
    *Henry McCauley, plaintiff in error, vs. Thomas Hargroves, for use, etc., defendant in error.
    (Atlanta,
    January Term, 1873.)
    (Trippe, Judge, was providentially prevented from presiding in this case.)
    1. Judgments — Jurisdiction.—The judgment of a District Court of the United States, having jurisdiction of the parties and the subject matter of the judgment, is conclusive between the parties in a State Court, upon the merits of the matter adjudged, but the jurisdiction of the Court is always open to inquiry.
    2. Same — Same—Service.—Where there is nothing in the action of the Court to show that the defendant was notified, and the judgment upon its face shows that the defendant did not appear, and the return of the marshal is without any formal venue, and does not state where the defendant was served, it is competent for the defendant in a suit on the judgment in a State Court, to show that the service was effected out of the territorial jurisdiction of the marshal, and when he had no authority to effect service.
    Judgment. Jurisdiction. Res adjudicata. Service. Before Judge Johnson. Muscogee Superior Court. October Term, 1872.
    Thomas Hargroves, for the use of George Cromelin, brought complaint against Henry McCauley for $1,051 81, besides interest, alleged to be due on a judgment obtained by the plaintiff against the defendant, at a District Court of the .United States for the Middle District of Alabama, in the city of Montgomery, on the 30th day'of May, 1867. The defendant pleaded nul'tiel record, and that no service had been perfected upon him in the cause upon which the judgment was rendered.
    The plaintiff introduced in evidence the exemplification of the record o’f the cause in the United States Court, upon which appeared the following entry of service:
    “Executed by serving a copy of the within summons and complaint on the defendant, Henry McCauley, this the 1st day of May, 1867. (Signe°d)
    “R. W. Heaeey, U. S. Marshal.”
    *It further appeared that judgment was rendered on May 30th, 1867, the defendant having made default.
    ■ The plaintiff closed.
    The defendant tendered himself as a witness to show that he had neve'r been served with any process in said case in the United States Court, except at the city of Columbus, in the State of Georgia; that he had never been served in the State of Alabama. Upon exception made, the Court excluded the testimony, and defendant excepted.
    The jury returned a verdict, for- the plaintiff for $1,011 81, with interest from November 4th, 1867.
    The defendant assigns the aforesaid exclusion of testimony as error.
    Henry L,. Benning, for plaintiff in error.
    The judgment of the district Court of the United States is void, because the Court had no jurisdiction over McCauley, the defendant in the judgment.
    “But. no person shall be arrested in one district for trial in another, in any civil action before a Circuit or District Court:” Act of Congress, 1789; Brightly’s Digest, 231, and note (g.) “A marshal shall be appointed in and for each district, whose duty it shall be to execute throughout the district all lawful precepts directed to him and issued under the authority of the United States:” Brightly’s Digest, 595.
    Under these provisions, the United States Courts have decided that the Circuit and District Courts cannot, either in suits at common law or in equity, send their process into another district : Ex parte, Graham; 3 W. C. C., 456; Wilson vs. Graham, 4 Ibid., 53 ; ex parte, Graham, Ibid., 211, (referred to in Brightly’s Digest, 231, note (g;) Herndon vs. Ridgeway, 17 Howard, 424; Buchanan vs. Jones, 12 Ga., 612; Boswell vs. Otis, 9 Howard, 336; Irwin’s Revised Code, section 3264; Dasher vs. Virgil & Dasher, July, 1872, by this Court.
    The deputy marshal’s return on the process is: “Executed by serving copy of the within summons and complaint, on the defendant, Henry McCauley.” Where, it does not say; the *defendant did not appear, and judgment was taken against him by default; ergo extrinsic evidence was admissible to show where; as it would have explained, but not have contradicted the record. But if'it would have contradicted the record, still- it was admissible, for extrinsic evidence is admissible to show a want of jurisdiction: William vs. Berry, 8 How., 498, 540.
    “The judgment of a Court having no jurisdiction of the person and subject matter, or void for any other cause, is a mere nullity, and may be so held in any Court when it becomes material to the interest of the partiesIrwin’s Revised Code, section 3536.
    “A judgment that is void may be attacked in any Court and by any body. In all other cases judgments cannot be impeached collaterally, but must be set aside by the Court rendering them Ibid., section 3776; Boyd vs. Glass, 34 Ga., 256; Sharman vs. Morton, 31 Ga., 45; Johnson et ux., vs. Wright et al., 27 Ga., 560; Griffith vs. Wright, 18 Ga., 174, 175; Mobley et al. vs. Mobley, 9 Ga., 249, 250; Parker vs. Jennings, 26 Ga., 141; Shumway vs. Stillman, 6 Wend., 447; Fenton vs. Garlick, 8 Johns., 194; Watson vs. New England Bank, 4 Metc., 343; 4 Ibid., 333; Biggers vs. Hutchings et al., 2 Stew., 445-6.
    R. J. Moses, for defendant.
    
      
      Judgment — Jurisdiction.—For the ruling announced in the headnote. see Thomas v. Morrisett, 76 Ga. 399.
    
   McCay, Judge.

The general doctrine has long been well settled that the judgments of Courts of other States of this Union are, under the Constitution and laws of the-United States, to have the same credit and faith in other States as they have in the State where they were rendered: Mills vs. Durzee, 7 Cranch, 481; Hampton vs. McConnel, 3 Wheat., 334; Evans vs. Tatum, 9 Ser. and R., 252, 260. But, as was said by Wayne, Judge, (in McElmayle vs. Cohen, 13 Peters, 312, 320,.) this is' not intended to exclude such defenses to the judgment as inquire into the jurisdiction of the Court in which the judgment was given, or such as inquire into the right of the State itself to ^exercise authority over the persons or subject matter. And, again, “the Constitution did not mean to confer a new power of jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within the State.” In Hall vs. Williams, 6 Pick., 222, the action was in Massachusetts, on a Georgia judgment. The record showed that the defendants had appeared, but the Court held that the defendant might show that this was not true, that the attorney who did appear had authority to appear from only one of the parties sued. And, during the course of the decision, Chief Justice Parsons says: “By the Constitution, such a judgment is to have the same force and effect it would have in the State where it was rendered — that is, it is to conclude as to everything over which the Court rendering it had jurisdiction. If the citizen himself is there, and is served with process, he is bound to appear and make defense, or submit to the consequences. But if never there, there is no jurisdiction over his person, and a judgment cannot follow him beyond the territory of the State. If it does, he may treat it as a nullity, and the Courts here will treat it so, whenever it is made to appear, in a legal way, that he was never a proper subject of the adjudication.” And this is unquestionably now the settled rule, to-wit: that, whilst the judgments of other States are to-be considered as conclusively settling the subject of dispute as to the merits, yet the jurisdiction of the Court over the parties or subject matter is always the subject of inquiry: 1 New Hampshire Rep., 348; 7 New Hampshire Rep., 257; 11 New Hampshire Rep., 299; 2 Gilman, 412; 3 Alabama, 552; 4 Cowan, 2921; 6 Wend., 447; 7 Watts & S., 447; 15 John, 141.

The only question upon which there is now any conflict is, as to how far the recitals of the judgment as to the service or appearance of the defendant are conclusive, so'as to operate as an estoppel in another jurisdiction upon the defendant. On this question the authorities are in conflict. In the case of Hall vs. Williams, before quoted, 6 Pick, 222, the defendant was permitted to show that he did not appear, although the ^record stated to the contrary. In Starbuck vs. Murray, 5 Wendell, 148, Judge Marcy takes the broad ground, that, on the question of jurisdiction, the recitals of the judgment or statements of the record are only prima facie, and he says: “If the defendant had not proper notice of, and did not appear to the original action, all the State Courts, with one exception, agree in opinion that the paper introduced as to him, is no record, but if he cannot show, even against the. pretended record, that fact, on the alleged ground of the uncontrollable verity of the record, he is deprived of his defense by á process of reasoning that is, to my mind, little less than sophistry. The plaintiff, in effect, says: ‘The paper produced is as against you a record, because it says you appeared, and you are estopped from saying you did not appear, because the paper is a record. The appearance makes the paper a record, and the fact that the paper is a record, makes the statements of appearance unimpeachable.’ ” And again, “unless a Court has jurisdiction over a party, it cannot make a record importing verity against him; and he ought not, therefore, to be estopped from setting up any fact that goes to show the Court giving the judgment had no jurisdiction.” Such, too, was the ruling in 6 Barbour, 613, and in Steel vs. Smith, 7 W. & S., 447. In the latter case, which was a suit on a Louisiana judgment, sued upon in Pennsylvania, the record showed service on the parties, and the defendant offered to show that this was not true, in fact, but was recited.because of a law of Louisiana, which made service on one of several joint owners, service on all. And Judge Gibson, after going over the whole subject, says: “It was not intended by the Constitution to efface the lines of jurisdiction for the origination of process, but only to give extra-territorial effect to judgments of tribunals having jurisdiction of the persons or property, in the first instance, and we must, consequently, treat all others as nullities.” The same view is taken in Wilson vs. The Bank of Mount Pleasant, 6 Leigh., 570.

Without doubt, there are decisions to the contrary of these: 1 Peter’s Circuit Court Reports, 155; 1 Ohio, 359; 2 McLean, *511, and other cases. But it seems to us that the reasonings of Marcy and Gibson, are founded on just principles, and lay down the true rule. In the case at bar, the record proper contains no recital. There appears to have been, in fact, no appearance, as the judgment is by default; and I have not found a case where the mere fact that the record shows an entry by the executive officer of the Court, of service, has been held an estoppel. The furthest any of the cases go is where the record states that the defendant appeared, or that he had been' served. The idea of the cases is that, by such recitals, it appears that the Court had inquired into the facts and decided upon them. We doubt if the effect of a judgment is, (in the case of a judgment of another jurisdiction,) to be given to the entries of the sheriff or marshal. This entry has no venue. The defendant does not propose to deny the fact of the entry, but to show that it was made out of the territorial jurisdiction of the officer. If such an entry as this cannot be denied — if it cannot be shown, as is here proposed, that the officer making it came over, say from Alabama to Georgia, served a copy of a writ on a resident of Georgia and made his return, all rules of jurisdiction might as well be abandoned.

We think the facts set forth in the plea, if proven, will show the Alabama Court to have had no jurisdiction of the person of the defendant, and we think he is not estopped from showing the truth, because the -marshal of the United States Court in Alabama has seen fit to certify that he had duly served the defendant with process.

Judgment reversed.  