a resident of Ohio, and received notice according to the laws of that state ; he being subject to the jurisdiction of those laws, a judgment under them was conclusive upon him in Ohio, and consequently is conclusive everywhere in the Union.

A judgment rendered against a non-resident, not within the jurisdiction, and not voluntarily submitting thereto, would be void, upon general principles; and this is as far as the state courts have gone in refusing to give effect to the judgments of other states. Hall v. Williams, 6 Pick. 239, 242 ; Bissell v. Briggs, 9 Mass. 444; Shumway v. Stillman, 4 Cowen 292; Idem. 6 Wend. 447; Harrod v. Barretto, 1 Hall 155.

Seventh. The service in this case is a good personal service. It was competent for the legislature of Ohio to prescribe the manner of service, and it prescribed the same rule of service that exists in this state in proceedings in equity. R. L. 119. If the court is of opinion that the service in Ohio was insufficient, it determines that the proceedings of our courts of equity, in cases between the citizens of this state, and subjects to the state laws, are inoperative and void, beyond the limits of the state [*588] territory. Certainly, if it be just that citizens of this state should be concluded by a judgment here, by virtue of the laws of their own government, they should, be concluded everywhere.

*557O. H. BROWNING and N. Bushnell, for the defendants in error.

First. The question sought to be raised by the plaintiff in error does not arise from the record.

The question presented by the record is merely one of evidence, whether the record introduced by the plaintiff in the court below, did or did not sustain the truth of the defendant’s second plea.

The plea alleges “ that the defendant was not personally served with process in the original suit, and had no notice thereof.”

To this the plaintiff in error replies, and it is now a simple question of fact whether or not the defendant was served or not.

The record shows that the defendant was not personally served with process, but was served simply by the officer’s leaving a copy at his residence; the fact is then in favor of the defendant, and the court was right in rendering judgment as it did, from the evidence and issue in the case.

By replying to the second plea, the plaintiff has admitted its sufficiency, and if not sufficient, he should have demurred.

But in fact such a plea is good. Rust v. Frothingham, Breeze 258; Hall v. Williams, 6 Pick. 282.

Second. But even admitting that the question presented by the first and second errors assigned does properly arise for the record, still there is no error.

In order to make the record of a judgment in one state evidence against the same defendant in another state, it must appear from the record that the defendant was personally served with process in the original suit, or that he appeared as the defendant in the suit, either by himself or by his attorney; otherwise the judgment will be treated as a nullity, and no sort of constructive notice will be sufficient. The cases all proceed on the ground that without such personal service or appearance, the court rendering the judgment had no jurisdiction over the person of the defendant, and that neither the comity of nations, nor the constitution of the United States requires the court of another state to respect such judgment. The jurisdiction of the court- rendering the judgment has always been considered, in the United States, as a proper subject matter of enquiry, and that the constitution does not at all preclude such enquiry; nor, as to the question of jurisdiction, does it make any difference whether the defendant was a citizen of the state in which the judgment was pronounced, or whether he was the citizen of another state. The same rules are indiscriminately applied to all cases, without reference to any distinction between the cases of citizens and foreigners. Story's Conflict of Laws, §§ 586, 609-10; Rogers v. Coleman, Hardin 418, 416, 418; Hall v. Williams, 6 Pick. 232; [*589] *558Shumway v. Stillman, 6 Wend. 327, 447; Border v. Fitch, 15 Johns. 121,140-2 ; Starbuck v. Murray, 5 Wend. 143 ; Shum-way v. Stillman, 4 Co wen 292; Bissell v. Briggs, 9 Mass. 462; Hilburn v. Woodworth, 5 Johns. 37; Robinson v. Ward’s executors, 8 Johns. 87; Himmel v. Shultz, Breese 128.

The two cases in the supreme court of the United States, Mills v. Duryee, 2 Peters’ Cond. R. 578, and Hampton v. McConnell, 4 Peter’s Cond. R. 243, have never been considered, as by the latter decisions, as affecting the right of the State courts to enquire as to the jurisdiction of the courts of another state. The only question before the court, in both of those cases, was whether nil debet or nul tiel record was the proper plea to a record of another state court. It was a question of pleading, and not of jurisdiction. In Mills v. Duryee, it appeared from the record that the defendant was in fact actually resident and gave bail, so that no question of jurisdiction could possibly arise. See as to the construction of those, eases, Borden v. Fitch, 15 Johns. 121; Shumway v. Stillman, 6 Wend. 447; Hall v. Williams, 6 Pick. 232.

(a)

Cases Citing Text. Rule stated in head note affirmed. Welch v. Sykes, 3 Gilm. 197, 199; Fryrear v. Lawrence, 5 Gilm. 325; McJilton v. Love, 13 Ill. 486, 493; Lawrence v. Jarvis, 32 Ill. 304, 309; Zepp v. Hager, 70 Ill. 223, 227.

If judgment of sister State has been there satisfied of record, and afterwards such satisfaction has been there set aside, suit may be maintained in this State on so much of said judgment as is unsatisfied. McJilton v. Love, 13 Ill. 486, 493.

In suit on judgment of court of sister State, having general jurisdiction, declaration need not contain averment that such court had jurisdiction of subject matter and parties. Rae v. Hulbert, 17 Ill. 572, 578.

Action of debt may be maintained on chancery decree of foreign court simply directing payment of fixed amount of money. Warren v. McCarthy, 25 Ill. 95, 103.

(b)

In action'on judgment of sister State defendant may show in bar of action, either that such judgment was obtained by fraud, that court rendering it had not jurisdiction of his person, or that it had not jurisdiction of subject matter of suit. Welch v. Sykes, 3 Gilm. 197, 199; Fryrear v. Lawrence, 5 Gilm. 325; Warren v. McCarthy, 25 Ill. 95, 103; Lawrence v. Jarvis, 32 Ill. 304, 309; Jones v. Warner, 81 Ill. 343, 348.

In action on judgment, foreign or domestic, where record shows appearance of defendant by attorney, lack of authority of attorney may be proved. Welch v. Sykes, 3 Gilm. 197, 199; Thompson v. Emmert, 15 Ill. 415; White v. Jones, 38 Ill. 160, 164.

If judgment is obtained in this state on judgment of sister State, and afterwards such sister State judgment is reversed, chancery will relieve in absence of laches against judgment here. McJilton v. Love, 13 Ill. 486.

Presumption is that attorney entering party’s appearance has due authority. Whittaker v. Murray, 15 Ill. 293.

In action on foreign judgment defense of want of jurisdiction, if apparent on face of record, need not be pleaded. Smith v. Smith, 17 Ill. 482.

(c)

Record of judgment of foreign court of general jurisdiction is prima facie proof of jurisdiction, although it is silent as to service of process. Dunbar v. Hollowell, 34 Ill. 168.

Effect of recital of jurisdictional facts in decree said arguendo in 1866, in view of prior conflicting decisions, to be unsettled question. Rivard v. Gardner, 39 Ill. 125, 128.

In action on judgment from sisterState, record showing sheriff’s due return of service of process on defendant cannot be contradicted. Zepp v. Hager, 70 Ill. 223, 227.

(d)

Where party was sued and appeared before justice of peace in sister State, and suit was appealed to common pleas court in that State without notice to such party, it will be presumed that latter court had jurisdiction. Horton v. Critchfield, 18 Ill. 133, 135.

(e)

Court of sister State can acquire jurisdiction of person, who is not citizen of such state, only by notice to him, or by his appearance. Sim v. Frank, 25 Ill, 125, 127.

TREAT, Justice,

delivered• the opinion of the court: Bimeler brought an action against Dawson and Welch. There was service of process on Dawson only. The declaration was in debt on a judgment recovered by the plaintiff against the defendant's, in the court of common pleas of Starke county, in the State of Ohio, on the 18th of June, 1838, for f362.86 damages, and $8.87 costs. Dawson pleaded first, nul tiel record; secondly, that he was not personally served with process, and had no notice of the pen-dency o.f the suit in which the judgment was recovered. To the second plea the plaintiff replied, that the defendant had notice of the pendency of the suit. The cause, was tried by the court. On the trial the plaintiff read in evidence, the record (duly authenticated) of a judgment like the one set out in the declaration. The record showed personal service of process on Welch, and service on Dawson by leaving a copy of the summons at his residence, and the rendition of a judgment by default, against both of the defendants. This was all of the evidence. The court determined that the record for the want of personal service of process on Dawson, was not evidence of indebtedness against him, and rendered a judgment in his favor for costs. That decision is now assigned for error.

The only question for consideration is, whether the record introduced by the plaintiff furnished sufficient evidence to sustain his action. The judgments in personam of one country can be enforced by suit in the judicial tribunals of another country. It is admitted by all the courts, that the foreign judgment [*540], is prima fade evidence to sustain the action, and it is to be deemed sufficient, until the contrary is established. The only question about which there seems to be any diversity of *559opinion is, whether the judgment is to be considered as conclusive, so as to prevent the defendant from going behind it, and instituting an enquiry into the original merits of the controversy. In the case of Walker v. Witter, Douglass 1, Lord Mansfield held, that although the judgment gave a ground of action, it was only prima facie evidence, and might be enquired into and examined. The same doctrine was maintained in the cases of Phillips v. Hunter, 2 H. Blac. 410; Hall v. Odber, 11 East 118; Bailey v. Edwards, 3 Swanston 703; and Arnot v. Redfern, 2 Carr & Payne 88. Notwithstanding the expressions of some judges that the judgment ought to be regarded as conclusive between the parties, when sued on in a foreign court, the rule clearly deduci-dle from the decisions of the British courts is, that the judgment is to be received in the first instance as prima facie evidence of indebtedness, and the defendant is allowed to impeach the justice of it, or show that it was unduly or irregularly obtained. The' same rule has been generally recognised and followed by the courts of this country, in relation to judgments rendered out of the jurisdiction of the United States. 2 Kent’s Com. 120. Hitchcock v. Aicken, 1 Caines 460; Hubbell v. Cowdrey, 5 Johns. 132; Taylor v. Bryden, 8 Johns. 173; Bartlett v. Knight, 1 Mass. 401; Butrick v. Allen, 8 Mass. 273; Bissell v. Briggs, 9 Mass. 462.

The constitution of the United States declares that full faith and credit shall be given in each state, to the public acts, records, and judicial proceedings of every other state, and confers power on congress to provide the manner in which the same may be proved, and the effect thereof.

Congress, legislating in pursuance of this authority, has provided the mode of authenticating the records and judicial proceedings of the states, and declared that they shall have such faith and credit given them in every court of the United States, as they have by law or usage in the courts of the state from whence taken, or where rendered. Act of congress of 26th May, 1790.

The supreme court of the United States, in the case of Mills v. Duryee, 7 Cranch 481, decided that nil debet was not a good plea to an action founded on the judgment of a court of record of another state, and that the same effect was to be given to the judgment as would be in the state where rendered; that the judgment was to be considered as conclusive in every other state, if the courts of the particular state, where recovered, would hold it conclusive. The same principle was afterwards affirmed by that court, in the case of Hampton v. McConnel, 3 Wheat. 234.

Prior to the decision, in Mills v. Duryee, the general tenor of the decisions of the state courts has been to regard the judgments of another state in the light of foreign judg- [*541] ments. The effect of that decision was to place them on the footing of domestic judgments, and to give them the same *560dignity and conclusive effect, when sued on in a different state, that they had in the state where rendered. That decision has been acquiesced in and followed by the state tribunals, and may now be regarded as the settled law of the country. The doctrine of that case, however, is to be understood as applying to judgments in personam, and to those with these qualifications: that the defendant may impeach the judgment, by showing that it was fraudulently obtained, or that the court rendering it had no jurisdiction of his person, or of the subject matter.

In Borden v. Fitch, 15 Johns. 121, it was decided, that a judgment recovered in the state of Vermont, against a party who resided out of the state, and had no notice of the pendency of the trial, was void, and could not be enforced. The court also asserts the principle that a judgment may be impeached for fraud.

In Andrews v. Montgomery, 10 Johns. 162, the court says, that the case of Mills v. Buryee was never intended to preclude a party from showing that the judgment had been fraudulently obtained, or rendered by a court which had no jurisdiction of his person.

The same principlós are recognised and affirmed in the cases of Shumway v. Stillman, 4 Cowen, 292; Bissell v. Briggs, 9 Mass. 462; Harrod v. Barretto, 1 Hall 155; Starbuck v. Murray, 5 Wend. 148; Hall v. Williams, 6 Pick. 232; and Shumway v. Stillman, 6 Wend. 447.

In the two cases last named, the rule is laid down, that where the record of a judgment of a court of general jurisdiction shows either that the defendant was personally served with process, or personally appeared to the action, then the record is conclusive, and the defendant is estopped by.it, from denying the jurisdiction of the court over his person. To the same effect is the decision of this court, in the case of Rust v. Frothingham, Breese 258. All of the authorities agree, that if the record fails to show affirmatively this mode of service on, or appearance by the defendant, it furnishes at most but prima facie proof of the jurisdiction of the court, and its authority to fender the judgment. Where the record shows neither service of process, nor notice to the defendant, nor appearance by him, the judgment is a nullity, when attempted to be enforced in another state, the record not affording even a presumption in favor of the jurisdiction. But if the record shows that there was a service of process, a notice to the defendant, or an appearance for him, not amounting, in either case, to personal notice or appearance, then the presumption from the record is, that the court had jurisdiction, and proceeded in con-[*542] formity to the laws of the state, and until such presumption is rebutted by the defendant, the judgment is conclusive.

The laws of the several states provide different modes of *561bringing parties into court. In some states, personal service of process is required; while in other states that mode is not indispensable, but a party may be required to appear and defend an action, on notice by publication, or by the leaving of process at his residence. It is doubtless competent for each state to adopt its own regulations in this respect, which will be binding and obligatory to its own citizens. We cannot doubt the right or power of the state of Ohio, to provide that the kind of service, which it appears was made in this case, shall be sufficient to authorize its courts to take jurisdiction of the person of a defendant, and proceed to hear the case, and render judgment. A judgment thus rendered against one of its citizens would be binding and conclusive, on him, for owing allegiance to the state, he is bound by its laws, and amenable to its judicial tribunals. That state, however, cannot, in that way, get jurisdiction over the people of other states. Its laws can only operate within its own territory, and on its own citizens. They cannot be made to operate extra-territorially, or on the citizens of other states, unless they go voluntarily within its limits.

In the present case, the record is not conclusive proof that the court in Ohio had jurisdiction of the person of the defendant. It is but prima fade evidence of the jurisdiction, and of the right of the court to render the judgment, and the defendant is at full liberty to controvert and contest both of these questions. If he can do this successfully, the plaintiff must abandon his action on the judgment, and resort to a suit on the original cause of action. The defendant may show, by way of defence, that at the time of the institution of the suit in Ohio, and until after the rendition of the judgment, he was not an inhabitant of that state, and therefore not within the jurisdiction of the court. If an inhabitant, he may show that by the laws of that state, the mode of service did not give the court jurisdiction of his person, or he may show that it had no jurisdiction of the subject matter of the action, or that the judgment was fraudulently obtained.

The record produced by the plaintiff showed that there was service of process, and if the laws of Ohio authorized the kind of service, and the defendant at the time v/as an inhabitant of the state, he was bound to interpose his defence there, and omitting to do it, the judgment .there rendered is conclusive in this state. The presumption from the record is, that he was ^ citizen of Ohio; that the court had jurisdiction, and that its proceedings were in conformity with the laws of that state.

In Shumway v. Stillman, 4 Cowen 292, the court says, that “Every presumption is in favor of the jurisdiction of the court; the record is prima facie evidence of it, and to be held conclusive, until clearly and explicitly disproved.” [*543]

In Starbuck v. Murray, before referred to, a plea that *562the defendant, at the time of the commencement cf the suit, was, and ever since had been, an inhabitant of New York, and that during all of that time lie had not been in the state of Massachusetts where the judgment was rendered, was held to be bad, for the reason that he might have authorized the entry of his appearance, and in that way submitted his person to the jurisdiction of the court. In Harrod v. Barretto, before cited, the court says, that a plea denying the jurisdiction must negative every fact from which the jurisdiction may arise.

'There can be no doubt, therefore, that the record introduced by the plaintiff was sufficient evidence to sustain his action. If not contested by the defendant, it was conclusive. It appears that he did not attack it, with evidence, and the circuit court erred in not rendering judgment for the plaintiff.

Its judgment is reversed with costs, and the cause remanded for further proceedings not inconsistent with this opinion.-

Judgment reversed.