Albright v. Boyd et al.
Action in this state to recover judgment — Rendered in another state —Defendant in this state cannot challenge service in other states, when — Judgment on promissory note — Defendant cannot plead facts in original suit, when — Court procedure.
1. In an action brought in this state to recover upon a judgment rendered in another state, the defendant having been there personally served with process and having there unavailingly challenged the jurisdiction of the court over his person upon the ground that he had been fraudulently decoyed into that state for the purpose of effecting personal service upon him, will not be permitted here to challenge the validity of such service.
2. Such judgment having been recovered upon a promissory note, the defendant will not be permitted here to plead against the plaintiff rights arising out of his relations to other makers of such note and depending upon facts which were existent when the original suit was brought, whether such relations and facts were there pleaded or not.
(No. 12682 —
Decided October 31, 1911.)
Error to the Circuit Court of Darke county.
The defendants in error brought suit in the court of common pleas of Darke county to recover of Albright the amount of a judgment alleged to *35have been recovered by them against him and others in the circuit court of Hancock county, Indiana. In their, petition they alleged that said circuit court is a court of general jurisdiction created by the laws of Indiana; that said judgment was rendered after the issuance of summons in the action and the personal service thereof on Albright in the state of Indiana, and that the judgment remains unsuspended and wholly unpaid.
In his answer Albright alleged that the judgment on which the plaintiffs counted had been recovered on a promissory note executed in Darke county by Albright & Son, Thomas IT. New and himself, he being surety merely, and he further alleged the circumstances, under which he claimed it was executed, to show that he was fraudulently induced to execute it as surety and to show that he had equitable rights against other parties to the note. He also alleged circumstantially that when suit was brought upon the note in Hancock county he was by false representations decoyed from his home in Darke county, Ohio, into Wayne county, Indiana, where the summons from the circuit court of Hancock county was personally served on him; that without pleading to the merits of said action and expressly disclaiming all intention of appearing therein he filed his motion therein to quash the summons and set aside the return thereof because he had been so decoyed into the state of Indiana for the purpose of effecting such personal service, but that the court after hearing said motion overruled the same and rendered the judgment upon which this action was founded.
*36To this answer the plaintiffs interposed a general demurrer which was overruled in the court of common pleas. The plaintiffs then filed a reply admitting that when Albright signed the note he was a resident of Ohio and denying all other allegations of the answer. A trial was had and the jury returned a general verdict for the plaintiffs. With their general verdict they returned special findings supporting the allegations of the answer respecting the relations of the parties to the note, all being facts existing at the time of the bringing of the suit in Hancock county, Indiana. On these special findings the common pleas court rendered judgment in favor of Albright notwithstanding the general verdict. On petition in error the circuit court reversed the judgment of the court of common pleas for error in overruling the demurrer to the answer and rendered judgment on the general verdict in favor of the original plaintiffs.
Mr. Kirk Hoffman and Mr. D. W. Bowman, for plaintiff in error.
Was the action of the Indiana court overruling the motion of plaintiff in error to set aside service upon him in that state because decoyed therein through fraud, a bar to his right to plead the same by way of defense to an action brought against him on said judgment in Ohio, and that said Indiana court was without jurisdiction over his person?
*37It may be' stated at the outset as settled, that no valid judgment in personam can be rendered against a defendant without personal service upon him in a court of competent jurisdiction, or waiver of summons and voluntary appearance therein. Clark v. Wells, 203 U. S., 170.
In such case the court has no jurisdiction of his person, and its judgment against him would be void. Kingsborough v. Tousley, 56 Ohio St., 450; Ridgeway v. Bank, 11 Hump. (Tenn.), 524.
It is the law of this state. Pilcher v. Graham, 18 C. C., 5. This is the general rule. Abercrombie v. Abercrombie, 64 Kans., 29; Van Horn Bros. v. Manufacturing Co., 37 Kans., 523; Dunlap & Co. v. Cody, 31 Ia., 260; Fitzgerald Const. Co. v. Fitzgerald, 137 U. S., 98; Frawley, Bundy & Wilcox v. Casualty Co., 124 Fed. Rep., 259; Duringer v. Moschino, 93 Ind., 495; Saveland v. Connors, 121 Wis., 28; Wanzer v. Bright, 52 Ill., 35; Freeman on Judgments (3 ed.), Sec. 566.
Such defendant is not bound to appear and move to set aside the service, but can safely ignore the proceedings and stand on his rights and attack the judgment when it is sought to be enforced against him. Duringer v. Moschino, 93 Ind., 495; Frawley, Bundy & Wilcox v. Casualty Co., 124 Fed. Rep., 260; Pennywit v. Foote, 27 Ohio St., 600; Wood v. Wood, 78 Ky., 627; Thompson v. Whitman, 18 Wall., 457; Grover & Baker Mach. Co. v. Radcliffe, 137 U. S. 294.
A judgment is only within the protection of this constitutional guarantee when the jurisdiction of the court over the person and subject-matter is conceded.
*38The effect of Article IY, Section 1, of the Constitution of the United States, is to provide that as matter of evidence only, it shall be entitled to full faith and credit, (Claflin v. McDermott, 12 Fed. Rep., 375), and goes no farther than to preclude all inquiry into the merits of the subject-matter of the judgment when jurisdiction is conceded. M’Elmoyle v. Cohen, 13 Pet., 323.
That this motion does not enter the appearance of the defendant is well settled. Smith v. Hoover, 39 Ohio St., 249; Elliott v. Lawhead, 43 Ohio St., 171; Long v. Newhouse, 57 Ohio St., 348; Handy v. Insurance Co., 37 Ohio St., 366; Fitzgerald Const. Co. v. Fitzgerald, 137 U. S., 98; Railroad Co. v. Combs, 13 Ind., 491; Greene v. Railroad Co., 62 Ohio St., 67; Oil Well Supply Co. v. Koen, 64 Ohio St., 431; Cooper v. Reynolds, 10 Wall., 318; Jones v. Jones, 108 N. Y., 415.
It may be said that the action of the Indiana court overruling motion to set aside service of summons upon plaintiff in error because decoyed into that state for such service upon him is res adjudicata and conclusive upon the parties in this action upon the judgment. But, we answer, that there can be no res adjudicata, if that court was without jurisdiction of the person of the plaintiff in error. Greene v. Railroad Co., 62 Ohio St., 67; Hixson v. Ogg, 53 Ohio St., 361; Trustees v. Clannahan, 53 Ohio St., 403; Kelley v. Stanbery, 13 Ohio, 421; Snell v. Railway Co., 60 Ohio St., 272.
In such cases, even where the court has acquired jurisdiction of the parties, ruling upon motions for *39interlocutory orders is not res adjudicata. In other words, as a general rule the doctrine of res adjudicata does not apply to interlocutory orders in the same case, and need not be adhered to. Bank v. Bank, 59 Kans., 357; Commissioners v. Sergeant, 24 Kans., 574; Watson v. Jackson, 24 Kans., 442; Castle v. Madison, 113 Wis., 346; Benz v. Hines, 3 Kans., 390; 3 Bates Pl. & Pr., 2633; Fanning v. Ins. Co., 37 Ohio St., 344; United States v. Bliss, 172 U. S., 321.
Mr. W. A. Hough and Messrs'. Robeson & Yount, for defendants in error.
The motion to strike out that part of the defendant’s answer relating to the service of summons upon him in the state of Indiana, was properly sustained.
The matter of the service of the summons was the matter in dispute, had been fully adjudicated and determined, and in itself is res adjudicata in every respect. Therefore, it could not be again tried by another tribunal between the same parties. 1 Van Fleet’s Former Adjudications, 2; Capwell v. Sipe, 51 Fed. Rep., 667, 59 Fed. Rep., 970; Frawley, Bundy & Wilcox v. Casualty Co., 124 Fed. Rep., 260.
A case exactly in point is that of Tootle v. McClellan, 12 L. R. A., N. S., 941. Attention is called to the journal entry recited in the opinion. Jaster v. Currie, 198 U. S., 144.
The adjudication which is binding may be had as well upon a motion as upon any other pleading. *40
Henderson v. Cabell, 83 Tex., 541; White v. Bank, 98 Cal., 166; 2 Van Fleet’s Former Adjudications, 740; Phelps v. Mutual, etc., Assn., 112 Fed. Rep., 453.
The records and judicial proceedings of the courts of any state are, properly authenticated, entitled to have such faith and credit given to them in every court of the United States as they have by law or usage in the courts of the state from which they are taken. Art. 4, Sec. 1, U. S. Const.; U. S. Compiled Statutes, 1901, 677, Sec. 905; Railroad Co. v. Ferry Co., 119 U. S., 615; Old Wayne., etc., Assn. v. McDonough et al., 164 Ind., 321.
What is insisted upon is this: That having litigated the question of the service in the Hancock circuit court, having submitted himself to the jurisdiction of the court upon that issue only, and having had a full hearing thereon upon his own and other affidavits setting out all the facts he now seeks again to set up, he is bound by the decision of the Hancock circuit court, upon this question which he himself submitted so long as such decision stands unappealed from, and not attacked in a direct proceeding for fraud upon the court. This decision made the service good, and Albright was in Hancock circuit court by virtue of the service itself.