
    Staunton.
    Johnson v. Anderson et als.
    October 16, 1882.
    1. Jurisdiction—Final decrees—Subsequent proceedings.—After final decree the court has no further jurisdiction; either of the subject matter or of the parties, and all subsequent decrees and orders, entered without notice to the parties, are void.
    2. Idem—Statute of limitations—Case at bar.—Against A, in Ohio, J obtained a -final decree to foreclose a mortgage securing two notes, and received all of first and part of second note. Twelve years later, without notice to A, a decree was entered for balance of second note. In the interval, J filed his bill, in this State, to attach A’s land for the balance. A answered that the cause of action arose July, 1868, and the suit was not brought within five years thereafter. J then filed his supplemental bill, exhibiting a transcript of and setting up the last Ohio decree as a defence against the plea of the statute of limitations. To-this A demurred and plead nul tiel rebord.
    
    Held :
    Tlie Ohio court having no jurisdiction of the cause when its last decree was entered, the decree is Void, and the plea of nul tiel record must be sustained.
    2. The lex fori governs, and the limitation is five years from rise of cause of action. The action was barred when brought, and the original bill must be dismissed.
    3. The supplemental bill makes no valid defence against the plea of the statute of limitations. The transcript of the Ohio record referred to and filed with that hill, on demurrer, is considered as much a part thereof as if set out in Tuza verba.
    
    Appeal from decree of circuit court of Clarke county in suit of Jokn B. Johnson against Thomas H. Anderson and others, to subject, by foreign attachment in chancery, land lying in said county and belonging to the defendant (then a non-resident of Virginia), in order to pay the balance on two promissory notes, made by defendant to plaintiff, for $800 each, dne July 1st, 1867, and July 1st, 1868, respectively, as tbe price of lots in Belmont, Obio, and secured by mortgage. After decree of sale was rendered, but before sale was made, defendant appeared, and petitioned tbat tbe court rebear tbe cause and permit bim to file bis plea of tbe statute of limitations to tbe note filed witb tbe bill. Tbis tbe court refused. Defendant appealed. Tbe appellate court reversed tbe decree of denial and remanded tbe cause. See Anderson v. Johnson and others, 32 Gratt. 558. Tben tbe plaintiff filed bis amended and supplemental bill essaying to mate defence against tbe said plea. Tbe other proceedings and facts are sufficiently stated in tbe opinion of tbis court, to which tbe plaintiff appealed from tbe decree of tbe circuit court dismissing both of tbe said bills.
    
      McDonald & Moore, for the appellant.
    1. It was error to sustain tbe demurrer and dismiss tbe amended and supplemental bill. Smith’s Ex’ors v. W. C. V. &c. R. Co., 33 Gratt. 620; Belton v. Apperson, 26 Gratt. 216 et seq.; Adams’ Eq., 335-336; 3 Daniels’ Ch. Pr., p. 1515, note 1; Pleasants v. Logan, 4 H. & M., p. 489.
    2. It was error to give judgment for tbe defendant on bis plea of tbe statute of limitations. Tbe demurrer of plaintiff to defendant’s plea of tbat statute should have been sustained. Adams’ Eq. (Ed. 1873), p. 346, where it is stated “the object of an amended bill may be either to vary, or add to tbe case originally made, or to meet the defence by new matter.” Ibid, top page 604, note on 671; 1 Rob. Pr. (new ed.), p. 623. Tbat tbe Obio judgment operates-as a merger of tbe note; see Am. Leading Cases, p. 820. Tbat tbe Obio court bad jurisdiction to render tbe decree set up in tbe amended bill; see Swann’s Bevised Statutes of Obio (1854), p. 633, ch. 2, § 62. “ Tbe laws of other States will be judicially taken notice of when necessary to .determine the faith and credit due to their judgments.” Am. Lead. Cases, Mills v. Duryee, p. 801; Ib. Elmoyn v. Cohen, p. 786; Story on Conflict of Laws, §§ 606-7-9; 2 Leigh, p. 172; Reporter, vol. 8, p. 185; Lancaster v. Willson, 27 Gratt., p. 628.
    
      S. J. C. Moore & Son, for the appellees.
    1. The record of the Ohio suit on its face shows that the Ohio court had no jurisdiction to render its last decree; which is therefore entitled to no weight in the courts of any other state. See Mills v. Duryee, 2 Am. Lead. Cases, (3d Ed. Hare & Wallace’s Notes), pp. 720 et seq.; Doe v. Oliver, Duchess of Kingston’s case, 2 Smith’s L. Cases, pp. 842 and 843; Phil. on Ev. (6 Am. Ed.), pp. 253 and 254. This jurisdiction is put in issue by the plea of nul iiel record. 2 Am. L. Cases, p. 721.
    2. The demurrer to the amended and supplemental bill should be sustained; first, because it sets up a new and independent cause of an action in which the original cause of action is merged. 2 Parsons on Contracts, p. 608; Chitty on Contracts, p. 874; 1 Rob. (new) Pr. 218. Second, because it makes no reply sufficient in law to the plea of the statute of limitations. The statutory bar is absolute. The matter replied to such a plea, must be something existing at the date of the institution of the suit. 1 Rob. (new) Pr. p. 582.
   Burks, J.,

delivered the opinion of the court.

The case is this: John B. Johnson filed his bill in the circuit court of Clarke county against Thomas H. Anderson, a non-resident of the State, to attach a tract of land as his to pay the balance alleged to be due on his promissory note. Anderson not appearing, a decree was pronounced against him for the amount claimed, and the land attached was ordered to be sold to satisfy it. After this, Anderson repeatedly appeared in the cause, and by petition asked that the decree be reheard and that he be allowed to make his defence to the bill. The prayer of the petitions was denied, and from the decrees of denial, on appeal by him to this court, the decrees were reversed and the cause remanded. See Anderson v. Johnson and others, 32 Gratt. 558. When the case came back to the circuit court, and before Anderson again appeared, the complainant Johnsou filed an amended and supplemental bill, in which he alleged that since the filing of the original bill he had obtained a personal decree against Anderson, in a suit in the court of common pleas of Belmont, in the State of Ohio, for the balance claimed on the note in his original bill; that the note was merged in tbe decree, axid he relied on the decree as evidence of the debt claimed. He referred to and filed with the bill as an exhibit an authenticated transcript of the record of the proceedings in the Ohio suit. To this bill Anderson demurred, and also filed a plea of nul tiel record. He also filed an axxswer to the original bill, in which he pleaded the act of limitations as a bar to the demand on the note, and, while relying on the Ohio decree, if valid, as a merger of the cause of action on the note, yet denied its validity.

At the hearing of the cause, the court dismissed the supplemental bill on the demurrer, and the original bill on the plea of the act of .limitations. •

On appeal allowed Johnson from this decree, the three principal questions presented by the assignments of error are:

1. Whether the Ohio decree is valid.

2. If valid, is it a merger of the cause of action on the note?

3. If a merger, can it be relied, on as such by tbe complainant in a supplemental bill ?

Tbe last two questions, of course, need not be considered if, on considering tbe first, it be determined that tbe decree is void.

Tbe transcript of tbe Ohio record being specifically referred to in tbe supplemental bill and exhibited with it, is as much a part of tbe bill as if incorporated in hcec verba, and therefore on demurrer we may look to it to see whether tbe decree it presents is valid or not.

It appears by tbe statements of tbe bill, admitted by tbe demurrer to be true, that tbe note in question was one of two notes, each for tbe same amount, given for tbe purchase money of two lots of land bought by Anderson of Johnson and secured by mortgage on tbe lots, and that, default being made, Johnson instituted tbe proceedings (tbe transcript of which we have) to foreclose tbe mortgage.

Tbe transcript shows a petition filed for tbe foreclosure, process to answer awarded, personal service on Anderson and return, order of sale, sale made (Johnson being tbe purchaser), report of sale returned and confirmed, conveyance to tbe purchaser ordered and costs paid. All of these proceedings thus far appear to be regular, and their validity is not questioned. Tbe last decree, so far as tbe proceedings have been noticed, was rendered on tbe 22d day of June, 1868. Twelve years afterwards—to-wit: on tbe 3d day of July, 1880—another decree was rendered, by which a portion of tbe purchase money under tbe sale previously made was applied to the extinction of tbe first note and tbe residue credited on tbe second (tbe note in controversy in this suit), leaving a balance due on tbe latter, which Anderson was adjudged to pay.

This is tbe decree relied on by tbe appellant; and we we are of opinion that it is void because tbe court bad no jurisdiction to render it. Tbe decree of June 22,1868, was a final decree. It confirmed tlie sale to Johnson and ordered the land to be conveyed to him. He had paid np all the costs of the suit, and the whole of the purchase money in his hands belonged to him. It would have been idle to require him first to pay the money into court, and then order it to be paid back to him. As to the application of the purchase money to the notes, no order was necessary. The law applied it. The exact amount of the money for the purchase and of that due by the notes appeared by the record. There could be no mistake about either the amount or as to the application of the money. It is true, the court in that decree, as it did in the decree of July, 1880, might have formally applied the money and ordered payment of the balance due on the last note, but it did not. It had evidently given all the relief in the cause contemplated. The cause was ended and the court could proceed no further. It had no further jurisdiction in that proceeding, either of the subject matter or of the parties. It would seem that the decree of July, 1880, was rendered in the absence of the defendant upon the mere motion of the plaintiff by his attorney, and without notice to any body. The original cause being ended, the proceeding was a new one against the defendant, and, being had without notice, the personal decree against him is a nullity and would be so treated, we presume, everywhere. It was not applied for until after the lapse of twelve years from the final disposition of the cause in which it purports to have been rendered, and not until after this court, on Anderson’s appeal, had reversed the decrees below and remanded the cause so as to let in Anderson’s defence. The circumstances tend strongly to show that it was fraudulently procured to meet the exigences of this case. At any rate, it is a void decree, and the supplemental bill seeking to set it up was properly dismissed on demurrer.

It results that the^ original bill was also properly dismissed, the act of limitations pleaded being a bar to recovery on the note. Right of action accrued July 1, 1868. Suit was brought May 24, 1875. As the lex fori governs in such cases, the Virginia statute applies. By it the limitation is five years.

The decree of the circuit court will be affirmed.

Decree affirmed.  