Harryman v. Roberts

Robinson, J.,

delivered the opinion of the Court.

The appellants instituted a non-resident attachment suit, against the appellee, and caused the writ to he laid in the-hands of sundry persons as garnishees, against whom suits, were docketed in the usual form.

The appellee, defendant helow, appeared to the short, note case, and pleaded

1st. Not indebted as alleged.

2nd. That he did not promise as alleged.

3rd. That prior to the institution of this suit, the plaintiffs had recovered a judgment against the defendant, for the same cause of action in the Court of Common Pleas,, for the County of Ross, in the State of Ohio.

The plaintiffs joined issue on the first and second pleas,, and filed four replications to the third plea.

The defendant joined issued on the third replication,, and demurred to the first, second and fourth replications.

In these replications the plaintiffs allege that the judgment relied on in the defendant’s pleas, is invalid, because a motion was filed by the defendant to set it aside, on the ground that he was not indebted to the plaintiffs, and also because he had not been served with process; and. that for the purpose of pleading the alleged judgment in bar in this suit, the defendant fraudulently consented to-have the said motion overruled.

The question then presented by the demurrer, is, whether these facts are a sufficient answer to the defendant’s pleas ?

Nowit is well settled that a judgment recovered against a defendant in another State, is a har to a suit brought upon the same cause of action in this State. Bank of U. S. vs. Merchants’ Bank, 7 Gill, 415 ; Whitehurst vs. Rogers, 38 Md, 503-515; 2 American Leading Cases, 617 .

*75 And when it is relied on as a plea in bar, the only question open for inquiry is, whether the Court in which the judgment was rendered had jurisdiction of the person or subject-matter. See cases collated in 2 American Leading Ca ses, 617.

The judgment is conclusive as to the merits of the controversy. 2 Smith’s Leading Cases, 679, 841; 2 American Leading Cases, 612 .

The fact then, that the defendant filed a motion to set aside the judgment in the Court in which it was rendered, and the grounds on which the motion was based, are quite immaterial so long as the judgment stands between the parties. If the plaintiffs had a judgment against the-defendant in Ohio, for the same cause of action which they are prosecuting here, they certainly have no reason to complain, that the defendant agreed to have his motion to strike out the judgment overruled. Be that as it may, the motion in no manner affects the validity of the judgment, and constitutes no sufficient answer to the defendant’s plea, and the demurrer was therefore properly sustained.

The next question presented by the record is, whether-the judgment offered in evidence is a valid judgment against the defendant ?

It does not appear from the face of the judgment that personal process was served upon the defendant, but it does appear that a written notice was left at his place of residence.

It is essential, of course, to the validity of every judgment, that the parties to he hound should have notice of some kind, either, actual or constructive. Every one is entitled to his day in Court, and to the right of being heard before a judgment of any kind is rendered against him. But it is not always necessary that personal process shall he served upon him. Each State has the right to prescribe by law how its citizens shall be brought into its Courts. *76 And whatever conflict there may he in some of the earlier cases on the subject, we think it is now well settled, that if process he served upon the defendant, according to the laws of the State of which he is a resident, and judgment he afterwards rendered against him, such a judgment is as binding between the parties, in this State, when relied on as a bar to the prosecution of a second suit, upon the same cause of action, as it is in the State where it was rendered. Price vs. Hickok, 39 Vermont, 292; McRae vs. Walton, 13 Pick., 52 ; Pooman vs. Crane, 1 Wright, (Ohio,) 347; Joiner vs. Hill, S. C., 439; Hunt vs. Lyle, 8 Yerger, 142; Green vs. Sarmiento, 1 Pet. C. C., 74 ; Rangely vs. Webster, 11 N. H, 299.

If so, the question then is, whether the service of the process in this case was in conformity with the statute law -of Ohio? To prove this, the defendant offered to read in ■evidence as statute laws of that State, from a hook in two volumes published in 1860, entitled £:The Revised Statutes of the State of Ohio,” of a general nature, in force August 1st, 1860, collated by Joseph R. Swan, with notes of the decisions of the Supreme Court by Leander J. Critchfield, and upon the title page of which appeared the following words in printing: Published for the State of Ohio, and distributed to its officers, under the Act of the General Assembly, passed March 16th, 1860;” to the reading of which the plaintiffs objected.

Article 37, sec. 47, of the Code provides “that public or-private statutes of any State may he read in evidence from any printed volume purporting to contain the statutes of the said State.” The hook from which the defendant proposed to read, not only purports to contain the stathtes of Ohio, hut upon the title page pirrports to have been ££ published for the State of Ohio, and distributed to its officers, under the Act of the General Assembly, passed March 16th, 1860.” It is a volume, therefore, strictly within the meaning of the Code, and was therefore admissible in evidence.

*77 (Decided 19th June, 1879.)

The record of the Ohio judgment was properly certified hoth under the Revised Statutes of the United States, ch. 17, sec. 905, and under the provisions of the Code, Art. 37, sec. 35. The Clerk of the Court of Common Pleas certifies, under the seal of the Court, that it is a true copy of the record, and the Presiding Judge of said Court certifies to the official character of the Clerk, and the Clerk certifies, under the seal of the Court, to the official character of the Judge. It was not necessary that the Clerk should sign his full Christian name to the certificate. The signature of “E. W. Pearson, Clerk of the Court of Common Pleas of Ross County, Ohio,” was sufficient.

There was no error in refusing the plaintiffs’ first prayer. In order to make a judgment in a prior suit between the same parties a bar to a second suit, it is only necessary to prove that the subject-matter of the two suits is substantially the same. The fact that the forms of action in the two cases are different, does not affect the question, provided the matter in controversy be the same. Whitehurst vs. Rogers, 38 Md., 503 ; State, use of Bruner vs. Ramsburg, 43 Md., 325 .

The second prayer was also properly refused. By it, the Court was requested to instruct the jury that the admission of one of the plaintiffs, that the causes of action in this suit and in the Ohio judgment, offered in evidence, are the same, was not binding upon the other plaintiff. The plaintiff's were co-partners, and continued to be up to the trial below, and the admission of one member of the firm relative to a matter of partnership concern was binding upon the other partner. 1 Greenleaf Ev., 172, 174, 177; Doremus vs. McCormick, 7 Gill, 63 .

It follows from what we have said, that there was no error in granting the defendant’s prayer.

The judgment below will, therefore, be affirmed.

Judgment affirmed.