
    Kohn, Leberman & Co. v. Haas.
    
      Action on Foreign Judgment.
    
    1. Plea denying ¡jurisdiction of person, and replication averring subsequent appearance'. — In an action on a foreign judgment, the defendant pleaded that the court which rendered it had no jurisdiction of his person ; to which plaintiff replied that, at a subsequent term of the court, defendant appeared, and moved to set aside the judgment on the same ground alleged in his plea, and that the court decided the motion against him ;JiAd, that the replication was demurrable because it did not aver facts which showed that the court had jurisdiction of the motion to set aside the judgment.
    Appeal from tbe City Court of Montgomery.
    Tried before tbe Hoii. Thos. M. Arrington.
    Thorington & Smith, for appellants.
    ARRINGTON & Graham, contra. (No briefs on file.)
   COLEMAN, J.

Appellants brought suit in tbe City Court of Montgomery against J. C. Haas, upon a judgment recovered against liim in a court of general jurisdiction in tbe city of Philadelphia, State of Pennsylvania. To tbe complaint tbe defendant filed bis pleas setting up that tbe court in wbicb tbe judgment was rendered was without jurisdiction of bis person at tbe time of its rendition. Tbe plaintiff, by bis replication to tbe plea of tbe want of jurisdiction, showed that, at a subsequent term of tbe same court, tbe defendant moved tbe court to vacate and annul tbe judgment, tbe foundation of tbe present suit, upon tbe same grounds now set up in tbe pleas as a defense, and that after notice to tbe plaintiff in that suit, tbe question was adjudicated adversely to tbe motion. Tbe defendant demurred to tbe replication of tbe plaintiff, for that tbe re-plicatio'n failed, to ayer tbat tbe court bad jurisdiction to bear and adjudicate tbe subject-matter of tbe motion; and also upon tbe further ground, tbat tbe replication failed to aver tbat tbe question was beard and adjudicated upon its merits. Tbe court sustained tbe demurrer to plaintiff’s replication, and tbe correctness of tbis ruling is tbe question for consideration.

In Buchanan v. Thomason, 70 Ala. 402, it was declared tbat tbe rule is well settled, tbat a court “is without power to alter, vary or annul final judgments or decrees after tbe close of tbe term at which they may have been rendered, unless it be mere clerical errors or omissions.” It is equally well settled, tbat a court at any subsequent term may vacate and annul a judgment or decree which is void upon its face; but, if tbe invalidity of tbe judgment is not apparent on tbe face of tbe record, and can only be shown by matter extrinsic, or dehors tbe record (except in case one of tbe parties was dead at tbe time it was rendered), then tbe general rule applies, and tbe court is powerless over final judgments and decrees rendered at a former term. — Johnson v. Glasscock, 2 Ala. 522; Carlisle v. Killebrew, 89 Ala. 329; Baker v. Barclift, 76 Ala. 417; Cox v. Jones, 40 Ala. 297.

If tbe court bad granted tbe motion, and vacated tbe judgment, we would presume in favor of tbe ruling of tbe court tbat tbe record proceedings showed upon their, face tbat tbe court had no jurisdiction; and tbe presumption also arises from tbe refusal of tbe court to grant tbe motion, tbat upon tbe record proceedings prima facie tbe judgment was not void. It would not follow, however, from these presumptions, tbat tbe court bad jurisdiction to bear evidence extrinsic of tbe record, and to determine from tbis evidence tbat tbe court bad jurisdiction- to determine tbe facts involved in tbe motion. In fact, it would require statutory authority to authorize tbe court to exercise such jurisdiction at a subsequent term.

We understand tbe foregoing to be a well settled rule at common law, and presumptively is tbe law in a]l tbe States of common-law origin. Tbe reasons are stated forcibly, and with great clearness, in tbe case of Pettus v. McClannahan, 52 Ala. 57. It is also settled, tbat we must presume in favor of tbe judgment rendered by a court of general jurisdiction of a sister State tbat tbe court bad jurisdiction of tbe subject-matter adjudicated, until tbe contrary appears. Slaughter v. Cunningham, 24 Ala. 269; Kingman v. Paulson, 126 Ind. 507; 22 Am. St. Rep. 611. If it be apparent on tbe face of tbe record tbat tbe court did not have jurisdiction, then no such presumption arises. — Dozier v. Joyce, 8 Por. 312 ; 24 Ala., supra, 22 Am. St. Rep., Arthur v. Israel, 383-7; Blanton v. Carroll, 86 Va. 537, 356; Benefield v. Albert, 132 Ill. 655; Henderson v. Banks, 70 Texas, 398.

It may be that tbe motion of defendant Haas, entered in the court of Common Pleas of Philadelphia, to vacate and annul the judgment rendered against him at a former term, was a direct, attack upon the validity of the judgment; but we are of opinion that, at common law, the jurisdiction of the court to consider the motion was limited to facts apparent upon the face of the record proceedings. If the proceedings showed upon their face that the court which rendered the judgment did not have jurisdiction of the person of the defendant, it was within the power of the court to vacate and annul the judgment. We are furthermore of the opinion, that if the proceedings prima facie were correct,, and the judgment upon its face regular, so that it required extrinsic evidence, matters dehors the record, if such were the real facts, to show that the court did not have jurisdiction of the person of the defendant; then, under the general principle, that a court has no power over its final judgments after the adjournment of the term at which they were rendered (except as herein above limited and qualified), the court did not have jurisdiction, in the absence of a statute, at a subsequent term, to adjudicate the question of fact presented by the motion of defendant to vacate and annul the judgment. The injured party might have redress in some other way.— Croft v. Dexter, 8 Ala. 770.

- The question is directly presented, does the rule which raises the presumption that courts of general jurisdiction of sister States had jurisdiction over questions and matters adjudicated, prevail in cases where, in order to maintain the jurisdiction exercised, it is necessary to presume that the legislature of the sister State has by statute conferred that jurisdiction, and that the common law in this respect has been altered? or does the rule dominate that the common law is presumed to exist in our sister States, and that it is necessary in such cases to plead specially the statute of a sister State, showing that the common-law rule in this respect has been altered.

Applying the proposition to the case at bar : At common law, the court of Common Pleas did not have jurisdiction, at a subsequent term, to hear extrinsic facts, and determine therefrom the jurisdiction of the court. Was it the duty of defendant to plead negatively that there was no statute conferring snob jurisdiction, and proye Ms negative plea? or was it tlie duty of the plaintiff, in his replication to defendant’s plea, to aver the statute giving the court jurisdiction? How is the defendant to establish his negative plea, if he pleads it? Must he bring before the court the entire system of legislation of the sister State ? In the case of Gunn v. Howell, 27 Ala. 663, afterwards reported in 35 Ala. 144, and referring to Mills v. Stewart, 12 Ala. 94, .it was held that, though garnishment proceedings were purely statutory, this court would presume that a judgment rendered in the courts of a sister State, upon such proceedings, acted within its jurisdictional authority. In the case of Mills v. Stewart, supra, p. 95, the court uses this language : “If, in point of fact, the tribunal had no jurisdiction either of the subject-matter or of the parties, it was competent for the plaintiff to have replied to it, and put the matter in issue.” , "What would have constituted a sufficient replication in that case, is undecided. In the case of Gunn v. Howell, 27 Ala., the plea did aver generally that the court had jurisdiction, but it did not set out the statute conferring jurisdiction in such cases. The point was made, that the general averment, being a mere conclusion, was insufficient, and that the statute should have been specifically pleaded. The court seemed to consider it unnecessary to set out the statute in the plea, holding that in pleading it was not necessary to set out affirmatively the facts upon which the power and authority of the court to act depend ; but the rule was declared, that if the record introduced in evidence failed to show the facts which gave the court jurisdiction, or failed to show that the court determined for itself the jurisdictional fact, then the basis on which the right to the special remedy rests is wanting, and the whole proceeding void.

In that case, the record of garnishment proceedings introduced in evidence failed to show a jurisdictional fact; and this court held, that the judgment rendered by the court in Georgia was invalid for the want of jurisdiction, and that defendant’s plea was not sustained. The case was retried, and is reported in 35 Ala. 162, but no new question pertinent to the present issue was decided. It would seem that the practice pursued on the trial of that case, and the con-' elusion of the court, was barely consistent with the general principle declared in the opinion itself. Why was it necessary for the defendant to introduce in evidence all the proceedings of the suit to judgment in the Georgia court, and also the statutes of Georgia authorizing the institution of garnishment proceedings, in order to-sustain the validity of tbe judgment upon wbicb be relied to support bis plea, if its regularity and validity must be presumed from tbe fact of its rendition? If it was incumbent on tbe defendant to introduce in evidence tbe statutes of Georgia to support bis plea, good pleading would seem to require tbat be aver tbem in bis plea. If, instead-of joining issue upon tbe plea of 'tbe defendant setting up tbe judgment in garnishment, tbe plaintiff bad replied tbat there was no statute in Georgia authorizing a judgment in such proceedings, tbe attitude of tbe parties, and the condition of tbe pleadings, would be similar to tbat in wbicb tbe defendant in tbe present case would be placed, if, instead of demurring to tbe defendant’s replication, be bad rejoined by averring tbat there was no statute of Pennsylvania wbicb gave tbe court jurisdiction to bear tbe motion at a subsequent term. This would reverse tbe well-recognized principle and rule wbicb requires tbat be who claims a right not based upon tbe common law, but under tbe law or statute of a foreign State, must set out or substantially state tbe law or statute under wbicb be claims. We are of opinion plaintiff’s replication was defective in not averring jurisdictional facts, and tbe court did not err in sustaining tbe defendant’s demurrer to plaintiff’s replication.

Affirmed.

ThoeiNGTon, J., not sitting.  