1. Where suit is brought on a record which shows that service
was not made on the defendant, but which shows also that an
appearance was entered for him by an attorney of the court, it is
not allowable, under a plea of
nul tiel record only, to
prove that the attorney had no authority to appear.
2. Presumptively an attorney of a court of record who appears
for a party has authority to appear for him, and though the party
for whom he has appeared, when sued on a record in which judgment
has been entered against him on such attorney's appearance, may
prove that the attorney had no authority to appear, yet he can do
this only on a special plea or on such plea as, under systems which
do not follow the common law system of pleading, is the equivalent
of such plea.
Hill sued Mendenhall in the court below upon a judgment in one
of the courts of record in the State of Minnesota. The plea was
nul tiel record alone. Upon the trial of the issue made by
this plea, the plaintiff introduced in evidence an exemplification
of the record sued upon. This record showed upon its face that the
defendant was, at the time that action was commenced, a resident of
the State of North Carolina; that the summons issued had been
returned not served; that thereupon, by order of the court, service
was made by publication, and that after such publication the
defendant appeared by attorney, filed an answer verified by an
agent, and voluntarily submitted himself to the jurisdiction of the
court.
The bill of exceptions showed that after introducing the
Page 88 U. S. 454
record, the plaintiff called a witness who gave evidence tending
to prove that the party who verified the answer was at the time an
agent of the defendant for the transaction of his business in
Minnesota. The defendant then testified in his own behalf and in
substance denied the agency.
The circuit court found that there was such a record as was sued
upon, but because it did not appear in the exemplification or from
the evidence that the summons had been served upon the defendant,
gave judgment in this action in his favor. This ruling of the
circuit court was now assigned for error.
THE CHIEF JUSTICE delivered the opinion of the Court.
It is true the record sued upon in this case does show that
defendant was not served with process, but it also shows his
voluntary appearance by an attorney. If this appearance was
authorized, it is as effective for the purposes of jurisdiction as
an actual service of summons. When an attorney of a court of record
appears in an action for one of the parties, his authority, in the
absence of any proof to the contrary, will be presumed. A record
which shows such an appearance will bind the party until it is
proven that the attorney acted without authority.
Since the cases of
Thompson v. Whitman [
Footnote 1] and
Knowles v. Gaslight &
Coke Company, [
Footnote 2]
it may be considered as settled in this Court that when a judgment
rendered in one state is sued upon in another, the defendant may
contradict the record to the extent of showing that in point of
fact the court rendering the judgment did not have jurisdiction of
his person. If such showing is made, the action must fail, because
a judgment obtained under such circumstances has no effect outside
of the state in which it was rendered.
But if it appears on the face of the record that the court
Page 88 U. S. 455
did have jurisdiction, extrinsic evidence to contradict it is
not admissible under a plea of
nul tiel record. The office
of pleading is to inform the court and the parties of the facts in
issue -- the court that it may declare the law, and the parties
that they may know what to meet by their proof.
Nul tiel
record puts in issue only the fact of the existence of the
record, and is met by the production of the record itself valid
upon its face, or an exemplification duly authenticated under the
act of Congress. A defense requiring evidence to contradict the
record must necessarily admit that the record exists as a matter of
fact and seek relief by avoiding its effect. It should therefore be
formally pleaded in order that the facts upon which it is
predicated may be admitted or put in issue. Under the common law
system of pleading, this would be done by a special plea. The
equivalent of such a plea is required under any system. The precise
form in which the statement should be made will depend upon the
practice of the court in which it is to be used, but it must be
made in some form. Defects appearing on the face of the record may
be taken advantage of upon its production under a plea of
nul
tiel record, but those which require extrinsic evidence to
make them apparent must be formally alleged before they can be
proven. This we believe to be in accordance with the practice of
all courts in which such defenses have been allowed, and it is
certainly the logical deduction from the elementary principles of
pleading. [
Footnote 3] In
Knowles v. Gaslight & Coke Company, the issue was
directly made by an averment of jurisdiction in the complaint and a
denial in the answer, and in
Thompson v. Whitman by plea
and replication.
It follows that, upon the pleadings in this case, judgment
should have been given for the plaintiff after proof of the
Page 88 U. S. 456
record, showing as it did jurisdiction of the defendant by
reason of his appearance by attorney. As both parties, however,
submitted evidence without objection upon the question of the
authority of the attorney so to appear, we should have held them to
a waiver of the proper pleadings to present that issue if it
appeared affirmatively that this evidence had been considered and
passed upon by the court below. Such, however, is not the case.
Judgment was given for the defendant upon the sole ground that it
did not appear from the record or the evidence that summons had
been served. This was error if the defendant had in fact
voluntarily appeared. The record upon its face furnished evidence
of such an appearance. The court did not find that this evidence
was not in accordance with the facts.
The judgment of the circuit court is therefore
Reversed and the cause remanded with instructions to award a
venire de novo and permit such amendments to the pleadings as may
be necessary to present fairly for trial the real issues between
the parties.
Reversed and remanded.
[
Footnote 1]
85 U. S. 18 Wall.
457.
[
Footnote 2]
86 U. S. 19 Wall.
58.
[
Footnote 3]
Bimeler v. Dawson, 4 Scammon 538;
Harrod v.
Barretto, 2 Hall 302;
Shumway v. Stillman, 6 Wendell
447;
Starbuck v. Murray, 5
id. 148;
Price v.
Hickok, 39 Vt. 292;
Judkins v. Union Mutual Fire Insurance
Co., 87 N.H. 482;
Holt v. Alloway, 2 Blackford 108;
Moulin v. Insurance Co., 4 Zabriskie 222;
Gilman v.
Lewis, ib. 248;
Aldrich v. Kinney, 4 Conn. 380.
