
    LACKLAND vs. PRITCHETT.
    1. Where,a transcript of a judgment, rendered in another State, shows that the “w.rit. w,as. executed by a deputy sheriff and returned by him as such,” but states that it was “duly and legally executed,”-the presumption is that it was done according to the laws of that State.
    2. Where such transcript contains, a commission from the Governor of the State, to a person appointing him special judge, the appointment is presumed to have been legal, although the commission does not purport to be under the great seal of State.
    3. The declaration sets out the judgment under a “prout patet per recordam,” asa judgment for $125 : together with the plaintiff’s costs in that behalf expended, which are averred to amount to the sum of $10. The rec.ord offered in evidence showed a judgment, for S125, and costs generally, without specifying any amount.
    Held, to be a fatal variance,
    APPEAL FROM S,T. LO.I7IS COURT. OF COMMON PLEAS
    STATEMENT OF THE CASE.
    Shi? was an action of debt brought by Pritchett against Lackland, upon a judgment ren* dered-,by, the circuit court in-the county of Shelby and State, of Tennessee, on the 2d day of June, 1845.
    The said Lacklapd,pleaded the statutory plea.of the general issue, and on the trial in the c.ourt below, which, was submitted to the court sitting as a jury, the plaintiff offered in evidence a paper purporting, to be a transcript of, said circuit court in Tennessee, to the reading of which in evidence the defendant objected, The court overruled the objection, and permitted said transcriptto be read in evidence, to which the defendant excepted. The said transcript contains,a, commission from.the Governor of Tennessee to John C. Humphreys, appointing him special judge for said circuit court, for the February term, 1845;. hut said commission dpes not state that the great seal of the State of Tennessee, was thereto attached, and it appears from spid transcript, that at said February term, there, was pending a suit wherein said Pritchett w.as plaintiff and one. James W. Gosjee was defendant; that said Lackland was summoned as a witness in s.ajd suit, and he not appearing to testify in said cause, a judgment ®jsi was taken against him for $125 in favor of said Pritchett as a forfeiture, unless he appeared at the June term, 1845, of said court, and show cause to the contrary, a-nd that said Lackland be notified of the fact by scire facias. The scire facias was issued, and delivered to. R. A. Allen, deputy sheriff', executed by him as deputy, an¡l returned by him in his own. name as deputy sheriff, and at said June term said Lackland not appearing, ss-iff judgment was made final. The court of common pleas found a verdict for the plaintiff for, $125 debt, and §38 20 damages, and rendered judgment in accordance to said verdict on the 28th November, 1848. The defendant made a motion for a new trial on said day, and on the 10th of December, 1848, the said court gave leave to said plaintiff to amend his declaration by erasing “which plaintiff says amounted to the sum of $10,” and the- plaintiff entered a remitter for $12, and then the.couj-t, overruled the,motion for a new trial.
    Lackland & Jamison for appellant.
    1. If a court render judgment in a case where it has not jurisdiction- of the. subject mattes- and of the parties, such judgment is null and void. Latham vs. Edgerton, 9 G'owen Rep. 227; Mills vs. Martin, 19 John’s. Reports, 33 ; Borden vs. Fitch, 15, John’s. Rep. 141 ; Slocum vs. Wheeler, 1 Com. Rep. 429-; Wilson vs. Jackson, 10 Mo. 329;
    2. To give jurisdiction to the court over a party defendant, it is necessary that he should be duly served with process to appear and defend, unless he voluntarily appears. Hall vs. Williams, 6 Pick. Rep. 246; Aldrich vs. Kinney, 4- Com. Rep. 380; Bissell vs. Briggs, 9 Mass. Rep. 444, side pages; Hollingsworth vs. Barbour $>• others, 4 Peters’ Rep. 472; Story’s Com. on conflict of laws, page 1004; (3 Edt.l sec 609;
    3. The judgment rendered in the Tennessee circuit court, and upon which this suit is-brought, is null and void. First, because there was no legal service of the writ of scire facias, nor any appearance of said Lackland in said suit ip Tennessee; nor had be any personal notice of said suit. The scire facias was delivered to R. A. Allen, deputy sheriff, received by him as deputy, executed and returned by him in his own name as deputy sheriff. Harrison et al. vs. The State, 1 Mo. Rep. 358; Atwood vs-. Reyburn, 5 Mo. Rep. 358; Ditch vs. Edwards, 1 Scammon Rep. 1-27; Ryan vs. Eads, Breese Rep. 168 ; Simonds vs. Catlin, 2 Caines’ Rep. 66; Snellgrove vs. Branch Bank, 5 Ala. Rep. 295 ; 2 Jacob’s law dictionary, title deputy page, 251; Woods Just. 74; Evans vs. Wilder, 7 Mo. Rep. 362; Evans vs. Ashley, 8 Mo. Rep. 177, 182; State vs. Edwards, 4 Humphrey’s Rep. 228; Stewart vs. Cave, 1 Mo. 540, The' return of the officer is the competent evidence of the service of the writ. Perry vs. Daver, 12. Pick, 212:
    2nd. The return on the scire facias does not show how and where the writ was executed. Charless vs. Mamey, 1- Mo. Rep. 382; Ogle vs. Coffey, 1 Scamman Rep. 239; Perry vs. Daver, 12 Pick. Rep. 211; Weaver vs. Springer, 2 Miles’Rep. 42; Davis vs. Maynard, 9 Mass. Rep. 236; Inhabitants of Lancaster vs. Pope, 1 Mass. Rep. 87.
    3rd. That the subpoena in the case of said Pritchett vs. Goslee was not directed to the sheriff or any officer of the county where said Lackland resided, according to law. Statutes of Tenn. by Caruthers & Nicholson, page 711—title Witness Chap. 1 sect. 28.
    4th. That said Lackland was not summoned as a witness in said suit at the instance of said Pritchett according to law. See the last reference.
    5th. The said Lackland not being a resident of the .State of Tennessee when he was summoned as a witness in said suit of Pritchett vs. Goslee, be was not liable to said forfeiture for not appearing as a witness in said suit. Said Statutes of Tenn. page 711, 712—title witnesses’ chap. 1; sec 28, 29, 30, 31, and page 243—title depositions, chap. 1, sec. 1.
    6th. That the commission of the Governor of Tennessee, appointing John C. Humphreys special judge, is not under the great seal of the State as by law required. It does not appear what seal of State is thereto attached. All his acts as judge are, therefore, null and void. Art. 3, sec. 16; art, 6, sec. 11 of Constitution of Tennessee, printed in the Statutes of Tennessee by Caruthers & Nicholson, pages 54, 56. Said Statutes of Tenn. page 239. chap. 68, sec. 3.
    7th. That the penalty was not assessed by a jury as by law required. Constitution of Tenn. chap. 6, sec. 14; said statutes, page 57; George vs. Murphy, 1 Mo. Rep. 558.
    4. There is a variance between the declaration and the said Tennessee transcript, which is fatal. The declaration is for $125 and costs, not specifying any sum. Ferguson vs. Frizel et al. 1 Mo. Rep. 313 ; Gile vs. Sbaw, Breese Rep. 87 ; Biffins vs; Naxon, 4 Wend. Rep. 207 ; Wash vs. Foster, 3 Mo. Rep. 1-17.
    5. The transcript does not contain all of the record of the said Tennessee suit. The subpoena iu the case of said Pritchett vs. Goslee, should be set out in the transcript
    6. The court of common pleas erred in permitting the plaintiff to amend his declaration after the judgment was rendered. Revised Statutes of Mo. 1845, Practice at Law, art. 6, see. 3, page 430, Chambers §• Knapp Edt.
    Crockett & Whittelsey, for appellee.
    The judgment below was properly given ; there was personal service on the defendant in Tennessee, and he cannot now question the judgment of the Shelby chcuit court or itseffect. See Mills vs. Durgle, 7 Crrnch ; 2 Piare § Wallace, Am. L. p 538.
    The court did not err in permitting the plaintiff to amend. Neitenberger vs. Campbell, 12 Mo,
    Defects in record and proceedings cannot be taken advantage of collaterally: McNair vs. Biddle, 8 Mo. 257.
   Judge Napton

delivered the opinion of the court.

The declaration in this case is upon a judgment of the circuit court of Shelby county, Tennessee, for $125 and costs rendered in 1845. The declaration sets out the judgment under aproutpatet per recordara, as a judgment for $125, together with the plaintiff’s costs in that behalf expended, which are averred to amount to the sum of ten dollars.

The record offered in evidence under the statutory general issue, showed a judgment for $125 and costs, but no amount of costs wasspecified in the judgment or taxed by the clerk in the record, as prescribed by the bill of exceptions.

The record shows that there was issued a writ of subpoena, directed to the sheriff of Shelby county, to summon the defendant to appear before the circuit court for that county on a day named therein ; that said writ was duly executed, and that Lackland failed to appear; that a judgment nisi was entered against him for $125, agreeably to the laws of Tennessee; that a scire facias was duly issued and placed in the hands of the deputy sheriff, and by him duly and legally executed upon said Lackland; and thereupon a judgment was given for the said sum of $125 and costs.

No objection was taken to the authentication of the record.

The principal objection made in this court to the validity of the Tennessee judgment, is based upon the fact that the writ of scire facias was served upon Lackland by a deputy sheriff, which service it is contended both by the law of Tennessee and of this State, is a nullity. The objection, in our opinion, is not tenable. The record states that the writ was duly and legally executed by R. A. Allen, deputy sheriff of Shelby county, upon the defendant. This is certified to us by the court of Tennessee which tried the case. We do not pretend to know more of the laws of Tennessee than her own courts. What authority a deputy sheriff may exercise in that State cannot be judicially known to our courts. The record is evidence that the defendant was duly served with notice according to the laws of Tennessee.

It will be observed that there was no evidence offered in this case to rebut the record, Certainly it has never been maintained any where, that where the record of a court shows a service of process, a court of a neighboring State before which the validity of the judgment comes in question, will undertake to enquire into the legality oí the form of service or form of the writ, without a special plea, making an issue upon the fact of notice. The record is certainly prima facia evidence in all cases. It has been questioned whether the fact of notice can be disputed at all, when the record sets forth a notice. However this may be, there must be a special plea, or under our late statutory plea, there must be evidence offered to contradict the record on this point'.

In the present case, there was no evidence offered, either to show that there was no service, or to show that by the laws of Tennessee there was no such officer as a deputy sheriff, or if such, that he had no power to return writs in his own name. Of these matters we can know nothing.

Another objection is m'adfe to the record, because the comm'j'Mon of the special judge who tried this case is not underthe great seal of 'State as reqiiirfed by the laws of Tennessee. The same answer applies to this objection as did to the former. The laws of Tennessee are not in evidence.

The third objection relates to the question of variance. The judgment exhibited was for $125 and $10 costs. This variance under the previohs decisions of this court is fatal. In the case of Warder vs. Evans, (2 Mo. R. 205) the declaration averred a judgment for $420 £2, and for'the further sum t>f $17 61 costs, and the judgment offered in evidence was for $420 52, and generally for costs ; but it appeared by bill of exceptions that the costs taxed by the clerk, as'certified in the record, amounted to the sum of $17 61, and this court, therefore, held there was-no variance. In Wash vs. Foster, (3 Mo. R. 205) asimilar objection was taken and sustained, because the costs taxed were not 'sub pede ■sigilli; that is, were not in tlie(-record as certified by the bill Of excep"tiofis. There is no difference between the ease of Wash vs. Foster and the present 5 the record, as preserved by the bill of exceptions, contains no taxation'of costs. It cannot be doubted that this variance cannot he ■cured by amending the declaration after judgment. The amendment does not belong to any class enumerated in that article of our practico act which includes the old statute of feofails. The issue was materially altered by this amendment. For this reason th;e cause will be remanded*. •Judgment reversed-.  