Isaac T. Beech vs. Moses S. Abbott, 6 Vt. 586

The opinion of the court was delivered by Williams, Ch. J. — The positions which the defendant has taken, in this case, are, first, that the judgment, on which the suit was brought, which was rendered, June 18th, 1829, in an action of trover, is void.

Second, that if the judgment is not void, yet as he is permitted, by statute, to inquire into the merits of that judgment, and give in evidence any matter or thing, which would have discharged him on the original cause of action, he contends that the right of possession in the two stag-oxen, for converting which, judgment, in the original action, was rendered, was in Mr. Cushman, the inspector of the revenue, or in the United States, and for that reason, the original action of trover, could not be maintained. Third, that the lien of the plaintiff, or whatever right he had to the stags, was abandoned.

The first question brings in question, directly, the validity of the whole proceedings, on which the judgment was rendered, and the two last are only inquiries into the merits of that judgment, and present the defence which the defendant migñfhave made in the suit in which the judgment was rendered. It is contended that the judgment is void, because there was no notice, and also, because there was no recognizance entered into, agreeable to the eighteenth

section of the justice act, to refund and pay back what might be recovered in a writ of review. Upon this last point, it is sufficient to observe, that the recognizance which is required, is to be entered into after the judgment, and before the issuing of the execution. It is of course supposed, that the judgment is perfected and regular before the recognizance is entered into. It is not possible, therefore, to say that the want of the recognizance, which is to be after a judgment, shall have the effect to vacate" the judgment which has been rendered.

Moreover, the recognizance is only necessary when the execution issues. If no execution is taken out, but the judgment issues, the statute of' 1817, has made ample provision for the defendant, in the original action, even in the remote and improbable contingences supposed in the argument. It is immaterial how many actions may have been brought, or how many judgments may have been rendered in succession, on the first judgment. Without actual notice, none of them are effectual, to conclude the defendant or preclude him from going into an examination of the merits of the first judgment rendered.

Upon the subject of notice, it is argued, that we are to declare this judgment void, as contravening the first principles of justice. It will be seen, that the judgment was rendered on regular process, that service of that process was made by attaching a pair of speckled cattle of the defendant, found within the state, and within the jurisdiction of the court rendering the judgment, according to the directions and provisions of the statute, which has, in a similar form, been in existence ever since we have been a sovereign state.

It is undoubtedly competent for • the legislature to regulate all judicial proceedings, to prescribe the mode of service of writs, the manner in which notice shall be. given to defendants, and declare the effect of a judgment rendered on such notice; and these regulations are to be regarded by the courts of the state, if no constitutional right or obligation of the citizen is violated thereby. The legislature can give jurisdiction either over the person or property of another, when found within their territorial limits.

In many, if not all-of the states, provision is made for serving writs on defendants out of their limits, when they have property within the state, over which their courts can take jurisdiction, and prescribing their effects. What is to be the effect of such judgments, when they are sued in another state ? may present a distinct question. One sovereign state is not obliged to notice the judicial proceedings of another, were it not for the provisions of the constitution of the United States.

Without going into an examination of the question, as to the effect of a judgment of one state, when sued in another, where no appearance was had, it is sufficient to say on this question, that by our earliest statutes, which have always been in force, provision has been made for serving writs, where defendants were out of the state, and had property within the jurisdiction of our courts, that a method has been provided for giving notice (by publication where the suit was in the higher courts,) and also it is “provided, that no execution shall issue on the judgment to be rendered, when actual notice is not proved, until a bond of recognizance is given to refund and pay back what may be recovered in a writ of review.

And in relation to judgments so rendered before a justice of the peace, their effect was declared by the statute of 1817, before mentioned. In the case under eonsideration, it appears, that the defendant had property within this state, viz. the speckled cattle ; that the court had jurisdiction over that property; that it was attached and taken, for the purpose of enforcing a duty, which he was liable to perform, to enforce a satisfaction for an injury which the plaintiff said he had sustained, and for which he sought redress by an action at law. The whole proceedings were had in conformity to the statute.

This judgment cannot, therefore, be considered as a void judgment. If the defendant was not the owner of the speckled cattle, and the attachment was merely nominal, with a view to give the court jurisdiction over a person, who was not subject to our laws, and that fact had been very properly presented, undoubtedly the judgment would not have been treated as a valid or operative judgment. The attachment in such a case, might be considered as fraudulent. But no such facts are here presented.

On the second question, it is a sufficient answer to say, that it does not appear from the case, that the possession was legally, either in Mr. Cushman or the United States. The cattle were not subject to the. payment of duties from any thing which appears. The possession of Mr, Cushman, therefore, as against the plaintiff, was without right. The plaintiff was not divested of the possession, either by his contract or by operation of law, and there was nothing-in the seizure made by Mr.

Cushman, as in-specter of the revenue, (which it seems was not pursued to a-condemnation of the property,) inconsistent with the right of the plaintiff to an immediate possession, and with his right to maintain the action for the injury complained of. On the third question, it is also to be remarked, that it does not appear that the property was abandoned, either to the defendant or Josiah Abbott. The declarations of the plaintiff, as to abandoning to Mr.

Cushman, cannot be considered as a consent to the defendant to take or retain the property, if the officers of the United States did not think proper to procure the same libelled or condemned. The officers of the United States have relinquished any claim on the property as forfeited to the United States, and the question as to property, between the plaintiff or defendant, which had the better right from Josiah Abott, has been settled by the verdict. On all the positions taken in the defence, the county court decided according to our views of the law, and their judgment must be affirmed.