Although a judgment in the court of a state is not to be
regarded in the courts of her sister states as a foreign judgment,
or as merely
prima facie evidence of a debt to sustain an
action of debt upon the judgment, it is to be considered only
distinguishable from a foreign judgment in this, that by the first
section of the Fourth Article of the Constitution, and by the Act
of May 26, 1790, sec. 1, the judgment is conclusive on the merits,
to which full faith and credit shall be given when authenticated as
the act of Congress has prescribed.
When 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 provides that Congress may by
general laws prescribe the manner in which such acts, records, and
proceedings shall be proved, and the effect thereof, the latter
clause, as it relates to judgments, was intended to provide the
means of giving to them the conclusiveness of judgments upon the
merits, when it is sought to carry them into judgments by suits in
the tribunals of another state. The authenticity of the judgment,
and its effect, depend upon the law made in pursuance of the
Constitution; the faith and credit due to it as the judicial
proceeding of a state is given by the Constitution, independently
of all legislation.
By the law of Congress of May 26, 1790, the judgment is made a
debt of record, not examinable upon its merits, but it does not
carry with it into another state, the efficacy of the judgment upon
property, or upon persons to be enforced by execution. To give it
the force of a judgment in another state, it must be made a
judgment there, and can only be executed in the latter as its laws
may permit.
The plea of the statute of limitations, in an action instituted
in one state on a judgment obtained in another state, is a plea to
the remedy, and consequently, the
lex fori must prevail in
such a suit.
Prescription is a thing of policy growing out of the experience
of its necessity, and the time after which suits or actions shall
be barred, has been from a remote antiquity fixed by every nation,
in virtue of that sovereignty by which it exercises its legislation
for all persons and property within its jurisdiction.
There is no constitutional inhibition on the states, nor any
clause in the Constitution from which it can be even plausibly
inferred that the states may not legislate upon the remedy on suits
on the judgments of other states, exclusive of all interference
with their merits.
A suit in a state of the United States on a judgment obtained in
the courts of another state, must be brought within the period
prescribed by the local law, the
lex fori, or the suit
will be barred. The statute of limitations of Georgia can be
pleaded to an action in that state, founded upon a judgment
rendered in the state court of the State of South Carolina.
In the payment of the debts of a testator or intestate in
Georgia, the judgment of another state, whatever may have been the
subject matter of the suit, cannot be put upon the footing of
judgments rendered in the state, and it can only rank as a simple
contract debt in the appropriation of the assets of the estate of a
deceased person to the payment of debts.
William McElmoyle, a citizen of the State of South Carolina,
suing for the use of Isaac S. Bailey, also a citizen of that state,
presented a petition in 1835 to the Circuit Court of the United
States, for the District of Georgia, stating that Levy Florence had
died intestate, and having before his death resided in the State of
South Carolina, he had obtained a judgment against him in the Court
of Common Pleas for the City of Charleston, for $968.07, on a
promissory note, on 16 February, 1822, which remains
Page 38 U. S. 313
unsatisfied; an exemplification of which judgment in due form
was exhibited to the court with the petition.
The defendant, a citizen of Georgia, to which state Levy
Florence removed after seven years from the rendition of the
judgment, and in which state he resided at the time of his death,
pleaded the statute of limitation of the State of Georgia, which
the plea alleges limits such actions to five years from the cause
of action, and he afterwards pleaded that there is no statute of
the State of South Carolina which limits suits upon judgments
therein to any particular time, nor is there any statute of
limitations in that state applicable to judgments, but that a
statute was passes by the Legislature of Georgia, on 7 December,
1805, which provides and declares that all actions of debt on
judgment obtained in courts other than the courts of Georgia, shall
be commenced and prosecuted within five years from the rendition of
such judgment, and not afterwards, and that for seven years after
the rendition of the judgment on which the suit is brought, Levy
Florence was a resident and citizen of the State of Georgia, and on
suit on the judgment was commenced against him, nor for two years
after the defendant, John J. Cohen, had been the duly qualified
administrator of the said Levy Florence. The defendant for further
plea states that he has not funds of the estate of Levy Florence
sufficient to pay the whole of the judgment and to pay the other
debts claimed as due from the estate.
Upon the trial of the cause the following questions occurred,
upon which the opinions of the judges were opposed, and the same
were certified to the supreme court.
1st. Whether the statute of limitations of Georgia can be
pleaded to an action in that state, founded upon a judgment
rendered in the State of South Carolina?
2d. Whether in the administration of assets in Georgia, a
judgment rendered in South Carolina, upon a promissory note,
against the intestate when in life, should be paid in preference to
simple contract debts?
Page 38 U. S. 324
MR. JUSTICE Wayne delivered the opinion of the Court.
This cause has been brought to this Court, upon a certificate of
division of opinion between the judges of the sixth circuit court,
upon the following points.
1. Whether the statute of limitations of Georgia can be pleaded
to an action in that state, founded upon a judgment rendered in the
State of South Carolina?
2. Whether, in the administration of assets in Georgia, a
judgment rendered in South Carolina, upon a promissory note against
the intestate, when in life, should be paid in preference to simple
contract debts?
Upon neither of these points does the court entertain a
doubt.
Upon the first of them, we observe, though a judgment obtained
in the court of a state is not to be regarded in the courts of her
sister states as a foreign judgment, or as merely
prima
facie evidence of a debt to sustain an action upon the
judgment, it is to be considered only distinguishable from a
foreign judgment in this that by the first section of the fourth
article of the Constitution, and by the Act of May 26, 1790,
section 1, the judgment is a record, conclusive upon the merits, to
which full faith and credit shall be given, when authenticated as
the act of Congress has prescribed. It must be obvious, when the
Constitution declared that full faith and credit shall be given in
each state to the public acts, records, and judicial proceedings of
every other state, and provides that Congress may, by general laws,
prescribe the manner in which such acts, records, and proceedings
shall be proved, and the effect thereof, that the latter clause, as
it relates to judgments, was intended to provide the means of
giving to them the conclusiveness of judgments upon the merits,
when it is sought to carry them into judgments by suits in the
tribunals of another state. The authenticity of a judgment and its
effect, depend upon the law made in pursuance
Page 38 U. S. 325
of the Constitution; the faith and credit due to it as the
judicial proceeding of a state, is given by the Constitution,
independently of all legislation. By the law of 26 May, 1790, the
judgment is made a debt of record, not examinable upon its merits,
but it does not carry with it into another state the efficacy of a
judgment upon property or persons, to be enforced by execution. To
give it the force of a judgment in another state, it must be made a
judgment there, and can only be executed in the latter as its laws
may permit. It must be conceded that the judgment of a state court
cannot be enforced out of the state by an execution issued within
it. This concession admits the conclusion that under the first
section of the Fourth Article of the Constitution, judgments out of
the state in which they are rendered, are only evidence in a sister
state that the subject matter of the suit has become a debt of
record, which cannot be avoided but by the plea of
nul
tiel record. But we need not doubt what the framers of the
Constitution intended to accomplish by that section, if we reflect
how unsettled the doctrine was upon the effect of foreign
judgments, or the effect,
rei judicatae, throughout
Europe, in England, and in these states, when our first
Confederation was formed. On the Continent it was then and
continues to be a vexed question, determined by each nation,
according to its estimate of the weight of authority to which
different civilians and writers upon the laws of nations are
entitled. In England, it was an open question, having on both sides
her eminent equity, common law, and ecclesiastical jurists. It may
still be considered, in England, a controverted question so far as
jurists and elementary writers on the common law are concerned;
though the adjudications of the English courts have now established
the rule to be, that foreign judgments are
prima facie
evidence of the right and matter they purport to decide.
In these states, when colonies, the same uncertainty existed.
When our revolution began and independence was declared and the
Confederation was being formed, it was seen by the wise men of that
day that the powers necessary to be given to the confederacy, and
the rights to be given to the citizens of each state in all the
states, would produce such intimate relations between the states
and persons that the former would no longer be foreign to each
other in the sense that they had been, as dependent provinces, and
that for the prosecution of rights in courts, it was proper to put
an end to the uncertainty upon the subject of the effect of
judgments obtained in the different states. Accordingly, in the
Articles of Confederation there was this clause:
"Full faith and credit shall be given in each of these states to
the records, acts, and judicial proceedings of the courts and
magistrates of every other state."
Now though this does not declare what was to be the effect of a
judgment obtained in one state in another state, what was meant by
the clause may be considered as conclusively determined, almost by
contemporaneous exposition. For when the present Constitution was
formed, we find the same clause introduced into it with but a
slight
Page 38 U. S. 326
variation, making it more comprehensive and adding, "Congress
may, by general laws, prescribe the manner in which such acts,
records, and proceedings shall be proved, and the effect thereof,"
thus providing in the Constitution for the deficiency which
experience had shown to be in the provision of the Confederation,
as the Congress under it could not legislate upon what should be
the effect of a judgment obtained in one state in the other states.
Whatever difference of opinion there may have been as to the
interpretation of this article of the Constitution in another
respect, there has been none as to the power of Congress under it
to declare what shall be the effect of a judgment of a state court
in another state of the Union. Here again we have contemporaneous
legislative interpretation of the first section of the Fourth
Article of the Constitution, for by the Act of 1790, May 26, it was
declared,
"That 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."
What faith and credit, then, is given in the states to the
judgments of their courts? They are record evidence of a debt, or
judgments of record, to be contested only in such way as judgments
of record may be, and consequently are conclusive upon the
defendant in every state except for such causes as would be
sufficient to set aside the judgment in the courts of the state in
which it was rendered. In other words, as has been said by a
commentator upon the Constitution,
"If a judgment is conclusive in the state where it is
pronounced, it is equally conclusive everywhere in the states of
the Union. If reexaminable there, it is open to the same inquiries
in every other state."
Story's Com. 183. It is therefore put upon the footing of a
domestic judgment, by which is meant not having the operation and
force of a domestic judgment beyond the jurisdiction declaring it
to be a judgment, but a domestic judgment as to the merits of the
claim or subject matter of the suit. When, therefore, this Court
said, in
Mills v.
Duryee, 7 Cranch 481,
"If it be a record conclusive between the parties, it cannot be
denied but by the plea of
nul tiel record this language
does not admit of the interpretation that a plea not denying the
judgment, but which resists it upon the ground of a release,
payment, or a presumption of payment, from the lapse of time,
whether such presumption be raised by the common law prescription,
or by a statute of limitation, may not be pleaded, any more than
where this Court, in
Hampton v. McConnell, 3
Wheat. 234, says:"
"The judgment of a state court should have the same credit,
validity, and effect in every other court of the United States
which it had in the state court where it was pronounced, and that
whatever pleas would be good to a suit thereon in such state, and
none others, could be pleaded in any court in the United
States,"
is intended to exclude such defenses as have just been stated,
or such as inquire into the jurisdiction of the court in which the
judgment was given, to pronounce it as the right of the
Page 38 U. S. 327
state itself to exercise authority over the persons or the
subject matter. It has been well said,
"The Constitution did not mean to confer a new power of
jurisdiction, but simply to regulate the effect of the acknowledged
jurisdiction over persons and things within the state."
Story's Com. 183.
Such being the faith, credit, and effect to be given to a
judgment of one state in another by the Constitution and the act of
Congress, the point under consideration will be determined by
settling what is the nature of a plea of the statute of
limitations. Is it a plea that settles the right of a party on a
contract or judgment, or one that bars the remedy? Whatever
diversity of opinion there may be among jurists upon this point, we
think it well settled to be a plea to the remedy, and consequently
that the
lex fori must prevail.
Higgins v. Scott,
2 Barn. & Ad. 413. 4 Cowen 528, note 10.
Id., 503.
Van Ramsdyk v. Kane, 1 Gallis 371.
Le Roy v.
Crowninshield, 2 Mason 351.
British Linen Com. v.
Drummond, 10 Bar. & Cres. 903.
De La Vega v.
Veanna, 1 Barn. & Ad. 284.
De Couche v. Savalier,
3 Johns.Ch. 190.
Lincoln v. Battalle, 6 Wend. 475.
Gulick v. Lodes, Green's N.J. 68. 3 Burge's Com. on Col.
& For. Laws 883. The statute of Georgia is
"that actions of debt on judgments obtained in courts other than
the courts of this state must be brought within five years after
the judgment obtained."
It would be strange if in the now well understood rights of
nations to organize their judicial tribunals according to their
notions of policy, it should be conceded to them in every other
respect than that of prescribing the time within which suits shall
be litigated in their courts. Prescription is a thing of policy
growing out of the experience of its necessity, and the time after
which suits or actions shall be barred has been from a remote
antiquity fixed by every nation in virtue of that sovereignty by
which it exercises its legislation for all persons and property
within its jurisdiction. This being the foundation of the right to
pass statutes of prescription or limitation, may not our states,
under our system, exercise this right in virtue of their
sovereignty?, or is it to be conceded to them in every other
particular than that of barring the remedy upon judgments of other
states by the lapse of time? The states use this right upon
judgments rendered in their own courts, and the common law raises
the presumption of the payment of a judgment after the lapse of
twenty years. May they not then limit the time for remedies upon
the judgments of other states, and alter the common law by statute,
fixing a less or larger time for such presumption, and altogether
barring suits upon such judgments if they shall not be brought
within the time stated in the statute? It certainly will not be
contended that judgment creditors of other states shall be put upon
a better footing in regard to a state's right to legislate in this
particular than the judgment creditors of the state in which the
judgment was obtained. And if this right so exists, may it not be
exercised by a state's restraining the remedy upon the
Page 38 U. S. 328
judgment of another state, leaving those of its own courts
unaffected by a statute of limitations, but subject to the common
law presumption of payment after the lapse of twenty years. In
other words, may not the law of a state fix different times for
barring the remedy in a suit upon a judgment of another state, and
for those of its own tribunals? We use this mode of argument to
show the unreasonableness of a contrary doctrine. But the point
might have been shortly dismissed with this sage declaration, that
there is no direct constitutional inhibition upon the states, nor
any clause in the Constitution from which it can be even plausibly
inferred, that the states may not legislate upon the remedy in
suits upon the judgments of other states, exclusive of all
interference with their merits. It being settled that the statute
of limitations may bar recoveries upon foreign judgments; that the
effect intended to be given under our Constitution to judgments is
that they are conclusive only as regards the merits; the common law
principle then applies to suits upon them that they must be brought
within the period prescribed by the local law, the
lex
fori, or the suit will be barred.
Counsel have relied, to establish a contrary doctrine, upon
Marlow v. Naylor, Hill's South Carolina 439. But that case
was obviously decided upon a misconception of the learned judges of
the decision of this Court in the case of
Mills v.
Duryee, 7 Cranch 481.
It is therefore our opinion that the statute of limitations of
Georgia can be pleaded to an action in that state founded upon a
judgment rendered in the State of South Carolina.
The second question upon which the judges were divided in this
case is whether a judgment rendered in South Carolina upon a
promissory note against the intestate when in life should be paid
in preference to simple contract debts. The law of Georgia provides
that all debts of an equal degree shall be discharged in equal
proportions as far as the assets of an intestate will extend, and
that no preference shall be given amongst creditors in equal
degree. Prince's Laws of Georgia 152, sec. 8. And the order
prescribed for the payment of debts of any testator or intestate by
executors and administrators is
"debts due by the deceased as executor, administrator, or
guardian; funeral and other expenses of the last sickness; charges
of probate and will, or of the letters of administration; next,
debts due to the public; next, judgments, mortgages, and
executions, the eldest first; next, rent; then, bonds or other
obligations; and lastly debts due on open account, but no
preference whatever shall be given to creditors in equal degree
where there is deficiency in assets except in cases of judgments,
mortgages that shall be recorded, from the time of recording, and
executions lodged in the sheriff's office, the eldest of which
shall be first paid, or in those cases where a creditor may have a
lien on any part of the estate."
We first remark upon this question that it was decided some
years since (as is reported to us by the present district judge) in
the Circuit Court of the United States for the District of
Georgia,
Page 38 U. S. 329
the question being "whether judgments obtained in other states
take precedence of simple contract debts," that in the
administration of insolvent estates in Georgia, such judgments take
no precedence.
Case of Ten Eyck v. Ten Eyck. We believe,
from inquiry, for we have no published decision in point, from the
courts of Georgia that the judges of her superior courts hold the
same opinion. In
Cameron v. Admrs. of Wurtz, 4 McCord 278,
it is decided that in marshaling the assets of an insolvent estate,
a judgment recovered in another state only ranks as a simple
contract. The decision is correctly placed upon the footing that
the first section of the Fourth Article of the Constitution has
effected no change in the nature of a judgment. It only provides
that as matter of evidence, it shall be entitled to full faith and
credit. But if the decisions in the cases of
Ten Eyck v. Ten
Eyck and
Cameron v. Wurtz had not been as they are,
and the point was now before us as an original question, we would
come to the same conclusion. The Legislature of Georgia does not
certainly, in terms, put judgments of other states, in the payment
of decedent's debts, upon the footing of judgments of her own
courts. The term "judgments" is used, and no preference can be
given to creditors in equal degree. If, however, equality in the
degree of judgment creditorship is qualified by seniority, and if,
of executions lodged in the sheriff's office, the eldest is to be
the first satisfied, the law of Georgia gives the order in which
judgments shall be paid. That order depends upon date, execution,
and the execution having been lodged in the sheriff's office. In
case of conflict then between judgments or executions, it is to be
decided by record evidence to be obtained from the courts in the
state, and so far as a right of seniority can be given by the
execution's being lodged in the sheriff's office, the judgment of
another state can never have this privilege. It can have no right
to an execution in Georgia, and any execution issued upon it is in
the state in which it was rendered. No one will contend that it
could be placed with the sheriff, to be enforced, or to be put in
competition with those issued upon domestic judgments.
Here, then, is a case in which the judgment of another state
would be excluded by the terms of the law, which we think indicates
the intention of the legislature not to place such a judgment upon
the footing of domestic judgments in the administration of assets.
But a more conclusive reason against any such extension occurs to
us. By the law of Georgia, all the property of the defendant is
bound from the signing of the first judgment; all judgment obtained
at the same term of the court bearing equal date, if they are
entered and signed in the clerk's office at any time within four
days after the adjournment of the court. Prince's Dig. 211. If,
then, the judgment of another state is to be brought in upon the
footing of a domestic judgment in the administration of the assets
of testators and intestates, then this consequence may ensue that a
judgment of another state, having no lien upon property, may take
preference by the death of a defendant over domestic judgments,
having the first lien during his life, because the law says the
eldest
Page 38 U. S. 330
judgment must be first satisfied. Such a right, and exclusion of
right, could never have been intended by the Legislature of Georgia
to be conferred by the death of an individual. It is not necessary
to pursue this inquiry further. We therefore think, in the payment
of debts of a testator or intestate, in Georgia, that the judgment
of another state, whatever may be the subject matter of the suit,
cannot be put upon the footing of judgments rendered in that state,
and that it can only rank for that purpose as a simple contract
debt.
As to the wish intimated by counsel in the conclusion of his
reply that this Court would express its opinion whether the statute
limiting the time within which suits are to be brought upon the
judgments of another state is in force, we cannot comply with it,
as it is a question not comprehended in the division of opinion
certified to this Court.
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
Georgia, and on the points and questions on which the judges of the
said circuit court were opposed in opinion, and which were
certified to this Court for its opinion agreeably to the act of
Congress in such cases made and provided, and was argued by
counsel. On consideration whereof it is the opinion of this Court
first that the statute of limitations of Georgia can be pleaded to
an action in that state, founded upon a judgment rendered in the
State of South Carolina, and secondly that in the administration of
assets in Georgia, a judgment rendered in South Carolina upon a
promissory note against the intestate when in life should not be
paid in preference to simple contract debts Whereupon it is ordered
and adjudged by this Court that it be so certified to the said
circuit court.