LEWIS M. TEEL, Respondent, v. ABRAHAM YOST, Appellant.
Judgment of another state, action upon, evidence required, etc.
At the time of the entry of the judgment in question, the defendant was domiciled in the state of Pennsylvania, and was personally bound by the judgment, provided it was entered in accordance with the laws of that state.
The evidence in the- case shows that the judgment, notwithstanding its faulty form, is, under the laws of Pennsylvania, in every respect a valid judgment of a court of general jurisdiction in that state. That during the period the note had to run, the judgment was only a lien, but on the maturity of the note it became absolute and enforceable by execution. [Iitgkraham, J., dissenting.]
Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
Decided February 6,1890.
Appeal from judgment entered upon the decision of a judge at special term.
Lemuel Skidmore, attorney and of' counsel, for appellant, argued :—
I. The alleged judgment roll offered in evidence lacks many essential characteristics of a judgment. *482It shows that no process was issued, no pleadings had, no appearance ever made by the defendant or by any one. It simply recites that a bill, of which a copy is given, was produced, and concludes with the words “ wherefore judgment,” not stating for what sum, and no proofs having been taken of the authenticity of the bill produced or the amount owing thereon. Such a proceeding would not constitute a judgment at common law, nor according to the law of this state. The alleged judgment record shows that there was nothing offered to the Pennsylvania court as the basis of a judicial decision. It is in the nature of a mere memorandum by the clerk, and does not amount to a judgment. Cromwell v. Bank of Pittsburg, (U. S. Circuit Court in Penna.) 2 Wallace, Jr., 584. The very idea of a judgment is a judicial decision upon the rights of parties after hearing the evidence on both sides or giving both sides an opportunity to be heard. The alleged record here shows that the defendant was not in any way summoned or notified, and there is no waiver by him of such notification. It is not within the clause of the constitution of the United States, requiring full faith and credit to be given in each state to the judicial proceedings of another state, because it is not in any sense a judicial proceeding, within the meaning of the constitution or the Act of Congress of 1790. Thatcher v. Blackbourne, 1 N. H. 242; Doughty v. Doughty, 28 N. J. Eq. 585.
II. It was claimed of course that the judgment alleged was a judgment by confession. The only authority, however, is a clause in the copy of the alleged note authorizing “ any attorney of any court of record in Pennsylvania, or elsewhere, to confess judgment therefor,” etc.; but this power of attorney, if not void for indefiniteness, is of an attorney in fact and therefore special and limited, and must be *483strictly pursued. Baldwin v. Freydendohl, 10 Ill. App. 106. There is nothing in the record to show that judgment was confessed by an attorney of any court of record in Pennsylvania or elsewhere. Moreover, the plain construction of the power to confess judgment would be to confess judgment upon the note after it was due, whereas the proceeding shown by the record was taken two days after the date of the note, which was not due until one year after date.
III. There is no reported case in the state of an action brought upon a record similar to the one offered in this action. In the following cases—Shumway v. Stillman, 6 Wend. 447; Huntley v. Baker, 33 Hun, 578; Ferguson v. Crawford, 86 N. Y. 609, and 70 Ib. 253; Pringle v. Woolworth, 90 Ib. 502. —the records showed that process was issued and served upon the defendant, either personally or in some mode which our court adjudged to be binding upon him. The opinion of the "general term on the former appeal, held: “There is no evidence of any law of Pennsylvania that would authorize a judgment to be entered on a note that had yet a year to run.” On the second trial plaintiff attempted to strengthen his case by giving proof of the law of Pennsylvania. He introduced in evidence a statute to the following effect : “ That it shall be the duty of the prothonotary of'any court of record, etc., on the application of, etc., the holder, etc., of a note, etc., in which judgment is confessed, or containing a" warrant from any attorney at law, or other person, to confess judgment, to enter judgment against the person or persons who executed the same for the amount, which from the face of the instrument may appear to be due, without the agency of an attorney or declaration filed, with such stay of execution as may be thereon mentioned, etc. In Rube v. Heslip, 4 Penn. St. R. 139, offered by plaintiff, this statute is *484construed as follows : “ The act of assembly merely substitutes the prothonotary, though not named or described for an attorney of the court, but it supplies no deficiency of the power given in the first instance.”
And in Conway v. Halstead, 73 Penn. St. R. 354, it was held that the doings of the prothonotary in entering judgment under the foregoing act must be strictly within the power given by the act, or else they are void ; and that he can only enter judgment for the amount which, from the face of the instrument, may appear to be due. In this case the prothonotary undertook to calculate from other documents the amount for which he entered judgment and it was held his act was invalid. The law quoted in above point is the only statute proved by plaintiff on the trial. It plainly does not authorize entry of judgment for an amount not appearing to be due. The plain and reasonable sense of the word due as . used in the sentence is the usual sense in which that word is ordinarily used in reference to notes and obligations to pay money, i.e. payable immediately. Allen v. Patterson, 7 N. Y. 476. No practice ever existed at common law, before the enactment of this statute of entering judgment upon a note or other obligation before it was by its terms payable. The practice was for the debtor to give a bond, payable immediately, with an instrument called a warrant of attorney which authorized some attorney to accept service of a declaration in a suit upon the bond and to suffer judgment to be taken against the debtor in such suit by default. 3 Chitty Gen. Practice, 669; Allen v. Smilie, 1 Abb. 354. The statute of Pennsylvania was obviously intended to simplify this practice by allowing the prothonotary to enter judgment “without the agency of an attorney or declaration filed,” the purpose being .as expressed by the courts of that state in several of the cases cited, to lessen the expense of entering the *485judgment. But that statute did not intend to authorize the prothonotary to enter judgment in a ease wherein no judgment could have previously been entered by “the agency of an attorney” and by “declaration filed.” No declaration could have been founded upon the promissory note in the present case before it was due and payable, according to its terms. Nicholl v. Bromley, 2 Brod. & Bing. 464. Therefore the statute by its term did not authorize the prothonotary to enter judgment upon the note in this case. The other Pennsylvania cases quoted by the plaintiff show nowhere any express adjudication that the prothonotary is authorized by law to enter judgment upon a note, or other instrument before it is due. The Pennsylvania statute put in evidence authorizes the prothonotary to enter judgment “ without the agency of an attorney or declaration filed,” but does not, in any other respect, change the practice.
Edward L. Short and Samuel B. Rogers, attorneys and of counsel, for respondent, argued:— ,
' I. The court of common pleas of Northampton county, Pennsylvania, is a court of general jurisdiction. This was proved by the testimony of an expert in laws of that state. But this court will take judicial notice of that fact. Pringle v. Woolworth, 90 N. Y. 502; Hatcher v. Rochelau, 18 Ib. 86, 95. The defendant being domiciled in Pennsylvania at the time the judgment was entered there, was bound personally by the judgment, provided it was rendered in accordance with the laws of that state. Upon the former appeal to this general term the judgment of the trial term was reversed upon the sole ground that the legality, sufficiency, and binding effect of this judgment under the laws of Pennsylvania was not proved. Teel v. Tost, 56 Super Ct.
*486II. The plaintiff has on the new trial fully met the requirements suggested by this general term on the former appeal in this case, by proving that the judgment sued on is, under the laws of Pennsylvania, in every respect a valid, binding, personal judgment. The plaintiff proved the law of Pennsylvania by the testimony of Mr. Henry Gr. Ward, an expert in the laws of that state, and a member of the law firm of Biddle & Ward, which has offices both in Philadelphia and New York. This expert testimony is wholly uncontradicted, and is supplemented by numerous decisions of Pennsylvania courts, each of which was duly put in evidence on the trial. The judgment was entered pursuant to the following act of the Pennsylvania Legislature, (L. 1806, Oh. CXXIL, § 28): “That it shall be the duty of the prothonotary of any court of record, within this commonwealth, on the application of any person being the original holder (or assignee of such holder) of a note, bond or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney at law, or other person to confess judgment, to enter judgment against the person or persons who executed the same for the amount, which, from the face of the instrument, may appear to be due, without the agency of any attorney, or declaration filed with such stay of execution as may be therein mentioned, for the fee of one dollar, to be paid by the defendant, particularly entering on his docket the date and tenor of the instrument of writing, on which the judgment may be founded, which shall have the same force and effect as if a declaration had been filed, and judgment confessed by an attorney, or judgment obtained in open court and in term time ; and the defendant shall not be compelled to pay any costs or fee to the plaintiff’s attorney when judgment is entered on any instrument of writing as aforesaid.” This act *487is still in force and nnrepealed. A judgment so entered has precisely the same force in Pennsylvania as if rendered after appearance and trial. In Braddee v. Brownfield, 4 Walts. 474, the supreme court of Pennsylvania says: “In contemplation of law a judgment on a warrant of attorney is as much the act of the court as if it were pronounced on nil dicit or a cognovit; and till it is reversed and set aside it has all the qualities and effect of a judgment on verdict. * * * Like any other judgment it is an estoppel, and concludes the parties from drawing into controversy the point or thing adjudicated.” In St. Bartholomew v. Wood, 61 Pa. St. 100, Aghew, J., says: “A judgment entered by the prothonotary under a power- contained in the instrument is a judicial act, and by the words of the Act of 1806 has the same force and effect as a judgment confessed by an attorney, or given in open court in term time.” The same quality of those judgments is laid down over and over - again. Colvin v. Blymyer, 121 Pa. St. 582; Montague v. McDowell, 99 Ib. 265; Hopkins v. West, 2 Norris 109; Rutherford v. Boyer, 3 Ib. 347; Hageman v. Salisberry, 74 Pa. St. 280, 284. The plaintiff has also proved that the Pennsylvania judgment was regularly entered, and is formally sufficient, Mr. Ward, an expert in Pennsylvania law, is familiar with the practice of entering such judgments in Pennsylvania, and has frequently entered them himself. His testimony in brief, is to the effect that the record in question is an adjudication that Lewis M. Teel, recover of Abraham Tost, the sum of $2,268, with interest, from January 12, 1878. Every possible objection to the form, regularity or sufficiency of this record was met by the testimony of Mr. Ward, or by decisions of Pennsylvania courts.
By the Cotjet.—Fbeedmah, J.
I am of the opinion *488that upon the trial, the proceedings of which we are now asked to review, the plaintiff has cured the defect of proof for which upon the former appeal a new trial was ordered.
The defendant was domiciled in the state of Pennsylvania at the time of the entry of the judgment in the court of common pleas of Northampton county of said state, and was, therefore, bound personally by the judgment, provided it was entered in accordance with the laws of that state.
It has now been shown, by extrinsic evidence, that the judgment sued on, notwithstanding its apparently faulty form, is, under the laws of Pennsylvania, in every respect a valid, binding, personal and sufficient judgment of a court of general jurisdiction; that, during the period the note had to run, the judgment gave only a lien, but that on the maturity of the note it became absolute and enforceable by execution; and that, under the laws of Pennsylvania, it is customary and proper to enter such a judgment at' any time before the maturity of the note for the sake of the lien given, though it cannot be enforced by execution until after the „ maturity of the note.
The judgment appealed from should be affirmed with costs.
Sedgwick, Ch. J., concurred.
Ingraham, J. (dissenting).
I am unable to agree with my associates in affirming the judgment in this action. It appears that no process of any kind was • ever served upon the defendant in any suit in the court of common pleas of Northampton county in which the plaintiff in this action was plaintiff, and that the defendant never appeared in such action, and that no suit or action in such court ever came to the defendant’s knowledge.
*489To entitle a judgment of the court of common pleas of the state of Pennsylvania to be enforced in this state it must appear that the court had jurisdiction of the subject matter and of the person of the defendant. That the court had jurisdiction of the subject matter of the action is conceded. I think it clear, however, that that court had no jurisdiction over the' person of the defendant. The rule is stated in Shumway v. Stillman, 6 Wend. 453, that if it appeared by the record that the defendant was not served with process, and did not appear in person or by attorney, such judgment is void; and if it appear by the record that defendant appeared by attorney, the defendant may disprove the authority to appear for him. See Kerr v. Kerr, 41 N. Y. 275; Shepherd v. Wright, 59 How. 514. The question is squarely presented, therefore, whether a judgment entered in a court of general jurisdiction in another state against a resident thereof, without the commencement of any action in which he was a party, and in which no proceeding was taken to bring him into court by service of process, either personal, by publication, or by any other method of substituted service, can be enforced in the courts of this state, the judgment debtor having subsequently become a resident of this state, where the judgment sought to be enforced requires -the defendant to pay a sum of money. There is no question here as to the sufficiency of substituted service, or whether the defendant is bound by the law of the state of his domicile which provides for the service of process by mail or in some other way than by personal service; jurisdiction over the person of the defendant was never acquired because no attempt was made to summons the defendant to appear in court.
The fundamental law of this state and nation requires that no person shall be deprived of life, liberty or property without due process of law.
*490By the note which is recited as the foundation of this judgment no consent or authority was given to the clerk of the court to enter any judgment upon it. The pretended judgment sought to be enforced was entered long before the note was due and when the defendant was not liable. The authority for an attorney to appear for him and consent to the judgment, gave no authority to the clerk of the court to enter a judgment without such an appearance and without notice. To hold that this defendant has had his day in court and has had a right to be heard, contradicts the whole evidence and the record sought to be enforced, and to allow a recovery in the courts of this state against a citizen of this state without giving him an opportunity to impeach the correctness of the judgment or the execution of the obligation upon which the pretended judgment in Pennsylvania was recovered, would be to deprive this defendant of his property without due process of law. At no time has he had an opportunity to be heard; at no time has he had any opportunity to show that he was not liable for the debt.
It is not necessary to determine whether or not this judgment could have been enforced in Pennsylvania. It is sufficient to say that it is not enforceable in this state against a citizen of this state.
I think, therefore, that the judgment should be reversed.