McDermott v. Clary

In an action on a judgment recovered in another state in a suit for the use and occupation oí a house, the only issue to the jury was whether the defendant was served with process or appeared in said suit, and he was called as a witness. Held, that allowing him to testify that he was not a resident of said state, but was there as an officer of the army, and occupied the house as military quarters assigned to him by his superior officer, afforded no ground of exception. In a civil suit in another state the defendant was not served with process, and did not appear; but, having been proceeded against in the name of the state for contempt in resisting an attachment therein, he appeared by counsel in the proceedings for contempt. Held, that an action could not be maintained here on a judgment rendered against him in the suit.

Contract upon a judgment rendered by the law court (so called) of Memphis in Tennessee, against this defendant, upon his default, in favor of Charles McDermott, for the use of himself and George W. Duvall, guardian, in a suit brought for the use and occupation of a house in Memphis. Duvall having died, the action was brought in the name of McDermott alone. Trial and verdict for the defendant, in the superior court, before Rockwell, J., who allowed a bill of exceptions, of which the material parts were as follows: “ The plaintiff put in an exemplified copy of the record of the suit in which the judgment was recovered, which set forth a return of Phineas M. Winters, sheriff, that he had served a summons on the defendant. “ The defendant denied the jurisdiction of the court in Tennessee, and that he was ever served with process, employed counsel, or appeared in the action in Tennessee; but testified that there was another suit brought to recover possession of the house for the use and occupation of which judgment was recovered in the case now in suit; that he was served in that suit; that, in the suit in which he was served, a process was attempted to be served attaching his property; that this attachment was resisted, and he was proceeded against for contempt; that he had only two suits, the ejectment and the contempt suit; and that he did employ counsel in the contempt case, but supposed the contempt arose in the case for possession, in which he employed counsel. “ The plaintiff put in a record of the proceedings in the possession case in Tennessee, and it did not appear thereby that any proceedings for contempt were had in that case, while the record of proceedings in the case for use and occupation did show such attempt to attach, and subsequent proceedings for contempt against the defendant,” in which he was summoned to answer to the state of Tennessee for his contempt in resisting the attachment. “ The defendant, under the objection of the plaintiff, testified as follows: ‘1 was in Memphis from September 1864 to July 1866. I was deputy quartermaster general. I belonged to the army then and now. There was quite a large force then at Memphis, ten to fifteen thousand men, under command of General Washburn. I was under his command by order of the secretary of war. I performed the duties of quartermaster general. The house in question was assigned to use for my quarters. It was formerly occupied by a rebel general; and when we took the city it was assigned to me for my quarters. I occupied the whole house from September 1864 to July 1866. I occupied only in my official character as quartermaster general, by order of the secretary of war. I have heard read the record of a certain suit here. I never heard of it until after I had left Memphis a year and a half. Duvall had sued me before this in a suit for possession. I knew a man by the name of Winters, who was sheriff there, He never read a paper to me in the world, or gave me any notice. General Bankhead was city attorney there, and appeared for me in a suit for ejectment; but I never did anything to recognize the authority of the court in this case, and never appeared either in person' or by counsel. I never was a resident nf the state of Tennessee, and remained in Tennessee only so long as I was ordered by the secretary of war. I never heard of any suit by McDermott, or was served with process in any such suit.’ The occupation, testified of by the defendant, of the house, was the same for which the action was originally brought in Tennessee. “ The judge, upon objection of the plaintiff to this evidence, said he would admit it, as it might bear upon the question of service. The evidence was then put in, and nothing more was said about it until the argument of the case, when the' defendant’s counsel argued upon the facts contained in all said evidence, as bearing upon the question of service and appearance in court, which were the only questions submitted to the jury. “ The defendant asked the judge to rule that ‘ if no proper serrice had been made, and the defendant under a misapprehension of the facts employed an attorney to appear for him, such appearance would not give the court jurisdiction.’ The judge gave this instruction, with the qualification ‘ that if the defendant employed counsel under the misapprehension that the contempt was in the possession case, it would not be proof of an appearance in the case in which the judgment sued upon was recovered.’ ”