Sarah A. L. Norwood and others v. Samuel S. Cobb, 24 Tex. 551

Wheeler, C. J. The decision of the court, refusing to admit evidence in support of the plea, that there was no service of process, or notice to the defendant, in the Mississippi judgment, was directly contrary to the decision of this court in this case, when the record was before us on a former appeal. (Norwood v.

Cobb, 15 Texas Rep. 500.) On examination of the authorities, cited in the opinion of the court on the former appeal, they are found not. to be directly in point to the question, whether the judgment of another state may be impeached, by averment and proof of the want of service, where the record contains the return of process executed, and the record of the judgment recites, that the defendant was served with process, as in the present case.

And as the case has again come before us on this question, we have been induced to look further into the authorities, for cases directly in point, and we find them fully sustaining our former decision. The authorities will be found collected, and the subject learnedly examined, in the notes to the leading cases of Mills v. Duryee, and McElmoyle v. Cohen, in the 2d volume of American Leading Cases, 3d edit., pp. 707, 729, 730, et seq. As the question has been directly decided by this court, a review of the decisions is unnecessary.

It will not be out of place, however, to refer to some of the principal cases, as they were not referred to on the former appeal, which decide, that in order to show the want of jurisdiction of the court rendering the judgment, evidence may be received, to prove that no process was served upon the defendant, and that he did not appear in person, or by attorney, notwithstanding it is stated in the record, that the defendant appeared. It was so decided by the Supreme Court of New York, in Starbuck v.

Murray, 5 Wend. 148. “It is strenuously contended,” (said Marcy, J., in delivering the opinion of the court,) “that if other matter may be pleaded by the defendant, he is es-topped from asserting anything against the allegation contained in the record. It imports perfect verity, it is said, and the parties to it cannot be heard to impeach it. It appears to me, that this proposition assumes the very fact to be established, which is the only question in issue. For what purpose does the defendant question the jurisdiction of the court ?

Solely to show that its proceedings and judgments are void, and therefore the supposed record is not in truth a record. If the defendant had not proper notice of, and did not appear to the original action, all the state courts, with one exception, agree in opinion, that the paper introduced, as to him, is no record. But if he cannot show, even as against the pretended record, that fact, on the alleged ground of the uncontrollable verity of the record, he is deprived of his defence, by a process of reasoning, that is, to my mind, little less than sophistry.

The plaintiffs in effect declare to the defendant: the paper declared on is a record, because it says you appeared; and you appeared, because the paper is a record. That is reasoning in a circle. The appearance makes the record, uncontrollable verity, and the record makes the appearance an unimpeachable fact. The fact which the defendant puts in issue, (and the whole current of state court authority, shows it to be a proper issue,) is the validity of the record, and yet it is contended, that he is estopped by the unimpeachable credit of that very record, from impeaching any one allegation contained in it.

Unless a court has jurisdiction, it can never make a record which imports uncontrollable verity to the party over whom it has assumed jurisdiction, and he ought not, therefore, to be estopped by any allegation in that record, from proving any fact that goes to establish the truth of a plea, alleging a want of jurisdiction.” (5 Wend. 157, 159.) This decision was cited and approved by the same court, in the subsequent case of Shumway v.

Stillman, 6 Wend. 453, where it was held, that though the record sets forth, that the defendant appeared by attorney, the defendant is at liberty to disprove the fact. (5 Wend. 448: and see Merritt v. Clow, 2 Texas Rep. 582.) So, in Aldrich v. Kinney, 4 Conn. Rep. 380, in an action on a judgment rendered in another state, evidence on the part of the defendant, that he had no legal notice of the suit, and did not appear, was held to be admissible, although the record of the judgment stated, that the defendant appeared by his attorney.

These cases will suffice to show, that the former decision of the court in this case, is well supported by authority. There are cases which hold the contrary, but I think both the weight of authority and principle, are upon the side of admitting the evidence. (2 Am. Lead.

Cases, 3d edit. 729, 730, 731.) If the court had jurisdiction over the person of the defendant, the judgment imports absolute verity, and precludes all further examination; but if the court had not jurisdiction, the whole of the proceedings will lose the character of a record, and will not be entitled to faith and credit as such; and the question of jurisdiction is open to examination. This is the doctrine, I think, which the great current of authorities will be found to maintain.

When this case was last before us, this point, as to the admission of evidence to disprove the allegation of service, was not presented by the record, but the judgment was reversed, upon the ground that the record was not properly authenticated. (Norwood v.

Cobb, 20 Texas Rep. 588.) There was no question raised upon that appeal, as to the jurisdiction of the court over the person of the defendant, and that being taken for granted, we held, as we now hold the law to be, “ that the merits of the judgment were not open to examination, unless it had been fraudulently obtained; and we held, that the proposed evidence did not conduce to prove the allegation of fraud, in procuring the rendition of the judgment. ' It appears by the record of the Mississippi judgment, that a subpoena was issued to three defendants, and was returned ¡“executed,” and without stating upon which of the defendants; ^nd the judgment recites, that the plaintiff dismissed as to two ¡of the defendants, and that the other defendant had been duly served with process, and failed to answer.

There was no appearance for this defendant, against whom judgment was taken, for want of an answer.

When it is considered, how liable the officer may be to make such a return of service, upon process thus directed to several, when he has served only a part of them, and how easy it would he for the plaintiff’s attorney, to whom the preparation of the decree would be entrusted, or for the clerk, to recite in the decree, in the absence of the defendant, that he was duly served with process, the propriety of permit[ting him to impeach the decree, by proof that in truth he was ot served with process, will be very apparent under the operation of an opposite rule; as was said in a case before cited, “ a court could always sustain its jurisdiction, if it had any solicitude to do so; or rather the party who had the benefit of its decision, and who, by the practice of most tribunals, is entrusted with making the record, would not fail to put it beyond the power of his opponent to show a want of jurisdiction.” (5 Wend. 160.) It is to be regretted, that we cannot put an end to a litigation which has been so protracted.

But we know of no principle, which would warrant us in refusing to revise an erroneous ruling, because it had been repeated in the same case. We are of opinion that the judgment be reversed and the cause remanded. Reversed and remanded.