
    Thomas M. Wright v. L. A. Weisinger & Co.
    It is a good plea to an action of debt founded upon a judgment rendered in another state, that the defendant had no notice of the proceedings in the suit in that state in which the judgment was rendered.
    If, in such case, the plaintiff designs to rely on the appearance of the defendant as an answer to the want of notice, he should reply to that effect.
    In an action of debt in this state upon a judgment obtained in Alabama, the recital in the record of that judgment “ that the parties came by their attorneys,- and that a jury came to try the issue,” is, under the decisions in Alabama, though no service of process appears, nor special appearance be entered, conclusive on the defendant of his appearance to the action, and will render, in comity to the decisions of that state, and in accordance with the act of congress, giving effect to the judicial proceedings of the different states, the judgment a valid and binding one against the defendant in the proceeding in this state.
    In a case from a state whose decisions were different from those in Alabama, this court would hold differently.
    Where, in an action on a judgment rendered in a different state, the defendant pleaded, 1, nul tiel record, and, 2, that he had no notice of the proceedings on which the judgment was founded ; and the court, upon issue to the first plea, decided against the defendant, and sustained a demurrer to the second plea; held, the record of the judgment sued on, showing an appearance of the defendant, that although the demurrer was improperly sustained, yet as the decision was substantially right, and the ends of justice would be best subserved by an affirmance, that the judgment should be accordingly affirmed.
    In a plea of nul tiel record, a verification is unnecessary, because the plea is in the negative; in such case, however, a verification being an unnecessary averment, will be rejected as surplusage, and does not vitiate.
    In error from the circuit court of Panola county.
    Leonard A. Weisinger and Thomas Lockhart, forming the firm of L. A. Weisinger & Co., sued Thomas M. Wright in an action of debt, founded upon a judgment of the county court of the county of Perry, in the state of Alabama, in favor of the plaintiffs against the defendant, for the sum of $62 64, together with the costs.
    The record of the judgment of the court in Alabama was filed with the declaration. The suit upon which the judgment •was founded was in assumpsit upon an open account; the .writ of capias ad respondendum, was in the record, hut no return upon it; no plea was filed, hut after the declaration the record recited as follows: “ In the county court, July term of 1838, this day came the parties by their attorneys: and thereupon came a jury of twelve good and lawful men, who, being elected and sworn well and truly to try the issue upon their oath, say they find for the plaintiffs, and assess their damages at $62 64; it is therefore considered by the court, &c.” The record was duly certified according to the act of congress on that subject.
    To the action of debt upon this judgment the defendant appeared and plead, 1, nul tiel record; this plea concluded in these words: “ This the said defendant is ready to verify: wherefore he prays a judgment, if the said plaintiffs ought to have or maintain their aforesaid action thereof against him; ” 2. that the defendant had never had any notice, either by service of process or otherwise of the commencement and pendency of the suit in Perry county, Alabama; this plea also concluded with a verification.
    Issue was taken upon the first plea, and the case submitted upon that to the court, which adjudged the plea to be insufficient to bar the action, and gave judgment thereon for the plaintiffs ; and upon argument the court sustained the demurrer to the other plea. To these decisions of the court below, exceptions were taken and filed, and this writ of error prosecuted.
    
      J. T. M. Burbridge, for plaintiff in error.
    The above suit was brought upon an instrument of writing, purporting to be a transcript of a judgment from the county court of Perry county, in the- state of Alabama; and the record or transcript thereof does not show that the said Thomas M. Wright, the defendant in the above cause, and supposed defendant in the original suit, ever had any notice, by summons or otherwise, of the commencement, pendency or existence of the original suit. It is true that the supposed record shows a writ was issued from the clerk’s office of the county court of Perry .county, apd state of Alabama; but it does pot show that it came to the hand of the sheriff, or otherwise; that it was served or executed upon, the defendant, or that the defendant had any notice whatever. And if the record show no notice to the defendant in the original suit, the presumption is that the court rendering the judgment, rendered it without jurisdiction over the person of the defendant; and if the court rendered a judgment without jurisdiction, the judgment is illegal; and if illegal, it is incompetent evidence to sustain an action in our courts. See the following authorities, namely : To make a copy of a record evidence, it must be a whole copy — 2 Saund. on PI. and Evid. 276. All judgments rendered against any party to a suit, without notice, is a violation of the first principles of justice, and are null and void — See 2 Kent’s Com. 108; see note to 2 Chit, on PI. 244; also, 9 East’s Rep. Notice is essential to the legality of a) foreign judgment — Notice, particularly, 1 Phillips on Evid. 353 ; also 3 lb. 903. Where the defendant had not notice —■ Story’s Conflict of Laws, 492, 495. 507. Also, a judgment is a nullity, if defendant is not duly summoned — 3 Dane Abr. 527. 1 Stark, on Ev. 215. As to jurisdiction of the subject — 4 Cranch, 269, 270; Freem. Ch. Rep. 141. A judgment without summons or notice has been repeatedly held to be absolutely null and void.
    The part of the record purporting to be the judgment, is defective and informal. It does not show in what county or state, or before what judge it was rendered, or that a jury was empaneled ; in one part of the judgment the parties’ names are called plaintiffs ; in another the plaintiffs are called his, &c.
    The fact of the recital by the clerk, “ the parties by their attorneys came, &c.,” is no evidence. 1 How. R. 527; also 4 lb. 401.
    
      C. Miller, for defendants in error.
    The judgment, in this case, is recovered upon the exemplification of a judgment rendered by a court of record in the state of Alabama. There are are two pleas to the declaration; 1st, the plea of nul tiel record, and, 2d, a plea of want of notice.
    If the exemplification purports to he a “ full,” “ complete,” or “ entire ” record of the proceedings had in the case, and the attestation of the clerk is to that effect, and is, in other respects, in conformity to the act of congress in such case, and the certificate of the judge is also correct, and it appears by the record that the defendant was either served personally with process, or appeared by attorney, then it is respectfully contended that, however irregular or defective the judgment might have been according to the practice of the court of Alabama, where it was recovered, and the laws of that state, yet the circuit court here cannot look into these errors. The remedy for the defendant, in such case, was by appeal to the court of errors and appeals of that state, if any, and if there was none, then the judgment was conclusive, and this court cannot, in either case, revise or reverse it. But it will be seen, upon examination, that the judgment is a correct and sufficient one, according to the course of the common law; and if it were not, we are bound to suppose that it is such as was authorized by the laws of Alabama, until it is reversed there. See 1 Stark. Ev. p. —, note.
    The error relied on, it seems, is the sustaining of the demurrer to the second plea of the defendant, as appears by the supposed bill of exceptions filed in the cause. But it is respectfully submitted, in the first place, whether it can be taken as a part of the record and considered, inasmuch as it does not appear that the exceptions were taken at the time the opinion of the judge was given, or when, or whether they were taken in open court, or where. Nor are they signed and sealed by the judge as required by the statute. How. & Hutch. 620. Be this, however, as it may,—
    If it appears, by the exemplification of the record, that the defendant appeared by attorney, it is prima facie evidence of the fact; the defendant is at liberty to disprove the fact. See 3 N. Y. Dig., 305, reciting Shunnoay et al. v. Stillman, 6 Wend. 447. If the defendant appears by attorney, it certainly waives the service of notice, for by his appearance the very thing is accomplished, which it was the object and design of the service of notice to effect. The defendant concludes his plea with a verification by the supposed record; the matter put in, issue by th.e former part of the plea is purely .a ¡matter of fact, and the plea should hav.e concluded to the country. By concluding with a verification by the record, he made an issue to the court, and relied upon the record for his proof of the want of notice. He should have answered over, concluded his plea to the country, and then introduced his evidence, if he had any.
    We think the judgment ought to be confirmed. The plea being judged to be bad, the demurrer was sustained, and the defendant ordered to answer over. Upon being called so to do, fie came not, but made default; whereupon the court proceeded to give judgment.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of debt brought in the circuit court of Panola, upon the transcript of a judgment recovered in Perry coupty, Alabama.

The defendant filed a plea of nul tiel record, which was found against him by the court. There is no variance between the record produced and that described in the declaration.

Efe also pleaded that he had no notice of the proceedings in the suit in Alabama. To this plea there was a general demurrer, which was sustained in the court below.

A judgment without notice, actual or constructive, is absolutely void, unless the want of notice be cured by the appearance of the party, or in some other recognised piode. Carthman y. Jones, 2 Yer. 484. Gwin v. McCarwell, 1 S. & M. 351. This is equally true, whether the judgment comes into question in the same state in which it was rendered, or in a different one. If the plaintiffs intended to rely upon the appearance of the defendant, as an answer to the averment of want of notice, they should have replied to that effect. The demurrer was therefore improperly sustained.

When the transcript is examined, there is no service of the writ shown, nor is any plea contained in' the record. The judgment, however, recites that the parties came by their attorneys, apd fhat a jury came to try the issue. In Alabama, the state in which the judgment was rendered, it has been decided by their supreme court, that such an entry contained in the judgment cohcludes and binds the defendant, and makes the judgment a valid one. Gilbert v. Lane, 3 Porter, 268. Lucy v. Beck, 5 Ib. 168. Although this decision is, in our view, very questionable upon common law principles, yet we are in comity bound to presume the supreme court of that state to be better acquainted with its own laws than we can be. The act of congress directs that records and judicial proceedings 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 they are taken. This record in Alabama would be conclusive, and we must regard it so here, if we conform to the act of congress. In a case from a state whose decisions were different from those in Alabama, we should hold differently.

The decision upon the demurrer was not strictly correct. Rut when we look at the whole case, we see that a correct conclusion has been reached, and that one issue has been properly foitnd against the defendant, which is decisive Of the case. It would be needless, therefore, to reverse, where, according to the principles we declare, the judgment must ultimately be th'e same. Of the two pleas, one was correctly determined in the circuit court; the other, though incorrectly determined in form, is substantially right. The ends of justice would be best sub-served by an affirmance which will put an end to litigation, that must lead' to the same result.

It may be proper to add a few words, in regard to the form of the second plea. It concludes with a verification, and a prayer of judgment. It is insisted that the conclusion is bad. The rule is, that in a plea of mil tiel record, a verification is unnecessary, because the plea is in the negative. 1 Ch. Pl. 556. Salk. 520. 3 Ch. Pl. 994. An unnecessary averment may be rejected as surplusage, and does not vitiate. 2 S. & M. 149.

The judgment of the court below is affirmed.  