
    Maxwell v. Stewart.
    1. To make a record of a judgment valid upon its face, it is only necessary for it to appear that the court had jurisdiction of the subject-matter of the action and of the parties, and that a judgment had in fact been rendered.
    2. A trial by the court without the waiver of a jury is at most only error. A judgment after such a trial is not necessarily void. Mere errors cannot be set up as a defence to an action brought upon it.
    3. "When the record of a case, a judgmoht in which is sued upon, shows that an attachment was issued in it and laid on property appraised at a less sum than the judgment was given for, a demurrer which makes, in virtue of the attachment, a defence of payment and satisfaction, is not good.
    4. A seizure of personal property even to the full value of the sum claimed, under an order of attachment issued during the pendency of an action, is not necessarily a satisfaction of the judgment when afterwards obtained. The defendant must show affirmatively that it was applied to and satisfied the judgment.
    6. A court will acquire jurisdiction of the person in a suit originally commenced by an attachment in rem, if the party against whom the claim is set up voluntarily appears and submits himself to the jurisdiction, demurs, pleads, and goes to trial on issues made.
    6. "Fraud cannot be pleaded to an action in one State upon a judgment in another.
    7. Nil debet is not a good plea to an action upon a judgment in another State.
    Error to the Supreme Court of New Mexico; the case being thus:
    Stewart sued Maxwell in one of the courts of the State of Kansas, claiming $7000; and publication having been properly made, laid an attachment on certain personal property of the defendant of which the sheriff took possession, and which was appraised at $6825. What was finally done with the property did not exactly and by direct evidence appear. No redelivery bond, it seemed, was now existent. After the attachment had been made Maxwell voluntarily appeared and submitted himself to the jurisdiction of the Kansas court, in the case wherein the attachment issued. He filed, first, a demurrer, afterwards an answer, and finally went to trial on issues which the pleadings raised. Judgment was given against him for $7050 by the court, no jury, apparently, having been had in the case. He moved for a new trial, but did not get one. After the entry of judgment he got a rule on the sureties “in the redelivery bond,” for the redclivery of the property attached; but as already observed, apparently no redelivery bond itself was now existent as part of the record of the suit.
    In this state of facts, Stewart now sued Maxwell in a court of New Mexico on the judgment fhus obtained in Kansas, setting forth in his declaration the record of the court there which disclosed the facts above mentioned, but not a great many more.
    Judgment having been given for the plaintiff in the court of New Mexico, in which the suit was brought, and this being affirmed in the Supreme Court of the Territory, the defendant brought the case here, assigning these errors :
    1. That the record sued upon was not full and complete, because it did not contain copies of certain papers — a summons which it appeared had issued, or affidavits of publication which had been made, &c. — which papers had been filed in the progress of the cause.
    2. That it also showed that the judgment was rendered upon a trial of the cause by the court without the waiver of a jury.
    3. That the judgment was satisfied in law because, as shown by the record, certain personal property of the defendant, worth $6825, was seized and taken into the possession of the sheriff under an order of attachment issued at the time of the commencement of the action, and because this property had not been legally accounted for. .
    [This objection was first made by a demurrer to the petition which set forth the record in full, and afterwards by plea.]
    4. That the court in Kansas did not have such jurisdiction of the defendant as was necessary in order to bind him by its judgment.
    5. That the judgment sued upon was obtained by a false . and fraudulent assertion of a contract, and by means of false and interested testimony; and—
    6. That a demurrer had been sustained to the plea of nil debet, filed in the court below (the court of New Mexico), in the present suit.
    
      Mr. J. S. Watts, for the plaintiff in error; Mr. P. Phillips, contra.
    
   The CHIEF JUSTICE

delivered the opinion of the court.

We will consider the errors assigned in the order in which they come before us:

1. The form of the record of a judgment is regulated by the practice of the court in which the action is prosecuted. To make such a record valid upon its face, it is only necessary for it to appear that the court had jurisdiction of the subject-matter of the action and of the parties, and that a judgment had in fact been rendered. All else is form only. The record sued upon in this case did show the existence of these essential facts.

2. A trial by the court without the waiver of a jury is at most only error. A judgment after such a trial is not necessarily void. Mere errors cannot be set up as a defence to an action brought upon it.

3. So far as the defence of payment and satisfaction was made by demurrer to the petition, it is enough to say that it did not anywhere appear in the pleadings, by averment or otherwise, that the value of the property taken under the attachment was sufficient to discharge the entire judgment. On the contrary its appraised value was less than the amount of the judgment. If upon the case made by the pleadings the plaintiff' could recover anything, the demurrer was not well taken. Issue was joined upon the plea presenting the same defence, and upon the trial of that issue it mat’ have been shown that the property had been legally accounted for. In fact, it can be fairly inferred from the record itself, that the property had been restored before judgment to the possession of the defendant, upon the execution of a redelivery bondi It appears affirmatively that after judgment a rule was granted and served upon the sureties on such a bond.

But even if this were not so, it does not. follow that the defence insisted upon was good. A seizure of personal property under an order of attachment issued during the pendency of an action is not necessarily a satisfaction of the judgment when afterwards obtained. Such a seizure is made for the purposes of security and, if the property is retained in the possession of the sheriff, he will be held responsible for the exercise of ordinary care for its preservation. If wasted, lost, or destroyed by his negligence he must account, and the amount for which he is liable on* such account will, when ascertained, be applied toward the satisfaction of any judgment that may have been obtained. To that extent the plaintiff is made responsible for the sheriff, but such an application can only be made upon a proper showing by the defendant. There is no presumption which throws the burden of proof upon the plaintiff. No such showing was made or attempted in this case.

4. The record shows that the action was commenced by attachment and service had by publication. So far the action was in the nature of a proceeding in rem, and would bind only the property attached. But afterwards, as the record also shows, the defendant voluntarily appeared and submitted himself to the jurisdiction of the court. He at first filed a demurrer, then an answer, and finally went to trial upon the issues made by the pleadings. After judgment he moved for a new trial which was overruled. If these statements appearing in the record are true, the court did have jurisdiction of the person of the defendant, and could bind him by a judgment. No evidence was introduced to contradict the record. Its truth is, therefore, presumed.

5. In Christmas v. Russell, this court held that fraud could not be pleaded to an action in one State upon a judgment in another. With this we are satisfied.

Since the case of Mills v. Duryea, it has been settled in this court that nil debet is not a good plea to an action upon a judgment in another State.

Judgment affirmed. 
      
       5 Wallace, 304.
     
      
       7 Craneh, 481.
     