
    Wyoming Mfg. Co. v. Mohler et al.
    In an action of assumpsit on a judgment recovered in another state, wherein the record, which was certified to he the whole record except the attachment proceedings thereon, showed service on a party named as president of a foreign corporation, defendant, that both parties had appeared by their attorneys, and, a jury having been waived, judgment was entered for the plaintiff by the court, the affidavit of defence, to the action on the judgment, alleged non-indebtedness, in general terms; fraud and collusion, in that the party named as president never was president and was in another state on the day of the alleged service; and that the defendant never authorized anyone to waive the right to trial by jury. Held that the affidavit was insufficient.
    Per Curiam. — The affidavit carefully abstains from saying that the defendant had never authorized an attorney to act for it in the case. ... If the judgment was entered by fraud and collusion, the court in which it was entered was the proper one to redress the wrong.
    Feb. 25, 1889.
    Error, No. 417, Jan. T. 1888, to C. P. Lackawanna Co. to review a judgment entered for want of a sufficient affidavit of defence, in an action of assumpsit by Mobler et al. against Tbe Wyoming Mfg. Co. on a judgment obtained in tbe Circuit Court of Kanawha Co., West Virginia, at Oct. T. 1887, No. 576. Williams and McCollum, JJ., absent.
    The declaration was accompanied by a copy of the proceedings in the court of West Virginia. The caption of the certified proceedings contained the names of the parties and -the statement that the case was “in assumpsit and attachment.” The certified proceedings consisted of a summons which was returned as having been served “ by delivering a copy of the writ to Geo. B. Dimmiclc, President of said company, said Dimmiek being a resident of and within the county of Kanawha at the time of said service ”; a copy of the declaration, with book account annexed; an entry in the docket that “ this day came the parties by their attorneys, and for pleas in this behalf the defendant says that it did not assume in manner and form as the plaintiff in their declaration have alleged, and of this it puts itself upon the country, and the plaintiff doth the like; and, neither party requiring a jury, a jury is waived and this cause is’submitted to the court, in lieu of a jury, and the court, having heard the evidence and the arguments of counsel, doth find for the plaintiff, and assess the damages, etc. The clerk of the circuit court of Kanawha county, West Virginia, certified that the transcript was full, true and complete, “except an affidavit for attachment and the order of attachment issued thereon.” There was also a certificate by the judge as to the clerk, and of the clerk as to the judge, being respectively the officers named.
    The affidavit of defense was as follows:
    “ J. H. Campbell, being duly sworn according to law, deposes and says that he is the president of the above-named company, defendant; that said defendant is a corporation duly organized under the laws of Pennsylvania, with the home office in Scranton, Pennsylvania; that she, the defendant, has a just and legal defense to the whole of the plaintiff’s claim in this case, the nature and character of which is:
    “ 1st. That the defendant is not indebted to the plaintiffs in any sum whatsoever.
    “ 2d. That the record upon which this suit is brought is fraudulent and void, and the judgment therein stated, and said to have been obtained, was obtained, through fraud and collusion, in that the said record shows upon its face that the sheriff of Kanawha county, West Virginia, con December 3, 1884, served the summons therein stated upon George B. Dimmiek, President of said company,’ when, in fact, said Dimmiek was never President of said company.
    “ The President of said company was on that day a resident and in the city of Scranton, and could not thus be served, and also in that said record upon which said suit was brought, shows upon its face that a trial by a jury to try said issue, was waived without the knowledge or consent of the defendant; that at no time had the defendant in this case authorized or empowered any person or party to waive a trial by jury in that case; that such waiver, by whomsoever made, was a fraud practiced upon the legal rights of this defendant, all of which your deponent will be able to show upon the trial of this case.”
    The plaintiffs filed the following exceptions to the affidavit of defense:
    
      “ 1st. The defense that the judgment upon which this suit w.as brought was obtained by fraud and collusion is insufficient, this court having no jurisdiction to try the same.
    “ 2d. The affidavit is insufficient because it does not allege payment of the judgment upon which this suit was brought after its recovery. Nor is the jurisdiction of the court, viz: the circuit court of Kanawha county, West Yirginia, either as to the subject matter or over the person of the defendant, either questioned or denied.
    
      “ 3d. The allegation that Geo. B. Dimmick was not President, is insufficient to deny the jurisdiction of the said court as the record discloses that, afterward, to wit: on January 21, 1886, the' defendant appeared and defended said action.”
    Buie for judgment for want of a sufficient affidavit of defence was made absolute, and judgment was entered accordingly, by Connolly, J.
    
      The assignments of error specified the action of the court, 1, in making absolute the above rule, quoting the order; and, 2, in entering judgment against the defendant.
    
      Lemuel Amerman, for plaintiff in error.
    Judgments of the state courts, establishing personal demands, have validity or import verity only where they have been rendered upon personal citation of the party, or of those empowered to receive process for him upon his voluntary appearance. St. Clair v. Cox, 16 Otto, 350.
    The service of a copy of the writ as. a summons upon an agent of a foreign corporation is not sufficient to give jurisdiction to a state court to render a personal judgment against it, unless it appears in the record that the corporation is engaged in the business in the state, and the agent be appointed to act there. Ibidem.
    The record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court jurisdiction, and, if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may state that they did exist. Thompson v. Whitman, 18 Wall. 457; Williamson v. Berry, 8 How. 540; St. Clair v. Cox, supra.
    Fraud in obtaining a judgment in another state is a good ground of defense to an action on the judgment, and such judgment is open to inquiry as to the jurisdiction of the court and notice to the defendant. Christmas v. Russell, 5 Wall. 290.
    The rule is that where it appears from the certificate that the paper is a copy of the record, it will be intended that it is the whole record, otherwise where it appears to be a mere extract from the minutes of the proceedings. Edmiston v. Schwartz, 13 S. & R. 136. Here the record of the proceedings on the attachment are omitted.
    
      C. Comegys, with him J. Alton Davis and H. B. Reynolds, for defendant in error.
    An affidavit of defence must distinctly aver every fact necessary to constitute a defence; nothing should be left to inference. Peck v. Jones, 70 Pa. 83; Bryar v. Harrison, 37 Pa. 233; Woods v. Watkins, 40 Pa. 458; Marsh v. Marshall, 53 Pa. 396.
    There is no averment here that Dimmick, on whom service was made, was not a proper officer of the corporation on whom service should be made, nor is there any averment that the corporation was not properly summoned.
    A corporation or person may, without service of a summons, voluntarily appear and submit themselves to the courts of another state. St. Clair v. Cox, 16 Otto, 350. The record here shows the defendant did this.
    • General allegations of non-indebtedness, payment, usury, fraud, and collusion are insufficient to prevent judgment. Snyder v. Powers, 37 Leg. Int. 387.
    We might well refuse to discuss the alleged incompleteness of the record. The point is not touched in the affidavit of defence, was not raised in the court below, and is now for the first time suggested.
    A record of a judgment of a court of a sister state, so incomplete or not so authenticated as to be adtuissable in evidence on the trial of the cause, is sufficient to require an affidavit of defence. Moore v. Fields, 42 Pa. 467; Wetherill v. Stillman, 65 Pa. 105; Hartman v. N. Y. Mfg. Co., 5 W. N. C. 502; 11 Phila. 308.
    These cases effectually dispose of the quotations from St. Clair v. Cox, 16 Otto, 350, in which the only error assigned was the refusal of the court below to admit in evidence on the trial of the cause a certified copy of a judgment of another state.
    We must, however, refuse to discuss the question whether the defendant corporation was doing business in the state of West Virginia at the time she was sued. It was not set up as a defence in West Virginia, nor in the court below. If it has any weight it is only as an objection to the admissibility of the record in evidence upon a trial of the cause.
    This record shows appearance, plea and trial. These facts conclude the defendant and fraud is not a defence. Benton v. Burgot, 10 S. & It. 240. In an action upon a judgment of a court of another state, in which the defendant appeared by attorney, he cannot set up fraud in obtaining the judgment. The record is conclusive. Johnson v. Dobbins, C. P., 5 W. N. C. 537.
    March 11, 1889.
   Per Curiam,

The affidavit of defence in this case was insufficient. It is true the return of the sheriff to the suit in Kanawha County, West Virginia, might not be conclusive of the fact that Geo. B. Dimmick, upon whom the writ of summons was served, was the President of the Wyoming Manufacturing Company. The record of that suit shows, however, that, at a certain stage in the proceedings, the defendant company appeared. We find in said record the following entry: This day came the parties, by their

attorneys, and, for pleas in this behalf, the defendant says that it did not assume in manner and form as the plaintiff in their declaration have alleged, and of this it puts itself upon the country, and the plaintiff doth the like.” The record further proceeds to state that, neither party requiring a jury, a jury is waived, etc. The affidavit alleges that the trial by jury was waived without defendant’s knowledge or consent, and that no one was authorized by it to do so, but it carefully abstains from saying that it had never authorized an attorney to act for it in the 'case, and that the plea was not entered by its attorney. If the judgment was entered in West Yirginia by fraud or collusion, the court in which it was entered is the proper one to redi'ess that wrong. It is a matter with which we have nothing to do.

Judgment affirmed. T. R.  