A statute of the State of New York provides
"That where joint debtors are sued and one is brought into court
on process, if judgment shall pass for plaintiff, he shall have
judgment and execution not only against the party brought into
court, but also against other joint debtors named in the original
process in the same manner as if they had all been taken and
brought into court by virtue of such process, but it shall not be
lawful to issue or execute any such execution against the body or
against the sole property of any person not brought into
court."
Where a judgment was given in New York against two partners, one
of whom resided in Louisiana and was never served with process, and
an action was brought against him in Louisiana upon this judgment,
a peremptory exception in the nature of a demurrer that "the
judgment sued upon is not one upon which suit can be brought
against the defendant in this court" was well founded.
Congress did not intend, by the act of 1790, to declare that a
judgment rendered in one state against the person of a citizen of
another who had not been served with process or voluntarily made
defense should have such faith and credit in every other state as
it had in the courts of the state in which it was rendered.
(MR. JUSTICE McKinley did not sit on the trial of this cause in
the circuit court.)
In February, 1849, there were two commercial houses, one trading
under the name of A. H. Gossip & Co. in New York and the other
under the name of Gossip & Co. in New Orleans. The firm of A.
H. Gossip & Co. consisted of Aurungzebe H. Gossip and Joseph
Calder, and the firm in New Orleans consisted of George H. Gossip
and James D'Arcy.
On 4 February, 1849, the New York house drew the following bill
of exchange upon the New Orleans house,
viz.:
"
$1,461 87/100 New York, 4 February, 1839"
"Four months after date, pay to our own order fourteen hundred
and sixty-one 87/100 dollars, value received, and charge the same
to account of"
"[Signed] A. H. GOSSIP & CO."
"157 Water St., New York"
"To Messrs. GOSSIP & CO."
"St. Charles St., New Orleans (Accepted)"
"Accepted: GOSSIP & CO."
"Endorsed: "
"A. H. GOSSIP & CO."
"J. STEWART, 5 Platt St."
Page 52 U. S. 166
This bill appeared to have passed into the hands of Ketchum,
Rogers, and Bement, and not to have been paid at maturity.
In February, 1840, Ketchum, Rogers, and Bement brought an action
in the Superior court of the City of New York against the drawers
and acceptors of the bill,
viz., Aurungzebe H. Gossip,
Joseph Calder, George H. Gossip, and James D'Arcy. The suit was
brought against them jointly, and the declaration contained the
money counts, together with a notice that the bill of exchange
would be given in evidence under these counts.
The record did not show that any process was served upon either
of the four defendants. George H. Gossip, a partner in the New
Orleans house, voluntarily appeared. The record contained a
suggestion that neither the declaration nor any notice of the rule
to plead thereto had been served on the defendants Aurungzebe H.
Gossip, Joseph Calder, or James D'Arcy. George H. Gossip pleaded
the general issue, and gave notice of a setoff.
In December, 1846, the cause was called for trial, but George H.
Gossip made default. A jury was empanelled to assess the damages,
who gave the following verdict,
viz.:
"That the said George H. Gossip did undertake and promise in
manner and form as the said plaintiffs have above thereof
complained against him, and they assess the damages of the said
plaintiffs, by reason of the nonperformance of the said several
promises in the said declaration contained, to the sum of
$1,418.81, besides their costs and charges by them about their suit
in that behalf expended, and for those costs and charges to six
cents."
"Therefore it is considered that the said plaintiffs do recover,
against the said George H. Gossip and James D'Arcy, their damages
aforesaid, by the jury aforesaid, in form aforesaid, and also the
sum of $52.06, for their said costs and charges by the said court
now here adjudged of increase to the said plaintiffs, and with
their assent; which said damages, costs, and charges in the whole
amount to $1,470.93, and the said defendants in mercy &c."
"Judgment signed this 25 January, 1847."
"THOMAS J. OAKLEY"
The above judgment was rendered against D'Arcy as well as George
H. Gossip, under a statute of the State of New York, which provides
that
"Where joint debtors are sued and one is brought into court on
process, he shall answer the plaintiff, and if judgment shall pass
for plaintiff, he shall have judgment and execution not only
against the party brought into court, but also against other joint
debtors named in the original
Page 52 U. S. 167
process, in the same manner as if they had all been taken and
brought into court by virtue of such process, but it shall not be
lawful to issue or execute any such execution against the body or
against the sole property of any person not brought into
court."
Under this judgment against D'Arcy, Ketchum, Rogers, and Bement
brought a suit in the Circuit Court of the United States for the
District of Louisiana, of the following description. The suit being
by petition, the whole of it will be inserted.
"The petition of Morris Ketchum, Thomas Rogers, and Edward
Bement, co-partners doing business under the firm of Ketchum,
Rogers, and Bement, humbly shows, that petitioners are citizens of
the State of New York, and that James D'Arcy, who is a citizen of
the State of Louisiana, is indebted unto petitioners in the sum of
$1,418.81, with interest and costs, for this: "
"That heretofore, to-wit, on or about December, 1846, George H.
Gossip and James D'Arcy, being jointly and severally indebted to
petitioners in the aforesaid sum, petitioners recovered in the
Superior Court of the State of New York a final judgment against
said George H. Gossip and James D'Arcy for said sum of $1,418.81,
with costs, which said judgment was duly and legally obtained, and
was and is valid and binding upon said debtors in the State of New
York, where the same was rendered as aforesaid. That said Gossip
and Company was a commercial firm composed of said G. H. Gossip and
said James D'Arcy, and petitioners show that in virtue of said
judgment, they are entitled to recover of said D'Arcy the whole sum
herein claimed; that he refuses to pay the same, although amicably
requested to, all of which more fully appears by reference to the
exemplified record of said judgment and proceedings, made part
hereof."
"Petitioners therefore pray said James D'Arcy be cited, and that
after due proceedings he be condemned to pay petitioners $1,418.81;
$52.12 costs, interest at the rate of seven percentum per annum,
the legal interest of the State of New York, from February 1, 1840
till paid, and for general relief."
"And as in duty,"
&c.
To this petition there was attached an exemplification of the
record, with some few irregularities which it is not worthwhile to
specify.
D'Arcy appeared and filed the following exceptions and
answer:
"The defendant in the above suit, a citizen of the State of
Louisiana residing in New Orleans, now comes and excepts
Page 52 U. S. 168
to plaintiffs' petition filed in said suit, that the same is not
addressed to any court of the United States of America, and is
therefore informal and should be dismissed."
"2d. The defendant excepts, that the judgment sued upon is not
one upon which suit can be brought against the defendant in this
Court."
"3d. The defendant excepts to said judgment, that it does not
follow the verdict, that the same is not signed, and is not final,
and that the same, with the record of proceedings in the suit in
which the same was rendered, is not properly certified, as required
by law; and the said record is upon its face incomplete."
"4th. The defendant pleads prescription."
"If the above exceptions and plea are overruled, the defendant
for answer says, that he does not owe the plaintiffs in manner and
form as set forth by them; that he is in no way indebted to them,
and prays that he may have judgment thereof in his favor, and that
said plaintiffs be condemned to pay all costs."
In May, 1848, these exceptions were argued, and the circuit
court, Mr. Justice McKinley being absent overruled the exceptions
and gave the following judgment:
"This cause having been argued and submitted to the court on the
8th instant, and the court having maturely considered the same
under the law and the evidence, it is ordered, adjudged, and
decreed, that there be final judgment rendered herein in favor of
the plaintiffs, Ketchum, Rogers, and Bement, and against the
defendant, James D'Arcy, for the sum of $1,418.81, with interest
thereon at the rate of seven percentum per annum, from the 1st day
of February, 1840, till paid, $52.12 costs of suit in New York, and
the costs of this suit to be taxed."
"Judgment rendered May 17, 1848."
"Signed June 17, 1848."
"THEO. H. McCALEB [SEAL]
U.S. Judge"
A motion was made for a new trial, but it was overruled.
D'Arcy then sued out a writ of error, and brought the case up to
this Court.
It was argued by Mr. Coxe, for the plaintiff in error, and Mr.
Ketchum, for the defendants in error.
Page 52 U. S. 172
MR. JUSTICE CATRON delivered the opinion of the Court.
This case comes here on writ of error to the Circuit Court for
the District of Louisiana; the proceeding below being by petition,
according to the practice of that court.
Page 52 U. S. 173
It alleges in substance that about December, 1846, George H.
Gossip and James D'Arcy were jointly and severally indebted to
Ketchum, Rogers, and Bement, who recovered a judgment against said
Gossip and D'Arcy in the Superior Court of the City of New York,
for $1,418.81, and costs of suit, with interest on the principal
sum after the rate of seven percent from February 1, 1840. "Which
judgment," says the petition, "was duly and legally obtained, and
was and is valid and binding upon said debtors in the State of New
York, where the same was rendered."
Among others, D'Arcy took the following peremptory exception:
"The defendant excepts, that the judgment sued upon is not one upon
which suit can be brought against the defendant in this Court." The
exception went to the merits, as it alleged that the action was not
well founded, and was properly pleaded, in conformity to the 330th
section of the Code of Louisiana Practice, p. 128.
In the circuit, court this exception was overruled, obviously on
the assumption that the New York judgment was conclusive, and
judgment was rendered against the defendant. And as this was done
on an inspection of the record merely as if
nul tiel
record had been pleaded, the question is whether the
proceeding in New York bound D'Arcy.
It appears, among other things, that Gossip and D'Arcy were
partners in trade, doing business in the name of Gossip & Co.
They were jointly sued with two others. Process was served on
Gossip, but none on D'Arcy, who was a citizen of Louisiana, and
resided there. Gossip pleaded the general issue and gave notice of
setoff, but at the trial permitted judgment to go against him by
default, on which a jury assessed damages. On this verdict, a
judgment was rendered jointly against both Gossip and D'Arcy by the
court in New York.
This proceeding was according to a statute of that state which
provides that
"Where joint debtors are sued and one is brought into court on
process, he shall answer the plaintiff, and if judgment shall pass
for plaintiff, he shall have judgment and execution, not only
against the party brought into court, but also against other joint
debtors named in the original process, in the same manner as if
they had all been taken and brought into court by virtue of such
process, but it shall not be lawful to issue or execute any such
execution against the body or against the sole property of any
person not brought into court."
For a settled construction of this statute in the State of New
York, we are referred to the following cases:
Dando v.
Tremper, 2 Johns. 87;
Bank of Columbia v.
Newcomb,
Page 52 U. S. 174
6 Johns. 98;
Taylor and Twiss v. Pettybone, 16 Johns.
66, and
Carman v. Townsend, 6 Wend. 206.
From these cases, it appears that in the New York courts, it is
held
"that such judgment is valid, and binding on an absent defendant
as
prima facie evidence of a debt, reserving to him the
right to enter again into the merits, and show that he ought not to
have been charged,"
should he be sued on the judgment, and furthermore that the
original contract is merged and extinguished by the judgment.
It follows that, as D'Arcy's defense was in effect a demurrer to
the record evidence, it could not have been made in the courts of
New York.
And this brings up the question whether the New York statute and
the judgment founded on it bound a citizen of Louisiana not served
with process; or, in other words, whether the judgment had the same
force and effect in Louisiana that it had in New York. It is a
question of great stringency. If it be true that this judgment has
force and effect beyond the local jurisdiction where it was
rendered, joint debtors may be sued in any numbers, and if one is
served with process, judgment may be rendered against all, by which
means the debt will be established, and as it must happen in
numerous instances that one debtor may be found in a state carrying
on so great a portion of our commerce as New York does, this mode
of proceeding against citizens of other states and persons residing
in foreign countries may have operation in all parts of the world,
and especially in the United States. If New York may pass such
laws, and render such judgments, so may every other state bind
joint debtors who reside elsewhere, and who are ignorant of the
proceeding. That countries foreign to our own disregard a judgment
merely against the person, where he has not been served with
process nor had a day in court, is the familiar rule; national
comity is never thus extended. The proceeding is deemed an
illegitimate assumption of power, and resisted as mere abuse. Nor
has any faith and credit, or force and effect, been given to such
judgments by any state of this Union, so far as we know; the state
courts have uniformly and in many instances held them to be void,
and resisted their execution by a second judgment thereon, and in
so holding they have altogether disregarded as inapplicable the
Constitution and laws of the United States. We deem it to be free
from controversy that these adjudications are in conformity to the
well established rules of international law regulating governments
foreign to each other, and this raises the question whether our
federal Constitution and the act of Congress founded on it have
altered the rule.
Page 52 U. S. 175
The Constitution declares that
"Full faith and credit shall be given in each state to the
public acts, records, and judicial proceedings of every other
state. And the Congress may by general laws prescribe the manner in
which such acts, records, and proceedings shall be proved, and the
effect thereof."
By the Act of May 26, 1790, Congress prescribes first the mode
in which the judicial records of one state shall be proved in the
tribunals of another, to-wit that they shall be authenticated by a
certificate of the clerk under the seal of the court, with a
certificate of the presiding judge that the clerk's attestation is
in due form. Secondly,
"And the said records and judicial proceedings, authenticated as
aforesaid, shall have such faith and credit given to them, in every
court within the United States, as they have, by law or usage, in
the courts of the state from whence the said records are or shall
be taken."
These provisions were considered by this Court in the case of
Mills v.
Duryee, 7 Cranch 483, where it was held that the
recited sentence of the act of 1790 did declare the effect of a
state judgment, by enacting that it should have such faith and
credit in every other state as it had in the courts of the state
from whence it was taken, and that a judgment, where the defendant
had been served with process, concluded such defendant from
pleading
nil debet when sued in another state on the
record, and consequently from going behind the judgment and
reexamining the original cause of action; that he was concluded by
the record, in like manner as he stood concluded in the state where
the judgment was rendered.
This decision was made in 1813, and has since been followed as
the binding and proper construction of the act of 1790, in cases
where process has been served. But, as was then predicted, and as
has been manifest ever since, great embarrassment must ensue if the
construction, on the facts of that particular case, is applied to
all others, without exception.
In construing the act of 1790, the law as it stood when the act
was passed must enter into that construction, so that the existing
defect in the old law may be seen, and its remedy by the act of
Congress comprehended. Now it was most reasonable, on general
principles of comity and justice, that, among states and their
citizens united as ours are, judgments rendered in one should bind
citizens of other states, where defendants had been served with
process, or voluntarily made defense.
As these judgments, however, were only
prima facie
evidence, and subject to be inquired into by plea where sued on in
another state, Congress saw proper to remedy the evil, and to
Page 52 U. S. 176
provide that such inquiry and double defense should not be
allowed. To this extent, it is declared in the case of
Mills v.
Duryee, Congress has gone in altering the old rule. Nothing
more was required.
On the other hand, the international law as it existed among the
states in 1790 was that a judgment rendered in one state, assuming
to bind the person of a citizen of another, was void within the
foreign state, when the defendant had not been served with process
or voluntarily made defense, because neither the legislative
jurisdiction, nor that of courts of justice, had binding force.
Subject to this established principle, Congress also legislated,
and the question is whether it was intended to overthrow this
principle, and to declare a new rule, which would bind the citizens
of one state to the laws of another, as must be the case if the
laws of New York bind this defendant in Louisiana. There was no
evil in this part of the existing law, and no remedy called for,
and in our opinion Congress did not intend to overthrow to old rule
by the enactment that such faith and credit should be given to
records of judgments as they had in the state where made. The
language employed is not only fairly open to construction, but the
result arrived at by the court below depends on construction, and
when we look to the previous law, and the evil intended to be
remedied by the framers of the Constitution and by Congress, we
cannot bring our minds to doubt, that the act of 1790 does not
operate on, or give additional force to, the judgment under
consideration; we concur with the various decisions made by state
courts, holding that Congress did not intend to embrace judicial
records of this description, and are therefore of opinion that the
defendant's exception was valid, and that the judgment must be
Reversed, and so order.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Louisiana, and was argued by counsel. On consideration whereof, it
is now here ordered and adjudged by this Court, that the judgment
of the said circuit court in this cause be, and the same is hereby
reversed with costs, and that this cause be, and the same is hereby
remanded to the said circuit court, with directions for further
proceedings to be had therein, in conformity to the opinion of this
Court.
