Wilkinson County MsArchives Court.....Chew, Unknown June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

Chew & Relf vs. Edward Randolph

A duly authenticated transcript of a judgment obtained in the Courts of the 
State of Louisiana against a resident of the State of Mississippi, founded 
upon proceedings by attachment, and without the service of any process upon 
the defendant, is not admissible as presumptive evidence in the courts of this 
state, in an action of debt founded upon such judgment.

This was an action of debt brought in the Superior Court of Wilkinson County, 
founded upon a judgment of the State of Louisiana. The defendant pleaded 1st. 
nil debit, 2nd. nul tiel record, upon which pleas, issues were joined. On the 
trial below, the plaintiff offered to read, as evidence, a transcript of the 
record of said judgment, du1y authenticated, from which it appeared, that the 
suit in which that judgment was rendered, was commenced by attachment, under 
the laws of Louisiana, against the defendant, who, at the time of the 
institution of the suit, was not within the limits of the state of Louisiana, 
but was a resident of the state of Mississippi. The defendant's counsel 
objected to the reading of said transcript, because it did not show that the 
defendant had been personally served with process, or had any notice of the 
pendency of the suit. The court below, sustained the objection, and would not 
permit the said transcript to be read. The plaintiff, thereupon, submitted to 
a non—suit, but afterwards moved the court to set it aside, upon the ground, 
that the judge erred in excluding said transcript: which motion was by order 
of the judge and consent of parties transferred to the Supreme Court, for 
their decision.

Turner for plaintiff.-The judgment of a foreign court is by our laws 
considered as presumptive evidence of a debt, when such court had jurisdiction 
of the case. But by the constitution of the United States, and the act of 
congress, the judgments of a sister state stand on very different ground. The 
records &c. of a sister state, when authenticated as the act of congress 
requires, "shall have such faith and credit given to them in every court 
within the United States, as they have by law or usage in the courts of the 
state, from whence the said records are or shall be taken." There has been 
some contrariety of decision in the courts of the different states, upon the 
proper construction of this act of Congress; but the better opinion seems to 
be, that the judgment of a sister state, duly authenticated, is to be received 
in all cases, as presumptive, and in many, as conclusive evidence of a debt. 1 
Dal. 261; Add. 265; Har. 413; 1 N. Y. T. Rep. 460. The transcript of the 
record which we offered to read, is duly authenticated, and the judgment 
rendered in strict conformity with the laws of Louisiana. Some property of the 
defendant, found within the 1imits of that state, was attached by legal 
process which gave that court jurisdiction of the cause. The court will not, 
under such circumstances, reverse a foreign judgment, much less, that of a 
sister state. 2 Dal. 51, 221, 302; 2 Bay 485; 1 Day 168; 1 Penn. 407. Can it 
be pretended that the record of this judgment, would not be received as 
evidence, in the courts of Louisiana, to support an action of debt brought on 
it in that state? Certainly not. Then an authenticated copy of it, ought, 
under the act of Congress before referred to, to be received in the courts in 
this state, as prima facie evidence at least.

Reed and Harding per contra—The object of the plaintiff in this case, is to 
carry into effect, in this state, a judgment obtained by him against the 
defendant in the state of Louisiana upon a process by attachment, to which the 
defendant made no defence, and of which he had no notice. The courts of this 
state will not carry into execution the judgment of a foreign court, or of a 
sister state, unless the court rendering it, had jurisdiction, both of the 
cause and the parties. If it appears from the record, that the defendant had 
been served with process and resided within the state or country where the 
judgment was rendered, our courts will, from courtesy, presume jurisdiction, 
and will consider the judgment as prima facie evidence of debt. But when, as 
in the present case, it appears that the defendant was not an inhabitant of 
the state in which the judgment was obtained, that he was not served with 
process, and had no notice of the suit, and that the proceedings were not 
against his person, but only against certain specific articles of his 
property, the presumption of jurisdiction over the person in the court 
rendering the judgment does not arise, and such judgment instead of being 
considered by the court to which application is made, to carry it into 
execution, as prima facie evidence of a debt, will be considered a nullity. It 
is admitted that the court of Louisiana had jurisdiction over the cause to a 
certain extent—to the extent of the property attached. Certain articles of the 
defendant’s property were found within the state of Louisiana, and his 
creditors, 1iving in that state, might lawfully attach them, and on recovering 
judgment, apply them to a discharge of his debt. But if the properly attached 
should not be sufficient to satisfy the judgment, the creditor could not 
resort to the person of the defendant for satisfaction, because he was not 
personally subjected to the jurisdiction of the court rendering the judgment.

But the plaintiff, does not contend that this judgment should be considered as 
conclusive, but only as presumptive evidence, against us. It is unreasonable 
to throw the burden of proof upon tbe defendant. It would be more difficult 
for him, if the claim were unjust, to prove that it never existed, than for 
the plaintiff, if he have a just demand, to establish it.

The plaintiff has not been able to produce any decision of any court, in which 
a judgment obtained under circumstances like those in the present case, has 
been received or recognised as presumptive evidence. On the contrary, the 
whole current of authorities, both English and American, was strongly in favor 
of the doctrine for which we contend. Doug. 6; 5 John. 41; Kirby 119; 3 Wilson 
297; 9 Mass. 462, &c.; 8 John. 86, 194; 1 Dal. 261; 1 Caines 460; 9 East. 192.

Turner in reply:—Should the doctrine for which the defendant’s counsel 
contend, be recognised and sanctioned by the court, the plaintiff will be 
placed in a very strange dilemma. We cannot enforce the judgment which he has 
obtained in Louisiana, because the courts of that state had no jurisdiction 
over the person of the defendant. Should he institute suit in the courts of 
this state, upon the original contract, he would be told, that his simple 
contract debt was merged in a judgment rendered by a tribunal which had 
jurisdiction of the cause; so that in either case he is without redress or 
remedy.


OPINION OF THE COURT

The question referred to the decision of this court is, whether an 
authenticated copy of the judgment of a court of a sister state, rendered in a 
suit commenced by attachment against the property of a person who was without 
such state, and who was not personally served with process, will be received, 
in the courts of this state, as prima facie evidence of a debt, in a suit 
instituted here, to obtain the execution of such judgment.

From the first view of the cause by the plaintiff’s counse1, it would be 
suppesed, that a copy of such a judgment, would be received in any of the 
courts of the United Sates, as prima facie evidence at least; and such seem to 
have been the impressions of the defendant’s counsel in those cases. But upon 
a closer examination of them, we discover that the question involved in this 
motion, was not, in any of those cases made by the counsel, or decided by the 
court: the only inquiry there was as to the conclusiveness of the judgment, 
not as to admissibility. Besides, it does not appear that the judgments then 
sought to be enforced, were rendered in suits instituted by attachment, in 
which there was no personal service of process on the defendant.

We must, therefore, take up the subject, upon the case in which this question 
came directly before the court, and upon the reasons and principles which 
constituted the basis of tbeir decision.

Proceedings by attachment operate upon the property, not upon the person of 
the defendant: And although, after the rendition of judgment, the property 
attached may be legally applied to its satisfaction, yet the defendant does 
not, thereby, become personally amenable to the jurisdiction of the court 
rendering the judgment. 9 Mass. 468. It is carrying the rule far enough to 
make these ex parte proceedings obligatory upon the property attached, without 
extending the obligation to the person of the defendant.

It is certainly contrary to our ideas of justice in legal proceedings, as well 
as in the common transactions of life, to determine and adjudicate upon a 
question, in which a man’s life, liberty, or property is involved, without 
affording him an opportunity of being heard in his defence. It is very 
difficult to defend, on principals of justice, the practice adopted by some 
nations of enacting laws of attainder, or proceeding to outlawry against an 
individual and dec1aring him guilty of any crime of which he may be accused, 
without proof of guilt, upon his failure to appear and take his trial in 
obejection to a proclamation issued against him, when he was out of the 
ogvernment and could receive no notice of the proclamation. It is equally 
unjust, that a person should be deprived of, or affected in his property, by 
proceedings of which he has no knowledge. Such a practice cannot be justified 
upon principle, by the reason commonly given, that the proceedings are 
intended to compel the appearance of the defendant, and that when he does 
appear, he can have a fair opportunity of making his defence. It would be 
unreasonable in the extreme, that a person should be compelled to attend, ten 
or fifteen hundred miles from his residence, to defend himself against a claim 
whether just or unjust, because there may be found, by chance, in that distant 
country, an article of his property, of the value of six-pence, or a creditor 
of his to that amount, who, by being summoned as garnishee, may give 
jurisdiction to its courts. Independent of this inconvenience, notice of these 
proceedings by attachment very seldom reaches the party to be charged thereby, 
until judgment has been rendered against him, and it is too late to make 
defence. In some of the states, no notice, of any kind, is required. In the 
state of Louisiana; a notice, in cases of attachment, is set up at the court-
house, and if the defendant lives at any considerable distance therefrom, 
which is generally the fact, there are ten chances to one against his 
receiving notice through that channel.

But it is said, that a judgment thus obtained is not to be conclusive against 
the defendant: he may still have an opportunity of showing that he is not 
indebted to the plaintiff.

This privilege will not remedy the evil; by admitting such judgment as prima 
facie evidence only, the proof of a negative of a most difficult character is 
thrown upon the defendant. It is much easier for a plaintiff to establish a 
false or unfounded demand ex parte, than for a defendant to prove by negative 
testimony that no such claim exists. In attachment cases, the judgment is 
taken by default for want of a personal appearance of the defendant; and, in 
most of the states, if the suit is predicated upon an obligation or written 
promise, the genuineness of the instrument is admitted by the default. In the 
state of Louisiana, where this judgment was obtained, the plaintiff may put 
interrogatories to the defendant, as to the truth of the allegations contained 
in his petition, and if the defendant fails to answer them, they are taken pro 
confesso, and the plaintiff obtains a judgment for the amount of his claim 
without any evidence whatever.

Suppose a judgment is thus obtained upon an account for goods sold and 
delivered, for money had and received by defendant, without any circumstances 
appearing of the time or place of contracting the debt, or upon a forged note 
or bond; and a suit should be brought, upon such judgment, in another state: 
it would be almost impossible for the defendant to prove, that he did not 
receive the money or goods from the plaintiff, or that the note or bond, taken 
to be genuine, was forged: He cannot expect to prove the forgery, without the 
production of the forged instrument, and he cannot produce it because it is on 
the files of a court of a separate and distinct sovreignty, beyond the 
jurisdiction of the court before which he is sued.

The cases cited by the plaintiff’s counsel, do not support the doctrine for 
which he contends. On the other hand, in several cases very similar to tbe one 
under consideration, it has been decided by courts of high respectability, 
that a judgment obtained against an individual without personal service of 
process and without notice of the suit, could not be given in evidence in a 
subsequent suit brought upon that judgment. The case of Buchanan vs. Buckner 9 
East. 192, is expressly in point.

Whether we consider this case, therefore, upon the principles of natural right 
and justice, or upon the weight of authority, we think the transcript of the 
record was inadmissible, and that the judge below decided correctly in 
excluding it.

Motion overruled.

Note-Since the above decision, the Supreme Court of Louisiana, has given a 
more extended operation to their attachment law, than was contemplated by the 
courts of this state. In the case of Gray vs. Trafton, 11 Martin 246, the 
Supreme Court of Louisiana have decided, that their proceedings by attachment 
operate in personam, and that a judgment founded upon such proceedings, 
obtained in the state of Louisiana, is evidence of the debt, in another 
action, between the same parties, in the courts of that state. If so, such 
judgment would be competent testimony in the courts of that state. Art. 4, 
sect. 1, Const. U. States; 7 Cranch 481, 483; 3 Wheaton, 234. The opinion, 
however, of the Supreme Court of Mississippi, is in consonance with the 
English authorities, and with the decisions in our sister states, Louisiana 
alone excepted.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 1-6.

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