Puckett v. Pope, 3 Ala. 552

COLLIER, C. .J. There is great contrariety of decision, upon the question,, whether a defendant against-whom a judgment has been rendered in one State, can, when sued-in another, plead- that he .was. not amenable to the - jurisdiction- of the Court, rendering the judgment, where the exemplification of the recovery shows, that he appeared to the suit, either in person, or by- attorney: 3 Phil. Ev. C. & H’s ed.799, 800, 801, 908, 909, and cases collected and commented on. Thompson v. Tolmie, 2 Peters' Rep. 165.

Bat it is conceded by all the authorities, that where the defendant does not reside^ the State where the suit is brought, and is not served with prowess, and does not appear, the judgment or decree in such suit, will not be allowed to operate in personam against such party in the Courts of any other State: 3 Ph. Ev. 922 C. & H’s notes and cases there, cited. • A citizen of one State, who comes within the territory of another, contracts a temporary allegiance to it, and may be subjected to the process of its Courts, and bound personally by a •judgment there rendered.

But whether jurisdiction be acquired in virtue of the Service of process on the person, or the seizure of the defendant’s property, may very materially affect the extent to which the judgment will operate. In order to make the judgment binding upon the defendant in personam, he must ■be served personally, with a notice ofthe suit while he-is within the jurisdiction of the sovereignty under which the Court • acts; unless by his appearance he has dispensed with the service of process.

But where á judgment is obtained upon an attachment of the- defendants property, it will not be regarded in other States as evidence, or as operative in personam-;-for the reason, that except so far as the property attached is concerned, there is, and can be no jurisdiction or power of adjudication: 3 Phil. Ev. 907, 8, C. & H’s notes. Whether the law is not otherwise, where the defendant has notice'- of-the attachment, we need not not inquire.

The law being as we have- stated it, it was clearly competent for the defendant, unless estopped by thé record, to deny-by plea, that he- was a citizen of the State of Mississippi, that he was there at any time pending the suit, that he was notifie'd of its pendency,-by the service of process, or otherwise, and that he did appear to, or'defend the suit, either personally, by attorney or otherwise. Such, in substance,-was his second plea.

And if the plaintiff had relied upon the record as an estoppel, he should have replied speccially,- setting out, or substantially reciting such parts of it, as went to negative the -plea. In the absence of a replication of this kind, the County Court could not have' undertaken to say, that -the seeofid plea- was bad.

It was enough for the ^defendant to place‘upon the record a defence which was prima facie available, without denying in advance, every supposable fact'by which it might be avoided: according to the rules of pleadings, such matters in avoidance must have been alleged by'the plaintiff: ’• We will not, as the decision of this case does not require it, consider whether the recitals in a record, of the service of process, or the appearance of a defendant, shall be conclusive against him’.

That question we have seen, being one on which the: cases are by no means harmonious, wé prefer to place our judgment upon ground less disputable, and have no hesitation' in concluding, that upon considering the demurrer to the pleas, the exemplification was not before the Court, except so far as it was described in the declaration. The declaration is in usual form, merely reciting the recovery of• the judgment in Mississippi, its non-payment, &c. but is entirely silent upon the point, whether the defendant had notice of, or appeared to the suit there.

But the plaintiff would not be benefitted, even if it were permissible, in considering the pleas demurred to, to refer to the exemplification which accompanies the record in this cause. Although the writ issued against the defendant Sims, yet it is returned “not found” as to the former, and although the names of the parties are stated in the margin of the entry, as “ Puckett v. Sims & Pope,” yet the judgment proceeds: “ This day, came the parties by attornies, and thereupon came a jury, to wit,” &c. In Gilbert, et al. v. Lane, 3 Porter’s Rep. 267, and in Wheeler, et al. v.

Bullard, 6 Porter’s Rep. 352, the judgments were by nil dicit, and recited that the defendants came by attorney, and we held it inferrible, from the recital in the entry, that all the defendants whose names were stated in the-margin, were before the Court. But in the case at bar, the entry recites that the parties came by their attornies ; that the jury tried the issue joined, and found a verdict in favor of the-plaintiff; and “ the reasonable inference is, that they only came,. who had made up an issue to be tried by the jury.” Such was the decision of this Court in Catlin, Peeples & Co. v.

Gilder’s executor and executrix, at this term. This being the law, as applicable to the case before us, it is clear, that there is nothing, in the transcript from Mississippi,’ to estop the defendant from denying his amenability to the Court of that State, which rendered the judgment against him. In considering the pleas demurred to, we have not inquired whether they are all good; such an inquiry is unnecessary, as it is enough if one of these pleas presents an available defence; and the second plea at least, is unobjectionable. .

In respect to the exclusion of the exemplification, under the plea of mil tiel record, it may be said,': that the trial of the issue upon that plea, was wholly unnecessary,, and in. fact, irregular. The plaintiff, upon leave being given him to reply to the pleas to which.his demurrer was sustained,-declined. do-: ing so, and the proper course was to consider the truth of the pleas as admitted, and have rendered judgment for the defendant. No possible injury could have resulted from the exclusion of the exemplification, under the circumstances, and the plaintiff oannot be allowed to allege it as error.

This view is decisive to show that the judgment must be af-« firmed.