\
R. H. F. VARIEL
ATTORNEY AT LAW
LOS ANQCLBS, CAL.
THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
A TREATISE
LAW OF JUDGMENTS.
INCLUDING ALL FINAL DETERMINATIONS OF THE RIGHTS
OF PARTIES IN ACTIONS OR PROCEEDINGS
AT LAW OR IN EQUITY.
By a. C. freeman,
COUNSELOR AT LAW.
FOURTH EDITION, REVISED AND GREATLY ENLARGED.
IN TWO VOLUMES.
Vol. 1.
SAN FRANCISCO:
BANCROFT-WHITNEY COMPANY,
Law Publishers and Law £ooKS£LL£as,
1892.
r
Entered according to Act of Congress, in the year 1873,
By a. L. BANCROFT & COMPANY,
In the office of the Librarian of Congress, at Washington.
Entered according to Act of Congress, in the year 1874,
By a. L. BANCROFT & COMPANY,
In the oflSce of the Librarian of Congress, at Washington.
Entered according to Act of Congress, in the year 1881,
By a. L. BANCROFT & COMPANY,
In the office of the Librarian of Congress, at Washington.
Copyright, 1892,
By Banckoft-Whitney Company.
San Francisco:
The Fii.mer-Rollins Electrotype Company,
Typographers and STEEEOTYpaxis.
PREFACE.
The author of this book believes that its publication is amply-
justified by the importance of the subject of which it treats, by
the frequency with which a correct understanding of that sub-
ject is essential to a proper and consistent administration of
the law, and by the absence of any other work which even pro-
fesses to treat of the matters considered in this.
A judgment is not invariably " the end of the law." Perhaps
nothing so fairly demonstrates the persistence of litigants as
their constant efforts to escape the consequences of prior de-
feats. Scarcely a terra passes in any of the courts of last re-
sort, in this country or in England, in which it does not become,
necessary to determine the effect of some prior adjudication
An examination of the reports will convince any one that there
are but few" branches of the law which had been more fre-
quently before the courts than the Law of Judgments.
Whoever, for the first time, gives his special attention to this
branch of the law will be less surprised at the number of the
decisions than at the assurance with which the most irreconcil-
able conclusions have been announced. Cases have frequently
been disposed of in accordance with principles which the
court evidently regarded as indisputable, but which, in fact,
were in direct conflict with the law as understood in most of
the other states. Nor can this be deemed remarkable, when
we remember that no attempt had been made to collate the
various decisions constituting the Law of Judgments.
This work, though not formally subdivided in that manner,
consists of seven parts: Part first, including chapters one to
seven, shows of what the Record or Judgment Roll is com-
posed, and states the various classifications and definitions of
Judgments and Decrees, and the rules applicable to Entries
IV PREFACE.
and Amendments, and to the Vacation of Judgments at Com-
mon Law and under the Code. Part second, consisting of the
eighth chapter, is devoted to the law in regard to Jurisdictional
Inquiries in collateral proceedings. The ninth and tenth
chapters constitute the third part, and are designed to show
what persons are bound by the judgment, by reason of their
privity with the parties, or their interest in the subject of liti-
gation, or through the operation of the law of lis pendens. Part
fourth treats of the important incidents attending judgments,
viz.: Merger, Estoppel, and Lien; of the assignable qualities of
judgments, and of their admissibility as evidence. Part fifth
considers proceedings to revive judgments scire facias, and to
enforce them as causes of action or defense, with the rules of
pleading applicable to those proceedings. The sixth part
contains the chapters on Relief, Reversal, and Satisfaction;
showing for what causes a judgment may be avoided in equity,
what are the eflFects of its reversal by some appellate tribu-
nal, and what are the means and circumstances which pro-
duce its satisfaction. The seventh and last part treats of the
different kinds of judgments, and the rules peculiar to each.
In the hope that, at least by its arrangement and citation of
authorities, it may aid in the proper determination of cases yet
to arise, and may, by producing a more thorough knowledge
of the law, assist in the prevention of needless litigation, this
work is respectfully submitted to the members of that profes-
sion for whose benefit it was prepared.
Sacramento, Oal., January, 1873.
PREFACE TO SECOIN^D EDITI0:N'.
The author has endeavored to merit the kindness with which
the first edition of this work was received, by making the sec-
ond as complete as possible. To accomplish this result, he has
consulted a large number of authorities, and has made consid-
erable additions to the text. Particular pains has been taken
to embody in this edition the substance of the decisions pub-
lished since the completion of the work as it was first given to
the world. The prior decisions have also received attention,
and have repaid it by contributing materially to the increase
both of the text and of the table of cases. The Canadian
reports, which, until recently, were not within the author's
reach, have also been examined, and have been cited as freely
as those of the other American courts. From these various
sources the number of the citations has been augmented nearly
twenty-five per cent, and it is hoped and believed that the
value of the work has been increased in a like ratio.
Sackamento, Cal., August 1, 1874.
PREFACE TO THIBD EDITIOIS".
The lapse of nearly seven years since the publication of the
second edition of this work renders necessary another edition,
in order that it may not be left too far behind the most ad-
vanced stage of the law. The author has felt a desire to
amplify and reconstruct his former work; but the press of
other engagements has made this impossible except to a very
limited extent. He has, however, added some twelve hundred
cases to the authorities cited, and has increased the text about
one sixth; and in so doing, has treated some topics not consid-
ered in the former editions. Among these topics are, what are
final judgments in criminal prosecutions and in intervention
cases; the form of judgments with respect to designating the
parties and the relief granted; fraud and perjury as grounds for
vacating judgments on motion; merger arising from prosecu-
tions and convictions in criminal cases; set-off of one judgment
against another; and an entire chapter on the conclusiveness
of judgments when questioned on habeas corpus. He has also
given due prominence to the recent 'decisions of the Supreme
Court of the United States, by which judgments, whether foreign
or domestic, seem to remain ever open to collateral attack on
jurisdictional grounds.
Sacramento, Cal., June 1, 1881.
PREFACE TO FOURTH EDITIOIN^.
When the preparation of this edition was commenced, and
for some months afterwards, the author hoped and expected
that its contents, though noticeably greater than those of the
previous edition, might still be kept within the limits of a
single volume. That they might be so kept, he generally re-
frained from making extracts from the opinions of the judges,
and from citing cumulative authorities upon questions now
substantially beyond controversy. Nevertheless, the work
grew until its citations doubled in number those to be found in
the preceding edition, and its size increased in nearly the same
proportion. This increase is distributed so uniformly, that it is
dilBcult to specify the portions of the work which have required
and received special consideration. Probably, however, the
question of jurisdiction has here, as elsewhere, been the one
demanding the most serious attention; and the author has
noticed with gratification that the result of the deliberation
of the courts of last resort during the past decade has been to
strengthen tjie presumptions in favor of the jurisdiction of
courts of record, and to show that, notwithstanding the decis-
ion of the Supreme Court of the United States in Pennoyer v.
Neff, the courts of each State have power to enforce obligations
entered into by non-residents, to foreclose liens upon their
property, to make partition of land of which they are tenants
in common, and to determine, at the instance of citizens of
the state, adverse claims made by such non-residents to real
property situate within the territorial jurisdiction of the court.
Special attention has also been given to the orders and pro-
ceedings of courts having jurisdiction of the estates of dece-
dents, and to partitions of real property made in the exercise of
such jurisdiction, and to judgments of acquittal or conviction
X PREFACE TO FOURTH EDITION.
in criminal prosecutions, as well as to the effect, as against
citizens of a municipal corporation, of judgments against it in
actions wherein it is the representative of public rights and
interests.
Realizing that those portions of a text-book which are not
adequately indexed remain substantially unpublished, a new
and copious index has been prepared, in which the subdivisions
of each topic are alphabetically arranged.
San Francisco, February, 1892.
TABLE OF COIsrTElSrTS.
N. B. —For more complete statement of contents, see the synopsis at the head of each
chapter.
CHAPTER I.
DEFINITIONS AND CLASSIFICATIONS OF JUDGMENTS AND
DECREES. SECTIONS.
Final and Interlocutory Judgments within the Meaning of Statutes
Allowing Appeals 1-35
CHAPTER n.
THE ENTRY OF JUDGMENTS.
Is a Ministerial Act — Distinction between Judgments and Decrees
— Time of Entry — Judgment-book — Joint Parties — Construc-
tion of the Entry — Form — Designating Parties, Amount, Prop-
erty — Judgments of Conviction — Examples of Insufficient
Entries — Justices' Courts 37-55
CHAPTER in.
NUNC PRO TUNC ENTRIES.
Part I. — Where No Judgment has been Ordered or Entered.
Part II. — Where Judgment has been Ordered but not Entered
— Effect of 56-68
CHAPTER IV.
AMENDING JUDGMENTS.
Time when may be Made — Data for — Practice — Effect of — Discre-
tion of Court 69-74 a
CHAPTER V.
THE RECORD OR JUDGMENT BOLL.
Origin — Verity — Of What Composed — Absence of — Replacing
Lost — Supplying Omissions in 75-89 b
XU TABLE OF CONTENTS.
CHAPTER VI.
VACATING JUDGMENTS. sections.
At Common Law — By Writs of Error, Coram Nobis, and Coram
Vobis — A udita Querela — Causes for — Notice — Effect of 90-104 b
CHAPTER VII.
VACATION OF JUDGMENTS UNDER STATUTES ON ACCOUNT
OF MISTAKE, INADVERTENCE, SURPRISE, OR EXCUS-
ABLE NEGLECT.
Summary of Statutory Grounds for — Discretion of Court — Prac-
tice in Proceedings for — Fraud, Perjury, Neglect, Mistake,
Surprise, Unavoidable Casualty, and Misfortune 105-115 a
CHAPTER VIII.
VOID JUDGMENTS,
Inquiries in Collateral Proceedings in Relation to the Jurisdiction
of Courts of Record — Jurisdiction, Definition and Source of
— Conflicting Concurrent — Jurisdictional Findings and Pre-
sumptions — Process, Defects therein or in its Service — Loss
or Termination of Jurisdiction — Disqualified Judges 116-14S a
CHAPTER IX.
OP THE PERSONS AFFECTED BY JUDGMENTS.
Part I. — Parties, Who may be — Married Women, Infanta, Luna-
tics, Decedents — Construction of Record — Capacity in Which
Bound — Second Action in Which Parties are not the Same.
Pakt II. — Of Privies — Privity Defined — Administrators
and Executors — Principals and Agents — Assignees, Bailees,
Garnishees, Heirs, Lessees, Remaindermen, Cestuis que Trust.
Part III. — Persons Bound, though neither Parties'nor Privies,
and when Notice is Required to Bind Them 149-190
CHAPTER X.
LIS PENDENS.
Reasons for — Commencement of — Property, What and when
Bound by — Amended Pleadings, Persons Bound by — Dili-
gence in Prosecution — Termination of — Territorial Limits of. 191-214
CHAPTER XL
MERGER OR FORMER RECOVERY.
General Principles of — Causes of Action Affected by — Exceptions
— Joint Obligations — Collateral Securities — Tort-feasors —
Indivisible Causes of Action — Nuisances — Bankruptcy and
Insolvency Proceedings 215-245
TABLE OF CONTENTS. Xlll
CHAPTER XII.
THE JUDGMENT AS AN ESTOPPEL. sections.
Part L — Nature and Extent. Part II. — Requisites. Part
III. — Evidence to Establish or Rebut. Part IV. — Matters
Defendant need not Litigate. Part V. — Pleading. Part
VI. — Actions in Conflict with Prior Adjudications. Part VII.
— Judgments in Various Actions, Real and Personal — Criminal
Cases, and Probate Proceedings. Part VIII. — Motions and
Special Proceedings. Part IX. — Miscellaneous Matters.... 246-333
CHAPTER XIII.
IMPEACHING JUDGMENTS.
When Impeachable and by Whom — Fraud, Collusion, Error, Ir-
regularity — Impeaching in Bankruptcy 334-337
CHAPTER XIV.
OF THE JUDGMENT LIEN.
Part I. — Nature and Creation of. Part II. -r Estates and In-
terests Aflfected by. Part III. — Priority of. Part IV. —
Suspension and Discharge of. Part V. — Extending and
Reviving. Part VI. — For Future Advances. Part VII. —
Of Foreclosure Suits. Part VIIL — Of Judgments of the
National Courts ». 338-406
CHAPTER XV.
JUDGMENTS AS EVIDENCE.
Part I. —Mode of Proof. Part II. — Admissibility and Effect. . 407-420
CHAPTER XVI.
ASSIGNMENT OF JUDGMENTS.
At Common Law — Mode and Form of — Notice of — Rights of
Assignee — Prior Assignments — Assignments by Agents —
Effect of, and Rights Passing by 421-431
CHAPTER XVII.
ACTIONS ON JUDGMENTS.
When Sustainable — Appeal — Defenses — Who may Bring — Sur-
vivorship — Interest Recoverable 432-441
CHAPTER XVIII.
PROCEEDINGS BY SCIRE FACIAS.
Nature of — Parties — Pleadings, Service of — Defenses — Judg-
ment upon, and its Effect 442-449
XIV TABLE OF CONTENTS.
CHAPTER XIX.
PLEADING JUDGMENTS. sections.
Part I. — General Form. Part II. — Averments of Jurisdiction.
Part III. — Description. Part IV. — Pleas in Defense.
Part V. — Pleas of Judgments of Other States 450-461
CHAPTER XX.
SATISFACTION OP JUDGMENTS.
Part I. — By Payment — By Set-off. Part II. — Payor's Right
to Subrogation. Part III. — Satisfaction by Proceedings
under Execution. Part IV. — Proceedings after Satisfaction. 462-480 a
CHAPTER XXL
REVERSED JUDGMENTS.
Effect of Reversal — Restitution between the Parties and from
Third Persona 481-484
CHAPTER XXII.
RELIEF IN EQUITY.
Grounds for — Parties Who may Apply — Rights of Third Persons
— Negligence as a Ground for Denying Relief , 484 a-5 1 6
CHAPTER XXIII.
JUDGMENTS OF COURTS NOT OP RECORD.
Distinction between, and Courts of Record — Jurisdiction must be
Shown — No Presumptions in Favor of — Process and its Ser-
vice — Officers Acting under Authority from — Uoards, Per-
sons, and Tribunals Acting Judicially 517-531
CHAPTER XXIV.
JUDGMENTS BY DEFAULT
Effect — Clerk's Authority — Appeal from — Opening 532-542
CHAPTER XXV.
JUDGMENTS BY CONFESSION WITHOUT ACTION.
Statutes and their Construction — Parties Who may Make or Re-
ceive — For What may be Made — Statements — When Void
— Remedy to Correct — Effect of 543-558 a
CHAPTER XXVI.
JUDGMENTS OF OTHER STATES.
Constitutional and Legislative Provisions — Jurisdictional Inquiries
and Recitals — Constructive Service of Process — Effect of —
Defenses to — Decrees of Divorce , 559-587
TABLE OF CONTENTS. XV
CHAPTER XXVII.
FOREIGN JUDGMENTS. sections.
Jurisdictional Inquiries — Fraud — Conclusiveness of — Control of
Equity over — Appeal — Are not Records — Foreign Probate,
Divorce, and Bankruptcy Proceedings 588-605 e
CHAPTER XXVIII.
JUDGMENTS IN REM.
Definitions and Classification — Probate of Will — Grant of
Administration — Jurisdiction — Divorce — Decrees in Ad-
miralty 606-618 a
CHAPTER XXIX.
ATTACKS ON JUDGMENTS BY HABEAS CORPUS.
General Rule as to Conclusiveness of Judgments — Errors and Ir-
regularities — Jurisdiction — InsufiSciency of the Indictment
— Convictions and Sentences not Warranted by Law — Acts
Done or Omitted under Constitution and Laws of the United
States 61 9-626
LAW OF JUDGMENTS.
CHAPTER I.
Part I. —'DEFINITIONS AND CLASSIFICATIONS.
§ 1. Lord Coke's definition.
§ 2. Common-law definition.
§ 3. Means of enforcing.
§ 4. Is a judgment a contract?
§ 5. Classification with reference to stage of the proceedings.
§ 6. Classification with reference to state of the pleadings.
§§ 7, 8. Various kinds of judgments, and how classified.
§ 9. Definition of a decree.
§ 10, Definition of a decree nisi.
§ 11. Decree taken pro confvsso.
§ 12. Classifications common to judgments and decrees.
§ 13. Judgments in rem and in personam.
§ 14. Judgments under the code.
§ 15. Orders.
Part IL— FINAL JUDGMENTS.
§ 16. Put an end to the suit.
§ 17. Dismissal is a final judgment.
§ 18. Vacating another judgment.
§19. Judgment of condemnation.
§ 20. Settle all issues.
§ 21. Are not always final adjudications.
§ 21 a. In criminal prosecutions.
§ 21 b. Dismissing attachment proceedings,
? 21 c. Denying right to inter\'ene.
§ 22. Final adjudications in equitable proceedings.
§ 23, May contain directions t» be executed.
§ 24. May require future orders of the court.
§ 25. Requiring transfer of property.
§ 26. Requiring delivery of property.
§ 27. Must be final as to all the defendants.
§ C8. Decrees final, though reserving questions.
§ 29. Interlocutory decrees defined and classified.
§ 30. Interlocutory, Provisional decrees or judgments.
§31. Interlocutory. Granting temporary or alternative relief.
JUDQ. L— 1
§§ 1, 2 DEFINITIONS AND CLASSIFICATIONS. 2
§ 32. Interlocutory. Settling questions preliminary to final relief.
§ 32 a. Interlocutory, Leaving issues unsettled.
§ 32 b. Interlocutory. Orders for custody and maiiagement of property.
§ 32 c. Interlocutory. Vacating or reversing judgments, decrees, and orders.
§ 33. Appeals unnecessary not permitted.
§ 34. Judgments appealable.
§ 35. Exceptions to rule of appeaL
Part I. — DEFINITIONS AND CLASSIFICATIONS.
§ 1. Lord Coke's Definition. — One who sought to
dignify everything connected with the common law
characterized judgments as "the very voyce of law and
right." ^ This language, however distant from the truth
in individual cases, is, when applied to the aggregate, but
a slight exaggeration. A judgment is the end of the law.^
It finally terminates the disputes and adjusts the adverse
interests of mankind. That it may in truth be the "voyce
of right," legislators strive to make the law more in unison
with the dictates of justice; judges distinguished for
learning, probity, and wisdom are called to the bench;
and the principles educed from successive ages of legal
altercation are carefully treasured for the benefit of the
present and of the coming generations. Every judgment
directly enforces some right or suppresses some wrong,
thereby producing the end sought by every humanely con-
ceived law. Its incidental results, extending far beyond
the time at which it is pronounced, and the parties whose
rights it determines, attach themselves to property or to
privies in blood or in estate, and continue in binding
force and obligation for indefinite periods of time.
§2. Common-law Definition. — A judgment, except
where the signification of the word has been changed by
statute, is defined as being "the decision or sentence of
the law pronounced by a court or other competent tribunal
upon the matter contained in the record";^ or as "the
^ Co. Litt. 39 a. definition that a judgment may be
2 Blystone w. Blystone, 51 Pa. St. 373. pronounced by "other competent
' Jacob's Law Diet.; 3 Bla. Com. 395; tribunals" as well as by courts,
uEtna Ins. Co. v. Swift, 12 Minn. 437. Many of such tribunals are euuuier-
It will be observed from the above ated in section 531.
3 DEFINITIONS AND CLASSIFICATIONS. § 3
conclusion of the law upon facts found " by the court or
the jury, ** or admitted by the parties";^ "the conclusion
of law in a particular case announced by the court";''
" the final consideration and determination of a court of
competent jurisdiction upon the matters svibmitted to it";
" the determination of the law as the result of proceedings
instituted in a court of justice." * In some instances,
courts have employed language indicating that an adju-
dication, though final, is not a judgment, if the court in
making it acted "in a summary way, and upon a matter
addressed to their discretionary jurisdiction."'' We ap-
prehend, however, that the idea intended to be expressed
was, not that such adjudication is not a judgment, but
that because it results from the exercise of a " discretion-
ary jurisdiction," appellate courts will not undertake to
review it. The language of a judgment is, not that it is
decreed or resolved, but that it is considered that the
plaintiff recover, or that the defendant go without day.
The reasons announced by the court to sustain its de-
cision ^ and the award of execution to produce satisfaction
constitute no part of the judgment. "At law, the judg-
ment is yea or nay, for one party and against the other;
and recognizes no liens, awards no execution, against
specific property, unless when the proceeding is in rem;
but simply contains the conclusion of "the law upon the
facts proved, and leaves the party to his legal and appro-
priate writ to enforce it."^
§ 3. Means of Enforcing. — The law provides the
means of enforcing judgments. No court has authority
> Tidrl's Practice, 930; Truett v. Craddock v. Croghan, 1 Sneed (Ky.)
Lege;, 32 Md. 147. 100.
■' Little Pittslnirg Consolidated Min- ^ Burk v. Table Mountain Co., 12
ing Co. V. Little Chief Consoliilated Cal. 408; Davidson v. Carroll, 23 La.
Mining Co., 11 Col. 223; 7 Am. St. Ann. 108.
Rep. 226. ' Kramer v. Rebman, 9 Iowa, 114.
- Wliitwell V. Emory, 3 Mich. 84; 59 A judgment sliould he a simple sen-
Am. Dec. 2'JO. tfehce of the law, upon the ultimate
* Mahoning Bank's Appeal, 32 Pa. facts admitted by the pleadings or
St. 100. found by the court: Gregory v. Nel-
* Claggett V. Simes, 25 N. H, 402; son, 41 Cal. 278.
§ 4 DEFINITIONS AND CLASSIFICATIONS. 4
to assume legislative powers hj providing other means.
Decisions made in some of the states proceed upon the
theory that if any court, acting solely under authority
conferred by the common law, should add to its judgment
an order requiring satisfaction to be made in any other
way or by any other means than those provided by law,
as by requiring payment to be made in a particular kind
of money, the appellate court would strike such order out/
A different conclusion has, however, been sustained by
the highest tribunals of several other states; and there is
now a decided preponderance of the authorities affirming
the existence of the power to enter judgment for coined
dollars, and to enforce it by an execution payable in the
same kind of money .^
§ 4. Is a Judgment a Contract? — That a judgment is
a contract, or in the nature of a contract, has been af-
firmed^ and denied^ with equal confidence. On one hand,
it is urged as conclusive that each judgment creates an
obligation capable of being enforced by an action of debt
' Reed v. Eldredge, 27 Cal. 348; 428; 47 Am. Rep. 64; Biddeson v.
Whitstone v. CoUey, 36 III. 328; Bur- Whytel, 3 Burr. 1545; Chase v. Curtis,
ling V. Goodman, 1 Nev. 314; Olanyer 113 U. S. 452; Rae v. Hulbert, 17 111.
V. Blanchard, 18 La. Ann. 616; Buch- 572; Todd v. Crumb, 5 McLean, 172;
egger r. Schultz. 13 Mich. 420. Wyman v. Mitchell, 1 Cow. 321;
^ Bronson v. Rodes, 7 Wall. 229; Smith v. Harrison, 33 Ala. 706; Keith
Emery v. Langley, 1 Idaho, N. S., 694; v. Estill, 9 Port. 669; Masterson v.
Chesapeake v. Swain, 29 Md. 483, 506; Gibson, 56 Ala. 56; Larrabee v. Bald-
Paddock V. Com. Ins. Co., 104 Mass. win, 35 Cal. 156. This last case ap-
521; Cheang Kee v. United States, 3 plies to "contracts" as term is used in
Wall. 320; Butler v. Horwitz, 7 Wall, act fixing liability of stockholders of
258; Ind. Ins. Co. v. Thomas, 104 corporations. " A judgment is not in
Mass. 192; Kellogg v. Sweeney, 46 itself a contract": In re Kennedy, 2
N. Y. 291; 17 Am. Rep. 333; Hittson S. C. 226. "Strictly speaking, a
V. Davenport, 4 Col. 16J; Trebilcock w. judgment is a contract, and of that
Wilson, 12 Wall. 687; Dewing?;. Sears, class of contracts called specialties;
11 Wall. 379. but the word contract is not ordina-
^ Morse ik Toppan, 3 Gray, 411; rily used in a sense that includes judg-
Sawyer v. Vdas, 19 Vt. 43; Taylor v. ments; nor is it generally so used by
Root, 4 Keyes, 344; Farmers' & M, law-writers, nor is it so used in section
Bank". Mather, 30 Iowa, 283; Stuart 20 of the Code of Civil Procedure":
V. Landers, 16 Cal. 372; 76 Am. Dec. Burnes v. Simpson, 9 Kan. 658; 12
6?.S; McGuire v. Gallagher, 2 Sand. Am. Law Reg. 59. A judgment is
402. not a specialty as that term is used
* Sprott u. Reid, 3 Iowa, 489; 5^1 Am. in the statute of limitations: Tyler's
Dec. 549; O'Brien v. Young, US N. Y. Ex'rs v. Wiuslow, 15 Ohio St. 364.
■5 DEFINITIONS AND CLASSIFICATIONS. g 4
or assumpsit, according to the nature of the judgment;
that this obligation is based upon an implied promise
entered into by every member of society that he will pay
all judgments which may be rendered against him, in
consideration that the courts will assist him in preserving
and regaining his rights. On the other hand, it is said,
with equal truth, that every man who commits a tort im-
pliedly agrees, in consideration of the harm done by him,
and the injur}'- occasioned by his misconduct, to pay all
damages which his wrong produces; and that the same
implied premises necessary to prove that a judgment is a
contract may be used with equal justness and efficiency
to establish the same thing of every conceivable cause of
action. All authorities assert that the existence of parties
legally capable of contracting is essential to every con-
tract. But a decided preponderance of authority recog-
nizes judgments entered against lunatics and others
incapable in law of contracting as conclusively binding
until vacated or reversed. It seems, then, that in order
to prove that a judgment is in the nature of a contract,
we must supply two of the three essentials of each contract
by implication, and the third by some means not yet dis-
covered. The question whether or not a judgment is a
contract is sometimes of great practical importance, and
may be decisive of the case before the court. Thus a stat-
ute may have been enacted seeking to impair the effect of
a judgment, and which, if the judgment is a contract, will
be inoperative because prohibited by the clause in the con-
stitution of the United States forbidding the enactment
by any of the states of laws impairing the obligation of
contracts. If the judgment in question was based upon a
contract, it must, necessarily, be protected from the stat-
ute, because it is but a means of enforcing such contract,
and its obligation cannot be destroyed or impaired with-
out impairing or destroying the obligation of the contract.
Hence if a cause of action is of such a nature that the
legislature could not have discharged or impaired it before
§ 4 DEFINITIONS AND CLASSIFICATIONS. 6
judgment, it is equally protected after judgment.' There-
fore statutes of a state granting discharges to insolvent
debtors cannot affect judgments entered against them in
another state upon causes of action which were within
the protection of the constitution of the United States.^
If, however, a judgment is founded upon a tort, or upon
any other cause of action not entitled to protection as a
contract, such cause of action is not by the judgment
transmuted into a contract, and the judgment may there-
fore be impaired without violating the obligation of a
contract.^
Though it be conceded that a judgment is not a con-
tract, yet perhaps courts are justified, in some cases, in
treating it as though it were a contract, or, rather, in de-
terminins: that the word "contract," as used in some
statute, was intended to include judgments. Thus it has
been held that a code provision authorizing the union in
one complaint of several causes of action, when they all
arise out of contracts, expressed or implied, warranted the-
joinder of two or more judgments as causes of action;*
that a statute investing justices of the peace with juris-
diction over actions upon contracts for the recovery of
money gave them authority to hear and determine actions
upon judgments;^ that where a statute classifies actions as
being ex contractu or ex delicto, judgments must be treated
as falling within the former class,® and therefore that
their owners are entitled to the same remedies for their
collection as if they were contracts, including the right to
the issuing of writs of attachment.'^ On the other hand,
in several of the states, their courts have declined to give
a signification to the word " contract," as used in their
1 Scarborough v. Dusan, 10 Cal. 109 U. S. 285; State u. New Orleans,
305: Weaver v. Lj^psley, 43 Ala. 32 La. Ann. 709.
224. * Childs r. Harris M. Co., 68 V\"is. 231.
■^ Bean v. Laryea, 81 Cal. 152. * Stuart v. Landers, 16 Cal. 372; 76
' Garrison v. City of New York, 21 Am. Dec. 538.
Wall. 196; McAfee v. Covington, 71 •* Moore v. Nowell, 94 N. C. 265;
Ga. 272; 51 Am. Rep. 263; Freeland Johnson v. Butler, 2 Iowa, 545.
V. Williams, 131 U. S. 405; Sprott v. ' Gutta Percha & R. M. Co. v.
Reid, 3 Iowa, 489; 56 Am. Dec. 549; Houston, 108 N. Y. 276; 2 Am. St.
Louisiaaa v. Mayor of New Orleans, Rep. 412.
7 DEFINITIONS AND CLASSIFICATIONS. § 5
statutes, different from that to which it is entitled by the
weight of authority, and have therefore decided that a
statute providing that a promise in writing, or an actual
payment, shall be received as evidence of a new and con-
tinuing contract to repeal the statute of limitations does
not apply to judgments;^ that a statute of limitations
prescribing the time within which actions may be brought
upon any loan or contract does not control actions on
judgments;^ that an assignee of a judgment is not entitled
to bring suit thereon in his own name under a statute
authorizing the indorsement of contracts in writing for
the payment of money so as that action may be brought
thereon in the name of each successive indorsee;^ that a
judgment is not a written instrument within the meaning
of the statute requiring original instruments, or copies, to
be filed in actions founded thereon,* nor within the
meaning of a statute declaring that all contracts which
under the common law are joint shall be considered as
joint and several.®
§ 5. Classification with Reference to Stage of the Pro-
ceedings. — Judgments, considered in reference to the
stage of the proceedings at which they are entered, are of
four sorts: —
1. Where the facts are admitted and the law disputed,
as on demurrer;
2. Where the law is admitted and the facts disputed, as
in case of verdict;
3. Where both the law and the facts are admitted, as in
cases of confession or upon default;
4. Where the plaintiff is convinced that the facts or
the law, or both, are insufficient to support his action, and
therefore abandons or withdraws his prosecution, as in
judgment upon nonsuit or retraxit}
' McDonald v. Dickson, 87 N. C. * Sheehan and Loler Trans Co v
401- Sims, 28 Mo. App. 64.
* Jordan v. Robinson, 15 Me. 163. « 3 Bla. (^orn. :syG; Jacob's Law Diet.;
» Lovins V. Humphries, 67 Ala. 4.S7. Derl)y v. Jacques, 1 Cliff. 43-_'; Blaikie
* Conwell V. Coawell, 100 liid. 437. v. Griswold, 10 Wis. 293.
§ 6 DEFINITIONS AND CLASSIFICATIONS. 8
This classification, though acquiesced in for a long
time, is neither accurately expressed nor correctly illus-
trated. There are individual cases where the law is
admitted and the facts disputed, but such cases do not
form themselves into a distinct class. The law arising
upon a verdict is not brought to the attention of the court
by any pleading, yet, far from being admitted, it is fre-
quently the subject of animated and lengthy contests, both
in subordinate and in appellate courts. Nor is it certain,
as implied by the third subdivision, that there is any class
of cases where both the law and the facts are admitted.
A default in no instance authorizes any judgment to be
rendered against the defendant unless a sufficient cause of
action is stated in the complaint. If there is any case
where the law is admitted so as to subject the defendant
to a judgment which would otherwise be regarded as
erroneous, it must be where a default, or other confession
of facts, is accompanied by such circumstances as create
a presumption that he agreed to waive all errors. This
would amount to an agreement to relinquish his right to
reverse a judgment unsupported by law, but not to an
admission that the law, applied to the undisputed facts,
would properly result in a judgment against him.
§ 6. Classification with Reference to State of the
Pleadings. — Perhaps a better classification of judgments
would be one made with reference to the state of the
pleadings at the time the court makes its final decision.
Such a classification would not diff'er materially from the
one heretofore given; but it could be more simply and
clearly expressed. According to it, the classes would be
as follows: —
1. The judgment rendered where the pleadings pre-
sented no other issue than an issue of law.
2. The judgment rendered upon the decision of a court
or a jury upon the issue or issues of fact made by the
pleadings.
L^
DEFINITIONS AND CLASSIFICATIONS.
§7
3. The judgment given where no issue has heen made
by the party required to plead.
4, Where, before or after the joining of an issue of law
or of fact, the plaintiff abandons or withdraws his prosecu-
tion.
§ 7. Various Kinds of Judgments, and how Classified.
— In the first class of either classification are included: —
1. The judgment given for the plaintiff, when an issue
of law, formed by a demurrer to any of the pleadings in
chief, is determined in his favor. It is final, and is called
a judgment g'MOc^ ?'ecMpere^.^
2. The judgment given for defendant when a like issue
is found in his favor.
3. Judgment of respondeat ouster, a species of interlocu-
tory judgment for the plaintiff, on demurrer to a plea in
abatement, when it appears that the defendant has mis-
taken the law on a point not affecting the merits of the
case. By this judgment he is allowed to plead such fur-
ther defense as he may have.^
4. The judgment given for the defendant on a de-
murrer to a plea in abatement, which is, that the writ be
quashed.
In the second class are included: —
1. The judgment for plaintiff upon an issue of fact
found in his favor.
2. The judgment of nil capiat per breve, or per billum,
when such issue is determined in his favor.
3. Judgment quod partes replacitent. This is given if
an issue be formed and a verdict returned on so imma-
terial a point that the court cannot know for whom to
give judgment. The parties must then reconstruct their
pleadings, beginning at the first fault which occasioned
the immaterial issue.
1 Hale V. Lawrence, 22 N. J. L. 72. Heyfrom v. Miss. Union Bank, 7
* At the present time this is tlie Smedes & M. 434; Randolph v. Sin-
judgment usually entered, instead of gleton, 1.3 Smedes & M. 43ih Trow v.
a judgment quod recuperet, on overrul- Messer, .32 N. H. 361; Cooke r>. Craw-
ing a demurrer to plaintiff's complaint: ford, 1 Tex. 9; 4(j Am. Dec. 93.
§ 7 DEFINITIONS AND CLASSIFICATIONS. 10
The third class includes: —
1. Judgment nihil dicit, rendered whenever the defend-
ant fails to plead to the plaintitf's declaration in the time
allowed for him to do so. This judgment is proper, al-
though the defendant who fails to plead in time may have
appeared by attorney.^
2. Judgment non sum informatus is the one rendered
when the defendant enters upon the record that he is not
informed of any defense to the action.
3. Judgment by confession relida verijicatione, entered
when the defendant either confesses the action in the first
instance, or when, after pleading, he, before trial, aban-
dons his plea.
4. The judgment non obstante veredicto. This is ren-
dered when the plea confesses a cause of action, and the
matter relied upon in avoidance is insufficient, although
found true, to constitute either a defense or a bar to the
action.^ This judgment can be entered only on the appli-
cation of the plaintiff,^ made after the verdict, and before
the entry of judgment thereon.* The defendant was not,
at the common law, entitled to this judgment under any
circumstances. If a verdict for the plaintiff was not sup-
ported by the pleadings, the remedy of the defendant was
' Stewart v. Goode, 29 Ala. 476; in arrest: Bellows v. Shannon, 2 Hill,
citing 6 Comyn's Dig. 147. 86.
* Dewey v. Humphrey, 5 Pick. 1S7; * Harrison v. G. N. R'y Co., 11 Com.
Fitch V. Scot, 1 Root, 351; Bellows v. B. 542; 21 L. J. Com. P. 16; Beaty v.
Shannon, 2 Hill, 86; State i\ Commer- Warren, 4 Madd. & G. 158; 4 Scott
cial Bank, 6 Smedes & M. 218; 45 Am. N. R. 725; State v. Bank, 6 Smedes &
Dec. 280; SuUeuberger v. Gest, 14 M. 218, on authority of 2 Tidd's Prac-
Ohio, 204; Pim v. Grazebrook, 2 Com. tice, 840. As to cases where this judg-
B. 429; 3 Dowl. & L. 454; Moye v. ment may be given, see Shepherd v.
Petway, 76 N. C. 327; Oades v. Oades, Halls, 2 Dowl. 453; Britton v. Fisher,
6 Neb. 304; Atkinson v. Davies, 11 26 U. C. Q. B. 338; Kerr v. Straat, 8
Mees. & W. 236; 2 Dowl., N. S., 778; U. C. Q. B. 82; Madrall v. Tliellusen,
12 L. J. Ex. 169; Berwick v. Duncan, 21 L. J. Q. B., N. S., 410; Leigh
3 Kx. 644; Cook v. Pearce, 8 Q. B. v. Lillie, 6 Hurl. & N. 165; Snyder ?-.
1044; Ward v. Phillips, 89 N. C. Robinson, .35 Ind. 311; 9 Am. Rep. 738;
215. Lough V. Thornton, 17 Minn. 253;
* Schermerhorn v. Schermerhorn, 5 Morris v. Zeigler, 71 Pa. St. 450;
Wend. 513; Smith v. Smith, 4 Wend. Glading v. Fnck, 88 Pa. St. 460;
468. The proper course for a defend- Chapman v. Holding, 60 Ala. 522; Pim
ant against whom judgment has been v. Grazebrook, 2 Com. B. 429; 3 Dowl.
rendered upon pleadings which will & L. 454; Willoughby v. Willoughby,
not sustain a recovery is by motion 6 Q. R 722; 9 Jur. 498.
11 DEFINITIONS AND CLASSIFICATIONS. § 7
to move to arrest the judgment.^ The party in whose
favor a verdict is is not entitled to a judgment non obstante
veredicto, under the code of Indiana. He cannot, hy mov-
ing therefor, obtain a judgment not warranted by his
verdict.^ In some states the practice prevails, in certain
cases, of having the jury return a general verdict, and
also to find upon special issues submitted to them; and
where the general verdict and the special findings are
irreconcilable, to give preference to the latter. Under
this practice, the party in whose favor the special issues
are found may move for and obtain judgment in his favor,
though the general verdict is against him.^ Such judg-
ment, however, does not correspond to the judgment non
obstante veredicto of the common law. It is not, as the
latter was, founded on any defects in the pleadings.
Moreover, it is not in opposition to the verdict; for, under
the statute, it is the findings upon the special issues which
must be regarded as the verdict, and upon them the judg-
ment must be pronounced.
The fourth class comprises: —
1. Judgment of non pros., euiered against the plaintiff,
before any issue is joined, for not declaring, replying, or
surrejoining, or for not entering the issue agreeably to the
rules of the court.
2. Judgment on nolle prosequi, which is entered when
plaintiff declares that he will not further prosecute his
suit as to the whole or a part of his cause of action, or as
to some or all of the defendants. Of a similar nature is
the entry of a stet processus, by which plaintiff agrees that
all further proceedings shall be stayed. This entry is
usually made when the defendant becomes insolvent
pending the action, and the object is to prevent his ob-
taining a judgment, as in case of nonsuit.*
1 Quimhy v. Root, 8 Col. 194; Smith ^ Felton v. Chicago, R. L, & R R. R.
V. Powers, 15 N. H. 546; Bovvdre v. Co., 69 Iowa, 577; Porter v. Waltz,
Hampton, 6 Rich. 208; Bnckinc;ham v. 108 Ind. 40; Cox v. Ratcliffe, 105 lud.
McCracken, 2 Ohio St. 287; Bradshaw 374.
V. Hedge, 10 Iowa, 402. * Tidd's Practice, 681, 682.
» Brown v. Searle, 104 Ind. 218.
§ 8 DEFINITIONS AND CLASSIFICATIONS. 12
3. Judgment of retraxit. This is given when the plain-
tiff, in person/ voluntarily goes into court and enters on
the record that he is in nonsuit, or that he withdraws his
suit. "A retraxit differs from a nonsuit in this: one is
negative, and the otiier positive. The nonsuit is a mere
default or neglect of the plaintiff, and therefore he is al-
lowed to begin his suit again upon payment of costs; but
a retraxit is an open voluntary renunciation of his claim
in court, and by this he forever loses his action."^
4. Judgment of nonsuit; which is of two kinds, volun-
tary and involuntary. "When plaintiff abandons his case
and consents that judgment go against him for costs, it is
voluntary. But when he, being called, neglects to appear,
or when he has given no evidence on which a jury could
find a verdict, it is involuntary. "Where a plaintiff is
demanded and doth not appear, he is said to be in non-
suit. And this usually happens where, on the trial, and
when the jury are ready to give their verdict, the plain-
tiff discovers some error or defect in the proceedings, or
is unable to prove some material point for want of wit-
nesses." ^
§ 8. Judgment Capiatur, Misericordia, and in Actions
of Partition and Account. — The defendant who in a civil
action was convicted of a wrong committed vi et armis
was obliged to pay a fine to the king for the breach of the
peace implied in the act. A judgment capiatur was
entered against him, under which he was Kable to be
arrested and imprisoned until the fine was paid. A judg-
ment, sometimes given at common law, against a party
for the unjust vexation occasioned by his action was
called judgment misericordia. The interlocutory judg-
ment in an action for partition directing a partition to
be made was called judgment quod partitio fiat; while a
final judgment in such action quod partitio facto firma et
» Thomason v. Odum, 31 Ala. 108; Oilum, 31 Ala. 108; 6S Am. Dec.
68 Am. Dec. 159. 159.
2 3 Bla. Com. 296; Thomason v. » 7 Bac. Abr. 214.
13 DEFINITIONS AND CLASSIFICATIONS. §§ 9, 10
stabilis in perpetuum was entered after the return of the
writ.^ The interlocutory judgment in an action of ac-
count compelling defendant to account was named judg-
ment quod computet.
§ 9. Definition of Decree. — Daniell, in his Practice in
the High Court of Chancery, says that a " decree is a
sentence or order of the court pronounced on hearing
and understanding all the points in issue and determin-
ing the rights of all the parties in the suit according to
equity and good conscience."^ It is to be hoped that
decrees generally conform to the description here given
of them. They are none the less decrees, however, if
pronounced without hearing or understanding the points
in issue. Neither is it necessary to their existence or
validity that the rights of the parties be determined
according to equity and good conscience. The chief
diflFerences between decrees in equity and judgments at
common law are as follows: The former are pronounced
by courts of equity; the latter, by courts of law. The
former result from an investigation and determination
of the rights of the parties by the means provided and
according to the principles recognized in equity juris-
prudence; the latter result from an investigation and
determination made by the more limited means and
more inflexible rales of the common law. The former
may be adjusted to all the varieties of interest and of cir-
cumstance, and may contain such directions as are needed
to carry them into effect, both in letter and in spirit; the
latter are in an invariable form, general in terms, and
absolute for plaintiff or defendant. And the former often
enforce rights not recognized by the common law, and
which, without the aid of courts of equity, could be en-
forced only by the consciences of men.
§ 10. Decree Nisi. — A decree nisi is the decree given
under the English practice when the cause is called for
' 5 Bac. Abr. 292. * 4 Daniell's Chancery Practice, 1192..
§§ 11-13 DEFINITIONS AND CLASSIFICATIONS. 14
hearing and the defendant does not appear to open his
answer. Upon proof of the service of the subpoena to
hear judgment,, the court will enter such decree for the
plaintiff as his counsel may desire, accompanying it with
a clause to the effect that it is to be binding, unless, being
served with process, the defendant shall, within a given
time, show cause to the contrary.
§11. Decree Taken pro Confesso. — A decree taken
pro confesso is one entered when the defendant has made
default by not appearing in the time prescribed by the
rules of the court. A decree nisi is drawn by the plain-
tiff's counsel, and is entered by the court as it is drawn.
A decree where the bill is taken pro confesso is pro-
nounced by the court after hearing the pleadings and
considering the plaintiff's equity.
§ 12. Classifications Common to Both Judgments and
Decrees. — Both judgments and decrees, considered in
relation to the jurisdiction in which they were rendered,
are either foreign or domestic. Considered with regard
to. their effect in putting an end to an action, they are
either final or interlocutory. Any judgment or decree,
leaving some further act to be done by the court, before
the rights of the parties are determined, and not putting
an end to the action in which it is entered, is interlocu-
tory. But if it so completely fixes the» rights of the
parties that the court has nothing further to do in the
action, then it is final. A final judgment or decree may
merely dispose of the action, leaving the plaintiff at liberty
to commence another suit on the same cause, as in case
of a dismissal or voluntary nonsuit by the plaintiff; or it
may, besides disposing of the action, determine all the
issues involved in the suit, and become a bar to all other
suits between the same parties in reference to the same
subject-matter.
§13. Judgments in Rem and in Personam. — Judg-
ments and decrees are either in personam or in rem.
15 DEFINITIONS AND CLASSIFICATIONS. § 14
They are in personam when the proceedings are against
the person, provided the adjudication be of such a nature
as to be binding only upon the parties to the suit and
their privies in blood or estate. Judgments and decrees
in rem are not, as the term implies, confined to proceed-
ings where property is proceeded against as a party to the
action, but include, in addition to adjudications against
the thing, all those decisions or sentences which, by the
policy of the law, are binding upon all other persons as
well as upon the parties to the suit: The proceedings
prior to the judgment or decree may be in personam, no
notice need be given except to the defendant, yet if the
judgment affect the status of any person or of any subject-
matter, as in a suit for divorce, it is conclusive upon the
whole world, and is therefore classed as being in rem.
The general nature of this class of judgments, and the
various definitions given by different authors, will be con-
sidered in a subsequent chapter.
§ 14. Judgments under the Code. — The code of pro-
cedure adopted by several states providing that there
shall be but one form of civil actions defines a judgment
to be " the final determination of the rights of the parties
in an action or proceeding." ^ This definition is, in one
respect, more comprehensive than the one first given in
this chapter, as it includes the final decrees of courts of
equity. In another respect it is less comprehensive, be-
cause it excludes all interlocutory judgments. It is just
broad enough to comprise all final judgments and all final
decrees,^ and narrow enough not to comprise any which
is less than final. There can, under the codes, be no such
thing as an interlocutory judgment in any case.'
1 N. Y. Code. sec. 1200; Kan. Code, Shreve, 3Met. (Ky.)547. *'Evcry final
sec. 395; Nev. Prac. Act, sec. 144; adjudication of the rights of the parties
Or. Code, sec. 240; Cal. Code Civ. in an action is a judgmeat ": McClaiu's
Proc, sec. .577; Rev. Stats. Idaho, ed. Iowa Stats., sec. 4056.
1887, sec. 4350; Rev. Stats. Ohio, ed. ^ State v. McArthur, 5 Kan. 280.
1890, sec. 5310; Neb. Code Civ. Proc, ^ B.-linont v. Ponvcrt, 3 Ro1>t. 096;
sec. 428; Sanborn and Berry man's Sellers v. Union L. Co., 36 Wis. 398;
Wi3. Stats., sec. 2882; Hughes v. Singer v. Heller, 40 Wis. 544.
§ 15 DEFINITIONS AND CLASSIFICATIONS. 16
§ 15. Orders. — The class of judgments and of decrees
formerly called interlocutory is included in the definition
given in the code of the word "order." "Every direction
of the court or judge made or entered in writing, and not
included in a judgment, is an order." ^ The supreme
court of California, in one of its earliest decisions, asked
the question, "What, then, is the distinction between an
order and a final judgment?" and answered it by saying:
"The former is a decision made during the progress of
the cause, either prior or subsequent to final judgment,
settling some point of practice or some question collateral
to the main issue presented by the pleadings and neces-
sary to be disposed of before such issue can be passed
upon by the court, or necessary to be determined in car-
rying the execution into effect."^ The same tribunal, in
a subsequent opinion, said: "An order is the judgment or
conclusion of the court upon any motion or proceeding.
It means cases where a court or judge grants affirmative
relief, and cases where affirmative relief is denied."* In
New York it has been decided that the decision of a court
overruling a demurrer and allowing the defendant time to
answer is not an order, but a judgment. The grounds
upon which this conclusion was based were: 1. That an
order is the decision of a motion, while a judgment is the
decision of a trial; 2. That a trial is an examination of
an issue of law or of fact; and 3. That as a decision upon
demurrer necessarily involves an examination of an issue
of law, it is a decision upon a trial, and is therefore a
judgment,* If this reasoning be correct and the premises
assumed be true, it follows that there can, under the code,
be two judgments, or in other words, two final determina-
tions of the rights of the parties in the same action. The
code defines a judgment, but does not define it to be noth-
ing more than "the decision of a trial." Only those de-
1 N. Y. Code, sec. 767; Nev. Code, ^ Gilmau v. Contra Costa Co., 8 Cal.
sec. 458; Kan. Code, sec. 521; Or. 57.
Code, sec. 513; Cal. Code Civ. Proc, * King v. Stafford, 5 How. Pr. 30;
sec. 1003. Beutley v, Joues, 4 How. Pr. 335.
* Loring v. Ilsey, 1 Cal. 27.
17 FINAL JUDGMENTS. § 16
cisions of trials amounting to final determinations of the
rights of the parties answer to the definition given of a
judgment. Hence it is obvious that an order overruling
a demurrer, but giving the defendant an opportunity to
answer, is not a judgment within the meaning of the
code; and whether this be true or not, there is no dissent
from the proposition that the sustaining or overruling of
a demurrer, unless followed by the entry of a final judg-
ment disposing of the action or proceeding, is not a judg-
ment within the meaning of a statute permitting appeals
from judgments.^
Part H.— FINAL JUDGMENTS.
§ 16. Put an End to the Suit. — The twenty-fifth sec-
tion of the judiciary act of the United States provides
that a _^naZ judgment or decree in any suit in the highest
court of law or of equity of a state in which a decision of
the suit can be had may, in certain cases therein speci-
fied, be re-examined and reversed or afiirmed in the
supreme court of the United States. The statutes of the
several states also generally provide for appeals to their
highest courts from final judgments and decrees in the
subordinate courts. Hence it has frequently been neces-
sary to determine, both in the state and in the federal
courts, whether a given judgment or decree was final
within the meaning of the statute authorizing appeals.
A like necessity existed at common law. Thus in 3Iet-
calfe's Case^ " it was resolved that no writ of error lies till
the last judgment." Lord Ellenborough declared " error
can only be brought on final judgment ";3 and there are
many other determinations to be found among the com-
mon-law reports to the same general effect.* There is no
» Elwell V. Johnson, 74 N. Y. 80; H. L. Cas. 234; 5 I. R C L 375- ''O
Caml>ndge V, N, B. v. Lynch, 76 Week. Rep. 686.
N. Y. 514; Rose v. Gibson, 71 Ala. 35; * Mayor of Macclesfield v. Gee, 14
Kirchnerj;. Wood, 48 Mich. 199; Gage Mees. & W. 470; Shepherd v. Sharp
V. E.ch 5b 111. 297. 1 Hurl. & N. 114; Grand Trunk RV
11 Coke, 68 Co. «;. Amey, 20 U. C. C. P. 6; Tolsou
^Samuel t>. Judin 6 East .3.33; 1 v. Kaye, 7 Scott N. R. 222; 6 Madd.
I^. R. 43; Scott v. Bennett, L. R. 5 & G. 536.
Jddg. L— 2
§ 16 FINAL JUDGMENTS. 18
doubt that, in order to come within these statutes or to
satisfy the tests applied by the common law, the judgment
or decree need not jBually determine the rights of the
parties litigant; it is sufficient if it ends the particular
suit in which it is entered.'
Every definite sentence or decision by which the merits
of a cause are determined, although it is not technically a
judgment, or although the proceedings are not capable of
being technically enrolled so as to constitute what is techni-
cally called a record, is a judgment within the meaning of
the law. According to the common-law rule, by a final
judgment is to be understood, not a final determination
of the rights of the parties, but merely of the particular
suit.^ Therefore a judgment of nonsuit,^ or of dismissal
without prejudice, or in favor of plaintiff or defendant
upon a plea in abatement,* or in an action of ejectment
where the law denies to a judgment in that action the
effect of res judicata,^ because each terminates the action
in which it is entered, is final, though the parties may in
a subsequent action be permitted to relitigate issues pre-
sented in the former action which has gone to judgment.
If a judgment, though upon the merits or determining
some substantial right, leaves necessary further judicial
action before the rights of the parties are settled, it is not
final.® A judgment is final, notwithstanding the addition
to the record of the words "unless the supreme court
shall reverse the rulings of this court and set aside said
judgment of nonsuit."'^ If, however, a judgment is
imperfect and uncertain, but is to be made perfect and
' Weston V. City of Charleston, 2 * McCartee v. Chambers, 6 Wend.
Pet. 449; Ludlow's Heirs v. Kidd's 649; 22 Am. Dec. 556; New York D.
Ex'rs, 3 Hamm. 541; Helm v. Short, D. Co. v. Treadwell, 19 Wend. 527;
7 Bush, 623. Jewett v. Davis, 6 N. H. 518.
^ Belt V. Davis, 1 Cal. 138; Klink v. * Weston v. City Council, 2 Pet.
Steamer Cusseta, 30 Ga. 504. 449.
^ Box V. Bennett, H. Black. 432; * Benjamin v. Dubois, 118 U. S.
Hitchins v. HoUingsworth, 7 Moore 46; Coons v. Harllee, 17 Fla. 484;
P. C. C. 228; Hartford F. I. Co. v. Bostwick v. Brinkerhoff, 106 U. S.
Green, 52 Miss. 332; West v. Bagly, 3.
12 Tex. 34; 62 Am. Dec. 512; Corning '' Wood v. Coman, 56 Ala. 283.
T. Co. V. Pell, 4 Col. 184.
19 FINAL JUDGMENTS. § 16
certain by the action of some non-judicial person, as where
it is to be released on payment of such sum as M. shall
say is due/ or is confessed for a sum "to be liquidated by
attorneys," it is final.^
A judgment "that the defendant go hence, and that he
recover his costs, etc.," though not very formal, is a good
final judgment, because no further action can be taken
while it remains in force/'' But a judgment for costs
alone, though entered for defendant, after the jury have
found a verdict in his favor, it seems is not final, and
cannot therefore be made the subject of revision after
appeal. The reasons urged against regarding such a
judgment as final are, that it does not dismiss the defend-
ant without day, nor state that plaintiff shall take nothing
by his suit, nor in any way nor by any terms profess to
dispose of the subject-matter of the litigation,*
It is fatal to the claim that a particular order or direc-
tion of the court is a judgment, that it appears to be but
preliminary to the final, formal action of the court, as
where it is a direction that judgment be entered, though
it is sufiiciently specific to enable the attorneys or the clerk
to draught a judgment in conformity therewith.^ An
exception to this rule prevails in Massachusetts. By the
practice in that state, " an entry upon the docket in a suit
in equity of ' bill dismissed' is of itself a final decree; and
a more formal order, though convenient and proper for
the regular completion of the record, is not essential, and
if afterwards drawn up is a mere extension of the final
decree already entered, and has relation to the entry of
that decree"; and the mere entry upon the docket of "bill
dismissed " may at once be appealed from as a final decree.^
' Turner v. Plowden, 5 Gill & J. 52; v. White, 25 Tex. 319; Green v. Banks,
23 Am. Dec. 596. 24 Tex. 522; Scott v. Burton, 6 Tex.
^ Commonwealth v. Baldwin, 1 332; 55 Am. Dec. 782; Eastham v.
Watts, 54; 26 Am. Dec. 33. Sallis, 60 Tex. 576.
^ Rogers v. Gosnell, 51 Mo. 468; ^ Macnevin v. Macnevin, 63 Cal.
Smith V. Mayor of Boston, 1 Gray, 186; Eastham v. Sallis, 60 Tex. 576;
72. Gilpatrick v. Glidden, 82 Me. 201;
* Warren v. Shuman, 5 Tex. 450; Blount v. Gallaher, 22 Fla. 92.
Higbee v. Bowers, 9 Mo. 354; Neyland ^ g^gn ^^ D wight, 121 Mass. 348.
§§ 17-19 FINAL JUDGMENTS. . 20
§ 17. Dismissal. — The dismissal of a suit by the plain-
tiff is a judgment within the meaning of the code. Where
in a suit a temporary injunction has been issued, and the
plaintiff, after giving bonds to secure the payment of all
damages which may be occasioned by reason of the in-
junction being improperly issued, dismisses his suit, or
permits it to be dismissed for want of prosecution, such
dismissal is a final judgment, and an adjudication that the
injunction ought not to have issued, on which an action
may be maintained on the bond for all damages resulting
from the injunction. Although in case of a judgment by
dismissal the issues are neither examined nor passed upon
by the court, yet by the failure of the plaintiff to prose-
cute his action, they are virtually confessed. A dismissal
under such circumstances, while it does not estop the
plaintiff from maintaining a new suit on the same cause
of action, does dispose of the rights of the parties in the
action in the same manner as if there had been an adju-
dication on the merits.^
§ 18. Judgment Vacating Another Judgment. — When
in an action to set aside a judgment the court grants the
prayer of the complaint and awards a new trial, the order
setting aside the judgment is a final judgment, and, as
such, may be appealed from. The whole scope and object
of the suit being to vacate the former judgment, and to
procure a new trial, and the issues all being made up for
that purpose, their determination necessarily puts an end
to the suit.^
§ 19. Judgment of Condemnation. — In a proceeding
by a railroad company to condemn lands, or a right of
way across lands, where the parties in interest are sum-
1 Cowling V. Polack, 18 Cal. 625; City, 51 Mo. 454; Sloppenbach v.
Loomis V. Brown, 16 Barb. 325; Shear- Zohrlant, 21 Wis. 385.
man r. N. Y. Central Mills, 11 How. ■' Belt v. Davis, 1 Cal. 134; McCall
Pr. 269; Coates v. Coates, 1 Duer, 664; v. Hitchcock, 7 Bush, 615; State v.
Leese v. Sherwood, 21 Cal. 163; Gill Allen, 92 Mo. 20. See, however, Dor-
V. Jones, 57 Miss. 367; Rodgers v. sey v. Thompson, 37 Md. 25.
Russell, 11 Neb. 361; Bowie v. Kansas
21 • FINAL JUDGMENTS. § 20
moned to appear and contest with the petitioners, and
where commissioners are appointed to assess the value of
the property sought to be condemned, and a report is
made by them and confirmed by the court, and the court
adjudges that the petitioners have brought themselves
within the provisions of the act providing for the con-
demnation, the action of the court is a final judgment
within the meaning of the section of the Practice Act
allowing an appeal from a final judgment entered in an
action or special proceeding/
§ 20. Must not Leave Issues to be Settled. — Some-
times several issues of law and of fact are presented for
the consideration of the court in the same suit or proceed-
ing. In such case there can be no judgment from which
an appeal can be taken while it remains necessary for the
court to determine some issue of law or of fact.^ It is not
true that a final judgment always settles all the issues
presented by the pleadings. A finding upon some of
the issues may remove all necessity for consideringothers,
and the court, judging them to be, in view of the findings
made, immaterial, may pronounce judgment, leaving
them undetermined. Such judgment is nevertheless
final, because there remains no issue which will be the
subject of any further consideration or action. At the
common law, a demurrer was treated as an admission of
the allegations of the complaint, and therefore removed
from the case all issues of fact, and left nothing for judi-
cial action save an issue of law. The determination of
that disposed of all the issues in the case, and the judg-
ment entered therein was final. Under the practice gen-
erally prevailing at the present time, a demurrer is not
regarded as a confession, except for the purpose of testing
the sufficiency of the pleading to which it is interposed.
If it is sustained, the pleading is allowed to be amended;
" S. P. & N. R. R. Co. V. Harlau, 24 •" Texas Pac. R'y v. Ft. W. R'y, 75
Cal. 337; Huuter's Private Road, 46 Tex. 83; Low i;. Crown Point M. Co., 2
Pa. St. 250. Nev. 75; King v. Barnes, 107 N. Y. 645.
§ 21 FINAL JUDGMENTS. 22
if it is overruled, the right to answer is not denied. In
either event, issues of fact may arise, and it is not until
it is known that the plaintiff will not amend his com-
plaint, or that the defendant will not by his answer form
an issue of fact, that final judgment can be entered on
the demurrer.
Though no issue is presented by the pleadings, there
may be questions which the court must determine as
though there were an issue thereon. If so, the judgment
cannot be final while a question remains to be judicially
answered. Thus though the defendant has made default,
and thereby confessed the allegations of the complaint,
the statute or the well-established practice of the court
may require evidence to be heard before the court can
assess the damages, or determine the nature and extent of
some other kind of relief sought by plaintiff; and it is not
until the damages have been assessed, the amount of the
recovery fixed, or the extent of the other relief judicially
ascertained and pronounced, that there can be a final
judgment. Whatever is judicially done before that is but
one of several steps toward the final judgment, from
which alone an appeal may be taken.' But, on the other
hand, if the amount of a recovery can be made certain
" by mere calculation, the judgment is final." '^
An order dismissing a cross-bill does not authorize the
entry of a final judgment thereon, if there is an answer to
the original complaint or bill by which issues are formed,^
and which must be settled before the case can be disposed
of. There cannot be a final judgment on the cross-bill,
and after that another final judgment disposing of the
other issues.'
§ 21. Not Always a Final Adjudication. — A judgment
may be final so as to authorize an appeal from the court
1 Daniel v. Cooper, 2 Houst. 506; Mo. 132; Hunter v. Hunter, 100 111.
Maury v. Roberts, 27 Miss. 225; Clem- 519.
ents V. Berry, 11 How. 398; Phillips ^ Sellers v. Burk, 47 Pa. St. 344;
V. Hellin^s, 5 Watts & S. 44; Coons v. Adickes v. Allison, 21 S. C. 245.
Harllee. 17 Fla. 484; Tuggle V. Gilbert, '^ Low v. Crown Point M. Co., 2
1 Duvall, 340; Deickart v. Rutgers, 45 Nev. 75; Fleece v. Russell, 13 111. 31.
23 FINAL JUDGMENTS. § 21 a
in which it was rendered, without being final as to the
subject-matter in litigation. An appeal ma}^ be taken, in
which case the judgment of the inferior tribunal is not
final as to the subject-matter, because it may be changed
b}' the appellate court. Thus a covenant in a deed that
if the title to certain lands were not confirmed to the
covenantor by the courts of the United States before
which it was pending, upon the final adjudication of the
same, the covenantor would pay a sum of money, does
not become a cause of action, when the district court re-
fuses to confirm the title and declares it invalid. Until
the time for appeal has elapsed, or until the judgment of
the highest court in which the suit could be determined
has pronounced against the validity of the title, there has
been no such final adjudication as was intended by the
parties to the covenant.^
§ 21 a. In Criminal Prosecutions the same policy with
respect to appeals prevails as in other cases. The judg-
ments which may be reviewed by appeal or otherwise must
be final; and, generally, no judgment will be regarded as
final unless it condemns the prisoner to be punished, and
sets forth particularly the amount, duration, and place of
punishment.^ The defendant cannot appeal from an or-
der sustaining a demurrer to his plea of autrefois acquit."^
Evidently an order overruling a demurrer to an indict-
ment cannot be appealed from as a final judgment, for it
leaves the issues of fact yet to be tried, and judgment
thereon yet to be pronounced.* It has also been deter-
mined that no appeal can be taken where the court sus-
tains a demurrer to an indictment, but enters no formal
final judgment in favor of the defendant.^ In California
a different rule prevails, and the reasons for its adoption
were very clearly and forcibly stated by Mr. Justice Crock-
ett,, in People V. Ah Own, 39 Cal. 606, in the following
1 Hills V. Sherwood, 33 Cal. 474. ' State v. Hornetnan, 16 Kan. 452.
» Anschincks v. State, 43 Tex. 587; * People v. Hall, 45 Cal. 253
Mayfield v. State, 40 Tex. 289; Ful- ' State v. Gregory, 38 Mor501; State
cher V. State, 38 Tex. 505, v. MuULx, 53 Mo. 355.
§ 21 b FINAL JUDGMENTS. 24
language: "This is an appeal from an order sustaining
a demurrer to an indictment for kidnaping. The order
sustaining the demurrer is in the usual form; but no
other or further order or judgment was entered, and the
appeal is taken from this order, treating it as a final
judgment or disposition of the case. The objection is
urged that no appeal will lie from an order sustaining a
demurrer to an indictment; that to entitle the state to an
appeal, there mjist be a formal and final judgment; and
it is claimed that the order sustaining the demurrer,
standing alone, cannot be deemed a final judgment from
which an appeal will lie. But we think the point is not
well taken. A defective indictment is not subject to
amendment, and when decided on demurrer to be insufli-
cient, the cause is finally ended. Section 144 of the code
defines a judgment to be 'the final determination of the
rights of the parties to the action or proceeding'; and it
is evident that the final order which decides the matters
at issue, adjudicates the rights of the parties, and ends the
litigation, must be deemed a final judgment for the pur-
poses of an appeal. In civil actions an order sustaining
a demurrer to the complaint is not an appealable order,
for the reason that the complaint is amendable, and the
sustaining a demurrer to it does not end the litigation.
It is not a final determination of the rights of the parties.
But in a criminal prosecution it is otherwise, and when a
demurrer is sustained, the action is finally ended in that
court. Nothing more remains to be done. It is true, in
proper cases, if the defendant is in custody, the court may
detain him to answer another indictment to be found by
another grand jury. But the first indictment is, never-
theless, finally disposed of by the demurrer, and the order
sustaining which may for that reason be properly deemed
to be a final judgment."
§ 21 b. A Judgment Dismissing an. Attachment under
the code of Georgia has been held by the supreme court
25 FINAL JUDGMENTS. § 21 C
of that state to be so far final as to be subject to review on
writ of error " for the reason that the whole attachment
element was disposed of by dismissing the attachment.
The decision was final as to it, and any judgment which
the plaintiflf might recover on his declaration thereafter
would have no aid from the levy of the attachment. It
would take lien only from the date of the judgment, and
the security of the replevy bond would be lost. To main-
tain his attachment, it was the right of the plaintiff to
have the judgment dismissing it reviewed by a separate
writ of error."* These reasons are very persuasive, if
addressed to the question whether the statute ought to be
amended so as to sanction appeals from orders dismissing,
dissolving, or otherwise annulling or impairing writs of
attachment or levies made thereunder. The fact that a
ruling may be very disastrous to one of the parties does
not necessarily entitle it to take rank as a final judgment.
The refusal to postpone the time of trial, the exclusion or
admission of particular evidence, the giving or refusing
to give an instruction, and many other judicial acts, may
be decisive of a case; but this does not convert them into
judgments, and entitle the injured party to at once test
their correctness by appeal. So, we apprehend, the dis-
missal, dissolving, or quashing of an attachment or of
the levy thereof is not reviewable as a final judgment.^
But if garnishment proceedings are instituted against an
alleged debtor, and jurisdiction is acquired over him, and
after he has answered a judgment is entered discharging
him, this, so far as he is concerned, is a final judgment
exhausting the jurisdiction of the court over him, and a
judgment subsequently entered against him is void.'
§ 21 c. An Order Dismissing a Petition for Interven-
tion is, in Texas, not subject to review as a final judgment.
1 Bruce v. Conyers, 54 Ga. 680; v. Taylor, 18 Kan, 558; Wearen v.
Sutherlin v. Underwriters' Agency, 53 Smith, 80 Ky. 216.
Ga. 442. * Jackson v. St L. & S. F. R'y Co.,
2 Cutter V. Gumhertz, 8 Ark. 449; 89 Mo. 104.
Woodruff i;. Rose, 43 Ala. 382; Butcher
§ 22 FINAL JUDGMENTS. 26
The petitioner or intervener must wait until the issues
between the plaintiff and defendant are determined and
their rights fixed by a final judgment, before he can ap-
peal.^ The rule is otherwise in California^ and Louisiana,'
whether the order be one denying leave to file a complaint
of intervention, or sustaining a demurrer thereto when
filed, and entering judgment thereupon against the inter-
vener.
§ 22. Final Adjudications in Equitable Proceedings. —
Considerable difficulty has been experienced in determin-
ing what is a final judgment, under the code, in equitable
proceedings, and what is a final decree, where the pro-
ceedings are conducted according to the practice in chan-
cery. Perhaps the decisions are not wholly reconcilable;
but their want of harmony, if it exists at all, is rather in
applying than in formulating the general rules by which
the answer to this question must be found. We shall first
call attention to those decrees which have been declared
final, and next to those which have been adjudged inter-
locutory, hoping that an examination of each class will
assist in identifying the other.
" A decree never can be said to be final where it is im-
possible for the party in whose favor the decision is made
ever to obtain any benefit therefrom without again setting
the cause down for hearing before the court, upon the
equity reserved, upon the coming in and confirmation of
the report of the master, to whom it is referred to ascer-
tain certain facts which are absolutely necessary to be
ascertained before the case is finally disposed of by the
court, or which the chancellor thinks proper to have as-
certained before he grants any relief whatever to the com-
plainant. But if the decree not only settles the rights of
the parties, but gives all the consequential directions
which will be necessary to a final disposition of the cause,
' Stewart v. State, 42 Tex. 242. * State v. Parish Judge, 27 La. Ann.
« Stich V. Dickinson, 38 Cai. 608; 184.
Coburn v. Smart, 53 CaL 742.
27 FINAL JUDGMENTS. § 23
upon the mere confirmation of tlie report of the master by
a common order in the register's office, it is a final decree
and may be enrolled at the expiration of thirty days,
although the amount to which the complainant may be
entitled under such decree is still to be ascertained upon
a reference to a master for that purpose." ^ Owing to the
number of orders or decrees necessarily entered in a suit
in equity to furnish all the relief to which the complain-
ant may be entitled, the courts have been frequently
obliged to determine which is the final decree. So far as
any general distinguishing test can be gathered from the
numerous decisions, it is this: That if after a decree has
been entered no further questions can come before the
court except such as are necessary to be determined in
carrying the decree into effect, the decree is final; other-
wise it is interlocutory.^ But an order or decree made for
the purpose of carrying a judgment or decree already
entered into effect is not a final judgment or decree, and
cannot be appealed from as such.'
"The rule is well settled and of long standing, that a
judgment or decree, to be final within the meaning of that
term as used in the acts of Congress giving this court
jurisdiction on appeals and writs of error, must terminate
the litigation between the parties on the merits of the
case, so that if there should be an affirmance here, the
court below would have nothing to do but to execute
the judgment or decree it had already rendered."*
§ 23. May Contain Directions to be Executed in Future.
— A stockholder having commenced an action against a
' Johnson v. Everett, 9 Paic;e, 638. Cook's Heirs v. Bay, 4 How. (Miss.)
« Whiting V. Bank of U. S., 13 Pet. 485.
6; Bronson v. R. R. Co., 2 Black, 524; ^ Callan v. May, 2 Black, 541;
Ogilvie V. Knox Ins. Co., 2 Black, Smith v. Trabue's Heirs, 9 Pet. 4.
539; Humiston v. Stainthorp, 2 Wall. * Bostwick v. Brinkerhoff, 106 U. S.
106; Miller v. Cook, 77 Va. 806; Bond 3; Grant v. Phoenix Ins. Co., 106 U. S.
V. Marx, 53 Ala. 177; Cocke v. Gilpin, 429: St. Louis, I. M., & S. R'y Co. v.
1 Rob. (Va.) 20; Teaff v. Hewitt, 1 Southern Express Co., 108 U. S. 24;
Ohio St. 511; 59 Am. Dec. 634; Ware Dainese v. Kendall, 119 U. S. 53;
V. Pvichardson, 3 Md. 505; 56 Am. Dec. Keystone M. & I. Co. v. Martin, 132
762; Beebe v. Russell, 19 How. 283; U. S. 91.
§ 24 FINAL JUDGMENTS. 28
corporation and its officers for an accounting and settle-
ment of its affairs, a decree was, after a full hearing on
the merits, entered in accordance with the prayer of the
complaint. By this decree a receiver was appointed to
take charge of the corporate assets until the further order
of the court, to collect moneys due or to become due, sell
stock, and pay the proceeds in accordance with directions
given in the decree. The supreme court declared that
this decree was a final judgment, and subject to appeal.^
A decree entered in an action brought for an accounting
and for a dissolution of a copartnership, granting the
relief prayed for, ordering a sale of all the partnership
assets, and specifying the manner in which the proceeds
of such sale shall be distributed, is a final decree.''
§ 24. May Require Future Orders or Proceedings. —
These decisions are fully sustained by several of the de-
cisions of the courts of the state of New York. Although
further proceedings before the master are necessary to
carry the decree into effect, yet if all the consequential
directions depending on the result of the proceedings
are given in the decree, it is final. A decree is none the
less final because some future orders of the court may be-
come necessary to carry it into effect;' nor because some
independent branch of the case is reserved for further
consideration,'* or the disposition of the costs is not deter-
mined;^ nor because, when the merits of the controversy
are adjudicated upon, and the equities of the parties defi-
nitely settled, an account is directed to be taken to ascer-
tain what sum is due from the one to the other, as the
result of the decision already made by the court.® But in
1 Neall V. Hill, 16 Cal. 145; 76 Am. * Cannon v. Hemphill, 7 Tex. 184.
Dec. 508. ^ McFarland v. Hall, 17 Tex. 691,
2 Clark V. Dunnam, 46 Cal. 204; « Bank of Mobile ?;. Hall, 6 Ala. 141;
Evans v. Dunn, 26 Ohio St. 439. 41 Am. Dec. 41; Thomson v. Dean, 7
3 Mills V. Hoag, 7 Paige, IS; 31 Am. Wall. 342; Garner v. Prewitt, 32 Ala,
Dec. 271; Johnson v. Everett, 9 Paige, 13; Green v. Winter, 1 Johns. Ch. 27;
636; Quackenhush v. Leonard, 10 7 Am. Dec. 475; Bradford v. Bradley's
Paige, 131; Dickmson v. Codwise, 11 Adm'r, 37 Ala, 453; Jones v. Wilson,
Paige, 189; Stovall v. Banks, 10 Wall. 54 Ala, 50.
583.
29 FINAL JUDGMENTS. • § 25
all cases where further proceedings are to he taken, or
further orders of the court are necessary, the judgment
cannot be treated as final, even for the purposes of appeal,
unless it determines the issues involved in the action.^ A
judgment against an administrator, for a specific sum and
costs, in the usual form, except that there was a clause
added, to the effect that the defendant should have, during
the term of the court, to make additional showing, if he
could, that he had previously paid the moneys or any
part thereof for which judgment was rendered against
him, was held to be final, on the ground that this clause
did not confer any new right nor detract from the effect
of the judgment; for, as the court said, a judgment may
always be opened or set aside during the term at which it
was rendered.^ A judgment against an administrator in
the usual form, "to be released on the payment of such
sum as Enoch J. Millard shall say is' due, and costs," was
also adjudged to be final, because " to make it absolute as
far as regarded the amount due on the account, no fur-
ther act of the court was nec^essary." ^
§ 25. Requiring Conveyance of Property. — In the case
of Travis v. Waters, 12 Johns. 500, a decree was said to be
final when all the facts and circumstances material to a
complete explanation of the matters in litigation were
brought before the court, and so fully and clearly ascer-
tained on both sides that the court has been enabled to
collect the respective merits of the parties litigant, and
upon full consideration has determined between them
according to equity and good conscience. This case was
for a specific performance of a contract to convey certain
lands. The chancellor having made an order that the
defendant, under direction of one of the masters of the
court, on payment or tender to him of a certain sum of
money, execute and deliver to the plaintiff a good and
1 Perkins v. Sierra N. S. M. Co., 10 ^ Turner v. Plow den, 5 Gill & J. 62;
Nev. 405. 23 Am. Dec. 596."
» Harmon v. Bynum, 40 Tex. 324.
§ 26 FINAL JUDGMENTS. 30
sufficient conveyance of the real estate in controversy,
this order, though silent as to costs, was considered as
within the above definition of a final decree, and the
plaintiff was not permitted to set the case down for fur-
ther hearing, so as to have his bill of costs put in the
decree.^
§ 26. Final, if Requires Delivery of Property. — Where
the assignee of a bankrupt filed his bill in equity to have
the deeds of certain lands and slaves made by the bank-
rupt to the defendants set aside, and to have the lands
and slaves delivered to the assignee, and that an account
of the profits of the lands and slaves be taken, and that
such profits, when ascertained, should be paid over to the
assignee, the court decreed that the lands and slaves be
delivered to the assignee and by him sold, and that the
account of profits be taken. From this decree an appeal
was taken to the supreme court of the United States,
where a motion was made to dismiss the appeal because
the decree was interlocutory. The motion was denied.
The court said that when a decree determined the right
to property, and directed it to be given to the complain-
ant, or to be sold for his benefit, and he was entitled to
have the decree carried into immediate effect, it was final
within the meaning of the statute authorizing appeals;
and that if no appeal were allowed from such a decree,
the property in controversy could be sold, or otherwise
disposed of, and thereby placed so completely beyond the
reach of the defendants that an appeal at a subsequent
stage of the proceedings could do them no good.^ It seems
certain, however, that if the decree under consideration
in the above case had simply determined the right to the
property in dispute, without giving directions for its sale,
or delivery to the complainants, no appeal would have
^ A decree is final which determines ' Forgay v. Conrad, 6 How. 201 ;
the rights of property, and directs a Davie v. Davie, 52 Ark. 224; 20 Am.
conveyance to be made at a, future da,y. St. Rep. 170.
Lewis V. Outton's Adm 'r, 3 B. Mon. 453.
31 FINAL JUDGMENTS. §§ 27, 28
been recognized until all the issues had been determined,
and such a decree entered as would have completely dis-
posed of the suit.^ A decree final in other respects is not
interlocutory because it directs a taxation of costs; ^ nor
because, as in the case of a decree for the sale of mort-
gaged premises, subsequent proceedings under direction
of the court are necessary to execute the decree.'
§ 27. Must be Final as to All Defendants. — The order
of the court in an action for the partition of real estate,
which determines the several interests of the parties to the
action, and appoints a referee to make a partition between
them, and report the same to the court, is not a final judg-
ment, even against a party whom the court by such order
determines to be without any title.* A decree declaring a
legacy void as to one defendant, but reserving all other
questions, is not such a final decree as may be appealed
from.^ And, as a general rule, a judgment determining
the rights of some of the parties is not final so as to au-
thorize an appeal until it has settled the rights of all the
defendants.^
§ 28. Instances of Decrees Final, though Some Ques-
tions Remain Open. — If a suit is brought by an express
company against a railway company to compel the latter
to do business for the former on the payment of lawful
charges, and it is no part of the object of the suit to have
such charges definitely settled for all time, a decree which
establishes the express company's right, adjudges costs,
1 Perkins w. Fourniqnet, 6 How. 206; « Peck r. Vandenlierg, 30 Cal. 11;
Pulliam V. Christain, 6 How. 209. Gates v. Salmon.' 2S Cal. 320. The
■■^ Craig V. Steamer Hartford, 1 Mc- law has been changed by act of March
All. 91. 23, 1864.
'Bronson V. R. R. Co., 2Black, 531; * Chittenden v. M. E. Church, 8
Ray V. Law, 3 Cranch, 179. A decree How. Pr. 327.
disposing of a cause, but leaving the ^ Harrison v. Famsworth, 1 Heisk.
exact amount due to be calculated by 751; Delap v. Hunter, 1 Sneed, 101;
the master, and to be by him reported ^lartin v. Crow, 28 Tex. 614; Wills v.
at next term, is final: Meeku Mathis, State, 4 Tex. App. 613; Whitaker v.
1 Heisk. 534. A decree dismissing Gee, 61 Tex. 217; Schultz v. McLean,
certain parts of a bill is not final: 76 Cal. 608; Commonwealth v. Mc-
Mayor v. Lamb, 60 Ga. 342. Cleary, 92 Pa. St. 188.
§ 28 FINAL JUDGMENTS. 32
awards execution, and fixes compensation to be paid is final,
though leave is given to the parties to apply for a modifi-
cation of what has been ordered respecting charges. The
efi'ect of the decree is to require the railway to carry for a
reasonable compensation, and the permission to apply for
a modification in respect to charges was necessary be-
cause " the rates properly chargeable for transportation
vary according to circumstances," and cannot be reason-
able unless changed from time to time, and thereby fitted
to changed circumstances/ A decree is final which directs
the sale of property and fixes the rights and interests of
the respective parties therein, though the officer who is
to make the sale is required, after paying a specified claim,
to pay the surplus in his hands to the complainant " after
deducting such costs as the court shall decree to be paid
out of the same." ^ A decree in other respects final is not
rendered interlocutory by a direction therein contained,
in aid of the execution of the decree, requiring the defend-
ants to account concerning certain specified matters, and
a reservation to the court of the right to make " such fur-
ther directions as may be necessary to carry this decree
into efi'ect concerning costs, or as may be equitable and
just." ^ If, in an action to recover moneys on a contract
for the sale of land and to subject the land to sale for such
amount as should be found due, a cross-petition is filed,
alleging the existence of a cloud on plaintiff's title, and
the court, after trial, adjudges that the cloud has been re-
moved, that the complainant has deposited with the clerk
deeds conveying to defendant a clear title, that a specified
amount is due plaintiff, that such amount be paid to the
clerk of the court within thirty days, and in default thereof
that execution issue therefor, and that on payment
thereof by defendant the deeds be delivered to him, the
provision delaying execution and declaring that the deeds
iSt Louis I. M., & S. R'y Co. v. 237; Parsons v. Robinson, 122 U. S.
Southern Express Co., 108 U. S. 112.
24 3 Winthrop I. Co. v. Meeker, 109
» In Matter of Norton, 108 U. S. U. S. 180.
33 FINAL JUDGMENTS. § 29
shall be delivered only after payment, does not prevent
this adjudication from being a final judgment.^ Gener-
ally, clauses in judgments or decrees suspending their
operation for a specified time, or giving defendant a period
within which to make payment, and staying execution in
the mean time, are not regarded as rendering interlocutory
decrees which are otherwise final.^
§ 29. Interlocutory Decrees Defined and Classified. —
An interlocutory decree is one made " pending the cause,
and before a final hearing on the merits. A final decree
is one which disposes of the cause, either by sending it
out of the court before a hearing is had on the merits, or
after a hearing on the merits, decreeing either in favor of
or against the prayer of the bill." But no order or de-
cree which does not preclude further proceedings in the
case in the court below should be considered final.' A
decree is interlocutory which makes no provision for costs,
and in which the right is reserved to the parties to set the
cause down for further directions not inconsistent with
the decree already made;* and so is a decree which con-
tains a provision for a reference of certain matters, and
that all further questions and directions be reserved until
the coming in of the report of the referee. An order or
- Linsley v. Logan, 33 Ohio St. was in the hands of a designated third
376. person, subject to a certain agreement,
'^ Fleming v. Boiling, 8 Gratt. 292; and to report what was a reasonable
Brown v. Van Cleave, 86 Ky. 381. An compensation for a trustee in whose
extreme case, and one which is clearly hands the fund had been. This de-
not in consonance with the other au- cree was held final and appealable,
thorities upon the subject, is that of though it is impossible to determine
Hastie v. Aiken, 67 Ala. 313. This from the report of the case that any-
was a suit by which complainants thing had been settled bj' it except
sought to reach a certain fund which that complainants were entitled to the
had been in the hands of a partner- fund as personal representatives of a
ship, the members of which were de- certain decedent, if it did not belong
ceased. Demurrers interposed to the to another person as representative of
complaint were overruled, and a de- another decedent, and if on an ac-
cree was entered declaring comyilain- counting between the deceased mem-
ants entitled to relief and ordering a bers of the late firm something should
reference, 1. To ascertain whether the be found due the decedent v^hom corn-
fund belonged to the complainants or plainants represented,
another person; 2. To state an account * Chouteau v. Rice, 1 Minn, 24.
between the memljers of the late firm, * Williamson v. Field, 2 Barb. Ch.
and to find what amount of the fund 281; Harris v. Clark, 4 How. Pr. 78.
Judo. I. —3
§ 29 FINAL JUDGMENTS. 34
decree pro confesso for an injunction restraining the use
of an invention is interlocutory merely,^ but a decree dis-
missing a bill,'' or dissolving an injunction and passing
definitively on all the essential points in issue, is final.*
Interlocutory decrees are entered under an infinite variety
of circumstances, and the relief afforded corresponds in
variety to the circumstances demanding it. It is there-
fore difficult, and perhaps impossible, to formulate any
classification which will include every order or interlocu-
tory judgment or decree. By far the greater number of
those which are at all likely to be mistaken for final judg-
ments or decrees fall within the following classification:
1. Those whicl'i, while they may be suiTicient in form and
substance to dispose of the suit, are nevertheless, by law
or the uniform practice of the court, not treated as final,
until the happening of some event or the lapse of some
period of time; 2. Those which, though they may grant
the relief sought by the suit, are temporary or condi-
tional in their effect, and are generally entered without
any previous determination of the rights of the parties;
3. Those which, while they determine the rights of the
parties either in respect to the whole controversy .or some
branch of it, merely ascertain and settle something
without which the court could not proceed to a final ad-
judication, and the settlement of which is obviously but
preliminary to a final judgment or decree; 4. Adjudica-
tions of one or more issues, but leaving undisposed of
some issue which must be settled before the rights of the
parties can be finally determined; 6. Orders made in the
progress of the cause, for the purpose of preserving or
managing the subject-matter of the action, or bringing it
within the control of the court, to the end that the final
judgment may be efiective; and 6. Orders, judgments, or
decrees made in a cause vacating or reversing any prior
judgment or decree therein, whether interlocutory or
' Russell V. Lathrop, 122 Mass. » vSnell r. Dwi^ht, 121 Mass. 348.
300. 8 ijaloy v. Collius, 30 La. Ann. 63.
35 FINAL JUDGMENTS, §§ 30-32
final, if the cause is remanded for further proceedings or
the parties otherwise left at liberty to proceed to a final
judgment.
§ 30. Provisional Decrees or Judgments. — In the first
class of interlocutory decrees are those taken nisi or pro
confesso. These decrees are designed only "to prepare
the case for a final decree," and no matter what their pro-
visions, they do not amount to final adjudications.* So
under the practice in some of the states, a motion for a
new trial seasonably filed is deemed to be so directly
connected with the judgment that " so long as it remains
undisposed of there can be no final judgment within the
meaning of the statute regulating appeals." '
§ 31. Temporary or Alternative Relief. — In the second
class of interlocutory decrees and judgments fall orders
granting injunctions which are to be operative only dur-
ing the pendency of the litigation, or until the further
order of the court,^ and orders for alternative writs by
which a party is commanded to do or not to do some act,
or else to show cause why he has done or refrained from
doing it.
§ 32. Settling Questions Preliminary to Final Relief. —
Instances of interlocutory decrees of the third class are
very numerous. Thus if the suit is for the dissolution
of a partnership, and for an accounting and a settlement
of the partnership business and the division of its assets,
the court may be required to determine whether any part-
nership existed, and if so, whether it ought to be dissolved,
and what were the respective interests of the several par-
ties before the court therein. The determination of these
questions, accompanied with a direction that an account
be taken, will not be deemed a final adjudication, unless
' Russell B. Lathrop, 122 Mass. * Verden v. Coleman, 18 How. 86;
300. Humeston v. Stainthorp, 2 Wall. 106;
» New York, C, & St. L. R. R. Co. East & W. T. L. Co. v. Williams, 71
V. Doane, 105 Ind. 92. Tux. 414.
§ 32 FINAL JUDGMENTS. 36
the decree is so complete that nothing remains to be done
except to follow its directions.^ In suits for partition, the
courts must determine the interests of the co-tenants, and
whether partition shall be made by a sale of the property,
or otherwise; but it is not until the confirmation of the
partition, whether by sale or allotment, that a final decree
exists.'' A decree that -parties account is another famil-
iar instance of a determination preliminary to but not
constituting a final judgment.' A decree declaring that
complainant is entitled to have lands sold to pay purchase-
money or a mortgage debt due him is not final if a refer-
ence is ordered to ascertain what sum remains unpaid.*
An action was commenced to enforce certain liens against
real estate, and a judgment therein was entered directing
that a sale of the premises be made, and that from the
proceeds a sum specified should be paid to discharge one
of the liens, and that the plaintiff should be paid an addi-
tional sum, less the amount due from him to the defendant
for rent of the premises, and that a reference be had to
ascertain the amount of such rent. An appeal was taken
from this judgment. The appellate court, on motion to
dismiss the appeal, considered that as the object of the
action was to ascertain to whom the whole proceeds to be
derived from a sale of the premises should belong, and
that as this could not be ascertained until it was known
what amount ought to be deducted from the plaintiff's
claims for rents, the judgment entered by the court below
was not a final judgment.^ Obviously, a decree of fore-
1 Gray V. Palmer, 9 Cal. 616; Kings- Contra, Ansley v. Robinson, 16 Ala.
Imry v. Kingsbury, 20 Mich. 212; 793; Bantou v. Campbell, 2 Dana, 421 ;
Rhodes v. Williams, 12 Nev. 20; Darmouth v. Kloch, 28 Mich. 163;
Cocke's Adm'r v. Gilpin, 1 Rob. (Va.) Williams v. Wells, 62 Iowa, 740.
20- White v. Conway, 66 Cal. 383. * Beitler v. Zeigler, 1 Penr. & W. 135;
2 Holloway v. Holloway, 97 Mo. 628; Raynor v. Raynor, 94 N. Y. 248; Jack-
10 Am. St. Rep. 339; Turpint). Turpin, son Co. v. Gullatt, 84 Ala. 243.
88 Mo. 337; Murray v. Yates, 73 Mo. * Walker v. Crawford, 70 Ala. 567;
13; Greenu Fisk. 103U. S. 518; Gates Grant v. Phoenix M. L. I. Co., 106
V. Salmon. 28 Cal. 320; Peck v. Van- U. S. 429; Parsons v. Robinson, 122
denburg, 30 Cal. 11; Beebe v. Griffing, U. S. 112; Burlington etc. R'y Co. v.
6 N. Y. 465; Mills v. Miller, 2 Neb. Simmons, 123 U. S. 52.
299; Gesell's Appeal, 84 Pa. St 238. * Thompkins v. Hyatt, 19 N. Y. 535.
37 FINAL JUDGMENTS. §§ 32 a, 32 b
closure cannot be final if it neither determines tbe amount
to be paid nor ascertains or describes the property to be
sold;^ nor if it merely declares the amount due, without
awarding to plaintiff the only relief to which he is entitled
in the suit, to wit, a direction or judgment that the prop-
erty be sold and the proceeds applied to the satisfaction
of the mortgage debt,^ While the question of costs can
hardly be regarded as forming a distinct issue in the case,
nor its reservation as necessarily preventing a final deter-
mination of the rights of the parties, yet in some states a
judgment or decree, otherwise final, reserving this ques-
tion, is treated as interlocutory.^
§ 82 a. Interlocutory. Decisions of Part only of the
Issues. — Decisions upon demurrers to the pleadings or
upon pleas in abatement, and all orders disposing of some
of the issues while others remain to be decided,'* or deter-
mining the rights of some of the parties, leaving the rights
of others undetermined, constitute examples of interlocu-
tory decrees and judgments of our fourth class.*
§ 82 b. Interlocutory. Orders Looking to Preserving
Property Pendente Lite. — Orders appointing receivers to
take charge of property, or to collect. the rents and profits
thereof during the pendency of the suit,^ or to pay money
into court or to some officer thereof for preservation dur-
ing the pendency of litigation as to its ownership,^ are not
final judgments.
I Railroad Co. v. Swasey, 23 Wall. « East & W. T. L. Co. v. Williams,
405. 71 Tex, 444; Farson v. Gorham, 117 111.
' Crim V. Kessing, 89 Cal. 478. 137; Hottensteia v. Conrad, 5 Kan.
» Williams v. Field, 2 Wis. 421; 60 249; Eaton & H. R. R. Co. v. Varnura,
Am. Dec. 426; Dickinson v. Codwise, 10 Ohio St. 622; Maysville & L. R. R.
11 Paige, 189; Williamson v. Field, 2 Co. v. Punnett, 15 B. Mon.'47; Kansas
Barb. Ch. 281. Contra, McFarland v. R. M. Co. v. A., T., & S. F. R. R. Co.,
Hall's Heirs, 17 Tex. 676, 31 Kan. 90; Fuller v. Adams, 12 Ind.
* Keystone M. & I, Co, v. Martin, 559, Contra, Lewis v. Campau, 14
132 U. S. 91; Hayes v. CaldM'ell, 5 Mich. 458; 90 Am. Dec, 245; Taylor t>,
Gilm. 33; Phelps v. Fickes, 63 111, 201; Swett, 40 Mich. 736.
Slagle V. Rodmer, 58 Ind. 465. ' Louisiana Bank v. Whitney, 121
» Owens V. Mitchell, 33 Tex, 228, U. S. 284.
§§ 32 C, 33 FINAL JUDGMENTS. 38
§ 32 c. Reversing and Vacating Decrees, Judgments,
and Orders. — Granting a new trial, vacating a judgment,
order, or decree on motion, or reversing it on apj^eal or
writ of error, or any other adjudication by which a judg-
ment, order, or decree is set aside, and the cause left open
for further proceedings which may and must be prose-
cuted before the final judgment or decree can be entered,
is not a final judgment.^ Hence, though the highest ap-
pellate court of a state may have granted a new trial, or
reversed a judgment or decree and remanded the cause
for further proceedings in the trial court, no appeal can
be taken to the supreme court of the United States until
after such proceedings have been taken and have resulted
in a final judgment or decree.^ But if a judgment of
reversal contains directions for the entry of judgment in
the trial court, so that the latter has nothing to do except
to render and enter judgment as directed, the judgment of
reversal is a final judgment and reviewable as such.^
§ 33. Appeals Unnecessary not Permitted. — The policy
of the laws of the several states and of the United States
is to prevent unnecessary appeals. The appellate courts
will not review cases by piecemeal. The interests of liti-
gants require that causes should not be prematurely
brought to the higher courts. The errors complained of
might be corrected in the court in which they originated;
or the party injured by them might, notwithstanding the
injury, have final judgment in his favor. If a judgment,
interlocutory in its nature, were the subject of appeal, each
of such judgments rendered in the case could be brought
before the appellate court, and litigants harassed by use-
less delay and expense and the courts burdened with
unnecessary labor.
» House V. Wright, 22 Ind. 383; Higgins v. Brown, 5 Col. 345; Brown
Byersv. Butterfield, 33 Mo. 376; Smith v. Edgecton, 14 Neb. 453.
V. Adams, 130 U. S. 167; McCulloch v. ^ Bostwick v. Brinkerhoff, 106 U. S.
Dodge, 8 Kan. 476; Lawson ?'. Moore, 3; Johnson v. Keith, 117 U. S. 199.
44 Ala. 274; In re Studdarb, 30 Minn. ^ Mowes v. Fletcher, 114 U. S.
553; Houston v. Moore, 3 Wheat. 167; 127.
39 FINAL JUDGMENTS. §§ 34, 35
§ 34. Judgment, when Appealable. — The general rule
recognized by the courts of the United States and by the
courts of most, if not of all, the states is, that no judgment
or decree will be regarded as final v/ithin the meaning of
the statutes in reference to appeals, unless all the issues
of law and of fact necessary to be determined were deter-
mined, and the case completely disposed of, so far as the
court had power to dispose of it.^
§ 35. Exceptions. — But owing to particular circum-
stances and hardships, the courts have refused to dismiss
appeals from some judgments which did not completely
dispose of the cases in which they were entered. These
judgments determined particular matters in controversy,
and were of such a nature that they could be immediately
enforced, and by their enforcement could deprive the
party against whom they were rendered of all benefits
which he might obtain from an appeal at any subsequent
stage of the proceedings.^ To avoid the necessity of being
called upon to review such judgments, the superior courts
have cautioned the inferior ones, and endeavored to im-
press upon them the evils resulting from the practice of
entering interlocutory judgments capable of being at once
enforced against a party, and doing him irretrievable
damage before a final judgment can be entered.^ Prob-
1 McCollum V. Eager, 2 How. 61; seems to deny the right of appeal even
Craighead v. Wilson, IS How. 199; where the judgment is capable of en-
Ayres v. Carver, 17 How. 594; Craw- forcement against the parties to it.
ford V. Points, 13 How. 11; Mordecai The suit was by C. against A. M.,
V. Lindsay, 19 How. 200; Montgomery M. M., and L. M. Judgment by de-
V. Anderson, 21 How. 386; Barnard v. fault was entered against M. M. and
Giljson, 7 How. 650; Pepper v. Dun- L. M., and the cause continued for
lap, 5 How. 51; Winn v. Jackson, 12 service against A. M. From this
Wheat. 135; The Palmyra, 10 Wheat, judgment an appeal was taken, but by
502; Chace v. Vasquez, 11 Wheat. 429; whom does not appear. In consider-
Hiriart v. Ballon, 9 Pet. 156; Ruther- ing the appeal, the court said: "When
ford V. Fisher, 4 Dall. 22; Young v. the whole of the matter in controversy
Grundy, 6 Cranch, 51. is finally disposed of as to all the
'^ Merle v. Andrews, 4 Tex. 200; parties, then there is a final judgment,
Stovall V. Banks, 10 Wall. 583. and not before, from which an appeal
^Barnard v. Gib.son, 7 How. 650; or writ of error can be taken." But
Forgay v. Conrad, 6 How. 201. The as there are intimations in the opinion
case of Martin v. Crow, 28 Tex. 614, that the court seemed to be consider-
so far as we are able to understand it, ing the rights of A. M., who was not
§ 35 FINAL JUDGMENTS. 40
ably to avoid special hardships resulting from the failure
to give a right of appeal from other than a final judgment
or decree, the following have been decided, for the pur-
poses of an appeal, to be final judgments: Orders appoint-
ing receivers and directing them to take possession of
property;' directing that partition be made, and deter-
mining the interests of the respective parties to the
action;^ fixing the amount of alimony to be paid pendente
lite, and directing its immediate payment;* removing or
refusing to remove a cause to another court for trial.*
a party to the judgment, it may be 163; Williams v. Wells, 62 Iowa,
that he was the appellant. If so, the 740.
general language of the court does not ^ Daniels v. Daniels, 9 Col. 133;
raise any couliiet with the rule of the Sharon v. Sharon, 67 Cal. 185.
cases cited above. * McMillan v. State, 68 Md. 307;
1 Lewis V. Campau, 14 Mich. 458; Home L. I, Co. v. Dunn, 20 Ohio St.
90 Am. Dec. 245. 175; 5 Am. Rep. 642. Contra, Vance
2 Ansley v. Robinson, 16 Ala. v. Hogue, 35 Tex. 432; Jones v. Daven-
793; Banton v. Campbell, 2 Dana, port, 7 Cold. 145; Jackson v. Alabama
421; Darmouth v. Kloch, 28 Mich. G. S. R. R. Co., 58 Miss. 648.
41 THE ENTRY OF JUDGMENTS. § 37
CHAPTER II.
THE ENTRY OF JUDGMENTS.
§ 37. Importance of.
§ 38. Is a ministerial act.
§ 39. A distinction between formal entry of judgments and decrees.
§ 39 a. The time of the entry.
§ 40. The judgment-book.
§ 41. Entry in improper book.
§ 42. On verdicts.
§ 43. Against joint parties.
§ 44, Against joint contractors.
§ 45. Construction of entry.
§§ 46, 47. Form of entry.
§ 4S. Use of t
§ 48 a. Judgment in figures.
§ 49. Filling blanks'.
§ 50.' Sufficiency of entries — General tests of.
§ 50 a. Designation of the parties.
§ 50 b. Designation of amount.
§ 50 c. Designation of property.
§ 50 d. Judgments of conviction.
§ 50 e. Signature of the judge.
§§ 51, 52. InsufScient entries.
§ 53. In justices' courts.
§ 53 a. Failure of justice to enter.
§ 54. Reference to other cases.
§ 55. On awards.
§ 37. Importance of. — The promptings of the most
ordinary prudence suggest that whatever, in the affairs of
men, has been so involved in doubt and controversy as to
require judicial investigation ought, when made certain
by a final determination, to be preserved so by some
permanent and easily understood memorial. Hence all
courts and all tribunals possessing judicial functions are
required by the written or unwritten law, and often by
both, to reduce their decisions to writing in some book or
record kept for that purpose. The requirement is believed
to be of universal application.^ So that if any judgment
* Meeker v. Van Rensselaer, 15 427; Davidson v. Murphy, 13 Conn.
Wend 397; Jones v. Walker, 5 Yerg. 213; Boker v. Bronson, 5 Blatchf. 5.
§ 38 THE ENTRY OF JUDGMENTS. 42
or decree of any court, whether of record or not of record,
whether subordinate or appellate, fails to be entered upon
its records, the failure is attributable to the negligence or
inadvertence of its officers, and not to the countenance
and support of the law.
While the entry is not the judgment, its absence tends
strongly to indicate that no judgment exists, and in doubt-
ful cases may be sufficient to sustain the issue that what-
ever has been done has been but preliminary to judgment.
Thus a memorandum handed down by an appellate court,
of its decision on appeal, is not a judgment, but simply
authority to enter one.^ An entry made by a judge in his
calendar is not the judgment in the case. It is intended
merely for the guidance of the clerk in entering orders
and judgments, and cannot prevent the judge from sub-
sequently signing and the clerk enrolling the final judg-
ment.^ The entry, though without it the judgment be
conceded to exist, may be important in other respects
besides that of establishing the terms of the judgment, as
where, under the statute of a state, a judgment cannot be
docketed so as to constitute a lien until after its actual
entry ,^ or where judgments are in certain cases required
to be recorded before they can affect innocent purchasers
or encumbrancers;^ for unless the judgment is entered, no
copy of it can exist to be filed for record.
§ 38. Ministerial Act. — Expressions occasionally find
their way into reports and text-books, indicating that the
entry is essential to the existence and force of the judg-
ment. These expressions have escaped from their authors
when writing of matters of evidence, and applying the
general rule that in each case the best testimony which is
capable of being produced must be received, to the exclu-
sion of every means of proof less satisfactory and less au-
thentic. The rendition of a judgment is a judicial act;
1 Knapp V. Roche, 82 N. Y. 366. 533; Eastham v. Sallis, 60 Tex.
« Traer v. Whitman, 56 Iowa, 443. 576.
' Rockwood V. Daveuport, 37 Minn. * Witter v. Dudley, 42 Ala. 616.
43 THE ENTRY OF JUDGMENTS. § 38
its entry upon the record is merely ministerial.^ A judg-
ment is not what is entered, but what is ordered and con-
sidered." The entry may express more or less than was
directed by the court, or it may be neglected altogether;
yet in neither of these cases is the judgment of the court
any less its judgment than though it were accurately en-
tered. In the very nature of things, the act must be per-
fect before its history can be so; and the imperfection or
neglect of its history fails to modify or obliterate the act.
That which the court performs judicially, or orders to be
performed, is not to be avoided by the action or want of
action of the judges or other officers of the court in their
ministerial capacity. It is, therefore, not indispensable
to the validity of an execution and a sale made thereunder
that the judgment should have been actually entered
before the writ issued.' While its entry of record is not
indispensable to a judgment, a judgment is essential to
the validity of an entry. The ministerial act of the clerk
must be supported by a judicial act pronounced by the
court in express terms, or in contemplation of law. The
clerk is in some contingencies authorized to enter judg-
ment by default; but in these instances the court, in con-
templation of law, pronounces the judgment, though as a
matter of fact no action may be taken by the presiding
judge. In all other cases the entry of judgment by the
clerk must be supported by the previous order or direction
of the court, or it will be treated as void.* In the case of
judgments, they must first be entered upon the record
before they are admissible as evidence in other actions.''
The record, if not made up, or if lost or destroyed, should
' Estate of Cook, 77 Cal. 220; 11 * Los Angeles Co. Bank v. Raynor,
Am. St. Rep, 267; Schuster v. Rader, 61 Cal. 145. So a judgment of convic-
13 Col. 329; Estate of Newman, 73 tinn will sustain a commitment issued
Cal. 213; 7 Am. St. Rep. 146; thereon, though it has not yet been
Matthews v. Houghton, 11 Me. 377; formally entered: Ex parte Raye, 63
Fish V. Emerson, 44 N. Y. 376; Criin v. Cal. 491.
Kessing, 89 Cal. 478; Couwell v. Kuy- * Lee r. Carrollton Savings and Loan
kendalf, 29 Kan. 707. Association, 58 Md. 301.
■' Davis V. Shaver. 1 Phill. (N. C.) " Hall v. Hudson, 20 Ala. 284.
18; 91 Am. Dec. 92.
§ 39 THE ENTRY OF JUDGMENTS. 44
be perfected or replaced by appropriate proceedings in
the court where the judgment was pronounced.
§ 39. Distinction between Judgments and Decrees. —
In respect to the entr}^ of judgments and of decrees upon
the record, and the consequent effect of their want of en-
try, as affecting their admissibility as evidence in other
cases, there seems to be this radical difference: a judg-
ment can speak but by the record; a decree, in the ab-
sence of any statute or provision to the contrary, takes
effect immediately after being pronounced by the court.
Its enrollment adds nothing to its force nor to its compe-
tency as evidence.^ This distinction arose from the differ-
ences in the proceedings at law and in equity. It is
inherent in the nature of the two systems. Though the
code declares in general terms that there shall be but one
form of action, and thereby, in a general manner, attempts
to abolish the distinctions before existing in the pursuit
of legal and of equitable remedies, it has not altogether
succeeded. The necessity for the recognition of equita-
ble rights, and for granting equitable relief, continues as
before the adoption of the code. The proceedings occa-
sioned by this necessity are substantially as they were
under the old system. Among the rules of the old
system not abrogated by the new is the one that a de-
cree pronounced by the court and reduced to writing
is admissible in evidence, independent of the fact of
its enrollment or entry in the judgment-book.^ But
the distinction between a decree and an order for a
decree must not be overlooked. " No decree can be said
to be entered of record until it is formally drawn out
and filed by the clerk. A mere order for a decree, before
it is extended in due form and in apt and technical lan-
' Bates V. Delavan, 5 Paige, 303; entry, are irregular and voidable:
Winans v. Dunham, 5 Wend. 47; But- Drummond v. Anderson, 3 Grant
ler V. Lee, 3 Keyes, 73. But in Can- (U. C.) 151.
ada the decree must be entered in the ^ Lynch v. Rome Gas Light Co., 42
register's book, and all proceedings Barb. 591.
based thereon, and taken before such
45 THE ENTRY OF JUDGMENTS. § 89 a
guage, cannot be held to be a complete record of the judg-
ment of the court." ^
§ 39 a. The Time of the Entry of Judgment.— At the
common law, a judgment took effect as of the first day of
the term at which it was rendered, in all cases where it
might have been then rendered;^ while in some parts of
the United States the reverse rule obtains, and judgments
take effect as of the last day of such term.^ The purpose
of these rules is merely to place judgments rendered at
the same term upon an equality, where all were rendered
in cases which were ready for judgment at the commence-
ment of the term; they do not prescribe or limit the time
in which the clerical labor of entering j\idgment may be
performed. Statutes have been enacted specifying the
time within which judgments should be entered, either
in all cases, or in particular cases enumerated in the stat-
ute. Thus in Kentucky, judgments, orders, and decrees
were required to be drawn up and recorded by the clerk
on the evening of each day.* In California, when trial
by jury has been had, judgment must be entered by the
clerk in conformity with the verdict within twenty-four
hours after its rendition.^ In other instances, statutes
have forbidden the entry of judgment until after the lapse
of a designated period. A judgment entered before the
time allowed by law, or the order of the court, or the
agreement of the parties, is irregular, and liable to be
vacated on motion;^ but it is not void.^ If the statute
requires four days to be given between the filing of a
decision and the entry of judgment, four full calendar
* Thompsons. Goulding, 5 Allen, 81; * Raymond v. Smith, 1 Met. (Ky.)
Gilpatrick v. Glidden, 82 Me. 201. 65; 71 Am. Dec. 458.
•^ Farley v. Lea, 4 Dev. & B. 169; 32 ^ Cal. Code Civ. Proc, sec. 664.
Am. Dec. 680; Withers v. Carter, 4 * Marvin v. Marvin, 75 N. Y.
Gratt. 407; 50 Am. Dec. 78; Faust v. 240.
Trife, 8 Jones, 494; Wright v. Mills, ' Lyons v. Cooledge, 80 111. 529; In
4 Hurl. & N. 488. re Newman, 75 Cal. 213; 7 Am. St.
^ Bradish V. State, 35 Vt. 452; Chase Rep. 146; Mitchell v. Aton, 37 Kan.
V. Gilman, 15 Me. 64; Herring v. Pol- 33; 1 Am. St. Rep. 231; Essig d. Lower,
ley, S Mrtss. 113; Goodail v. Harris, 20 120 Ind. 239
N". H. 363.
§ 39 a THE ENTRY OF JUDGMENTS. 46
daj^s must be allowed, and the rule of computation which
excludes the first day but includes the last is not applica-
ble.' We shall hereafter show that if a judgment is not
entered at the proper time, its entry nunc pro tunc will be
directed by the court, because it will not permit its judg-
ments to be annulled through the mere failure of its clerk
to enter them. It follows from this that a clerk who has
failed to enter judgment within the time directed has
omitted to perform his duty at the most appropriate time,
but that its performance is still due from him, and he
should proceed with it, notwithstanding the lapse of the
time designated in the statute. When he does enter the
judgment it is as valid as if entered in due time;^ though
in the mean tim*e the judge who pronounced it has gone
out of office.^ Unless some statute has given the court
power to act judicially in vacation, there is, in contempla-
tion of law, no court except in term time, and a judgment '
rendered in the interval between two terms is therefore
void.* The clerk may, however, proceed with his duty to
enter judgments in vacation as well as in term time, if the
judgments themselves were rendered at a time when the
court was authorized to render them.^ There ought, how-
ever, when judgment is entered after the expiration of
the term, to be some memorandum in the minutes of the
court sufiicient to guide the clerk in making his entries,
and where such was not the case it was held that a judg-
ment might be stricken out on motion.® In Nebraska it
has been decided to be improper to render judgment and
direct it to be entered when the pleadings in the case had
all been lost,' on the ground, we presume, that the court
ought first to proceed to supply its lost records, so that
when judgment should be entered there could be a com-
' Marvin v. Marvin, 75 N. Y. 240. visors v. Sullivan, 51 Wis. 115; Sieber
"^ Buudy V. Maginess, 76 Cal. 532; v. Friiik, 7 Col. 148; Lind v. Adams,
Waters v. Dumas, 75 Cal. 563, 10 Iowa, 398; 77 Am. Dec. 123.
2 Crim V. Kessing, 89 Cal. 478. ^ Montgomery v. Murphy, 19 Mi
* Post, sec. 121. 576; 81 Am. Dec. 652.
* Myers v. Funk, 51 Iowa, 92; IlifiF ' Grimison v. Russell, 11 Neb.
V. Arnott, 31 Kan. 672; County Super- 469.
47 THE ENTRY OF JUDGMENTS. § 40
plete judgment roll, upon which any party feeling himself
aggrieved might seek relief by appeal or otherwise.
§ 40. In Judgment-book, — The code requires the
keeping of a judgment-book by the clerk, in which every
judgment must be entered.^ In no case ought this re-
quirement to be dispensed with. It applies as well where
the decision of the judge is made in writing and filed as
in any other case.^ The authority of the clerk to make
this formal entry is founded on a judgment already valid,
and whose validity is not destroyed by his failure to enter
it. A judgment drawn up in the form in which it was
intended to be entered, signed by the judge, and filed in
the cause, is the judgment of the court at that time and
of that term, although execution should not be issued
upon it then.^ The action of the clerk, being non-judicial,
may take place at any time afterward. The usual custom,
perhaps, is for him to wait for leisure moments to perform
this duty. In many cases the record is not completed
until after the adjournment of the term. And this prac-
tice seems to have prevailed at common law.'* As the
judgment is final before its formal entry in this book, a
statute providing that an appeal may be perfected within
a specified time from the " rendition " of the judgment
certainly commences to run from the time of the drawing
up and signing of the judgment, and filing it among the
papers in the case.^ The language used in the opinion
of the court in the case of Genella v. Eelyea, 32 Cal. 159,
though not necessary to the decision of that case, is
worthy of citation, as founded upon reason. It indicates
that the time for appeal begins to run though no judg-
ment is filed. " The court announced its judgment and
^ N. Y. Code, sec. 1236; Cal. Code which does not vitiate the iudgment:
Civ. Proc., sec. 6G8. Hotchkiss v. Cuttiiif;, 14 Minn. 542;
2 S. & S. Plank Road Co. v. Thatch- Jorgensen v. Griffin, 14 Minn. 41)6.
er, 6 How. Pr. 226. * Osborne v. Toomer, 6 Jones,
3 Casement v. Ringgold, 28 Cal. .335; 440.
McMillan v. Richards, 12 Cal. 467. * Gray v. Palmer, 28 Cal. 416; Ge-
The omission of the clerk to sign a nella v. Relyea, 32 Cal. 159; Kehoe v.
decree is at most a mere irregularity Blethen, 10 Nev. 445.
§§ 41, 42 THE ENTRY OF JUDGMENTS. 48
the order for judgment was entered in the minutes of the
court on the 15th of August, 1865. The judgment was
therefore rendered and the time for taking an appeal com-
menced to run on that day."
§ 41. Use of Improper Book. — If, as in California,^ the
clerk is required, in addition to the judgment-book, to
keep a "register of actions," and he, neglecting to keep
the first named, copies judgments into the latter, they
are not therefore invalid. The substantial purpose of
the statute is accomplished although the two books are
united. No harm results to any one from this union;^
but, independent of the considerations named, the judg-
ments should be sustained. If, as the authorities state,
judgments are valid when not entered in any book, they
surely ought to be equally valid if entered in some record
of the court, though not in the one designed for that
purpose.^
§ 42. On Verdicts. — The Code of Civil Procedure in
California* requires the clerk to enter judgment in con-
formity to the verdict within twenty-four hours after the
rendition of the verdict, unless the court orders the case
reserved for further consideration, or grants a stay of
proceedings. If there is no doubt as to what judgment
is proper, the better practice is to enter it at once. The
judgment may as well be set aside as the verdict. There-
fore such proceedings as may be appropriate to securing
a new trial, or any other right of the losing party, can be
prosecuted as advantageously upon granting a stay of pro-
ceedings upon the judgment as upon the verdict. The
immediate entering of judgment authorizes the making
up of the judgment roll, and thus secures a lien on the
judgment debtor's real estate. To this security he is at
once justly entitled. If the court delays in granting it to
1 Cal. Code Civ. Proc, sec. 1052. 17; Bond v. Citizens' N. B., 65 Md.
' Jorgensen v. Griffin, 14 Minn. 464. 498,
» Thompson v. Bickford, 19 Minn. * Cal. Code Civ. Proc, sec. 664.
49 THE ENTRY OP JUDGMENTS. § 43
him, be may during the stay of proceedings he deprived
^f the fruits of his litigation.^
"SI ,...,.
Q § 43. Joint Parties. — At common law, m a joint action,
^]^?nvhether upon a joint or a joint and several contract, or
Jipon several distinct contracts, the general rule was, that
LL-ihere could he no judgment except for or against all of
_-the defendants. To this rule the exceptions were: 1. In
,_.\ cases where one or more of the defendants, admitting
-the contract, established a discharge therefrom, as by
' -bankruptcy; 2. Where some one of the defendants pleaded
and proved that he was incapable of contracting when
the alleged contract was made, from some disability, as
infancy. So unyielding was the rule, that when one of
the defendants suffered a default or confessed the action,
no judgment could be given against him, if his co-defend-
ant succeeded in maintaining some defense affecting the
entire contract.^ Codes of procedure, adopted in several
of the states,^ have abolished this rule by enacting that
judgment may be given for or against "one or more of
several plaintiffs, and for or against one or more of several
defendants"; and "that in an action against several de-
fendants, the court may, in its discretion, render judgment
against one or more of them, leaving the action to proceed
against the others whenever a several judgment is proper,"
Under these sections, of two persons sued jointly, one
may obtain a judgment against the plaintiff, and the other
be subjected to a judgment in the plaintiff's favor.* And
in general, a several judgment may be properly rendered
whenever a several action can be sustained.^ In Califor-
nia, in an action against two or more, a judgment may be
entered against the defendants in court, excluding those
1 Hutchinson v. Bours, 13 Cal. 50. ' Cal. Code Civ. Proc, sees. 578, 579;
2 Taylor v. Beck, 3 RancL 3i«; Cole N. Y. Code, l-'04, 1205; Wis. Code,
2 Taylor v. Beck, 3 Rand^ ai«; Cole
V. Pennel. 2 dHanV PJ^ feJr^ffhe v.
ReB^19»ffin-atr.'l; WoodwJu-tU;. New-
41; Ky. Code, 370.
^ R,()we V. Chandler, 1 Cal. 1G7;
hdl,'l^k«irtififtEWi*t?^?tf^hanics' Parker v. Jackson, 16 Barb. 33.
Bank,^* Pet. 4G; Baber ^« iCook, 11 * Harrington v. HiRliam, 15 Barb.
Leigh, S^*]Mlfik«i):^&vis7^ Leigh, 524; Van Ness v. Corkins. VI Wis. 186;
30. Craudall v. Beach, 7 How. Pr. 27L
JUDG. L— 4
§ 44 THE ENTRY OF JUDGMENTS. ^ 50
not appearing and upon whom summons has not heen
served, though the contract appears to be jointly binding
on all of the defendants/ The practice is otherwise in
New York; and that sanctioned by the California cases is
spoken of in terms of strong, and as it seems to us
merited, condemnation. The plaintiff cannot, under the
code, deprive the defendant of the advantage of having
his joint co-contractors united with him in the action,
and their property, as well as his, made liable for the
judgment. Still less ought the plaintiff to be tolerated
in making all the co-contractors parties, for the purpose
of avoiding a plea in abatement; and afterwards, without
leave of the court, or notice to the defendant served,
dropping the unserved defendants from the judgment.^
Every judgment against any joint defendant is irregular
until the other is out of the action, and the issues against
him disposed of. Until then he has the right to appear
at every trial of the issues.^ One of the joint defendants
sued on a joint liability having answered, no judgment
can be taken against those in default until the issues
formed by the answer are disposed of.^
§ 44. Joint Contractors. — Upon serving summons in a
joint action, upon one or more defendants jointly indebted
upon a contract, the plaintiff may, under the code, proceed
against the defendants served, unless the court directs
otherwise; and if he recovers, the judgment may be en-
tered against all the defendants shown to be thus jointly
indebted, so far only that it may be enforced against the
joint property of all, and the separate property of those
served.® This provision is not applicable to a proceeding
to foreclose a mortgage, and obtain a decree for the sale
of the premises mortgaged. The fact that two persons
have joined in the mortgage does not create a presump-
1 Ingraham v. Gildemeester, 2 Cal. * Brown v. Richardson, 4 Robt.
88; Hirschfield v. Franklin, 6 Cal. 607. 603.
« Niles V. Battersliall, 27 How. Pr. * Catlin v. Latson, 4 Abb. Pr. 248.
381; Sager v. Nichols, 1 Daly, 1; * Cal. Code Civ. Prnc, sec. 413;
Fowler v. Kennedy, 2 Abb. Pr. 347. ' N. Y. Code, sees. 1932-1935.
51 . THE ENTRY OF JUDGMENTS. § 45
tion that the property therein described is owned by them
jointly.^
§ 45. Construction. — If no date appeared upon a
judgment, it was presumed, at common law, to be entered
on the first day of the term at which it was rendered.
The rule is different in some of the United States, as in
Maine, Massachusetts, and New Hampshire, where the
rendition is supposed to have occurred at the last day of
the term, unless the contrary appears.^ Including in a
judgment one who, though named as a party to the suit,
never appeared therein, and as to whom the process was
returned not found, has been regarded as a mere clerical
error, neither affecting the party thus included, nor fur-
nishing any ground for a reversal in the appellate court.^
On the other hand, an appeal has been esteemed the ap-
propriate remedy for the correction of a similar error.*
This is doubtless the better opinion. And in those states
where the presumptions in favor of the jurisdiction of
courts of record are liberally indulged and applied, a
party to a suit who considered the unauthorized addition
of his name in the entry of the judgment as a clerical
error not requiring attention, and who failed to correct it
in some manner, would be in imminent peril of such pro-
ceedings as should leave him to regret his misapprehen-
sion and neglect. The entry, " This day came the parties
by their attornej^s, and the plaintiff enters a retraxit" will
not be construed as importing that the plaintiff did not
come in person as well as by his attorney. On the other
hand, it will be presumed, in support of the judgment,
that as the attorney was incompetent to enter a retraxit,
the plaintiff personally made the entry.^ If the entry
of a judgment is so obscure as not to express the final de-
termination with sufficient accuracy, reference may be
' Bowen V. May, 12 Cal. 348. < Joyce v. O'Toole, 6 Bush, 31; Ruby
^ Chase V. Gilinan, 15 Me. 64; Her- v. Grace, 2 Duvall, 540.
ring V. Pdlley, 8 Mass. 113; Goodall i;. ^ Thomason v. Oiluin, 31 Ala. 108;
Harris, 20 N. H. 3(53. G8 Am. Doc. 159; Couk v. Lowtiier, 1
* Savage v. Walshe, 26 Ala. 619. Ld. Kayin. iJ97.
§ 46 THE ENTRY OF JUDGMENTS. 52
had to the pleadings and to the entire record. If, with
the light thrown upon it by them, its obscurity is dis-
pelled, and its intended signification made apparent, it
will be upheld and carried into effect,* In case of doubt
regarding the signification of a judgment, or of any part
thereof, the whole record may be examined for the pur-
pose of removing the doubt. One part of the judgment
may be modified or explained by another part; and un-
certainties in the judgment may become certain under the
light cast upon them by the pleadings or other parts of
the record.^ Though the judgment purports to be against
the defendants, without naming them, only one of them
will be bound, if it aj^pears from the context that only he
was meant,^ or from the return of the service of process
that only he was brought within the jurisdiction of the
court.* On the other hand, though the word "defendant"
is written in the body of the judgment, it will be construed
as referring to and including all the defendants named in
the caption.^
§ 46. Form. — At common law, the judgment or sen-
tence of law commenced with " it is considered by the
court that plaintiff or defendant recover," etc. Those
words were considered peculiarly appropriate, as involv-
ing and expressing the idea that what was about to be
ordered was not the sentence of the judges, but of the law.
They came to be inseparably associated in the minds of
lawyers with the entry of a judgment. The chief stress
was laid upon the word " considered." In Arkansas, the
insertion of " ordered and resolved " in the place ordi-
^ Fowler v. Doyle, 16 Iowa, 534; ' Barnes r. Michigan Air L. R'y Co.,
Finnagan v. Manchester, 12 Iowa, 521; 54 Mich. 243.
Beers v. Shannon, 73 N. Y. 292; Foot * Malaney v. Hughes, 50 K J. L.
V. Glover, 4 Blackf. 313; Bell v. Mas- 546; Clark v. Finnell, 16 B. Mon.
sey, 14 La. Ann. 831; Peniston v. 329; Bovd v. Baynham, 5 Humph.
Somers. 15 La. Ann. 679. 380; 42 "Am. I)ec. 43S; Neal v. Sm-
2 Clay V. Hildebrand, 34 Kan. €94; gleton, 26 Ark. 491; Winchester v.
Fleenor v. Driskill, 97 Ind. 27; Hof- Beardin, 10 Humph. 247; 51 Am.
fertbert v. Klinkhardt, 58 III. 450; Dec. 702.
Walker v. Page, 21 Gratt. 636; Flack ^ Myers v. Hammons, 6 Baxt. 61.
V, Andrews, 86 Ala. 395,
53 THE ENTRY OP JUDGMENTS. § 47
narily occupied by " considered " was held to make the
entry a nullity,' No judgment, according to the view then
taken, had been entered. No objection was made to the
words as ambiguous, or as in any way failing to designate
the "sentence" or final determination of the court. But
the words used, it was thought, did not import that the
law had acted or spoken in the matter, and the case was
sent back to the subordinate court, to await the time when
the law should speak in stereotyped language. This view
was hypercritical in the extreme. No authority in sup-
port of it was cited, except the general statement in Black-
stone's Commentaries, that the language of a judgment
is not that "it is resolved or decreed," but that "it is
considered." Some years later the same court came to
consider a judgment commencing with "it is therefore
ordered, adjudged, and decreed."^ The former decision
was left unchanged, with an intimation that it was prob-
ably correct. But the words "ordered, adjudged, and
decreed" were said to be, when united, equivalent to
" considered," and the judgment was sustained.
§ 47. Form. — Whatever may have been requisite for-
merly, it is evident that the sufficiency of the writing
claimed to be a judgment must, at least under the code,
be tested by its substance rather than by its form. If it
corresponds with the definition of a judgment as estab-
lished by the code; if it appears to have been intended
by some competent tribunal as the determination of the
rights of the parties to an action, and shows in intelligible
language the relief granted, — its claim to confidence will
not be lessened by a want of technical form, nor by the
absence of language commonly deemed especially appro-
priate to formal judicial records.* The entry of a judg-
' Baker v. State, 3 Ark. 491. Pa. St. 101; 53 Am. Dec. 573; Elliott
^ Ware v. Peimington, 15 Ark. v. Jordan, 7 Baxt. 37G; Bank of Old
22G. Dominion v. McVeigh. .32 Gratt. 5.30;
3 Church V. Grossman, 41 Iowa, .373; Clark v. Melton, 19 S. C. 498; Little
Lewis V. Watrus, 7 Neb. 477; McNa- P. C. M. Co. v. Little C. C. M. Co., 11
mara v. Cabon, 21 Nel). 5S9; Potter v. Col. 223; 7 Am. St. Rep. 226- Terry
Eaton, 26 Wis, 382; Kase v. Best, 15 v. Berry, 13 Nev. 514.
§ 48 THE ENTRY OF JUDGMENTS. 54
ment, like every other composition, should be comprised
of those words which will express the idea intended to be
conveyed, with the utmost accuracy. It should also be a
model of brevity, and should contain no unnecessary
directions. The forms in use at common law answer
these requirements so well, that little or nothing can be
gained by departing from them. At law, it is not neces-
sary to state in a judgment any of the precedent facts or
proceedings on which it is based; ^ and this rule applies
under the codes, whether the relief granted is legal or
equitable.^ Wherever the code renders the insertion of
matters formerly required in a judgment or decree un-
necessary, the practice should conform to the law now in
force, rather than to that which is abolished. For in-
stance, judgments foreclosing mortgages should follow the
directions of the code of procedure in the state wherein
the judgment is entered,^ in preference to the old forms
of chancery practice. They should contain only a state-
ment of the amount due to the plaintiff, a designation of
the defendants liable personally, and a direction that the
premises, or so much thereof as shall be necessary, be
sold according to law, and the proceeds applied to the
payment of the judgment and costs. The copying into
the decree of the directions of the statute adds nothing to
the clearness or force of these directions. All that part
providing for the report of the sheriff, the confirmation of
the sale, who may become purchasers, and their rights
pending the time for redemption, the execution of a con-
veyance if no redemption be made, the delivery of pos-
session, the docketing of the judgment for any deficiency
remaining after sale, accomplishes no better purpose than
to encumber the record.*
§ 48. Use of $. — In actions to enforce the payment of
taxes, the insertion of numerals without any mark to
designate what they were intended to represent has in
1 Hamilton v. Warrl, 4 Tex. 356. » q^\ Code Civ. Proc, sec. 7'26.
2 Judge V. Booge, 47 Mo. 544. * Levistoii v. Swau, 33 Cal. 480.
55 THE ENTRY OF JUDGMENTS. § 48
at least tTVO states* been held to leave the judgment fatally-
defective. A similar decision appears in the reports of
the supreme court of the United States; but it was made
in a case where that court, as stated in its opinion, con-
sidered itself bound by the decisions of the Illinois courts.
Nor do the courts of Illinois confine this principle of
decision to judgments for taxes. In the case of Carpenter
V. Sherfy, 71 111. 427, the plaintiffs, in attempting to de-
raign title to certain lands under an execution sale against
their former owner, offered in evidence a judgment "for
four hundred and sixty-one and ^ damages." The court
said: "Whether this amount is cents, mills, or what, we
are left entirely to conjecture. We have no right to in-
dulge in presumptions as to what was found by the court;
we must take the record as it reads. A judgment should
be for a certain and definite sum of money. This judg-
ment is not for any sum of money, and can only be re-
garded as a nullity." 2 On the other hand, the highest
court in another state has determined that a verdict and
judgment are presumed to be for the things or the denomi-
nation of currency sued for, rather than for something
else, and that a judgment for " 525," upon a complaint
claiming "$525," must be construed as being for the same
denomination of money named in the complaint, and
therefore not void for uncertainty;' and this view seems
to be supported by the rule that a judgment must be con-
strued, in case of obscurity, with the aid of the pleadings
and of the entire record. In Minnesota, while a judgment
for taxes in numerals only, with nothing to show what
they represent, is void for uncertainty, yet if there is a
line or decimal-mark separating the figures, those on the
left of it will be understood to denote dollars, and those
' Lane V. Bommelman, 21 111. 143; and not for francs, or any other forei^
Lawrence v. Fast, 20 111. 338; 71 Am. currency: Erlanger v. Avegno, 24 La.
Dec. 274; Pittsburg etc. R. R. Co. v. Ann. 77.
Chicago, 53 III. 80; Tidd v. Rines, 26 ^ To the like effect, Hopperw. Lucas,
Minn.'sOl. A judi/meiit in the United SG Ind. 43.
States should be for dollars and cents, ' Carr ». Anderson, 24 Miss. 183.
§§ 48 a-50 THE ENTRY OF JUDGMENTS. Sft
on the right cents, and the judgment will therefore be
treated as certain and valid.^
§ 48 a. A Judgment, Expressed in Figures as to its
amount, these figures being in connection with a dollar-
mark, was objected to on the ground that the statute
required judicial records to be written in the English
language; but the court was not disposed to hold that the
defect was of a character to render the judgment abso-
lutely void and of no avail in a collateral proceeding.^
§ 49. Filling Blanks. — A court ordered judgment to be
entered upon a promissory note, directing the clerk to
compute the amount due. He made the entry, leaving
blanks for the amounts. Fourteen months afterwards, he
filled the blanks by inserting the proper sums. This it was
decided might be such an irregularity as could be reached
by a writ of error, but it was not available against the
judgment in a collateral action.^ There may be instances
in which the leaving of unfilled blanks is not fatal to tlie
judgment; but this must,* we apprehend, be upon the
ground that there is sufficient evidence before the court
in which the judgment is called in question to show that
it was pronounced as a final judgment, and is entitled to
credit as such, though not yet properly entered. So long
as there are any blanks which should be filled by insert-
ing amounts, we think the better view is, that there is no
entry of judgment as to an amount which is not so in-
serted; and that the omission in the judgment-book can-
not be supplied by docket or other entries which should
themselves be based upon the judgment entry.'
§ 50. Sufficiency of Entries — General Tests of. — It
now remains in this chapter to note some of the decisions
* Gutswiller v. Crowe, 32 Minn. ♦ Gray's Heirs v. Coulter, 4 Pa. St.
70. 188; Ulshafer v. Stewart, 71 Pa. St.
» FuUerton v. Kelliher, 48 Mo. 542. 170.
See sec. 50 b. * Case v. Plato, 54 Iowa, 64; Noyes
* Lind V. Adams, 10 Iowa, 398; 77 v. Newmarch, 1 Allen, 61; Lea o.
Am. Dec. 123. Yeates, 40 Ga. 56.
57 THE ENTRY OF JUDGMENTS. § 50 a
in which the sufficiency of various entries of judgments
has been questioned and determined, and the general
principles which may be evolved therefrom. The cases
are not altogether consistent. This arises, perhaps, from
the fact that some minds are deeply impressed with the
importance of matters of form, and actuated by the dread
of encouraging a loose and unlawyer-like practice; while
others, paying little regard to technical considerations,
are inclined to recognize and enforce that which, though
confessedly informal, is capable of being readily under-
stood and carried into effect. I think, however, that from
the cases this general statement may be safely made:
That whatever appears upon its face to be intended as the
entry of a judgment will be regarded as sufficiently for-
mal if it shows, — 1. The relief granted; and 2. That the
grant was made by the court in whose records the entry
is written.-^ In specifying the relief granted, the parties
against and to whom it is given must, of course, be suffi-
ciently identified. According to the supreme court of
Alabama, "a judgment should show the plaintiff who re-
covers, the defendant against whom the recovery is liad,
and the special thing or amount of money recovered."^
§ 50 a. The Designation of the Parties for and against
Whom the judgment is given must in all cases be suffi-
cient to enable the clerk to know at whose instance to
issue execution, and against whose property it may be
properly enforced. Hence a judgment for or against the
captain and master of the steamer Mollie Hamilton,'^ or
the legatees of Philip Joseph,* or against a defaulting wit-
ness by his proper name, but not stating in whose favor,®
is insufficient, if the whole record or judgment roll does
not clearly disclose the parties for and against whom
' Flack V. Andrews, 86 Ala. 395. 19 Ala. 198; hut a judgment in favor
* Spence v. Simmons, 16 Ala. 828. of the heirs of a designated person lias
' Steamer Molhe Hamilton v. Pas- heeii sustained: Sliaclileford v. Fouu-
chal, 9 Heisk. 203. tain, 1 T. B.^Mon. 252; 15 Am. Dec.
* Joseph's Adin'r v. His Legatees, 5 115; Parsons*'. Spencer, 83 Ky. 305.
Ala. 280; Turner v. Dupree'a Adm'r, * Spence v. Simmons, 16 Ala. 828.
§ 50 a THE ENTRY OF JUDGMENTS. 58
the judgment is given. On the other hand, it is equally
well settled that the names of the parties need not be
stated in the body of the judgment.' The name of the
firm may be given, instead of the names of its individual
members, or the parties may be designated generally as
the plaintiffs or the defendants, provided a reference to
the caption, or to the pleadings, process, and proceedings
in the action, makes certain the names of the parties thus
designated;^ and although a judgment purports to be
against the defendants generally, its effect will be limited
to one only, if from the whole record it is manifest that
he, and he only, was intended.' But in Louisiana a
judgment against certain named persons and others, as
defendants, does not create a judicial mortgage or lien
against the lands of any defendant whose name is not
stated in the judgment entry, although it can be ascer-
tained by examining the pleadings.* As heretofore sug-
gested, every judgment may be construed and aided by
the entire record. A mistake in the name of a party is
therefore rarely of serious consequence. If his name is
incorrectly spelled, the principles of idem sonams may
render the error immaterial;® if his initials are reversed,
or otherwise misstated in the entry, the mistake may be
cured by reference to other parts of the record. If he
sued or was sued by a wrong or fictitious name, or by
some designation which included a part only of his name,
and was personally served with process, and, failing to
urge the misnomer in any way, judgment was entered for
or against him, either by his- correct name® or by such
mistaken, fictitious, or imperfect name, it is valid and
' Aldrich v. Maitland, 4 Mich. 205; 521; Holcomb v. Tift, 54 Mich. 647;
Smith V. Chenault, 48 Tex. 455; Goof- Banning v. Sabin, 41 Minn. 477; post,
gion ?). Gilreath. 32 S. C. 388. sec. 155, and ante, sec. 45.
2 Wilson V. Nance. 11 Humph. 189; * Ford v. Tilden, 7 La. Ann. 533.
Little V. Birdwell, 27 Tex. 688; Col- ' Rowe v. Palmer, 29 Kan. 337;
lins V. Hyslop, 11 Ala. 508; Hays v. Mallory w. Riggs, 76 Iowa, 748.
Yarborough, 21 Tex. 487; McCartney •* Kronski v. Missouri Pac. R'y, 77
V. Kittrell, 55 Miss. 253; Smith v. Mo. 362; McGaughey v. Woods, 106
Chenault, 48 Tex. 455. lud. 380.
' FiQuagaa v, Manchester, 12 Iowa,
59 THE ENTRY OF JUDGMENTS. § 50 b
enforceable.^ While the parties to a judgment may, per-
haps, be described in terms, the meaning of which cannot
be ascertained from the record, as where they are desig-
nated as the heirs of J. F.,^yet this practice is not worthy
of encouragement. There must be no question that the
judgment is for and against some person or persons; and
if against certain persons or their representatives or as-
signs, it is void for uncertainty.^
§ 50 b. The Amount, in Case the judgment is for money,
must be designated. It has sometimes been adjudged
that the amount cannot be expressed in figures, even when
preceded by a dollar-mark to show what the figures were
intended to express.^ The supreme court of Illinois has
also said "that amounts should not, in the judgment of
a court, be entered in figures, but in all cases by letters.
There is no safety in using figures for such purpose. It
is not to be tolerated."* We concede that the entry
in figures of the amount of a judgment is unsafe, and
ought not to be encouraged. We nevertheless believe that
judgments so entered would not be adjudged void in the
majority of the states.^ The amount must in all cases
be certain. Thus judgment for a specified sum, subject
to a credit " for one hogshead of tobacco delivered in the
year 1799," without ascertaining the value of the tobacco,
is fatally indefinite and uncertain.' The final judgment
ought to designate the precise amount recovered, and not
^ Vogel v. Brown Township, 112 Ind. incorrect publication of plaintiff's
299; 2 Am. St. Rep. 187; Newcomb name: Ex parte Cheatham, 6 Ark. 531;
V. Peck, 17 Vt. 302; 44 Am. Dec. 340; 44 Am. Dec. .525.
Root V. Fellowes, 6 Gush. 29; First ^ Shackleford v. Fountain, 1 T. B.
Nat. Bank v. Jaggers, 31 Md. 38; 100 Mon. 252; 15 Am. Dec. 115; Parsons
Am. Dec. 53; Petterson v. Litta, 74 v. Spencer, 83 Ky. 305.
Iowa, 223; Lindsay v. Delano, 78 Iowa, ^ Miller v. Peters, 25 Ohio St.
350; Hoffield v. Newton Board of Ed., 270.
33 Kan. 644. Where, however, sum- ^ Smith v. Miller, 8 N. J, L. 175; 14
mons is served by publication against Am. Dec. 418.
defendant by her maiden name, and ^ Linder v. Monroe, 33 111. 390.
judgment entered in that name, it does ® See sec. 48 a.
not affect her: Freeman v. Hawkins, ' Early v. Moore, 4 Munf. 262. See
77 Tex. 498; 19 Am. St. Rep. 769; also Berry v, Anderson, 2 How. (Miss.)
and perhaps a like result follows the 652.
§ 50 C THE ENTRY OF JUDGMENTS. 60
leave it to be determined by a subsequent computation.*
But if there is a verdict for a definite sum, judgment
thereon for the " said sum of dollars, assessed as
aforesaid," is sufficiently explicit.^ It is not fatal to a
judgment that a computation is necessary to ascertain tlie
amount of the recovery if it furnishes the data for such
computation,^ as where it is for a sum designated, with
lawful interest from a specified date.*
§ 50 c. The Property which is the subject of a judg-
ment or decree must also be described with sufficient
certainty to leave its identity free from doubt;^ but the
bill or complaint may be referred to in the judgment,
for the purposes of description.® The judgment may be
either for. the possession or the sale of real or personal
property, and while it is being executed, or afterwards, a
question may arise whether its descriptive words are suf-
ficient to support a sale made by virtue of its authoriza-
tion, or to justify the execution of a writ of possession
based upon it. So far as any general rule can be formu-
lated upon this subject, we apprehend it is this: That a
judgment may be aided by the pleadings and other parts
of the record, and if the description obtainable from it
and them would be sufficient if found in a conveyance to
divest the title of the grantor, it will be sufficient to sus-
tain sales made or possession taken under the judgment,^
and otherwise, that the judgment and all proceedings
1 Nichols V. Stewart, 21 111. lOS; Minogue, 29 Ark. 637; Tribble v.
Smith V. Trimble, 27 111. 152; Ander- Davis, 3 J. J. Marsh. 633; McManus
son V. Reed, 11 Iowa, 177; Landerman v. Stevens, 10 La. Ann. 177; Shepherd
V. McKinson, 5 J. J. Marsh. 234; v. Pepper, 133 U. S. 626.
Mudd V. RoL'ers, 10 La. Ann. 648. « Jones v. Belt, 2 Gill, 106; Foster
* Ellis V. Dunn, 3 Ala. 632; Dyer v. v. Bowman, 55 Iowa, 237.
Hatch, 1 Ark. 339. ' Coleman v. Reel, 75 Iowa, 304;
* Guild V. Hall, 91 111. 223; Dins- Posey u. Green, 78 Ky. 162; Miller w.
more v. Austill, Minor, 89; Ladnier v. Indianapolis, 123 Ind. 796; Wright v.
Ladnier, 64 Miss. 368; Stokes v. San- Ware, 50 Ala. 549; Bloom ?'. Biirdick,
born, 45 N. H. 274. 1 Hill, 130; 37 Am. Dec. 299; McWil-
* Wilbur V. Abbot, 58 N. H. 272; liams v. Walthall, 65 Ga. 109; De
Morrisons. Smith, 130 111. 304. Sepulveda v. Baugh, 74 Cal. 4GS; 5
° Gayle v. Singleton, 1 Stew. 566; Am. St. Rep. 455.
Hurt V. Moore, 19 Tex. 269; Jones v.
61 THE ENTRY OF JUDGMENTS. ' § 50 d
under it must be treated as void/ In California, after
great deliberation, the conclusion was reached and an-
nounced, that the description of land in a judgment must
be perfect in itself, and cannot be aided by a reference
in the judgment to any paper or record not constituting
a part of the judgment roll in the case in which the
judgment was rendered; and judgments were treated as
void which directed the sale of land, and referred for
purposes of description to certain deeds, the dates and
places of record of which were specified, or to a final
judgment in partition making an allotment of the land
in controversy.^ These decisions were ultimately over-
ruled, as they deserved to be.^ If the description referred
to is itself uncertain, it cannot aid the judgment, as where
a writ is directed to issue to restore to plaintiff possession
of the lands, or so much thereof as are not farther south
than the boundary line described in the verdict, and the
verdict merely designates such line as being seven and
nine feet south of a certain hedge.*
§ 50 d. A Judgment of Conviction may be said to
consist of two parts, to wit: 1. The facts judicially ascer-
tained, together with the manner of ascertaining them,
entered of record; 2. The recorded declaration of the
court pronouncing the legal consequences of the facts
thus judicially ascertained. Both of these parts are
equally necessary in the entry of a judgment of convic-
tion. "In the first part it is usual and proper to set
forth in the minutes of the court the title and number of
the case, the calling of the case for trial, the appearance
of the parties, the plea of the defendant, and if 'not
guilty' the selection, impaneling, and swearing of the
' Hearne v. Erhard, 33 Tex. 60; laid out in town lots by James Roach,
Keith V. Hayden, 26 Minn. 212. and have been sold and conveyed
* Crosby v. Dowd, 61 Cal. 557; Hill prior to the execution of the mortgage
V. Ware, 66 Cal. l.SO. herein," has been adjudged fatally de-
s De Sepulveda v. Baugh, 74 Cal. fective: Bowen v. Wickersliam, 124
468; 5 Am. St. Rep. 455. But a de- Ind. 404; 19 Am. St. Rep. i06.
Bcription of a tract of land, "except * Robertson v. Draue, 100 Mo.
Buch portions as have heretofore been 273.
§§ 50 e, 51 THE ENTRY OF JUDGMENTS. 62
jury, the submission of the evidence, the charge of the
court, the return of the verdict, and the finding of
the jury. In the second part it should be declared upon
the record, in connection with the verdict, in the event of
a conviction, that it is considered by the court that the
defendant is adjudged to be guilty of the offense as found
by the jury, and that the defendant be punished as it has
been determined by the jury, — in cases where they have
the right to determine the amount, or the duration and
place of punishment, — setting forth particularly the
amount, or the duration and place of ^punishment, in
accordance with the nature and terms of the punishment
prescribed in the verdict." ^
§ 50 e. The Signature of the Judge to the judgment or
the record in which the judgments are entered is some-
times required by statute; and in some states its omission
has been held fatal,^ either as making the judgment void,
or as presumptive evidence that the alleged judgment had
never received judicial sanction. More frequently, how-
ever, statutory'' requirements of this character have been
adjudged to be directory merely, and the absence of the
judge's signature to in no way impair the effect of the
judgment,'^ whether it is legal or equitable in character.
§ 51. Sufficient Entries, Examples of. — "I give judg-
ment." These words, if the parties are made certain and
the amount ascertained by other parts of the judgment,
are as effective as: "It is considered that plaintiff recover,"
etc.* "Whereupon the court orders that plaintiff pay the
1 Mayfield v. State. 40 Tex. 290; man, 56 Iowa, 443; Clapp v. Hawley,
Roberts v. State, 3 Tex. App. 47. See 97 N. Y 610; Keener v. Good^on, 89
ante, sec. 21 a. N. C. 273; Gunn v. Tackett, 67 Ga.
2 Saloy V. Collins, 30 La. Ann. 63; 725; French v. Pease, 10 Kan. 51;
State V. Jumel, 30 La. Ann. 421; Ray- Fontaine v. Hudson, 93 Mo. 62; 3 Am.
mond V. Smith, 1 Met. (Ky.) 65; 71 St. Rep. 515; Rollins v. Henry, 78
Am. Dec. 458; Hatch v. Arnault, 3 N. C. 342; Cannon v. Hemphill, 7 Tex.
La. Ann. 48-'; Galbraith v. Sidener. 184; Cathcart v. Peck, 11 Minn. 45;
28 Ind. 142; Ferguson v. Chastant, 35 Childs v. McChesney, 20 Iowa, 431; 89
La. Ann. 4S5. Am. Dec. 545.
* Crim V. Kessing. 89 Cal. 478; Baker * Deadrick v. Harrington, Hemp.
V. Baker, 51 Wis. 538; Traer v. Whit- 50.
63 THE ENTB,Y OF JUDGMENTS. § 51
costs of suit, and that execution issue therefor," in a record
showing the trial by a jury and a verdict for the defend-
ants, though not in technical language, is sufficient to
constitute a valid judgment.* ''We should not hesitate
to enforce a judgment because 'decreed' or 'resolved'
was used instead of 'considered,'"^ "No judgment will
be reversed for the use of inappropriate or untechnical
words." ^ " No particular form is required in the pro-
ceedings of the court, to render their order a judgment.
It is sufficient if it is final, and the part}- may be injured."*
"A judgment, in addition to the ordinary circumstances
of time and place, sbould exhibit the parties, the matters
in dispute, and the result, but the form is immaterial."^
The following have been determined to be sufficient
entries of judgments: "I hereby render judgment against
plaintiff for costs herein. Judgment rendered against
plaintiff for costs."' "After hearing the proof, it is the
opinion of the court that the defendant, Anton Gabon, is
indebted to the plaintiff in the sum of $100. It is there-
fore considered and adjudged by me that Anton Gabon
pay to the plaintiff, McNamara and Duncan, the sum of
$100, with interest from December 20, 1883, and costs of
suit, taxed at $3.15."^ "Whereupon the court orders that
plaintiff pay the costs of suit, and that execution issue
therefor." ^ " Therefore it is considered and adjudged by
the court that the plaintiff in this action have judgment
against the defendants for the sum of $226.45 for his said
damages on his said action, and the sum of $35.55 for his
costs and disbursements, and that he have execution
therefor."^ "Now, on motion of plaintiffs' attorneys it
is adjudged that plaintiffs have judgment herein for the
sum of $476, and one cent damages, and for their costs,
* Huntington v. Blakeney, 1 Wash, ' Ordinary v. McClure, 1 Bail. 7.
129. 8 Marsh v. Snyder, 14 Nel), 8.
'•'Taylor v. Runyan, 3 Clarke, ' McNamara i>. Cal)on, 21 Neb. 5S9;
474. Black V. Gallon, 24 Nel). 248.
^ Minkhart v. Hankler, 19 111. 47. "* Huntington v. Blakeney, 1 Wash.
* AVells V. Hotjan, Breese, 3J7; John- 111.
son V. GiLett, 52 111. 300. » Potter v. Eaton, 26 Wis. 382.
§ 52 THE ENTRY OF JUDGMENTS. 64
$126.34, amounting in all to $602.35," preceded by a mar-
ginal entry of the names of the parties, and of the trial
before a jury and of their verdict.^ "There being no
issuable plea filed in this case on oath, judgment is ren-
dered by the court for two hundred and ninety-seven
dollars and ninety-nine c^nts principal, with the sum of
ninety dollars and thirty cents for interest to date," the
court being of the opinion that the faiUire to state iu
whose favor the judgment was was immaterial, because it
appeared to be entered on plaintiff's declaration, on the
ground that no sufficient answer had been made thereto.^
" There being no issuable defense filed, ordered that the
plaintiffs have leave to enter up judgment against the de-
fendants."^ Judgment by consent in favor of the plain-
tiff for ten thousand seven hundred and sixty dollars, the
debt in the declaration mentioned, with interest thereon
from the first day of January, 1866, till paid, and costs.
Execution to be stayed for ninety days." * " Therefore
plaintiff for costs," accompanied by the statement of the
justice who entered it, that it appeared to him that he did
not have jurisdiction of the subject-matter.*
§ 52. Insufficient Entries, Examples of. — The entry
must not only indicate what adjudication took place, but
should also appear to have been intended as the entry of
judgment, and not as a mere memorandum by the aid of
which the formal record w^as to be constructed.* "June
14, 1838, judgment sec. reg. for want of plea. January 9,
1839, sum ascertained at $155.07. Interest from June 14,
1838." This writing, being offered as evidence of a judg-
ment, was rejected on the grounds that there was nothing
to show by whom judgment was rendered, or against
whom, nor for what amount, if in fact any judgment had
1 Flack V. Andrews, 86 Ala. 395. ■ * Ease v. Best, 15 Pa. St. 101; 53
» A.lams V. Walker, 59 Ga. 506. Am. Dec. 573.
* Tift V. Keaton, 78 Ga. 235. « Smith v. Steele, 81 Mo. 455; Tom-
* Bank of Old Dominion v. McVeigh, beckbee Bank r. GoJbold, 3 Stew. 240;
32 Gratt. 630. 20 Am. Dec. 80.
65 THE ENTRY OF JUDGMENTS. § 52
ever been given by any court against any person.* It is
obvious that in some of the cases the entry offered in
evidence has been disregarded, not from or on account of
the absence of the essential elements of a judgment record,
but because the court thought that such entry had been
originally designed as nothing but a brief direction to the
clerk, or as a certificate made by the clerk of some judg-
ment already formally put upon the record. Thus "judg-
ment rendered for plaintiff in the above-entitled suit at
the above-named term by the court for the sum of seventy-
eight and ^ dollars damages, and his costs of suit, against
said defendant on motion," was determined not to be the
entry of a judgment. These words certainly show the
action of the court, the nature and extent of the relief
granted, and the parties against and to whom it was
awarded. So far they are appropriate to the record of a
judgment; but they do not appear to be the direction of
the court itself. On the contrary, they seem rather to be
the certificate of the clerk of certain events transpiring
in court, as he recollects them, or as he understands them
from such information as he may possess, than the origi-
nal record of the court in relation to those events.^ The
words "judgment on verdict for $3,000 and costs," though
found among the records, and showing, as they certainly
do, that a final determination had been made, are not the
record of a judgment. They neither show what authority
directs nor how the direction is to be carried into effect.
They are apparently intended as a mere memorandum
for the information of the clerk.® The following entry
was also rejected on a plea of nul tiel record, as implying
at most only a minute of proceedings, and not the solemn
act of the court determining the rights of the parties:
"The following jury was sworn and impaneled [here
follow twelve names], who find all the issues in favor of
the plaintiff, and assess his damages at five hundred and
1 Taylor v. Runyan, 3 Clarke, * Wheeler v. Scott, 3 Wis. 362.
474. » Martin v. Earnhardt, 39 111. 9.
JUDG. L— 6
§ 53 THE ENTRY OP JUDGMENTS. 66
eighty-five dollars. Judgment at September term, 1844,
$585; the costs arising in this suit due to the county, to
witnesses and officers of court, is $134.92,"^ The follow-
ing have been declared to be insufficient as entries of
judgments: "December 6, 1841. Reuben Emory and Har-
riett Emory v. Reuben Abbott, On hearing counsel in
this cause, on motion of George Woodruff, plaintiffs' at-
torney, judgment for plaintiffs on demurrer, and that it
be referred to the clerk to compute the amount due on
the bond mentioned in the plaintiffs' declaration, and the
clerk having computed the amount due on said bond at
eight hundred dollars, the penalty thereof to be discharged
on the payment of six hundred and twenty-four dollars
and eleven cents, and costs to be taxed." ^ A record show-
ing the issuing and return of a writ, and a docket entry
that "the court grant judgment"; that proceedings had
been taken before a sheriff's jury, by which the amount
of plaintiff's damages has been assessed, and that another
docket entry was thereupon made that "the court grant
judgment on the finding of the inquest.'" "The court,
after due consideration, sustained said demurrer, and ren-
dered judgment for the defendant, and against the plain-
tiff for the costs of the action, taxed at $11.20."* "Verdict
for plaintiff; let writ issue."® "Judgment rendered upon
the verdict of the jury."^
§ 53. Justices' Courts. — Though the nature of a final
adjudication in a justice's court is in no respect different
from that of a court of record, several causes uniting have
produced rules of construction by which the records of
the former court are scrutinized with less severity than
those of the latter. In the first place, the higher courts
being presided over by men of learning, and supplied
with officers whose sole duties consist in keeping the
1 Hinson v. Wall, 20 Ala. 298. * Miller v. B. & M. K R, R. Co., 7
* Whitwell V. Emory, 3 Mich. 84; 59 Neb. 227.
Am. Dec. 220. » Stark v. Billings, 15 Fla. 318.
3 Rape V. Heaton, 9 Wis. 328; 76 « Meyer v. Teutopolis, 131 111.
Am. Dec. 269. 152.
67 THE ENTRY OP JUDGMENTS. § 53 a
various papers filed in court in proper place and condi-
tion, and in reducing the various orders and directions of
the judges to writing upon records required by law for
that purpose, a loose memorandum would naturally be
viewed with distrust when offered as the final result of
all this learning and formality. Its form at once dis-
tinguishes it as an intruder, and shows its humble origin
and design. But as justices of the peace, except in cities,
rarely know anything of the technical learning of the
common or even of the statute law, to insist upon their
keeping their records with that accuracy and formality
required in courts of record would end in the complete
overthrow of most of their proceedings. Besides, as jus-
tices of the peace have no clerks assigned them by law,
there is little ground for the presumption that even loose
and disjointed memoranda, found upon their minutes or
dockets, were designed as rough outlines for another hand
to round into more perfect form.
§ 53 a. Failure of Justice to Enter Judgment. — In New
York, justices of the peace are required to enter their
judgments in their dockets within four days after the ren-
dition thereof. But, under the general rule that the entry
of the judgment is a ministerial act, the failure of a justice
to comply with this part of the law within the time re-
quired has, by repeated decisions, been held to leave the
judgment in full force.' The judge who delivered the
opinion of the court of appeals in a recent case said
the failure of the justice to obey the law is deserving of
I Hall V. Tuttle, 6 Hill, 38; 40 Am. the presence of the by-standers and
Dec. 382; Walrod v. Shuler, 2 N. Y. entering it on the docket: Smith v.
134; Martin v. Pifer, 96 Ind. 245. In Bahr, 62 Wis. 244. In Iowa, on the
Wisconsin, however, where the statute other hand, " forthwith," as used in
requires a justice, on receiving a ver- statute concerning entry of judgments,
diet, to render judgment forthwith, his is interpreted as signifying witiiin a
failure to so render it deprives him of reasonable time, and a justice is not re-
jurisdiction, and his judgment rendered quired tolay aside all other affairs, that
fourteen hours afterwards is void: he may act at once; though he delays
Hull V. Mallory, 56 V\'is. 355; Sibley twenty-four hours, he may bo consid-
V. Howard, 3 Denio, 72; 45 Am. Dec. ered to have acted forthwith: Davis v.
448. The statute is not satisfied by Simma, 14 Iowa, 154; 81 Am. Dec. 462;
merely reading the verdict aloud in Burchett v. Casaday, 18 Iowa, 344.
§ 53 a THE ENTRY OF JUDGMENTS. 68
censure, but added: " I am unable to find any principle of
law requiring us to hold that the omission to docket must
inflict a penalty upon the plaintiff, more justly due to the
magistrate." ^ In Maine, a justice of the peace, after being
out of office for three or four years, completed the record
of a case tried during his official term, by writing up a
judgment in his judgment-book. Of this transaction,
Mellen, C. J., said: "A magistrate does not act judicially
in making up and completing his record. In doing this,
he performs himself what this court does through the
agency of its clerk. It is a mere ministerial act. The
judgment is regular." ^ In a case before a justice of
the peace in California, the jury rendered a verdict in
favor of the plaintiff "for one hundred and seventy-five
dollars, in gold coin." This verdict was entered in the
justice's docket, but no judgment was in fact entered in
pursuance thereof. Subsequently, on api^lication of the
plaintiff, the justice issued an execution, reciting that a
judgment had been rendered by him for that much money,
and for costs of suit. Under this execution, a sale was
made by the sheriff, at which the plaintiff became the pur-
chaser. Relying upon title derived from this sale, the
plaintiff brought an action of ejectment to recover the
realty purchased by him; but the defendant insisted that
the sale was void, on account of the failure to enter judg-
ment upon the verdict. In considering this portion of
the defense, the court said: "The justice, upon receiving
the verdict, was required by statute to 'immediately ren-
der judgment accordingly.' The formal entry of the judg-
ment was therefore a mere clerical duty imposed upon
him by the statute, and the performance of which he had
no discretion to decline. He might have been compelled
to make the proper entry in his docket by judicial pro-
ceedings instituted against him for that purpose by the
plaintiff; and it may be conceded that to issue an execu-
tion before judgment entered in form upon the verdict
1 Fish V. Emerson, 44 N. Y. 377. ^ Matthews v. Houghton, 11 Me. 377.
69 THE ENTRY OP JUDGMENTS. § 54, 55
would be a bad practice, and that a timely motion by the
defendant to set it aside for that reason should be sup-
ported. That would be so, however, not because such an
execution would be void, but because it would be irregular
merely. And a failure to make the objection would, of
course, amount to a waiver of the irregularity. As was
said by the supreme court of New York:^ 'We are to
overlook matters of form, and to regard proceedings be-
fore justices of the peace according to the merits. Accord-
ingly, in that case, a plea of former judgment in favor of
the defendant was held to be supported by proof of a ver-
dict in his favor, upon which the justice of the peace
ought to have rendered judgment, but had omitted to do
so.' "2
§ 54. Reference to Another Case. — The entry of a
judgment, even in a justice's court, must either be perfect*
in itself, or be capable of being made perfect by reference
to other parts of the docket, or to the papers on file in the
action. An entry in which the identity of the parties can-
not be ascertained without referring to the entry of some
other case is fatally uncertain. The rule of construction
permitting all the records and papers in a case to throw
light upon an obscure entry is sufficiently liberal, and
ought not to be extended so as to include the records or
pleadings in another suit.^
§ 55. On an Award. — An action being tried by refer-
ees, they reported " that the defendant is indebted to the
plaintiff on the above complaint in the sum of four dol-
lars, and nine dollars and six cents costs of suit," The
justice of the peace thereupon wrote: "Judgment rendered
December 26, 1840. M. Tindal." A marginal note stated
the amount of judgment and costs to be the same as
1 Felter v. Mulliner, 2 Johns. 181. ' McClellan v. Cornwell, 2 Cold.
2 Lynch V. Kelly, 41 Cal. 232. See, 298; Tombeckbee Bank v. Strong's
to same effect, Gaines v. Betts, 2 Doug. Ex'rs, 1 Stew. & P. 187; 21 Am. Dec.
(Mich.) 98; Hess v. Beckman, 11 Johns. 657.
457; Overall v. Pero, 7 Mich. 315.
§ 55 THE ENTRY OF JUDGMENTS. VO
named in the report. This was held to constitute a suffi-
cient entry, because the inference was unavoidable that
the judgment was intended to be in conformity with the
award, this inference being strengthened by the marginal
note, to which resort could be properly had to explain and
uphold the judgment.^
Note. — The following entries of judgments have been considered sufficient
in the higher courts: "Peacham, 16, 1828. Judgment rendered by the
court for plaintiflf, at $5.25. R. Blanchard, Justice of the Peace," accompanied
by marginal entry of "Costs allowed, $5.25": See Story v. Kimball, 6 Vt.
541. ^' H. C. Anderson v. M. L. Elcan, Judgment granted v. defendant, M.
L. Elcan, for $433.90. May 17, 1857. C. J. Spencer, J. P.": Ander.ion v.
Kimhrough, 5 Cold. 260. In Baratt v. Garragan, 16 Iowa, 44, the transcript
showed the proceedings up to and including trial, after which was written:
"Judgment for plaintiff against the defendant for , October 24, 1856: —
"Damages $84 00
' ' Justice's fee $0 SO
"Const 25
"Two witnesses 25
1 30
$85 30"
Tills was pronounced a perfect judgment. It exhibited the time, the parties,
and the result so clearly as to be unmistakable. This case was subsequently
approved in Church v. Crossman, 41 Iowa, 373. In New York, the words
" Fish V. Emerson. Testimony submitted June 30, 1863.
"Judgment for plaintiflf; damages $124 80
3 92
128 72"
.— were held to be sufficient as the entry of a judgment: 44 N. Y. 376.
On the other hand, a judgment in this form: "The plaintiff filed his demand
for thirty dollars; the defendant not appearing, the plaintiff proves his demand,
and I gave judgment for the same," — was reversed for not being such a judg-
ment as the law requires: Polhemus v. Perkins, 15 N. J. L. 435. "Be it re-
membered that at Barnard, April 23, 1836, Asaph Wilder, of Woodstock, -was
attached to answer James Wright, of Barnard, on former judgment of Lyman
Stewart, Esq., in a case, James Wright v. Loren Gay. Now, the plaintiff says
that the judgment of Lyman Stewart was collected by E. Parker, deputy
sheriff, and converted same to his own use, and never accounted for same, nor
any part thereof. The said Wright recovered judgment by default for the
sum of $15. 15 damages, and $1 .99 costs of suit. Winslow W. Ralph, Justice
of the Peace," — upon a plea of nul tiel record was considered as containing no
legal evidence of a judgment, on the ground that it showed no court holden,
no appearance by either party, no adjudication by the justice, no allusion to
any writ or process or declaration, and uo award of execution: Wriglit v.
1 Elliott V. Morgan, 3 Harr. (Del.) 316.
71 THE ENTKY OF JUDGMENTS. § 55
Fletcher, 12 Vt. 431. A jury returned a verdict: "We, the jury, find in favor
of the plaintiff, and assess his damages at in the sum of $4,493"; and the record
showed the entry "whereupon the court enters judgment on the verdict." It
was held that this entry had no element of a judgment other than the mere
recognition of the verdict. "The ideo considemtum est is wanting": Faulk v.
Kcllums, 54 111. 189. "Gave judgment in favor of plaintiff for $171 and costs"
is a sufficient entry of a justice's judgment: Hutchinson v. Fulghum, 4 Heisk.
550.
§ 56 ENTRY OF JUDGMENTS NUNC PRO TUNC. 72
CHAPTER III.
OF THE ENTRY OF JUDGMENTS AND DECREES NUNC PRO TUNC.
Part I. — WHERE NO JUDGMENT WAS RENDERED.
§ 56. Policy and antiquity of the practice.
§ 57. Cases where delay is occasioned by non-action of the court.
§ 58. Where party is tied up by some motion.
§ 59. Entry to be made only when case was ready for final judgment.
§ 60. Not to be made, where the delay is not by the court.
Part II. —JUDGMENTS RENDERED, BUT NOT ENTERED.
§ 61. Cases where judgment was rendered, but not entered.
§ 62. Evidence to base entry upon.
§ 63. Parol evidence as basis of.
§ 64. Practice on application for.
§ 65. Withdrawal of jurisdiction.
§ 66. Saving of rights of third persona.
§ 67. Effect of.
§ 68. Must be confined to clerical omissions.
Part I. —JUDGMENTS NOT RENDERED.
§ 56. Policy and Antiquity of the Practice. — The
policy of entering judgments and decrees nunc pro tunc
is agreeable to the maxim, Actus curie neminem gravabit:
an act of the court shall prejudice no one. This maxim,
says Mr. Broom, " is founded in justice and good sense;
and affords a safe and certain guide to the administration
of the law."^ As an expression of the principle upon
which judgments are given effect, as of sometime prior to
their actual entry, the maxim, in the interests of accuracy,
requires to be changed to " a delay of the court shall pre-
judice no one." The power of making an entry nunc pro
tunc seems to have been possessed and exercised by courts
of law and of equity from the earliest times.^ The period
in which this power could be successfully invoked was
never limited;^ a decree in one instance being entered
1 Broom's Legal Maxims, 115. Iowa, 41; Davis v. Hooper, 4 Stew. &
2 Mayor of Norwick ?;. Berry, 4 Burr. P. 231; 24 Am. Dec. 751; Long v.
2277; Hodges v. Templer, 6 Mod. 191; Long, 85 N. C. 415.
Evans v. Rees, 12 Ad. & E. 167; Mays ^ Reily v. Burton, 71 Ind. 118; Ful-
V. Hassell, 4 Stew. & P. 222; 24 Am. ler v. Stebbins, 49 Iowa, 376. The
Dec. 750; Shephard v. Brenton, 20 power may be exercised in crimmal
73 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 57
after the lapse of twenty-three years.^ The practice was
confined to those cases in which some hardship would be
visited upon one of the parties without any fault of his^
unless he was relieved from it by allowing his judgment
to be entered at some period when he was legally entitled
thereto, and of such a date as was necessary to avoid the
embarrassment in which he would otherwise be involved.
The power to enter judgments, decrees, and orders nunc
pro tunc is inherent in the courts, both at law and in
equity, and is not dependent for its existence upon
any statute.^ Whether it is inherent in the courts
in the sense that they cannot be deprived of it by the
legislature is, so far as we are aware, an undetermined
question; but doubtless every statute purporting to confer
this power or to provide the mode in which it may be
exercised will be regarded as cumulative merely, and not
as withholding the power, in cases where it existed by the
common law, nor as limiting its exercise to the time and
mode designated in the statute.^
§57. Delay of the Court. — The cases naturally re-
solved themselves into two classes. The first comprised a
large number of actions in which no judgments had ever
been rendered, but which were, so far as the suitors could
make them, in condition for the rendition of final judg-
ments. The second was composed of cases, comparatively
few in number, in which judgments, though formally
pronounced, had from accident or from negligence of the
clerks never been put upon the records. The first class
contained not only the greater number of cases, but each
of the cases within it was, in all probability, more deserv-
ing of relief than any of the cases of the second class. No
prosecutions as well as in civil cases: (U. C.) 152; Reid v. Morton, 119 111.
Ex parte Beard, 41 Tex. 2.34; Smith v. 118.
State, 1 Tex. App. 408, 516; Ex parte * Mitchell ». Overman, 103 U. S. 62;
Jones, 61 Ala. 399. Reid v. Morton, 119 III. 118; Burnham
' Daniell's Chancery Practice, 1219; v. Bailing, 16 N. J. Eq. 310.
Lawrence v. Richmond, Jacob & W. * Chissom v. Barbour, 100 Ind. 1;
241. See also Downs v. Lewis, 11 Vcs. Fuller v, Stebbius, 49 Iowa, 370.
601; Drummond v. Anderson, 3 Grant
§ 57 ENTRY OF JUDGMENTS NUNC PRO TUNC. 74
case could be ranked among the first class in which the
delay to render or enter judgment was imputable to any
negligence or even misapprehension of the parties. The
rule that no judgment would be ordered entered nunc pro
tunc excejDt for delay of the court admitted of no excep-
tions in theory, and was so constantly observed in prac-
tice that one of the judges remarked that he had never
known of its violation during his experience, extending
at bar and bench over a period of forty years.^ The neces-
sity for entering judgments as of some day prior to their
rendition arose chiefly, if not exclusively, in those cases
where, after the trial and submission of a cause, one of
the parties died, as no judgment could properly be entered
bearing date subsequent to his death. As the suitor who
brought his action on to trial, and caused it to be tried
and submitted, had manifestly been guilty of no laches,
the court protected him from any prejudice he might
suffer by the death of his adversary after such submission;
and instead of permitting the action to abate, directed the
judgment to be given effect, if necessary, as far back as
the day of the submission. Thus the time taken by the
court for deliberation was, as far as possible, prevented
from working injustice to the party ^vho should in the
end prevail in his suit.^ In the appellate courts, if a
cause is argued and submitted either upon the merits or
upon motion to dismiss the appeal, and thereafter one of
the parties dies, the final judgment of reversal or afiirm-
1 Heathcote v. Wing, 11 Ex. 855; Paine, 483; Perry v. Wilson, 7 Mass.
Freeman v. Trannah, 12 Com. B. 406; 393; Springfield v. Worcester, 2 Cush.
Fishmongers' Co. v. Robertson, 3 Com. 52; Astley v. Reynolds, 2 Strange,
B. 970; Lawrence v. Hodgson, 1 917; Neil v. McMillan, 27 U. C. Q. B.
Younge & J. 368. 258; Day v. Cameron, 15 U. C. Q. B.
2 Jarrett's Estate, 42 Ohio St. 199; 175; Abington v. Lipscomb, 11 L. J.
Mitchell V. Schoonover, 16 Or. 211; 8 Q. B., N. S., 15; Miles v. Wil-
Am. St. Rep. 282; Jennings v. Ashley, liams, 16 L. J. Q. B., N. S., 47; Miles
5 Pike, 128; Pool v. Loomis, 5 Pike, v. Bough, 15 L. J. Q. B., N. S., 30;
110; Jones v. Le Davids, 2 Fowler's Turner v. L. & S. W. R'y Co., 43 L. J.
Ex. Pr. 169; Campbell v. Mesier, 4 Ch. 430; Wilson v. Myers, 4 Hawks,
Johns. Ch. 344; 8 Am. Dec. 570; 73; 19 Am. Dec. 510; McLean v. State,
Davies V. Davies, 9 Ves. Jr. 461; Wood 8 Heisk. 22; Key v. Goodwin, 4 Moore
f. Keyes, 6 Paige, 478; Hess v. Cole, & S. 620.
23 N. J. L. 116; Griswold v. Hill, 1
75 ENTRY OF JUDGMENTS NUNC PRO TUNC. §§ 58, 59
ance or dismissing the appeal will be entered as of some
day prior to the death of the party but subsequent to the
argument.*
§ 58. Delay Occasioned by Motions.— Besides the de-
lay occasioned by the deliberations of the judges after the
argument of a cause, the prevailing party was likely to be
tied up by various motions whose pendency deprived him,
for a time, of the fruits of his litigation. The considera-
tion of these subjected him to the same peri] and entitled
him to the same relief as though he were endangered by
being compelled to await the decision of the judges after
the argument on the trial.^ Hence if during the pen-
dency of a motion in arrest of judgment,^ or for a new
trial, "whether after verdict or nonsuit, on demurrer or
writ of error,'' or to reduce the amount of an award,^ or
if pending the decisions of questions of law which could
not be heard on account of press of business in court," ^
one of the parties dies, the other may have judgment
entered as of some term during the lifetime of his oppo-
nent.
§ 59. Made only when Cause was Ready for Final
Judgment. — But in every case, to entitle the applicant to
have his judgment entered nunc pro tunc on account of
the death of one of the parties, the action must at the
time of such death have been ready for the rendition of
^Richardson v. Green, 130 U. S. * Spalding v. Congdon, 18 Wend.
104; Powe v. MoLeod, 76 Ala. 418; 543; Ryghtmyret;. Durham, 12 Wend.
Snow v. Carpenter, 54 Vt. 17; Citizens' 245; Currier v. Lowell, 16 Pick. 170;
Bank v. Brooks, 23 Fed. Rep. 21. Tooker v. Duke of Beaufort, 1 Burr,
2 Mitchells. Schoonover, 16 Or. 211; 147; Terry i;. Briggs, 12 Cush. 319;
8 Am. St. Rep. 282; Skidaway S. R. R. Dial v. Ilolter, 6 Oliio St. 228; Den v.
Co. V. Brooks, 77 Ga. 136; Goddard v. Tomlin, 18 N. J. L. 14; 35 Am. Dec.
Bolster, 6 Me. 427; 20 Am. Dec. 320; 525.
Tapley v. Goodsell, 122 Mass. 176; ^ Bridges v. Smyth, 8 Bing. 29.
Long w. Stafford, 103 N. Y. 275; Board « Miles v. Williams, 9 Q. B. 47;
V. Hall, 79 N. C. 606; Witten V. Kobe- Tapley v. Martin, 116 Mass. 275;
son, 31 Mo. App. 525; Paige's Estate, Blaisdell v. Harris, 52 N. H. 191;
50 Cal. 40. Seymour v. Greenwood, 30 L. J. Ex.
^Tidd's Practice, 8th ed., p. 966; 189; Moor v. Roberts, 3 Com. B., N.S.,
Griffith V. Ogle, 1 Binn. 172; Brown v. 844; 4 Jur., N. S., 241; 27 L. J. Com. P.
Wheeler, 18 Conn. 199. 161.
§ 60 ENTRY OF JUDGMENTS NUNC PRO TUNC. 76
the final judgment.^ It is not sufficient that an interlocu-
tory judgment had been pronounced, and proceedings
were pending in pursuance of a writ of inquiry,^ nor that
judgment had been given against the defendant on de-
murrer with leave to amend. In each of these cases no
judgment could properly have been entered when the
death occurred, and that event ought not to give the sur-
vivor any greater advantage than he previously possessed.
"It [entering judgments nunc "pro tunc] should be con-
fined to cases where the judgment is final, as where a
verdict has been rendered or a nonsuit ordered, which is
confirmed by the court on motion for a new trial, or
where a judgment is rendered on a special verdict, de-
murrer to evidence, or a w^it of error. But according to
the present practice judgment on demurrer is seldom
final." 3
§ 60. Delay, not of Court. — If, however, the delay is
in no wise attributable to the court, nor to the tying up
of the case during the time required to dispose of such
motions as we have mentioned, no doubts nor difficulties,
nor mistakes of law, in which one of the parties has been
involved, will entitle him to this relief.* If, for instance,
the counsel in a case are unable to decide at once what
form of judgment or decree is best, and while discussing
this matter among themselves the plaintiff or defendant
dies,^ or if a party, upon applying to have judgment
signed, does not press the matter because one of the
officers suggests a doubt as to whether it is not a legal
holiday, and the defendant dies the same day,^ neither of
these cases warrants the interposition of the court. The
court is in no way blamable for the doubts or misappre-
^ O'Riordan v. Walsh, 8 I. R. C. L. Kissam v. Hamilton, 20 How. Pr.
158; Hall v. Brown, 59 N. H. 198; 375.
Hazards. Durant, 14 R. I. 25; Perkins * Tuomy v. Dunn, 77 N. Y. 515.
V. Dunlavy, 61 Tex. 241. Contra, * Fishmongers' Co. v. Robertson, 3
Webber v. Webber, 83 N. C. 280. Corn. B. 970; 16 L. J. Com. P., N. S.,
2 Jennings v. Ashley, 5 Pike, 12S. 118; 4 Dowl. 6o&.
» North V. Pepper, 20 Wend. 677; « Wilkes v. Perkes, 5 Man. & G. 376.
77 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 61
hensions of the parties nor of their advisers, and it will
not change its course of proceeding to relieve them from
the consequence of any mistake of law or of fact. That
there is a surviving defendant is not a sufficient objection
to the entry of judgment nunc pro tunc, if the other facts
authorize it.' The rule that judgment will not be entered
nunc pro tunc will, unless to relieve a party from injury
attributable to a delay of the court, be enforced even
where a delay has been occasioned by the party against
whom the entry is sought to be made. Thus where judg-
ment would have been entered within two terms after
the entry of the verdict but for the fact that the plain-
tiff's executor was delayed in proving a will on account
of a caveat entered by the defendant against the probate
being granted, the court, though conceding the case to be
one of extreme hardship, denied the application to enter
judgment nunc pro tunc, one of the judges saying: "I
think we ought not to be induced, by our desire to do
substantial justice in the individual case, to depart from
those general principles which are the only safe guides
for the administration of the law." ^
Part II. — CASES OF JUDGMENTS RENDERED, BUT NOT ENTERED.
§ 61. In Relation to the Second Class of Cases, some
degree of negligence is always chargeable against the par-
ties for not attending to having the proper entries made.
Frequently, however, both parties suppose the judgment
to be entered as well as rendered. Upon that supposition,
process is issued and enforced, or other proceedings taken
to carry out the judgment, and new rights and interests
are based upon it. To protect these, it is occasionally
necessary to have the judgment entered as of some time
prior to their inception. The entry of judgment nunc pro
tunc is always proper when a judgment has been ordered
by the court, but the clerk has failed or neglected to copy
1 Harrison v. Heathorn, 6 Scott N. " Freeman v. Trannah, 12 Com. B,
R. 797; 1 Dowl. & L. 529. 406; 21 L. J. Com. P., N. S., 214.
§ 61 ENTRY OF JUDGMENTS NUNC PRO TUNC. 78
it into the record.^ Therefore, if a judgment of divorce
has been rendered which the clerk of the court has ne-
glected to enter until after the death of one of the parties,
he may be directed to enter it nunc pro tunc as of some
day in the lifetime of the decedent,^ on application of one
who was not a party to the cause, and, when entered, it
becomes operative as of the day of its rendition, and if
collaterally drawn in question it is conclusive as to all
matters of evidence necessary to its validity.' A sale of
the lands of a minor having been made and reported to
the court, and the judge having indorsed on the report
his approval of the sale, an order was entered sixteen
years afterwards approving the sale as of the day when
the approval was indorsed on the report." It would be
idle to attempt the enumeration of the different classes of
judgments which may be entered nunc pro tunc, for the
rules of law upon this subject are no less applicable to one
class of cases than to another. Nor is the power to make
nunc pro tunc entries confined to judgments and decrees.
It is a power which courts have and liberally exercise, to
make their records speak the truth, and if a clerk has
omitted to make an entry of any proceeding, whether be-
fore or after the final judgment or decree, the court may
require him to supply his omission nunc pro tunc.^ A
judgment thus entered need not be one which the court
or judge formally pronounced, if it was one which the law
required the clerk to enter. Hence a clerk's neglect to
enter, at the proper time, a judgment by confession or of
voluntary dismissal may be set right by a nunc pro tunc
entry." It has been said that a court would not order
judgment entered nunc pro tunc to enable a party to avoid
iHagler v. Mercer, 6 Fla. 721; * Estate of Cook, 77 Cal. 220; 11
Howell V. Morlan, 78 111. 162: Frank- Am. St. Rep. 267.
lin V. Merida, 50 Cal. 289; Fulton v. ^ In re Cook's Estate, 83 Oal. 415.
Fulton, 8 Abb. K C. 210; Hansbrough * Reid v. Morton, 119 111. 118.
?; Fudge, 80 Mo. 307; BelkintJ. Rhodes, ^ State v. Cox, 33 La. Ann. 10o6;
76 Mo. 643; Forbes v. Navra, 63 Miss. State v. Moran, 24 Neb. 103; Security
1; Whorley v. M. & C. R. R. Co., 72 Co. v. Arbuckle, 123 Tud. ol8. ^
Ala. -20; Aydelotte v. Brittain, 29 Kan. ® Mountain v. Rowland, 30 G-a, 929;
98; Whittaker v. Gee, 63 Tex. 435. Davis v. Barker, 1 Ga. 559.
79 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 61
its effect by pleading against it his discharge in bank-
ruptcy, and the reason suggested was, that the court
would not thus aid him " to release himself from a valid
claim against him." ^ There was, however, in the case in
which this suggestion was made, no reason for entering
the judgment as requested. The action was still pending
when the discharge was granted, and it was not then
known that any judgment would ever be entered against
the bankrupt. He had not been prejudiced by any delay
of the court, nor by any omission of its clerk, and was,
therefore, not entitled to the special relief which he
sought. Had the judgment been rendered against him
before his discharge was granted, we apprehend that the
court would have ordered it entered as of its proper date,
though his object in procuring such entry was to bring
the judgment within the operation of the discharge.
Surely, one should not be deprived of a legal right granted
him by the law and the courts, through the legal wrong of
a clerk in omitting to discharge the duties imposed on
him by law.
The questions of the greatest importance and difficulty
in relation to the entry of judgments, orders, and decrees
nunc pro tunc are. How shall it be shown, — 1. That a judg-
ment was rendered as alleged? and 2. If so rendered,
what were the nature and extent of the relief given by it?
During the term the proceedings are under control of
the court, and no embarrassing questions can arise in
relation to the exercise of its correctory powers. But
after the term, upon what evidence can a motion for
the entry of judgment as of some prior term be based?
Upon this subject the decisions are not numerous. In
most cases where the propriety of the entries came in
question, the facts are stated in the reports without any
intimation as to how those facts were made apparent to
the court. Probably the weight of authority sustains
the rule that only by some entry or memorandum on or
1 Hall V. Brown, 59 N. H. 198.
§ 61 ENTRY OF JUDGMENTS NUNC PRO TUNC. 80
among the records of the court can the rendition of
a judgment be proved.^ It is not necessary that the
record state in express terms that a judgment was en-
tered. If the facts shown by it " are such as to reason-
ably and fairly carry conviction that a judgment was in
fact rendered, this is sufficient."' While in some of the
cases in which judgments have been ordered entered nunc
pro tunc it appeared that the judges rendering them had
prepared written decisions, or had signed formal judg-
ments or decrees, these facts were not material, except in
so far as the decisions gave "the clerk surer means of
correctly entering what had been adjudged." If the fact
of the rendition of the judgment sufficieutl}'- appears from
the minutes of the court, it may be ordered entered nu7ic
pro tunc, though no written decision was filed and no
formal judgment was signed by the judge, or prepared by
the attorneys.^ An entry must somewhere be found and
produced in court, apparently made by the authority of
the court. It must be in some book or record required
to be kept by law in that court. Under this rule, a decree
filed among the papers in a cause, signed by the judge,
when the law did not require decrees to be reduced to
writing and filed, and when no part of the records showed
the rendition of any decree, was considered insufficient to
Avarrant its entry nunc pro tunc as the formal decree of
the court.* The motion docket being a book required by
law to be kept, the memoranda there made are competent
evidence to show the rendition of a judgment.* So is the
opinion of a judge in writing, filed among the records in
a case, if the law required it to be written and filed.^
1 Metcalf v. Metcalf, 19 Ala. 319; 54 85 Tenn. 377; Shackelford v. Levy, 63
Am. Dec. 190; Hegeler v. Henckell, 27 Miss. 125; Camoron v. Thurmond, 56
Cal. 491; Fletcher v. Coombs, 58 Mo. Tex. 22. Contra, Bobo v. State, 40
430; Draughan v. Tombeckee Bank, 1 Ark. 224.
Stew. 66; 18 Am. Dec. 38; Swain v. =* Wittenv. Robison, 31 Mo. App. 525.
Naglee, 19 Cal. 127; Hyde v. Curling, » Estate of Cook, 77 Cal. 220; 11
10 "Mo. 359; Witten v. Robison, 31 Am. St. Rep. 267.
Mo. App. 525; Gibson v. Choteau, 45 * Hudson v. Hudson, 20 Ala. 364;
Mo. 171; 100 Am. Dec. 366; Herringz;. 56 Am. Dec. 200.
Cherry, 75 Ala. 376; Robertson v. * Yonge v. Broxson, 23 Ala. 684.
Pharr, 56 Ga. 245; Cadwell v. DuUag- « State v. Mayor of Mobile, 24 Ala.
ban, 74 Iowa, 239; Carter v. McBroom, 701.
81 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 62
§ 62. Evidence to Base Entry on. — But assuming the
evidence to be competent for the purpose for which it is
offered, and to show the rendition of some judgment, the
question then to be determined is, Does it siiow with suffi-
cient clearness what that judgment was? and if not, may
its obscurity be removed by the use of other means of
proof? The entry by a judge in his docket, "Jury and
verdict for plaintiff, and fifteen per cent damages," taken
in connection with the papers on file, was adjudged to
afford no sufiicient data for judgment nunc -pro tunc, be-
cause the verdict may have been for less than the amount
claimed by the plaintiff.^ The memoranda on the trial
docket of the orphans' court, as follows: "Joshua Morris,
heir of A. Metcalf, use of J. W. Williamson, v. Adams.
Judgment on demurrer. Leave to amend granted on
payment of costs of the term. Costs paid by S. T. Roach,
attorney. Ordered to appoint auditors, Benjamin Wald-
ing, Mathew Johnson, and Daniel Johnson. Ordered that
they report instanter. Auditors' report in the hands of
administrator, $469.82," — were held not to sustain a nunc
pro tunc decree, on account of their not showing the pres-
entation of any accounts, the amounts received or paid
out, the name of the administrator, nor whether the set-
tlement was partial or final.'^ The words on motion
docket, "Oct. Term, 1841, — Nonsuit," with lines drawn
across the names of the plaintiff and defendant, according
to the custom when a case was stricken from the docket,
all done, confessedly, by the presiding judge at the time,
authorize the entry of a judgment nunc pro tunc.^ In
Missouri, an entry nunc pro tunc cannot be sustained, if
the court must, as to some essential fact, have acted either
■upon the recollection of the judge or upon evidence not
found in the records or quasi records in the cause;* but
an order granting a motion may be entered nunc pro tunc,
1 Dickens v. Bush, 23 Ala. 849. ♦ Blize v. Castilo, 8 Mo. App. 290;
* Metcalf V. Metcalf, 19 Ala. 319; 54 Belkin v. Rhodes, 76 Mo. 643; Gamble
Am. Dec. 190. v. Daugherty, 71 Mo. 599; Atkinson r.
» Short V. Kellogg, 10 Ga. 180. Atchisou etc. R. R. Co., 81 Mo. 50.
Jddq. I. — 6
§ 62 ENTRY OP JUDGMENTS NUNC PRO TUNC. 82
if it appears from the files of the court that the motion was
made and what its purpose was, and from a recital in an
order of court that the motion had been granted.^ In
Indiana, an entry nunc pro tunc must be sustained by
something in addition to parol evidence or the recollec-
tion of the judge. Therefore an order cannot be made
after the expiration of a term of court stating that time
was granted in that term for the filing of a bill of excep-
tions, when there is no record to sustain it.^ The courts
of Alabama, whose reports are wonderfully prolific in
cases involving the power to enter judgments nunc pro
tunc, have viewed such entries with unfounded alarm, and
have seen the dangers arising from their encouragement,
through some exaggerating medium. These courts are
severe in their condemnation of the practice of assisting
the record memoranda by parol evidence. An entry on
the docket, "Estate of Solomon Perkins, deceased," "Final
settlement," "Settlement made," accompanied by proof of
the terms of the decree from memoranda made by the
attorney on the back of the account, and by the testimony
of the judge that he pronounced an oral decree in con-
formity with the memoranda, having been used with
success upon the hearing of a motion to have a decree
ordered entered in conformity with the proof of its ren-
dition, the action of the court was reversed upon appeal,
the appellate court saying: "If we can hold this sufficient,
there is no telling where we ought to stop. If a judge can
refresh his memory by writings made by a third person,
and prove the terms of his decree in that way, it is the
same in principle as allowing the terms of any judgment,
verdict, or decree to be established altogether by oral
testimony; and this would be a very dangerous precedent,
and going much further than any of our decisions war-
rant."* The extreme position here taken is the logical
* Hansbrough v. Fudge, 80 Mo. 307. verdict of a jury in favor of plaintiff,
* Schoonover v. Reed, 65 Ind. 313; signedby its foreman, does not author*
Nye V. Lewis, 65 Ind. 326. ize the entry of judgment nunc pi'O
^ Perkins v. Perkins, 27 Ala. 479. tunc, there being no entry in any record
The fact that a paper is among the to show the rendition of judgment;
files in a case, purporting to be the Herring v. Cherry, 75 Ala. 376.
83 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 63
result of the general rule frequently announced and more
frequently violated, that a record can only be amended
by some matter of record. Chief Justice Gibson, more
than twenty years ago, said: "The old notion that the
record remains in the breast of the court only till the end
of the term has yielded to necessity, convenience, and
common sense." ^
§ 63. Parol Evidence as Basis of. — Whether the "old
notion " has yielded so far as to authorize the entry of a
judgment as of some prior date, when there is no record
evidence of its rendition at such date, is doubtful; but the
fact of the rendition of a judgment being made evident
by the record, a decided preponderance of authority au-
thorizes the court to proceed in its subsequent investiga-
tions with the aid of oral as well as of written evidence.
Were the rule otherwise, the power of courts to furnish
relief, made necessary by the negligence or inadvertence
of their clerks, would be so restricted in its operation as
to be of little or no utility. The instances where, in the
absence of the formal entry of judgment, the records show
the final determination with accuracy and completeness
are few in number. Our attention should not be so
riveted upon the possible evil which might occasionally
arise from establishing by parol the terms of some unre-
corded adjudication as to make us oblivious to the more
probable evil of refusing to protect the interests growing
up under actual adjudications, which, though confessedly
existing, have not been reduced into the most authentic
form. Courts have a continuing power over their records
not affected by the lapse of time. Should the record in
any case be lost or destroyed, the court whose record it
was possesses the undoubted power, at any time afterward,
to make a new record. In doing this, it must seek infor-
mation by the aid of such evidence as may be within its
reach, tending to show the nature and existence of that
which it is asked to re-establish. There is no reason why
* Khoada v. Commonwealth, 15 Pa. St. 272.
§ 63 ENTRY OF JUDGMENTS NUNC PRO TUNC. 84
the same rule should not apply, when, instead of being
lost, the record was never made up, or was so made up as
to express a different judgment than the one pronounced
by the court. Hence the general rule that a record may
bo amended, not' only by the judge's notes, but also by
any other satisfactory evidence.^
" But we think it clear upon the authorities that the
court may make such amendments upon any competent
legal evidence, and that they are the proper judges as to
the amount and kind of evidence requisite in each case to
satisfy them what was the real order of the court." ^
"Each court must necessarily be the proper judge of
what it has decided and adjudged, and when it orders an
amendment of the record, the presumption of other courts
must necessarily be that it does not undertake to order its
clerk to record what it never had decided."* "Whether
there was a mistake in the record was a question of fact
to be established as any other fact in a court of justice by
proper evidence. For this purpose the letter of the chief
justice, the entries on the docket-books, and the testimony
of the witnesses who heard the decision announced in open
court, were all admissible." ^ Such evidence as is compe-
tent to amend a record ought to be competent to supply
one. For a court in interfering with an existing record,
whose inaccuracy is not evident from other matters of
record, moves upon more doubtful ground than in con-
ducting investigations when no matter of record needs to
be modified or overthrown. In Massachusetts, the record
of a judgment was completed after the lapse of twenty
years, and the proposition affirmed that the amount of
evidence for that purpose is within the discretion of the
court.* The evidence in this case was oral. In another
1 IMatheson's Adm'r v. Grant's « Weed v. Weed, 25 Conu. 337; Hoi-
Adm'r, 2 How. 263; Clark v. Lamb, lister v. Judges District Court of Lu-
8 Pick. 415; 19 Am. Dec. 332. cas County, 8 Ohio St. 201; 70 Am.
2 Frink v. Frink, 43 N. H. 508; 80 Dec. 100.
Am. Dec. 172. ' Rugg v. Parker, 7 Gray, 172; 9
* Petition of Inhabitants of Limerick, Gray, 209.
18 Me. 183.
85 ENTRY OP JUDGMENTS NUNC PRO TUNC. § 63
instance the entry seems to have been ordered upon mo-
tion, supported by an affidavit.^ In several other cases,
the reception of parol evidence has been sanctioned, for
the purpose of showing the nature of the judgment alleged
to have been rendered;^ and in one the fact of the rendi-
tion of the judgment as well as the relief granted was
established only by parol evidence.^ Perhaps the most
extreme case upon this side of the question and the one
going the furthest to sustain nunc pro tunc entries is that
of Wight, Petitioner, 134 U. S. 136. In that case the
petitioner sought his release on habeas corpus, and his im-
prisonment was justified under a judgment of a district
court of the United States. Before this judgment was
rendered, the case had been certified to a circuit court of
the United States, and was, so far as the records disclosed,
pending in the latter court when the judgment was ren-
dered in the former, and if such were the fact, the judg-
ment of the district court was void. When the attention
of the circuit court was called to the state of its records,
it, on the 30th of September, 1889, " upon its own motion
based upon its own recollection of the facts of the mak-
ing of the order," on the twelfth day of March, 1889, re-
manding the case to the district court, directed such order
to be entered nunc pro tunc as of the day last named, and
the order being so entered, it then appeared therefrom
that the cause had been remitted to the district court and
that it had jurisdiction over Wight at the time it passed
judgment against him and directed his imprisonment.
In the report of the case it is not shown that any evidence
whatever was oflPered that any order had been made on
the twelfth day of March remanding the case to the district
court. The judge, in directing the nunc pro tunc entry,
professed to act wholly on his recollection, and while there
is no occasion in this instance to doubt the accuracy of
' Doe V. Litherbery, 4 McLean, 442. 555; Davis w. Shaver, 1 Phill. (N. C.) 18;
* Burnett v. State, 14 Tex. 455; 6.') 91 Am. Dec. 92; Aydelotte v. Brittain,
Am. Dec. 1.31; State v. McAlpin, 4 29 Kan. 98.
Ired. 140; Johnson v. Wright, 27 Ga. " Bobo v. State, 40 Ark. 224.
§ 64 ENTRY OF JUDGMENTS NUNC PRO TUNC. 86
such, recollection, and it was probably not disputed by
the prisoner, yet we cannot view this precedent otherwise
than with alarm. If a judge is to act wholly on his recol-
lection, and is not even required to give evidence of it as
if he were a witness, by what method can one injured by
a nunc pro tunc entry obtain a review of the action of the
court? and by what means can an unscrupulous judge,
should one ever be elevated to the bench, be prevented
from entering nunc pro tunc judgments which were never
before rendered ? The court, in making its decision, acted
chiefly upon a statement of the law upon this subject
made by Mr. Bishop in section 1160 of the first volume of
his work on criminal procedure, and that section may
be so construed as to support the action of the court.
The authorities, however, which Mr. Bishop cites do not,
any of them, necessarily sustain the position which the
supreme court of the United States understood him to
maintain, and some of them were decisions of the supreme
court of Missouri, a court which has uniformly refused to
act except upon some matter of record. Of the cases cited
the most relevant was Bilanshy v. State, 3 Minn. 427. An
examination of that case reveals that no final judgment had
been rendered, and that the court proceeded on the ground
that, until final judgment, all proceedings are in fieri and
subject to amendment, and in the case before the court
the counsel for the defendant did not deny that the pro-
posed amendments were necessary to make the record
speak the truth. There is nothing in the report of the
Minnesota case to show whether or not the amendments
were supported by the records, and certainly nothing to in-
dicate that the judge acted on his recollection and in the
absence of all evidence.
§ 64. Practice in Obtaining Nunc pro Tunc Entries. —
The circumstances in which nunc pro tunc entries become
necessary or proper are so varied that rules of practice
applicable to all cases cannot be formulated. Doubtless
87 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 65
all courts have the right and are under the duty to make
their records speak the truth and the whole truth, whether
the parties to the action or any other person wishes them
to do so or notj and a court may therefore direct a nunc
pro tunc entry on its own motion, as was done in Wight's
case, 134 U. S. 136.^ Any person having rights depend-
ent upon or affected by a judgment may call the atten-
tion of the court to the failure of its clerk to enter it, and
ask that the entry be made as of the day when the judg-
ment was rendered.^ The proceedings on application to
enter judgment nunc pro tunc are summary, and not re-
quired to be supported by pleadings.^ The practice in
some courts seems to require the moving party to give
notice of his motion to his adversary,^ and certainly this
is very proper when the entry is not required to be made
as a matter of course, and where the motion is supported
by other evidence than the records or quasi records of the
court. If the moving party wishes to use the entry, when
procured, to affect the rights of one not a party to the
action, he should be notified of the motion. If he does
not appear to have had notice of the rendition of the
judgment, nor of the motion to enter it nunc pro tunc, he
may sometimes escape the effect of the entry .^ The more
usual practice is to proceed ex parte to order entries re-
quired to complete the record, especially where the court
acts solely upon matters of record.'*
§ 65. Termination of Jurisdiction. — In Ohio, it has
been decided that if, after the rendition of a judgment,
and before the entry thereof, the jurisdiction of the court
over that class of cases is withdrawn, the court as to them
1 Crim V. Kessing, 89 Cal. 478. •= Fuqua v. Carriel, 1 Minor, 170; 12
2 Estate of Cook, 77 Cal. 220; 11 Am. Dec. 46; Allen w. Bradfonl, .3 Ala.
Am. St. Rep. 267; Reid w. Morton, 119 281; 37 Am. Dec. 689; Stokes v. Shan-
Ill. 118; Crimu Ke.ssing, 89 Cal. 478. non, 55 Mi.ss. 583; Naber.s ?'. Meredith,
3 Urbaniski v. Manns," 87 Ind. 585. 67 Ala. 333; Long v. Stallord, 103
*Berthold». Fox, 21 Minn. 51; King N. Y. 274; Portis v. Talbot, 33 Ark.
V. Burnham, 129 Mass. 598. 218; Estate of Cook, 77 Cal. 220; 11
* Koch V. Atlantic and Pacific R. R. Am. St Rep. 267; Crim v. Kessing,
Co., 77 Mo. 354. 89 Cal. 478.
§ 66 ENTRY OF JUDGMENTS NUNC PRO TUNC. 88
ceases to exist, and cannot enter its judgment nunc pro
tunc} The correctness of this decision may well be
doubted. The case seems to us to be one where the cor-
rectory powers of the court could have been employed in
the furtherance of justice, without any infringement of the
law. The jurisdiction of the court over the case had been
completed by hearing and determining the issues involved^
and by granting appropriate relief. What remained to be
done after the withdrawal of jurisdiction, either in giving
effect to the judgment or in correcting or completing the
records, the court had power to do by virtue of its general
jurisdiction, and its continuing power over its records.
In considering whether there was an omission of some-
thing from its records which ought not to be omitted, the
court was not in the exercise of the same kind of jurisdic-
tion exercised by it in trying the cause; nor was the
jurisdiction over the records necessarily dependent upon
the continuance of jurisdiction over the subject-matter of
the suit. Where an action was brought under a statute,
and judgment rendered, which was delayed by the pen-
dency of a motion for a new trial, during which the stat-
ute was repealed, judgment was entered as of a time when
the statute was in force,*^
§ 66. Rights of Third Persons.— The entry of judg-
ments or decrees nunc pro tunc is intended to be in fur-
therance of justice.' It will not be ordered so as to affect
third persons who have acquired rights without notice of
the rendition of any judgment.* Generally, such condi-
tions will be imposed as may seem necessary to save the
interests of third parties, who have acted bona fide and
without notice; but if such conditions are not expressed
1 Ludlow V. Johnson, 3 Ohio, 553; 15 Am. Dec. 614; Miller v. Wolf, fi3
17 Am. Dec. 601). Iowa, 233; Smith v. Hood, 25 Pa, St.
* Springfield t). Worcester, 2 Cush. 52. 218; 64 Am. Dec. 692; Bank of New-
3 Hemininc v. Batchelor, 23 Week, burgh v. Seymour, 14 Johns. 219;
Rep. 398; 33 L. T., N. S., 16; 44 L. J. Koch v. A. & P. R. R. Co., 77 Mo. 354;
Ex. 54. Ninde v. Clark, 62 Mich. 124; 4 Am.
* Gaipiu V. Fishburue, 3 McCord, 22; St. Rep. 823.
89 ENTRY OF JUDGMENTS NUNC PRO TUNC. § 67
in the order of the court, they are, nevertheless, to he con-
sidered as made a part of it by force of the law. The
public are not expected nor required to search in unusual
places for evidences of judgments. They are bound to
take notice of the regular records, but not of the existence
and signijfication of memoranda made by the judge, and
upon which the record may happen to be afterwards per-
fected.^ The expression so frequently made that a nunc
pro tunc entry is not to affect the rights of third persons
must not be understood as signifying that effect must be
denied to such an entry in all cases where third persons
have acquired interests. Courts in determining whether
or not to amend or perfect their records are controlled by
considerations of equity. If one not a party to the action
has, when without notice of the rendition of the judgment
or of facts from which such notice must be imputed to
him, advanced or paid money or property, or in other
words, has become a purchaser or encumbrancer in good
faith and upon a valuable consideration, then the subse-
quent entry of such judgment nunc pro tunc will not be
allowed to prejudice him. Otherwise its effect against
him is the same as if it had been entered at the proper
time.^
§ 67. Effect of. — When a judgment has been entered
nibnc pro tunc, and is offered in evidence in another action
or proceeding, it will be presumed to have been entered
regularly and upon competent and sufficient evidence.^
With the exception pointed out in the previous section, a
judgment entered nunc pro tunc must be everywhere re-
ceived and enforced in the same manner and to the same
extent as though entered at the proper time. Though an
execution may have issued, and proceedings under it cul-
» Hays T. Miller, 1 Wash. 163; Jor- * Leonard v. Bronghton, 120 Ind.
dan V. Petty, 5 Fla. 326; McCormick 536; 16 Am. St. Rep. 347; Tapley v.
V. Wheeler, 36 111. 114; 85 Am. Dec. Goodsell, 122 Mass. 176.
388; Graham v. Lynn, 4 B. Mon. 17; *Estateof Cook, 83 Cal. 415; Allen t7.
39 Am. Dec. 493; Acklen v. Acklen, Sales, 56 Mo. 28; Belkin v. llliodes, 76
45 Ala. 609. ^io- 6^:3; Bryan v. Streeter, 57 Ala. 104.
§ 68 ENTRY OF JUDGMENTS NUNC PRO TUNC. 90
minated by the sale of property, when there was nothing
on the record to support it, yet the omission was one of
evidence, and not of fact, and the evidence being supplied
in a proper manner, full force and effect will be given to
the fact as if the evidence had existed from the beginning.*
Where, however, the entry of judgment nunc pro tunc is
not occasioned by the negligence of the clerk in not enter-
ing a judgment duly rendered, but by the death of a party
after the cause was submitted and before its decision,
then the only object of the entry is to relieve the judg-
ment from the apparent error of having been given after
the death of a party. For most purposes, the effect of the
judgment is not different from what it would be had it not
been entered nunc pro tunc, because until its rendition no
proceedings could be taken for its enforcement. There-
fore the statute of limitations does not commence to run
against an action upon it until the date of its actual ren-
dition.^
§ 68. Must be Based on Previous Act of the Court. —
It must be observed that the entire purpose of entering
judgments and decrees as of some prior date is to supply
matters of evidence, and not to supply or modify matters
of fact. The failure of a court to act, or its incorrect
action, can never authorize a nunc pro tunc entr3^ If a
court does not render judgment, or renders one which is
imperfect or improper, it has no power to remedy any
of these errors or omissions by treating them as clerical
misprisions.^
» Graham v. Lynn, 4 B. Mon. 17; 39 ^ Gray v. Brignardello, 1 Wall. 627;
Am. Dec. 493; Davis w. Shaver, 1 Phill. Petition of Inhabitants of Limerick,
(N. C.) IS; 91 Am. Dec. 92; Rugg v. 18 Me. 183; Hyde v. Curling, 10 Mo.
Parker, 9 Gray, 209; Burnett t). State, 359; Gibson v. Chouteau, 45 Mo. 171;
14 Tex. 455; 65 Am. Dec. 131; Bush 100 Am. Dec. 366; Fetters v. Baird;
V. Bush, 46 Ind. 70; Barker v. Stow, 70 Mo. 389; Woolridge v. Quinn, 70
20 Blatchf. 185; Tapley v. Goodsell, Mo. 370; Cassidy v. Woodward, 77
122 Mass. 176. Iowa, 355; Garrison v. People, 6 Neb.
=* Borer v. Chapman, 119 U. S. 587. 274.
91 AMENDING JUDGMENTS. § 69
CHAPTER IV.
AMENDING JUDGMENTS.
§ 69. During term.
§ 70. Correcting judgment after term.
§ 71. Ameniiiug judgment entry.
§ 72. Data for, in the United States.
§ 72 a. Notice of application.
§ 73. Time within which amendments may be made.
§ 74. Eifect of amendments as against parties and strangers.
§ 74 a. Discretion of court in amending judgments.
§ 69. During Term. — " During the terme wherein any
judiciall act is done, the record remaineth in the brest of
the judges of the court, and in their remembrance, and
therefore the roll is alterable during that terme, as the
judges shall direct; but when the terme is past, then the
record is in the roll, and admitteth no alteration, aver-
ment, or proof to the contrarie." ^ Of the law thus laid
down, the only part remaining unshaken to the present
time is, that during the term the proceedings remain in
the breast of the judges. Not only do the records during
that time remain subject to the revision of the court, but
the judgment itself may be altered, revised, or revoked,
as well as amended in respect to clerical errors and mat-
ters of form.^
' Co. Lit. 260 a; 3 Bla. Com. 407. Memphis v. Brown, 94 U. S. 715;
2 Barrel! v. Tilton, 119 U. S. 637; Green v. Pittsburgh etc. R. R. Co., 11
Alabama G. L. Ins. Co. v. Nichols, 109 W. Va. 685. But in Grant ?;. Schmiilt,
U. S. 232; Wolmerstadt v. Jacobs, 61 22 Minn. 1, it was held that the com-
lowa, 372; Ryon v. Thomas, 104 Ind. mon-law rule authorizing the judge to
59; Goddard v. Ordway, 101 U. S. 745; set aside, correct, or modify his judg-
State V. Dougherty, 70 Iowa, 439; ment at any time during the term was
Moore v. Taylor, 1 Idaho, N. S., 630; inapplicable to the system of practice
Morgan v. Eggers, 127 U. S. 63; Burch in that state; that "the control of the
V. Scott, 1 Bland, 112; Dane's Abr., c. court over causes coming before it
146, art. 5, sec. 11; Stahl v. Webster, (except where retained by the statute,
II 111. 511; De Castro v. Richardson, and except the necessary control over
25 Cal. 49; Obenchain v. Comegys, 15 its records which every court has) ter-
Ind. 496; Robinson v. Comm'rs, 12 miuates with the entry of judgment ";
Md. 1.32; Lane w. EUinger, 32 Tex. 369; and therefore that the only mode in
Palsgrave v. Ross, 2 L. C. Jur. 95; which a judgment could be modified
Richardson v. Howk, 45 Ind. 451; or vacated was by appeal, or by
United States v. Harmison, 3 Saw. 556; motion for a new trial.
§ 70 AMENDING JUDGMENTS. 92
§ 70. Correcting Judgments. — As a general rule, no
final judgment can be amended after the term at which it
was rendered. The law does not authorize the correction
of judicial errors under the pretense of correcting clerical
errors. To entitle a party to an order amending a judg-
ment, order, or decree, he must establish that the entry
as made does not conform to what the court ordered.^
Thus if a solicitor inadvertently omits from a decree some
clause which he intended to insert, and presents the decree
to the judge, who adopts it as the judgment of the court,
this is no ground for an amendment, for the facts do not
show that the court intended to pronounce any different
decree from the one prepared by the solicitor; and to
change the record would be equivalent to exercising a
revisory power over the judgment itself by the same
authority that pronounced it.^ The following amend-
ments have been declared improper, because correcting or
revising judicial action, or supplying the want of it, rather
than correcting clerical errors or supplying clerical omis-
sions: Changing a judgment against plaintiff for costs to
a judgment against the person for whose benefit plaintifi"
in his official capacity as clerk of the court brought the
action;^ correcting an alleged error in the mode of com-
puting interest;^ allowing interest when the judgment as
first entered did not allow any;^ showing that the court
was of the opinion that plaintiff" ought to recover costs,
notwithstanding the smallness of his recovery;^ changing a
iGarlington v. Copeland, 32 S. C. 26 Mo. App. 541; Boyd v. Platner, 5
57; Ross V. Ross, 83 Mo. 100; Moore v. Mont, 226.
State, 63 Ga. 165; Becker v. Sauter, 89 ^ Forquer v. Forquer, 19 111. 68;
111. 596; Botkin v. Comm'rs, 1 Ohio, Bac. Abr., tit. Amendments, etc.,
375; 13 Am. Dec. 630; Bramlett v. F; Scroggins's Adm'r v. Scroggins, 1
Pickett, 2 A. K. Marsh. 10; 12 Am. J. J. Marsh. 362; Powell's Appellate
Dec. .350; Balis v. Wilson, 12 Mart. Proceedings, 387; Dor sey v. Dorsey, 37
<La.) 358; 13 Am. Dec. 376; Bethel u. Md. 74; 11 Am. Rep. 528; Kemp v.
Bethel, 6 Bush, 65; 99 Am. Dec. 655; Cook, 18 Md. 131; 79 Am. Dec. 681;
Smith V. Hood, 25 Pa. St. 218: 64 Am. Bertraud v. Gugy, 9 L. C. Rep. 260;
Dec. 692; Crew v. McCafferty, 124 Pa. Huot v. Page, 9 L. 0. Rep. 226.
St. 200; 10 Am. St. Rep. 578; Phillips » Boland v. Benson, 54 Wis. 387.
V. Negley, 117 U. S. 665; Russell v. * Garrett v. Love, 90 N. C. 368.
United States, 15 Ct. of CI. 168; Gray * Factors & T. Ins. Co. v. New. H.
V. Vandyke, 5 Del. 134; Browden v. P. Co., 39 La. Ann. 583.
Faulkner, 82 Ala. 257; Evans v. Fisher, ^ Shackelford v. Levy, 63 Miss. 125.
93 ' AMENDING JUDGMENTS. § 70
judgment of dismissal to one of dismissal " upon merits";^
showing the due appointment of a guardian ad litem for
minors, his acceptance in writing, and his having acted
for such minors in the settlement of an administration.*
To the rule that a judgment as rendered cannot be
amended after the lapse of the term, some apparent ex-
ceptions are well supported by authority. In some of the
states the courts may, at any time, add to their judgments
such clauses as may be necessary to carry them into effect,
when there is anything in the judgment by which to
amend.^ In New York, the omission from a decree of
any matter which, if applied for on the hearing, would
have been granted as a matter of course, "as necessary or
proper to carry into eflPect the decision of the court," will
be supplied on motion.'* In such case the omission will
be corrected by a distinct order, without making any
change upon the decree.^ These exceptions, tolerated at
first on the ground that they did not affect the merits of
the case so as to require a rehearing, came to be regarded
as authority for interference in matters of substance and
importance. An action was instituted on the joint and
1 Williams v. Hayes, 68 Wis. 246. * Gardner v. Bering, 2 Edw. Ch.
2 Hortou V. Beadle, 62 Ala. 32. 131; Ray v. Connor, 3 Edw. Ch. 478;
^ Trammell v. Trammell, 25 Tex. Rogers w. Rogers, 1 Paige, 188; Stan-
App. 261. Thus where it appears nard w. Hubbell, 123 N. Y. 520. "The
from the record that a name ouglit to rule respecting the amendment of de-
have been inserted in the judgment, crees as it has been enforced by this
the record w-as amended by inserting court may be stated as follows: The
such name: Bank v. Seymour, 14 court will not vary or alter au enrolled
Johns. 219. An amendment has also decree in a material point without a
been authorized after the lapse of the bill of review or a rehearing, but it
term so as to make the judgment bear will amend its enrolled decree, even
interest, because, by the rule of the in a material respect, on petition,
court, interest was allowed at a certain whenever amendment is necessary to
rate, and the omission to include it give full expression to the judgment
in the judgment must be deemed a of the court, and the amendment is
clerical error: Bank v. Wistar, 3 Pet. such as the court would have made
481. In En<.dand, the broad rule is when the decree was entered, if it
laid down, that "it is always open to had been asked for": Jones v. Dav-
the court on motion to correct its enport, 45 N. J. Eq. 77; Dorsheimer
judgment to relieve any party who v. Rorbach, 24 N. J. Eq. 38; Ruch-
may be unduly prejudiced by any act man v. Decker, 27 N. J. Eq. 244;
done under its order, and to prevent Jarmon v. Wisnall, 24 N. J. Eq.
any injurious consequences which 68.
may flow from its error ": Kelly, C. B., * Clark v. Hall, 7 Paige, 382.
in Huffer v. Allen, L. R. 2 Ex. 15.
§ 70 AMENDING JUDGMENTS. 94
several bond of two, secured by a mortgage made by one
only. A decree was taken for the sale of the mortgaged
premises and against the mortgagor for the deficiency
which should exist after the sale. Upon application, with-
out suggestion of any misprision of the clerk, the decree
was amended so as to be against both defendants for the
deficiency. Upon appeal, the chancellor said: "I have
hesitated, therefore, whether it could be proper without a
rehearing to amend the decree in a matter of substance
so material to the rights of the appellant; and upon ex-
amination of the cases I am satisfied such an amendment
would not have been permitted in the courts of chancery
in England and in Ireland, without discharging the en-
rollment and granting a formal rehearing of the cause."
He considered, however, that a difi'erent rule had been
established by the cases allowing amendments, by insert-
ing what would have been granted as a "matter of course";
that in the present case both defendants were properly
parties to a decree for the deficiency; that a decree so
drawn would have been signed as "a matter of course" in
the first instance; and therefore that the amendment, as
a matter of course, had been properly made.^ Similar in
effect was the following, from an opinion in a late case in
California: "The judgment in this case as first entered
was defective, in not designating the defendants who were
personally liable for the debt; but inasmuch as the record
shows who they were, the court had power to amend the
judgment at any time, by adding a clause designating the
defendants who were personally liable.^ But the failure
of the court to render judgment according to law must
not. be treated as a clerical misprision. Where there is
nothing to show that the judgment entered is not the
judgment ordered by the court, it cannot be amended.'
^ Sprague v. Jones, 9 Paige, 395. unless it is shown that the judgment
2 Leviston v. Swan, 33 Cal. 480. entered is not the one to which the con-
' Rogers v. Bradford, 8 Bush, 164. sent was given: Knox w. Moser, 72 Iowa,
If a judgment is entered by consent, it 154; McEachem v. Kerchner, 90 N. 0.
cannot be corrected by amendment, 177; Gray v. Robinson, 90 Ind, 527.
95 AMENDING JUDGMENTS. § 70
On the one hand, it is certain that proceedings for the
amendment of judgments ought never to be permitted to
become revisory or appellate in their nature; ought never
to be the means of modifying or enlarging the judgment
or the judgment record, so that it shall express something
which the court did not pronounce, even although the
proposed amendment embraces matter which ought clearly
to have been so pronounced.* On the other hand, there
are many cases in which it so clearly appears that the
judgment as entered is not the sentence which the law
ought to have pronounced upon the facts as established
by the record, that the court acts upon the presumption
that the error is a clerical misprision, rather than a judicial
blunder, and sets the judgment, or rather the judgment
entry, right by an amendment nunc pro tunc.^ The chief
objection to the rule permitting amendments to insert
that which would have been inserted as a "matter of
course," had the attention of the court been directed to it
when the judgment was rendered, is in the uncertainty
of its application, arising from the difficulty of determin-
ing what is a "matter of course." When the facts are
settled by written findings, or otherwise made certain,
every judge, it must be presumed, would as a "matter of
course" award complete and appropriate relief with re-
spect to every matter brought to his attention, if it were
not for the possibility of his erring in regard to the law.
Relief which one judge may grant " as a matter of course,"
another may deny " as a matter of course "; and if amend-
ments in matters of substance may be made as "matters
of course," it may follow that relief may be aw^arded as
an amendment which would have been refused had it
been asked when the judgment was pronounced.
1 McLean v. Stewart, 21 N. Y. Sup. Schroeder's Estate, 46 Cal. 316; Doane
Ct. 472; Milan County v. Robertson, v. Glenn, 1 Col. 456; Sjjrague v. Jones,
47 Tex. 222; Turner v. Christy, 50 9 Paige, 395; Huntington v. Zeigler, 2
Mo. 145; Burning v. Burkhardt, 34 Oliio St. 10; Smith v. Kennedy, 63
Wis. 585. Ala. 334.
'Anderson v. Parker, 6 Cal. 201;
§ 71 AMENDING JUDGMENTS. 96
Generally, when a court has disposed of a cause by its
final judgment, and its jurisdiction is not continued by a
motion for a new trial or some similar proceeding, it has,
after the lapse of the term, no further authority over the
parties or the subject-matter of that action, except such as
arises from proceedings to give effect to the judgment.
It may, however, under the pretense of correcting clerical
errors or omissions, direct the judgment to be altered in
some matter of substance, so as to either withhold relief
given by the original judgment or grant relief not there
awarded. In such a case its action is clearly judicial
and revisory, being devoted to correcting its supposed
errors or its want of action, and not to making its records
speak the truth. Upon principle, its action seems to be
taken in a cause and over a matter of which it has no
jurisdiction, and therefore to be void, and this is the view
taken in some courts,' while others deny this conclusion
and assert that the amendatory order must be treated as
valid, until set aside upon appeal or by some other pro-
ceeding.^
§ 71. Correcting Clerical Errors and Omissions. — The
rule that the record admits of no alteration after the term
is obsolete. Even in England the judgment may be set
right and amended by another part of the record, so as to
correct any misprision or neglect of the clerk in entering
the names of the parties; or in the form of the judgment.
In all cases the entry of judgment may be made to con-
form to the record and the instructions of the clerk.^ All
courts have inherent power to correct clerical errors at
any time,* and to make the judgment entry correspond
with the judgment rendered.* This power exists in
'Thompson v. Thompson, 73 Wis. lett,5Nott& Mc0.384;Duvalli'. Wells,
84. 4 Har. & McH. 164; Brush v. Robbins,
2 Stannard v. Hubbell, 123 N, Y. 3 McLean, 486; O'Connor v. Mullen,
520. 11 111. 57.
* Bac. Abr., tit. Amendments, F. * Scroggins's Adm'r v. Scroggins, 1
* Burson v. Blair, 12 Ind. 371; Bank J. J. Marsh. 362; Gibson v. Wilson,
of U. S. V. Moss, 6 How. 31; Finnell 18 Ala. 63; Chambers v. Hodges, 3
V. Jones, 7 Bush, 359; Paddon v. Bart- Tex. '51 7; Jenkins v. Eldridge, 1 Wood
y' AMENDING JUDGMENTS. § 71
criminal prosecutions as well as in civil cases.^ Where
the record contains sufficient matter to show that the
judgment entered is not the one rendered, it ma}^ be cor-
rected in respect to the amount or kind of money recov-
ered of defendant,^ or the number of days' imprisonment
which he must suffer,^ or by inserting the names of the
members of the partnership where their firm name only
had been stated/ or otherwise correcting the name of a
party ,^ or giving the true date of the rendition of a judg-
ment,® or including a party whose name had been omitted
from the original entry/ or excluding one whose name had
been improperly inserted,^ or supplying, in a judgment
against a garnishee, the clerk's failure to recite the amount
of the original judgment,^ or stating the rate of interest
which the judgment is to bear,"* or making the judgment
for defendant instead of for plaintiflf, where its entry ia
favor of plaintiff was inadvertent," or conforming the judg-
ment to the directions of an appellate court when it had
been inadvertently entered so as not to comply with such
directions,*^ or correcting a mistake in computing the
amount due on a note,*^ or supplying the omission of the
clerk to state that a foreclosure sale should be made " with-
& M. 61; Harris v. Billingsley, IS Ala. Dobbins, 31 La. Ann. 530. But where
438; Burning v. Buikhardt, 34 Wis. the name of a party is incorrectly
58.5; Robertson v. Neal, 60 Mo. 579; stated in the complaint, summons, and
State V. Primm, 61 Mo. 166; Wolfiey judgment, it cannot be corrected by
V. Lebanon M. Co., 3 Cal. 296. an amendment: Brown v. Terre Haute
1 Ex parte Jones, 61 Ala. 399. etc. R. R. Co., 72 Mo. 567.
2 Miller V. Royce, 60 Ind. 189; Mo- « Grimes v. Grosjean, 24 Neb. 700;
dawell V. Hudson, 57 Ala. 75; Sherry Carlton v. Patterson, 29 N. H. 580;
V. Priest, 57 Ala. 410; Mitchell v. Burnham v. Chicago, 24 111. 496; Hood
Lincoln, 78 Ind. 5.1; Alpers v. Scham- v. Spaith, 51 N. J. L. 129.
mel, 75 Cal. 590; Wall v. Covington, ' Freeman v. Mears, 35 Ark. 278;
83 N. C. 144; Tunstall v. Schoenpflug, Shaul v. Duprey, 48 Ark. 331.
4 Baxt. 43; Hittson v. Davenport, 4 » Henderson v. Banks, 70 Tex. 398;
Col. 169; Miller v. Royce, 60 Ind. Crispen v. Hannovan, 86 Mo. 160;
189. Renfro v. Willis, 67 Ala. 488.
^ Ex parte Jones, 61 Ala. 399. » Memphis and Charleston R. R. Co.
* Wright V. McCampbell, 75 Tex. v. Whorley, 74 Ala. 264.
644. 10 Evans v. Fisher, 26 Mo. App. 541;
" Merrick v. Mayhue, 40 Mich. 196; Bank of Ky. v. Wistar, 3 Pet. 432.
Chandler v. Frost, 88 111. 559; Smith " Morrison v. Stewart, 21 111. App.
V. Redus, 9 Ala. 99; 44 Am. Dec. 429; 11.3.
Kenney v. Young, 25 Ala. 563; Bar- ''^ In re Mahon, 71 Cal. 536.
ber V. Briscoe, 9 Mont. 341; Shelly v. " Hughes v. Hinds, 69 Ind. 93.
JUDG. L— 7
§ 72 AMENDING JUDGMENTS. 98
out relief from the appraisement laws," ' or correcting a de-
scription of land,^ or the writing of a date,'^ or changing
the amount of interest allowed from six to ten per cent,
and waiving the benefit of appraisement laws/ or insert-
ing in a decree in partition the instructions as to the
methods of making partition which are contained in the
statute/ or showing how and to whom costs were to be
paid/ or the term which the plaintiff recovered in eject-
ment/ Further illustrations are needless. In whatever
respect the clerk may have erred in entering judgment,
the court may, on proper evidence, nullify the error by
making the judgment entry fully and correctly express
the judgment rendered.* The entry may also be amended
to show that the recovery w^as for or against a party in
some representative capacity; and if against him in such
capacity, to relieve him from personal liability and sub-
ject him to the liability attaching to his representative
character only.^ In England the amendment must be
authorized by some matter of record. Even there a ver-
dict was amended by the judge's notes and the affidavits
of the jurors who rendered it,'" and the pos^ea, after a lapse
of two years, by the judge's notes/^
§ 72. Data for. — In the United States, the authorities
showing the data from which a judgment maj'- be amended
are contradictory. Some of the states have adopted the
English practice; but a majority have adopted one more
1 Reily v. Burton, 71 Ind. 118. land. 95 N. C. 471; Forbes v. Navra,
» Taylor w. Harwell, 65 Ala. 1. 63 Miss. 1; Pollard v. King, 62 Ga.
» Smith V. Creditors, 59 Cal. 267. lO.S; Welch v. Keene, 8 Mont. 305;
* Conway v. Day, 92 Ind. 422. Cowan v. Gentry, 32 S. C. 369.
" Houston V. Blyfche, 71 Tex. 719. « Adams v. Re Qua, 22 Fla. 250;
6 Cole's Will, 52 Wis. 591. Beers v. Shannon, 73 N. Y. 292; Conn
^ Alvey V. Gaboon, 86 Va. 173. v. Scruggs, 5 Baxt. 567; Gay v. Cheney,
8 People's Bank v. McAuthor, 82 58 Ga. .304; Boykin v. Cook, 61 Ala.
N. C. 107; Sweeny v. Delany, 1 Pa. 472; Atkins i\ Sawyer, 1 Pick. 351;
St. .320; 44 Am. Dec. 136; Portis v. 11 Am. Dec. ISS; Speed's Ex'r ?'. Hann,
Talbot, 32 Ark. 218; Gates r. Bennett, 1 T. B. Mon. 16; 15 Am. Dec. 78;
33 Ark. 475; Perry v. Adams, S3 N. C. Huggins v. Oliver, 21 S. C. 147; Spig-
266; Evans v. Shafer, 86 Ind. 135; ener v. Farquha--, 82 Ala. 569.
Hartley v. White, 94 Pa. St. 31; Bean '" Coglan v. Elden, 1 Burr. 583.
V. Ayers, 70 Me. 421 ; Carroll v. Thoinp- ^^ Doe v. Perkins, 3 Term Rep.
tins, 14 S. C. 223 j Strickland v. S trick- 749.
99 AMENDING JUDGMENTS. § 72
liberal. In Mississippi the rule of the English cases was
understood as excluding everything not a part of the
record. On that ground the notes of the judge were
deemed to be as incompetent to amend the record by as
any other parol evidence.^ In Indiana the court doubted
whether any judge could, after the term, amend the entry
of the judgment on the ground that it did not express his
intention, when there was nothing in the record to amend
by.^ The law is now well settled in Alabama,^ Georgia,*
Kentucky,^ Indiana,® Missouri,^ Mississippi,^ California,^
Nevada,"* and Iowa," in conformity to the rule that no
record can be amended but by matter of record. Un-
doubtedly, as in cases of application to enter judgment
nunc pro tunc, the memoranda of the presiding judge upon
the motion docket, and his written opinions, when re-
quired to be filed in the case, w^ould generally be regarded
as parts of the record.^^ In Wisconsin an amendatory
order based upon the personal recollection of the judge,
and conforming the judgment to that recollection, was
sustained upon appeal.'^ In many of the states the prac-
tice has grown up of making a proposed amendment the
subject of a petition and motion. The party applying is
required to set forth the respect in which the record is
defective, and to suggest the amendment with which he
proposes to cure the defect. Notice of the motion must
1 Dickson v. Hoff, 3 How; (Miss.) v. Clark, 18 Mo. 432; State i;. Primm,
165; Boon v. Boon, 8 Smedes & M. 61 Mo. 166.
318; Rhoiles v. Sherrod, 8 Smedes & * Moody v. Grant, 41 Miss. 565;
M. 97; Burney v. Royett, 1 How. Rnssell v. McDougall, 3 Smedes & M.
(Miss.) 39. 234; Shackelford v. Levy, 63 Miss. 125.
■■^ Boyd V. Blaisdell, 15 Ind. 73. » Morrison v. Dapman, 3 Cal. 255;
^ Suminersett v. Summersett's Branger tJ. Chevalier, 9 Cal. 172; Swain
Adm'r, 40 Ala. 596; 91 Am. Dec. 494; v. Naglee, 19 Cal. 127; Hegeler v.
Kemp V. Lyon, 76 Ala. 212. Henckell, 27 Cal. 491; De Castro v.
* Pitman v. Lowe, 24 Ga. 429; Dixon Richardson, 25 Cal. 49.
V. Mason, 68 Ga. 478. " Solomon v. Fuller, 14 Nev. 6.^
* Finnell v. Jones, 7 Bush, 3"9; Ben- " Giddings v. Giddiugs, 70 Iowa,
nett V. Tiernay, 78 Ky. 580; Stephens 486.
V. Wilson, 14 B. Mon. 88. '^ Gillett v. Booth, 95 111. 183; Snlli-
« Makepeace v. Lukens, 27 Ind. 435; van S;iv. Inst. r. Clark, 12 Neb. 578.
92 Am. Dec. 263; Williams v. Hender- ^^ Wyman v. Buckstaff, 24 Wis. 477.
son, 90 Ind. 577. Contra, State v. Smith, 1 Nott & McC.
' Saxton V. Smith, 50 Mo. 490; State 16.
§ 72 AMENDING JUDGMENTS. 100
be given to the adverse party, and an opportunity allowed
him to appear and make a contest.^ At the hearing, such
evidence is received as would be competent in any other
investigation. This practice is adopted either by express
decisions or by tacit acquiescence in Massachusetts,'^ New
Hampshire,' Maine,^ Connecticut,^ Ohio,® Illinois,^ Arkan-
sas,* lowa,^ and North Carolina,^" and is sanctioned by the
supreme court of the United States." It is further recom-
mended by its justness and its liberality. " The doctrine
in this country, in reference to amendments of records,
may be said to have crystallized into the following legal
propositions, namely: That any error or defect in a record
which occurs through the act or omission of the clerk of
the court in entering, or failing to enter of record, its
judgments or proceedings, and is not an error in the ex-
press judgment pronounced by the court in the exercise of
its judicial discretion, is a mere clerical error, and amend-
able, no matter in how important a part of the record it
may be; and when the error or defect is in respect to the
entry of some judgment, order, decree, or proceeding, to
which one of the parties in the cause was of right entitled,
and, as a matter of course, according to law and estab-
lished practice of the court, it will sometimes be presumed
to have occurred through the misprision of the clerk, and
will always be amendable if from other parts of the record,
or from other convincing and satisfactory proofs, it can
be clearly ascertained what judgment, order, or decree the
party was entitled to."^^
The law in relation to amendments, as stated by Lord
iWeed V. Weed, 25 Conn. 337; « Hollister v. Judges, 8 Ohio St. 201;
Means v. Means, 42 III. 50; Alexander 70 Am. Dec. 100.
V. Stewart, 23 Ark. 18; Hill v. Hoover, ' Forquer v. Forquer, 19 III. 68.
5 Wis. 386; 68 Am. Dec. 70. ^ Arrington v. Conrey, 17 Ark. 100;
" Clark V. Lamb, 8 Pick. 415; 19 King v. State Bank, 9 Ark. 188.
Am. Dec. 332; Rugg v. Parker, 7 Gray, ^ Stoc»kdale v. Johnson, 14 Iowa, 178.
172. 10 Calloway v. McKeithen, 5 Ired.
* Frink v. Frink, 43 N. H. 508; 80 12; 42 Am. Dec. 153; State v. King, 5
Am. Dec. 189. Ired. 203.
* Inhabitants of Limerick, 18 Me. " Matheson's Adm'r v. Grant's
183. Adm'r, 2 How. 263.
* Weed V. Weed, 25 Coan. 337. " Doaue v. Glenn, 1 Col. 45G.
101 AMENDING JUDGMENTS. § 72
Coke, and as it undoubtedly existed until long after his
time, was too harsh to successfully resist the march of
legal reform, even in conservative England. As modified
in that country, it is still too inconsistent with a liberal
administration of the law to escape total overthrow in this
country. The proposition that " the power to amend a
record " is confined to cases where the record discloses
that the entry " does not correctly give what was the
judgment of the court" implies that ministerial authority
is more sacred than judicial authority. This proposition
is sustained by the averment that a record is of " uncon-
trollable verity." This verity is sufficiently respected
when it is allowed to protect records from collateral
assault; it is unduly indulged if it operate to the exclusion
of truth, in every form and on every occasion. The ob-
ject in every litigation is to obtain from some court a final
determination of the rights of the parties. That deter-
mination is invariably what the judges direct, and not
invariably what the clerks record. The power of the
court to make the record express the judgment of the
court with the utmost accuracy ought not to be restricted.
Upon any suggestion of error, the court ought to be at
liberty to ascertain the existence or non-existence of the
alleged error, by any satisfactory evidence, and this rule
prevails in some jurisdictions.^ The record is made up
in some cases after the term, and thus the opportunity of
asking for corrections while it is still in the breast of the
judge is never presented. In most cases the clerk acts
from his recollection of what was done and said, as well
as from loose, imperfect memoranda. AVh}^, then, should
the accuracy of his memory not be tested by the memory
of other persons then present, and more especially by that
of the judges, whom he may have imperfectly understood?
Why may not the trial of an issue as to the correctness of
a written memorial be brought to a more just and satis-
1 In re Wight, 134 U. S. 136; Fay v. Wenzell, 8 Cush. 315; Rugg v. Parker,
7 Gray, 172.
§ 72 a AMENDING JUDGMENTS. 102
factory conclusion by hearing all the proofs ofTered by
both parties, tending to throw any light upon the contro-
versy, than by confining the investigation to a mere in-
spection of such evidence as happens to be on or among
the records in the case, — these records all confessedly
liable to the same errors and omissions as the one sought
to be reformed? Some of the courts profess to acquire
their correctory power over their records solely by virtue
of the English statutes of amendments and jeofails,^ while
others insist that it has a higher source and a wider ap-
plication, and exists by virtue of high equity powers re-
siding in the court and enabling it to compel its records
to speak the truth.'^
§ 72 a. Notice of Application. — Upon application to
amend entries of judgments, the courts will not act ex
parte, where it is not to be determined from a mere in-
spection of the record.^ But if the amendment is to be
made from the record alone, and the judgment, as pro-
posed to be amended, is not different from what it would
have been construed to be, independent of the amend-
ment, notice is unnecessary. " No one's rights are affected
by it, as the effect of the record is not changed. All who
may have consulted the record, or acted upon the faith of
it, must be presumed to have notice of all which the proper
construction of the whole record discloses; in other words,
of the effect of the record." * While, as we have stated,
courts, when applications to correct their records are made,
ordinarily require notice to be given parties whose inter-
ests may be affected, and thus afford them an opportunity to
be heard in opposition to the amendment, we do not wish
to be understood as asserting that the power of the court
to act is dependent on such notice or hearing. Every
1 Makepeaces. Lukens, 27 Ind. 435; Conn. 315; McNairy v. Castleberry, 6
92 Am. Dec. 263. Tex. 286; Rockland Water Co. v.
2 King V. State. 9 Ark. 188. PiUsbury, 66 Me. 427; People v. Mc-
^Wallis V. Thomas, 7 Ves. 292; Cutchen, 40 Mich. 244.
Radenhurst v. Reynolds, 11 Grant * Emery i;. Whitwell, 6 Mich. 491.
(U. C.) 521; Wooster v. Glover, 37
103 AMENDING JUDGMENTS. § 73
court, as suggested in the previous chapter, has the right
to make its records speak the truth, and may upon proper
occasions, either upon its own motion or the motion of any
party interested, whether upon or without notice to the
parties to the action, correct its records until they con-
tain a true history of its transactions/ If, however, an
amendment is made to a judgment or decree in a matter
of substance, whereby it is made to grant relief different
from that granted when it was rendered, it is absolutely
void as against a party having no notice of the applica-
tion to thus amend it.^
§ 73. Time within Which Amendments may be Made. —
The time within which an amendment of the entry of a
judgment, order, or decree may be made has no limit. The
laches of a party making an application for any kind of
equitable relief may always be taken into consideration,
and may sometimes afford a sufficient ground for denying
him that which would have been yielded to his more
prompt request, and this is true of applications to correct
clerical defects in the entry of judgments or decrees; and
in one instance a court of chancery refused to correct a
mistake in the entry of a decree because the applicant
had not moved until more than a year after his attention
was called to the alleged error.' Delay in seeking the
correction of a record is not of itself, we apprehend, ever
a sufficient reason for refusing relief. "It is never too
late to amend the record merely for the purpose of cor-
recting a misprision of the clerk." * The general language
of the authorities upon this subject is, that a record may
be corrected at any time." Therefore, the power of a
1 Fay V. Wenzell, 8 Cnsh. 315; Peti- Lewis v. Ross, 37 Me. 230; 59 Am.
tion of 'inhabs. of Limerick. 18 Me. 183. Dec. 49; Crim v. Kessing, 89 Cal. 478;
^ Swift V. Allen, 55 111. 303. Galloway v. McKeethen, 5 Irerl. 12;
'lingers v. Rogers, 1 Paige, 188. 13 Am. Dec. 153; Walton v. Peison,
* Maus V. Maus, 5 Watts, 319; Cohn 85 N. C. 34; Rickman v. Ricknian, 6
V. Scheuer, 115 Pa. St. 178; Smaltz v. Lea, 483; Douglass v. Keelin, 78 Ind.
Hancock, 118 Pa. St. 550. 199; Vhellv v. Smith, 50 Iowa. 543;
^ Sidener v. Coons, 83 Ind. 183; White v. Blake, 74 Me. 489; Nabers
Dunham v. South Park, 87 111. 185; v. Meredith, 67 Ala. .333; Seiler v.
McClure v. Brack, 43 Minn. 305; Kentucky Northern Bank, 8ti Ky. 125;
§ 74 AMENDING JUDGMENTS. 104
court retaining a recr>rd to amend it is not impaired by
the fact that an appeal has been taken/ and has resulted
in an affirmance of the judgment.^
§ 74. Effect of Amendments. — The observations in
the preceding chapter, upon the effect of the entry of
judgments nunc pro tunc as of the date of their rendition
are equally applicable where such entry is not of a whole
judgment, but is only a partial modification of it. When
the entry is amended it is merely perfected evidence of
what, in contemplation of law, existed from the time
judgment was pronounced, and for most purposes the
judgment will be given effect as if no error or omission
had occurred in its original entry .^ All persons who
were not parties to the action, and who have acquired in-
terests based upon the existing state of the record, acting
in good faith, and being purchasers for valuable consid-
erations, without notice, actual or implied, of the exist-
ence of the matters, evidence of which has been supplied
by the amendment, are not prejudiced thereby,^ unless
they have been accorded a hearing and the court has de-
termined that they have no such equities as entitle them
to be exonerated from the effect of the amendment.^
Generally, the effect of an amendment of a judgment or
execution is to support proceedings already taken under
Pollard V. King, 62 Ga. 103; Brooks v. Dreyfus v. Tompkins, 67 Cal. 339;
Stephens, 100 N. C. 297; Sanders v. Conway v. Day, 79 Ind. 318. Contra,
Williams. 75 Ga. 283; Ecker v. New Werborn v. Pinnev, 76 Ala. 291.
Windsor Bank, 64 Md. 292; Ex parte ^ ^dams v. Wiggins, 23 Fla. 13;
Henderson, 84 Ala. 36. Griffiths v. Sears, 112 Pa. St. 523;
1 Exchange Bank v. Allen, 68 Mo. King v. Burnham, 129 Mass. 598.
474; Freel v. State, 21 Ark. 226; Dow * Auerbach v. Gieske, 40 Minn. 258;
V. Whitman, 36 Ala. 604; Attorney. Duffey v. Houtz, 105 Pa. St. 96; Col-
General V. White, Biinb. 283; Rew v. man v. Watson, 54 Ind. 65; Indiana
Barker, 2 Cow. 40S; 14 Am. Dec. 515, B. & W. R'y Co. v. Bird, 116 lud.
and note; Richardson v. Mellish, 3 217; 9 Am. St. Rep. 842; Kemp v.
Bmg. 346; 11 Moore, 119; 7 Barn. & Cook, 18 Md. 130; 79 Am. Dec. 681;
C. 819; LadieaS. M. Co. v. Smith, 78 McCormick v. Wheeler, 36 111. 114;
Ala. 108; Exchange Bank v. Allen, 68 84 Am. Dec. ,388; Legon's Adm'r v.
Mo. 474; Bmns v. State, .35 Ark. 118; Rogers, 12 Ga. 281; Perdue v. Brad-
Sparrow V. Strong, 2 Nev. 362; Sey- shaw, 18 Ga. 287.
mour V. Thomas, 81 Ala. 250. ^ Remick v. Butterfield, 31 N, H.
» Roussett V. Boyle, 45 Cal. 64; 70; 64 Am. Dec. 316.
105 AMENDING JUDGMENTS. § 74 a
it.* In Texas, however, this result does not follow; and
if a sale has taken place under a judgment, its subsequent
amendment will not aid the purchaser.^ An amendment
having been directed by the court, its action cannot be
reviewed or avoided collaterally.^ Upon an order being
made to amend a judgment, it should be carried out, either
by the erasure or interlineation of the original entry, until
it correctly expresses the judgment rendered, or by the
vacation of such entry and making a new entry nunc pro
tunc of the judgment which the court finds was the one
actually rendered in the first instance.*
§ 74 a. Discretion of the Court. — The expression fre-
quently occurs in the decisions that a court exercises a
discretionary power or authority in amending or refusing
to amend its records, and that its action will not be re-
viewed in the appellate courts.^ These expressions are
probably misleading. In determining questions of fact,
the action of trial courts is usually conclusive, and the
higher courts rarely interfere with a verdict or decision
supported by any competent evidence. If there is a rea-
sonable doubt, upon the evidence, whether a judgment
entry ought to be amended or not, the action of the court
whose record it is in allowing or refusing the amendment,
like its decision of any other question of fact respecting
which the evidence is conflicting, is finah But surely it
is not true that a court has an arbitrary discretion to
amend or to refuse to amend its records. Every litigant
must necessarily, unless he has forfeited it in some man-
ner, have the right to have the final judgment and all
other proceedings in the action correctly entered, and
when correctly entered, to have such entry remain un-
1 Freeman on Executions, sec. 71 a. * Jones v. Lewis, 8 Irerl. 70; 47 Am.
« Morris v. Balkham, 75 Tex. Ill; Dec. .330; McDowell v. McDowell, 92
16 Am. St. Rep. 874; McKav v. Paris N. C. 227; King v. State Bank, 9 Ark.
Excli. Bank, 75 Tex. 181; 16 Am. St. 185; 47 Am. Dec. 739.
Rep. 884. " Blown v. McCune, 5 Sandf. 224;
» HainiltoD v. Seitz, 25 Pa. St. 226; Austin v. Jordan, 5 Tex. 130; Colin v.
64 Am. Dec. 694. Scheuer, 115 Pa. St. 178.
§ 74 a AMENDING JUDGMENTS. 106
altered; and any action of the court impairing or denjdng
this right should be subject to correction by appeal or by
some other revisory proceeding; and that it is so subject
is attested by the numerous decisions cited in this and
the preceding chapter, all of which should be regarded as
mere impertinences of the appellate courts, if the dis-
cretion of the lower courts is not a legal discretion to be
exercised in conformity to well-settled principles of law.
107 THE RECORD, OR JUDGMENT ROLL. § 75
CHAPTER V.
THE RECORD, OR JUDGMENT ROLL.
§ 75. Origin.
§ 76. Verity.
§ 77. The postea. '
§ 78. What constitutes the roll.
§ 79. What does not.
§ 80. Provisions of the codes.
§ 81. Construction of the code provisions.
§ 82. la California and Nevada.
§ 83. Construction in California.
§84. Interlocutory judgments.
§ 85. New^ trial has record of its own.
§ 86. States where no record is made up.
§ 87. Want of, does not affect judgments.
§ 88. In chancery.
§ 89. Replacing lost rolls.
§ 89 a. Chancery cannot replace.
§ 89 b. Supplying omissions in the record.
§ 75. Origin. — The judgment roll, or record, is so in-
separably connected with the judgment itself as to require
some notice in this work. In the primitive stages of our
common law the pleadings were oral. The litigants
appeared in court, and there carried on their legal alterca-
tions, the plaintiff stating the grounds which, in his opin-
ion, entitled him to the interposition of the court; and
the defendant resisting those statements, by denying
either their sufficiency in law or their truthfulness, or by
showing some fact depriving them of their ordinary force
and effect. The process of statement and counter-state-
ment continued until the court understood the point of
difference, or in other words, until an issue was formed.
During all this time an officer of the court was in attend-
ance charged with the duty of making brief memoranda
of the respective allegations of the parties and of the acts
of the court upon a roll of parchment. Parchment was
so early and so constantly used for this purpose that it
came to be regarded as an essential and indispensable
§§ 76, 77 THE RECORD, OR JUDGMENT ROLL. 108
part of the record. The manner and time in which the
record was made up occasioned the use of words of the
present tense, as the "plaintiff complains" and "brings
suit," the defendant "comes and defends" and "prays
judgment," "the jury come and say," and "the judgment
of the court is, that it is considered." These words con-
tinued in use when }Sj more modern practice the record
became a subsequent instead of a contemporaneous me-
morial.
§ 76. Verity. — The record was kept in formal language,
with great care and precision. Its formality and precision,
together with its contemporaneous character, gave it great
authenticity. It became exclusively admissible evidence
of the matter properly included in it, and of such "un-
controllable credit and verity as to admit of no averment,
plea, or proof to the contrary." ^ It became a mark of
distinction to the class of courts in w^hich it could be kept,
and furnished the basis for a line of decisions which
enhanced the dignity and importance of courts of record,
and gave to their judgments and proceedings a, 'prima facie
credit and respect never accorded to those of courts not of
record. The verity of a record applies to its date, and
therefore evidence is not admissible to show that the date
of the judgment as it appears in the judgment-book and
docket is incorrect.^
§ 77. The Postea. — After the pleadings were written
instead of oral, the record was continued. If an issue of
fact was made by the pleadings, it was referred to some
appropriate method of trial. The record was then made
up, consisting of the placita, brief statement of the nature
of the action, a transcript of the allegations of facts, time
of appearance, the various acts of the court, and the
award of trial. Fifty-three cases were brought to the
»Adams«.Betz, 1 Watts, 425; 2(i Am. " pgrgugon v. JLumler, 25 Minn.
Dec. 79; Buck v. Holt, 74 Iowa, 294; 183.
Winchester v. Thayer, 129 Mass. 129.
109 THE RECORD, OR JUDGMENT ROLL. § 78
supreme court of Illinois at one term, all of which were
considered as liable to reversal, for containing no placita.
This deficiency, it w^as held, could not be supplied by-
reference to bills of exceptions appearing in the record;
because, without the placita, there was nothing to show
any authority in the court to render judgment nor to
make a bill of exceptions.^ The history of the case after
this is called the postea. It shows the day of trial, before
whom the trial took place, the appearance or default, the
summoning and the choice of the jury, and their verdict.
The record was made compact and continuous by "con-
tinuances," or entries of the adjournment of the cause
from time to time, by which the parties were temporarily
dismissed and a day fixed for their subsequent appearance.
After the return of the record with its postea, the case
being ready for judgment, the allowance of the proper
ojSicer may be obtained, expressing generally that judg-
ment is given and in whose favor. This is called "sign-
ing judgment," The next step is to put the judgment on
record. If no trial has been had, a record is now made
up for the first time. But if trial has been had, the whole
proceedings, though already made up, are again entered
on a roll of parchment. This proceeding is " entering the
judgment." Though nominally the act of the court, the
duty of seeing it done in proper form devolves upon
the prevailing party. This last roll is deposited in the
treasury of the court, and is known as the "judgment
roll," and is also frequently styled "the record." ^
§ 78. Of What Composed. — The verity conceded to the
judgment roll applies to nothing which it is not the duty
of the clerk to record.* Nothing can be made a matter of
record by calling it by that name, nor by inserting it
1 P, M. L. Co. V. Chicago, 56 III. 386, 387; Co. Lit. 60 a; Burrill's Law
3Q4 Diet, and Bouvier's Law Diet., tit.
^ In relation to the matters con- Record,
tained in the three preceding sections, ^ Douglas v. Wickwire, 19 Conn.
consult Stephen's Pleading, 25, 111; 489; Hahn v. Kelly, by Sawyer, J.;
Burrill's Practice, 12, 16; 3 Bla. Com. 34 Cal. 391; 9i Am. Dec. 742.
§ 78 THE RECORD, OR JUDGMENT ROLL. 110
among the proper matters of record.' It is therefore
exceedingly important to understand what is or is not a
part of the judgment roll; what imports absolute verity;
what will be considered in proceedings in the nature of
writs of error; and precisely what has authority to speak
for or against the judgment in a collateral proceeding.
While the record is, in general terms, a history of the
proceedings, many things done in the progress of a case
are not necessarily nor ordinarily matters of record. It
is to be regretted that the courts have been contented with
peremptorily excluding many papers claimed to be parts
of the record, but have rarely attempted to specify or de-
scribe those matters which possess an indefeasible claim
to a place in the judgment roll. In Virginia the question,
What is a common-law record? was answered thus: " It is
the writ for the purpose of amending by, if necessary," all
the pleadings, ** papers of which profert is made or oyer
demanded," papers submitted to the court by bills' of ex-
ceptions, demurrers to evidence, or special verdict, and
such papers as are inseparably connected with those so
submitted, and the several proceedings at the rules or in
court until the rendition of the judgment. These, and no
other, are to be noticed by the court.^ In the case of
papers of which oyer is demanded, the rule laid down
above must be limited to those instances where the record
shows oyer to have been granted by the court or conceded
by the party .^ And the instrument will become part of
the record if oyer be granted or conceded, though it be
unsealed, and therefore not a paper of which oyer can be
properly demanded.^ Oyer of an instrument does not in-
clude oyer of an alleged assignment, nor will it make such
assignment matter of record.^ The writ or summons is
1 Nichols V. Bridgeport, 27 Conn. » Cummins v. Woorlruff, 5 Pike, 116;
459; Kitchens v. Hut°chins, 44 Ga. 620; Clark v. Gibson, 2 Pike, 109; Hanly v.
Al.bot V. Hachman, 2 Smedes & M. Real Estate Bank, 4 Pike, 598.
510; Treat v. Maxwell, 82 Me. 76; * Russell v. Drummond, 6 Ind.
Simmons v. Harris, 7 Baxt. 204. 216.
* MaudeviUe v. Perry, 6 Call, 78. ^ Crary v. Ashley, 4 Pike, 203.
Ill THE RECORD, OR JUDGMENT ROLL. § 79
probably a part of the judgraent roll/ but on this subject
the authorities disagree.^
§ 79. Matters not of Record. — No general definition
has been attempted by which to determine what are not
matters of record. In one case the rule is stated as with-
out exception that " no act in pais of any party to a suit
can be made any part of the record except by bill of
exceptions." * In another case, " all intermediate pro-
ceedings of an informal, collateral, and, so to speak, acci-
dental and uncertain, character, not involving directly the
merits of the case, but rather appertaining to modes of
proceeding," are specified as forming no part of the judg-
ment roll.* Among the matters which are not (unless
made so by bill of exceptions or by consent, or by order
of court) matters of record are all matters of evidence,
written or oral,^ including note,* bond,' or mortgage® filed
in the case, and upon which suit is brought; an agreed
statement of facts* not in nature of special verdict; all
motions,^" including motions to quash the writ," to amend
the pleadings, for extensions of time, for continuances, for
bonds, for prosecution, for bills of particulars;''^ pleas
stricken from the files ;'^ notices of motions;" affidavits of
claimants;'^ bonds for trial of rights of property;'® affidavits
in relation to conduct of jurors ;'' all affidavits taken during
' Montgomery v. Carpenter, 5 Pike, ' Cromie v. Van Nortwick, 56 HI.
264; Kibble v. Butler. U Sinedes& M. 353.
207. Pleadings and process are indis- ^ Kirby v. Wood, 16 Me. 81.
pensable jjarts of the judgment roll: » Bank of Va. v. Bank of Chillicothe,
Vad V. Iglehart, 69 111. 332; Stevisoa 16 Ohio, 170.
V. Earnest, 80 111. 513. " United States v. Gamble, 10 Mo,
2 Childs V. Risk. 1 Morris, 439; Hays 457; Abbee v. Higgins, 2 Iowa, 535;
V. McKee, 2 Blackf. 11. Christy's Adm'r v. Myers, 21 Mo. 112.
3 Kibble V. Butler, 14 Smedes & M. i' Hinton v. Brown, 1 Blackf. 429.
207. "^ Nichols v. Bridgeport, 27 Conn.
* Nichols V. City of Bridgeport, 27 459.
Conn. 459. " Walker v. Wills, 5 Pike, 166;
» Lovell V. Kelley, 43 Me. 263; Cun- Kelly v. Matthews, 5 Pike, 223; Chris-
D'ngham v. Mitchell, 4 Kand. 189; man v. Melne, 6 Iiid. 487.
Clark r. Gibson, 2 Pike, 109; Cole v, '* Rich v. Hathaway, 18 III. 548.
Driskell, 1 Blackf. 17. '^ Kibble v. Butler, 14 Smedes & M.
s.Starbird v. Eaton, 42 Me. 5G9; 207.
Storer v. White, 7 Mass. 448; Pierce v. »« Kirksey v. Bates, 1 Ala. 303.
Adams, 8 Mass. 383. " Mauu v. Russell, 11 ill. 586.
§ 80 THE RECORD, OR JUDGMENT ROLL. 112
tlie progress of the cause;' memorandum of costs;'^ power
of attorney to confess the judgment, and affidavit in rela-
tion to the death of the maker thereof;^ report of judge of
proceedings at the trial, reasons for his opinion in render-
ing judgment or in deciding application for a new trial;'*
rulings of the court upon the admission of evidence; the
instructions to the jury; statement of facts made by the
judge for the purpose of taking the advice of the appellate
court;'' and a ruling of the court upon an application to
strike out a portion of the pleadings.®
§ 80. Statutes. — In several ot the states the matters
constituting the judgment roll are specified by statute.
In most cases, however, the specification is sufficiently
general and indistinct to create a necessitj^' for judicial
construction. In New York, "the clerk, upon entering
final judgment, must immediately file the judgment roll,
which must consist, except where special provision is
otherwise made by law, of the following papers: The sum-
mons; the pleadings, or copies thereof; the final judgment
and the interlocutory judgment, if any, or copies thereof;
and each paper on file, or a copy thereof, and a copy of
each order which in any way involves the merits or
necessarily affects the judgment. If judgment is taken
by default, the judgment roll must also contain the papers
required to be filed, upon so taking judgment, or upon
making application therefor, together with any report,
decision, or writ of inquiry and return thereto. If judg-
ment is taken after a trial, the judgment roll must contain
the verdict, report, or decision; each offer, if any, made as
prescribed in this act, and the exceptions or case then on
file."^ In Wisconsin the following papers are attached
together and filed, and constitute the judgment roll:
1 Bluzzard v. Phebus, 35 Ind. 284. * Nichols v. City of Bridgeport, 27
2 Valentine v. Norton, 30 Me. 194; Conn. 459.
McArthur v. Starrett, 43 Me. 345. « Feely v. Shirley, 43 Cal. 369;
3 Hodges V. Ashurst, 2 Ala. 301; ISIoore v. De Valle, 28 Cal. 174; A.
Magher v. Howe, 12 111. 379. Nev. & S. Canal Co. v. Kidd, 43 Cal.
* Coolidge V. Inglee, 13 Mass. 50; 181.
Cathcart v. Commonwealth, 37 Pa. St. ' N. Y. Code Civ. Proc, sec. 1237.
108.
113 THE RECORD, OR JUDGMENT ROLL. § 81
"1. In case the complaint be not answered by any de-
fendant, the summons and complaint, or copies thereof;
23roof of service, and that no answer has been received;
the report, if any; and a copy of the judgment. 2. In
all other cases, the summons, pleadings, or copies
thereof; and a copy of the judgment, with any verdict
or report; the offer of the defendant, exception, case; and
all orders and paj)ers in any way involving the merits
and necessarily affecting the judgment." ^ The statute
of Oregon^ corresponds substantially with that of Wis-
consin in this respect, except that in cases where answer
is filed, the roll, in addition to the matters enumerated,
in the Wisconsin code, must contain the proof of service,
all orders relating to a change of parties, and instead of
" all orders and papers," all journal entries, or orders in-
volving the merits or necessarily affecting the judgment.
In Ohio, Nebraska, Dakota, and Kansas, the clerk is
required to make a complete record of every cause from
the petition, process, return, pleadings, reports, verdicts,
orders, judgment, and all material acts and proceedings
of the court; but if items of account or copies of papers
attached to the pleadings be voluminous, the court may
order an abbreviation, or a pertinent description thereoA^
Except in Kansas, he is forbidden from recording the
evidence.^ In Georgia, the clerk must record in a well-
bound book, within six months after the final determina-
tion of each cause, all proceedings relating thereto;* in
Alabama, a statute, otherwise similar in this respect, ex-
cepts from the record subpoenas, affidavits for continuance,
commissions to take testimony, evidence, and the execu-
tion.^
§ 81. Construction of Codes. — These statutes have not
done much toward answering the question. What is the
' Wis. Code, sec. 19L sec. 446; Dakota Code, sec. 402; Kan.
* Or. Code, sec. 272. Code, sees. 415-418.
2 Ohio Code, sec. 390; Neb. Code, * Ga. Code, sec. 256.
* Ala. Code. sec. 767.
JUDG. L— 8
§ 82 THE RECORD, OR JUDGMENT ROLL. 114
record? After enumerating the matters obviously indis-
pensable to every judgment roll, — after being precise where
precision had already been attained, — they employ terms
whose signification is as unlimited as are the confines of
space; whose application to the practical affairs of men
must be as diverse as are the temperaments and the intel-
lects of the judges by whom the application happens to be
made, — who shall be able to determine with unerring ac-
curacy what " proceedings and acts of the court are mate-
rial"? w^hat "papers, orders, or journal entries necessa-
rily aflFect the judgment and involve the merits of the
action"? Some of the matters excluded from the judg-
ment roll under these statutes, and w^hich, though included
by the clerk as parts of the record, will be disregarded by
the courts, are, motions, and the papers on which they are
founded, together with the ruling of the court thereon;'
matters of evidence, oral or written,^ including notes ^ and
mortgages* filed in the case, and constituting the cause of
action, and proof of the filing of lis pendens; " memoranda
of costs and notice of adjustment;" the affidavit requisite
to authorize the taking of property in replevin;^ affidavit
and order of arrest;^ proof of service when the defendant
has answered or demurred;^ bill of particulars ;'*' pleadings
amended or demurrer abandoned;" opinion of the judge;'^
affidavit used in support of a niotion;^^ minutes made by
the judge upon the trial docket.^'*
§ 82. In California and Nevada. — In California and
Nevada, the law providing for the judgment roll is dis-
tinct and specific. The matters which may properly be
inserted in it are so clearly enumerated as to leave no
1 Cornell v. Uavis, 16 Wis. 686; « Cor win v. Freeland, 2 Seld. 560.
Demming v. Weston, 15 Wis. 236. » Smith v. Holmes, 19 N. Y. 271.
2 Cord V. Southwell. 15 Wis. 211. ^° Kreiss v. Seligmau, 8 Barb. 439.
5 Reid V. Case, 14 Wis. 429. ^' Brown v. Saratoga R. R. Co., 18
* Cord V. Southwell, 15 Wis. 211. N. Y. 495.
* Manning v. McClursT, 14 Wis. 350. ^'' Tliomas v. Tanner, 14 How. Pr.
^ S. & S. Plank Road Co. v. Thatcher, 426.
6 How. Pr. 226. ^^ Backus v. Clark, 1 Kan. 303; 83
' Kerrigan v. Ray, 10 How. Pr. Am. Dec. 437.
213. 1* Pennock v. Monroe, 5 Kan. 578.
115 THE RECORD, OR JUDGMENT ROLL. § 83
necessity for doubt. Section 670 of the Code of Civil
Procedure, recently adopted in the first-named state,
re-enacts section 203 of the Practice Act, with one addi-
tion, that of the proof of service of summons when the
answer has been filed. It enacts that the judgment roll
shall consist, — 1. If no answer is filed by any defend-
ant, of the complaint, summons, affidavit, or proof of
service, memorandum of default, and copy of the judg-
ment; 2. In other cases, of summons, proof of service,
pleadings, verdict of jury, or finding of the court, com-
missioner, or referee, bills of exception taken and filed,
copies of orders sustaining or overruling demurrers,
copy of the judgment and of orders relating to change
of the parties.
In Nevada, the roll, in the event of no answer being
filed, is made up of the same materials as in California;
in all other cases, it consists of nothing but the summons,
pleadings, copy of judgment, and of any orders relating
to a change of the parties.^
§ 88. Construction. — In California it has been deter-
mined by a majority of the judges of the supreme court,
Justices Sanderson and Sawyer dissenting, that an answer
stricken out is nevertheless entitled to a place in the judg-
ment roll. '' The phrase ' struck out,' as applied to a
pleading, is figurative only. An order sustaining a de-
murrer to a pleading defeats or suspends, for a time, its
legal effect in the action; and a successful motion to strike
out an answer does no more. In either event, the plead-
ing, as a document, remains in official custody." Such
was the reasoning of the majority of the court. The
minority said, with at least equal reason, " After the an-
swer was stricken out, the document remained on the files
as a part of the history of the case; but it was no longer,
in legal contemplation, a pleading in the case." ^ In two
1 Nev. Stats. 1869, p. 228, sec. 205. ^ Abbott v. Douglass, 28 Cal, 298,
Cost bill is not part of the judgment 299.
roll: Kelly v. McKibbea, 54 Cal. 192.
§§ 84, 85 THE RECORD, OR JUDGMENT ROLL. 116
cases (Braly v. Seaman, 30 Cal. 610, and Forbes v. Hyde,
31 Cal. 342), the decisions were founded upon the assump-
tion that in cases where no answer was filed, and the de-
fendant was served by means of publication, the affidavit
on which the order of publication was based, and also the
order itself, were parts of the judgment roll. These de-
cisions, so far as they affected this matter, were made
upon the concession of counsel in the case, and without
the consideration of the court. Neither the order nor the
affidavit belongs in the judgment roll, and both will be
disregarded if j^ut there. The affidavit showing the fact
of publication of summons in a newspaper, and the de-
posit of summons and complaint in the post-office, being
" proof of service," must be attached to the roll.' The
affidavit and notice upon which a motion was made,^ and
an order submitting a demurrer taken under advisement,^
and the ruling of the court in striking out an answer,^ are
not parts of the record.
§ 84. Interlocutory Judgments. — " The statute does
not expressly provide that an interlocutory judgment
shall constitute a portion of the judgment roll; but as such
judgments often determine the rights of the respective
parties, there is a manifest propriety in inserting them in
the judgment roll. We are of the opinion that an inter-
locutory judgment comes within the meaning of the stat-
utory requirement that the judgment shall constitute a
portion of the judgment roll."^
§85. New Trial. — The position which proceedings
to obtain a new trial occupy in relation to the judgment
roll is very different under our practice from that which
they occupied toward the judgment roll at common law.
iHahn v. Kelly, 34 Cal. 391; 94 ^ Dimick v. Campbell, 31 Cal.
Am. Dec. 391; Sharp v. Daugney, S3 238.
Cal. 505; Galpin v. Page, 1 Saw. 321; ^ Anderson v. Fisk, 36 Cal. 625.
but this decision was reversed by the * Feely v. Sliirley, 43 Cal. 369.
supreme court in Galpin v. Page, 18 '" Packard v. Bird, 40 Cal. 378.
Wall. 350; 1 Cent. L. J, 491.
117 THE RECORD, OR JUDGMENT ROLL. § 86
There the motion for a new trial was made and disposed
of before the judgment was entered. It therefore found
its appropriate history in the same place with all the other
proceedings taken prior to making up the record. But
when the motion is made after the entry of the judgment,
or though made before, is disposed of after, then it must
possess a record of its own, independent of the judgment
roll. The result of this is, that while the judgment roll
passes out of the " breast of the judge and beyond his
control by lapse of the term," the record of the new trial
still remains in fieri, and will so remain, unaffected by
the adjournment of the term, and susceptible of alteration
and amendment, until the motion is finally granted or
denied.*
§ 86. States where No Record is Made up. — In some
of the states no record is made up, none being required
by law.^ In these states the files and journal entries prob-
ably stand in place of the record, and are entitled to sim-
ilar verity.^ In other of the states, as in Pennsylvania
and Maryland, the keeping of records fell into great con-
fusion and neglect. For a long period of time, little more
w^as done by the prothonotaries, in most of the courts of
these states, than to make such memoranda as would
guide them is issuing executions, and as would have
enabled them to draw up a formal judgment roll. Judg-
ments, supported only by these informal memoranda,
were, however, admitted in the highest courts. The loose
practice, it was thought, had prevailed so long and so uni-
versally, had been so thoroughly acquiesced in by bench
and by bar, and had been made the foundation on which
so many private interests of great extent and variety were
based, that the adjudications sufiiciently though infor-
mally attested by it ought not to be ignored; that while
the entries and memoranda gave data from which a rec-
' Spanagel v. Bellinger, 34 Cal. 476. 1 Mich. 227; Lothrop v. Southwortb
•^ Morrow v. Weed, 4 Clarke, 77, 127; 5 Mich. 436.
66 Am. Dec. 122; Norwell v. McHenry, * Thayer v. McGee, 20 Mich. 195.
§§ 87-89 THE RECORD; OR JUDGMENT ROLL. 118
ord as teclmical and prolix as any ever drawn in the
court of king's bench could be readily constructed, they
ought to be regarded as competent and satisfactory evi-
dence of the judgment, and of such other judicial pro-
ceedings as were necessary to support it.^
§ 87. Want of Judgment Roll. — " The judgment does
not depend upon the performance of the clerical duty of
making up the judgment roll, or preserving the papers."^
The papers constituting the roll are therefore proper evi-
dence, and will support an execution, though they have
never been attached together.^ In New York, the rule
that omissions in the roll do not invalidate the judgment
has been applied where the omission consisted of the
original summons,* of an order of reference,^ of the copy
of verdict,^ of the answer of defendant.^
§ 88. In Chancery, all the proceedings, including the
evidence, are either written or required to be reduced to
writing. It is said, therefore, that everything so reduced
to waiting becomes a part of the record, and, as such, will
be investigated by the appellate court.^
§ 89. Replacing Lost Records. — The rule that the
record imports absolute verity, and is exclusively admis-
sible evidence of the matters properly incorjDorated in it,^
1 S. P. Co. V. Sickles, 24 How. 333; Allen, 443; 79 Am. Dec. 797; Com-
Cromwell v. Bank of Pittsburg, 2 monvvealth v. Hatfield, 107 Mass. 231.
Wall. .Jr. 569. The opinion of Jus- * Hoffnvng v. Grove, 18 Abb. Pr. 14,
tice Grier in the last-named case is 142.
exceedingly interesting. It presents, ^ Martin v. Kanouse, 2 Abb. Pr.
in a graphic and somewhat humor- 390.
ous style, the history of judicial ^ Cook v. Dickerson, 1 Duer, 679.
records in Pennsylvania, the brevity ' Renouil ?i. Harris, 2 Sandf. 641.
with which they were entered, the * Ferris v. McClure, 40 111. 99; Smith
little importance attached to their v. Newland, 40 111. 100.
preservation, and finally, the worthy ' The rule that a judgment must be
character and eccentric orthography proved by the record doubtless yields
of the prothonotaries. when it must either be proved in some
■■^ Lick V. Stockdale, 18 Cal. 219; other way, or denied effect. In an
Tutt V. Couzins, 50 Mo. 152; Galpin action on a judgment rendered in an-
V. Page, 1 Saw. 309; Bridges v. other state, after the existence and
Thomas, 50 Ga. 378; Craig v. Alcorn, loss of the judgment roll is established
46 Iowa, 560. its contents may be proved by parol
^ Sharp V. Lumley, 34 Cal. 611; evidence: Bailey v. Martin, 1)9 Ind.
Newman's Lessee v. Cincinnati, 18 103. See alsoRuby v.Vau Valkeuberg,
Ohio, 323; McGrath v. Seagrave, 2 72 Tex. 459.
119 THE RECORD, OR JUDGME>;T ROLL. § 89
might occasion inucli mischief, if the courts did not pos-
sess and exercise a power, unaffected by lapse of time, to
replace whatever may have been defaced, lost, or destroyed
by accident, negligence, or v\''antonness. The making up
of a new roll was ordered as a matter of course, in England,
thirty years subsequent to the filing of the old one/ In
New York, a new nisi prius record was allowed to be filed,
and a postea indorsed thereon, the applicant showing by
affidavit that, six years before, a verdict had been taken
and judgment thereon given, and that the nisi prius record
and issue roll could not be found.^ In other states, the
power of courts of record to supply, on proper proof, their
own lost or destroyed records is affirmed to exist, inde-
pendent of any statute, by virtue of their inherent powers
*'to minister ample justice to all persons according to
law";^ and such statutes as are enacted upon the subject
are treated as cumulative, and therefore do not impair the
power otherwise residing in the courts.'* The practice in
proceedings invoking this power should be by motion in
the court whose record it is proposed to restore/ The
plaintiff in the motion should give reasonable notice to
the adverse party of the time and place wdien and where
the application will be made,^ accompanied by a copy
of the matter he proposes to have enrolled as and for the
lost record, and also accompanied by a copy of the affida-
vits intended to be used at the hearing. The defendant
in the motion should have an opportunity of appearing
and using counter-affidavits. If it appears to the court, at
the hearing, that the record is lost or defaced, and what
its contents were, it may then order a new roll to be made
corresponding to the old one. The matter thus substi-
1 Doucrlas V. Yallop, 2 Burr. 722. 8 Ohio St. 201; 70 Am. Dec. 100;
2 Jackson v. Hainmoncl, 1 Caines, Friuk v. Frink, 43 N. H. 508; 80 Am.
49(5 Dec. 189; Dubois v. Thoma.s, 14 S. C. 30.
^ Keen v. Jordan, 13 Fla. 327; Gam- * Busli v. Lisle, 8(5 Ky. 504; Lilly v.
mon V. Knudson, 46 Iowa. 455; Gari- Larkin, 6G Ala. 110.
bal<li V. Carroll, 33 Ark. 568; George = Canden r. Bloch, 65 Ala. 236.
V. Middough, 62 Mo. 549; Julian v. « Craddock t). Scarbourough, 54 Tex.
Ward, 69 Mo. 153; HoUisterr. Judges, 346.
§ 89 a THE RECORD, OR JUDGMENT ROLL. 120
tuted will henceforth be received in all courts, and given
in all respects the same effect as though it were the origi-
nal record.^ Parol evidence must be admissible as a
matter of necessity, for witljout it the contents of a lost
record can rarely be shown.^ In Indiana, a lost or de-
stroyed judgment may be replaced or reinstated without
reinstating the pleadings or establishing their contents.*
It needs only a substantial copy of the record intended to
be enrolled, to justify the court in allowing its substitu-
tion. It must also be consistent with the record remain-
ing undestroyed.*
§ 89 a. Chancery has No Jurisdiction to Supply. — The
supplying of a lost record is a matter of which the court
where the record was made seems to have exclusive juris-
diction. A party, instead of making a motion in the
court where the record had been made, filed a bill in
chancery, praying that a record lost by fire might be re-
established. The court asserted that the power of supply-
ing a new record, when the original was lost, pertained to
courts of general jurisdiction, independent of legislation,
but sustained a demurrer to this bill, on the following
grounds: "The jurisdiction invoked by the complainant
in the present case has not been exercised by any court of
chancery in England (so far as we have been able to dis-
' Adkinson v. Keel, 25 Ala. 551; amendatory power over it. If it is
Doswell V. Stewart, 11 Ala. 629; Me- defective, another grand jury must be
Lendon v. Jones, 8 Ala. 298; 42 Am. called upon to supply the defects.
Dec. 640; Pruit v. Pruit, 43 Ala. 73; Probably if after conviction and sen-
DeshongD. Cain, 1 Duvall, .309; Pearce tence the record were destroyed, the
V. Thackeray, 13 Fla. 574; P^ussell v. court might supply it for purposes of
Lillja, 90 111. 327. evidence, as in civil cases. But the
^ Lilly w. Larkin, 66 Ala. 110; Goetz defendant can be tried only on an
V. Koehler, 20 111. App. 233. original indictment; the court has no
^ Cox V. Stout, 85 Ind. 422. authority to establish a copy in the
Note. — The power which enables place of the original. If the original
courts to supply the entire record, if be lost, the only remedy for the prose-
lost or destroyed after judgment, ex- cution is to have the defendant rein-
tends to suppljdng any of the plead- dieted: Bradshaw's Case, 16 Gratt,
ings or papers in civil cases prior to 507; 86 Am. Dec. 722; State v. Harri-
the judgment. But the court has no son, 10 Yerg. 406; Ganaway v. State,
such power over an indictment. Aii 22 Ala. 772.
indictment proceeds from the grand * Shiver v. Shiver, 45 Ala. 353; Bish-
jury. The court has no creative or op's Heirs v. Hampton, 19 Ala. 792.
121 THE RECORD, OR JUDGMENT ROLL. § 89 b
cover with our limited means of examination), and the
principles upon which the court takes jurisdiction in the
case of lost instruments comes far short of embracing this
case. The inherent power of courts to control their own
records, and to supply losses therein, it seems, is antago-
nistic to the power of any other court to interfere and make
records for them. By this proceeding, one court of special
jurisdiction is invoked to take cognizance of and to sup-
ply to another court of general jurisdiction a record in
lieu of one which has been destroyed. This power, once
admitted, will place the records of the courts of common
law at the mercy of the court of chancery, and might lead
to absurd conflict between the law and equity side of the
court over the records of the common law, one party im-
ploring the conscience of the one to seize the power of the
other, and control the history of its past action, and per-
haps to compel the court of law to adopt and acknowledge
as a fact a thing of which it may deny any knowledge,
and against which action the other party may justly ask
it to revolt and treat as a usurpation, because its own
power is ample and adequate. There is nothing here re-
quiring the exercise of the conscience of the court which
may not be attained by a simple proceeding according to
the cou^e of the common law, and therefore chancery
has no office to perform." ^
§ 89 b. Supplying Omissions in the Record. — So much
of the judgment roll as contains, or should contain, the
history of the proceedings which have taken place in
court is subject to amendment under the same circum-
stances and to the same extent as the judgment itself. ^ A
very important part of the judgment roll is that contain-
ing evidence of the service of process, or the taking of
such other steps as are necessary to give the court juris-
diction over the person of the defendant; and it may hap-
' Keen v. Jordan, 13 Fla. 327; Fisher v. Sievres, 65 111. 99; Welch v. Smith,
65 Miss. 394.
§ 89 b THE KECORD, OR JUDGMENT ROLL. 122
pen that this part has been omitted from the roll, or has
never been filed in court at all, or as filed and incorporated
in the roll, is defective, and not sufficient to sustain the
jurisdiction of the court, when attacked on appeal, or by-
motion to set it aside, or even when assailed in a collateral
action or proceeding. Then the question arises whether
the omission may be supplied, or the error corrected; and
if so, by what means. As a general rule, an officer who
has made a return of process will be permitted to amend
such return at any time.* If the return upon the sum-
mons or other writ designed to give the court jurisdiction
over the person of the defendant is omitted or incorrectly
made, but the facts really existed which were required to
give the court jurisdiction, the weight of authority at the
present time permits the officer to correct or supply his
return until it states the truth, though by such correction
a judgment apparently void is made valid.^ Though the
proof of the service of process does not consist of the re-
turn of an officer, the like rule prevails. Thus if a sum-
mons has been published in the manner required by law,
but the proof of publication found in the files of the court
is defective, the court may, on the fact of due publication
being shown, permit an affidavit to be filed showing the
facts, and when so filed it will support the judgiilent as if
filed before its entry.* If an appeal has been taken, the
clerk of the court whose record has been thus corrected
may be required to certify it to the appellate court, where
it wall be received and considered in its corrected form,
and sustained if, as so corrected, it is free from error.*
1 Malone v. Samuel, 3 A. K. Marsh. ' Foreman v. Carter, 9 Kan. 674;
350; 13 Am. Dec. 172, and note. Burr v. Seymour, 43 Minn. 401; 19
'^ Kirkwood v. Keedy, 10 Kan. 453; Am. St. Rep. 245; Estate of Newman.
Hefflin v. McMinn, 2 Stew. 492; 20 75 Cal. 213; 7 Am. St. Rep. 140; Frisk
Am. Dec. 58; Stotz v. Collins, 83 Va. v. Reigelman, 75 Wis. 499; 17 Am. St.
423; Shenandoah V. R. R. Co. v. Rep. 198.
Ashby's Trustees, 8G Va. 232; 19 Am. * Rew v. Barker, 5 Cow. 408; 14
St. Rep. 891; Allison v. Thomas, 72 Am. Dec. 515, and note; Bergin v.
Cal. 562; 1 Am. St. Rep. 89. A die- Rigg, 40 111. 61; 89 Am. Dec^ 335;
turn to the contrary may be found in State v. Reid, 1 Dev. & B. 377; 28
Reinliart v. Lugo, 86 Cal. 395; 21 Am. Am. Dec. 572.
St. Rep. 52.
123 VACATING JUDGMENTS. § 90
CHAPTER VI.
VACATING JUDGMENTS.
§ 90. Is a common-law power.
§ 91. Application may be made by either party, but generally not by third
persons.
§ 92. Cases where third persons may apply.
§ 9.3. Power to vacate restricted in California.
§ 94. Writs of error coram nobis and coram vobis.
§ 95. Writs of audita querela.
§ 96. Vacation after lapse of the term — General principles controlling.
§ 97. Irregularities.
§ 98. Nullities.
§ 99. Fraud.
§ lOJ. Decrees.
§ 101. Error no ground for vacation.
§ 101 a. Judgments against minors.
§ 101 b. Exceptional instances.
§ 102. Merits and laches.
§ 103. Notice.
§ 104. Conditional vacation.
§ 104 a. Entry of second judgment.
§ 104 b. Effect of vacating judgment.
§ 90. Is a Common-law Power. — The power to vacate
judgments was conceded by the common law to all its
courts.' This power was exercised in a great variety of
circumstances, and subject to various restraints. The
practice in the different states is, in many respects, so
conflicting that few rules can be laid down as universally
applicable. One rule is, however, undoubted. It is, that
the power of a court over its judgments, during the entire
term at which they are rendered, is unlimited.^ Every
term continues until the call of the next succeeding term,
1 Kemp V. Cook, 18 Md. 130; 79 Am. Rich v. Thornton, 69 Ala. 473. The
Dec. 681. fact that an appeal has been taken
^ Underwood v. Sledge, 27 Ark. 295; has been held not to destroy the power
Ashley v. Hyde, 5 Ark. 100; State v. of the court to set aside the judgment
Treasurer, 43 Mo. 228; Nelson v. apxjealed from at the term of its rendi-
Ghiselin, 17 Mo. App. 063; McClellan tioii: Leon v. Wettermath, 58 Tex.
V. Binkley, 78 Ind. 503; Kelty v. High. 125; Garza v. Baker, 58 Tcyc. 483. A
29 W. Va. 381; Volland v. Wi!cox,"l7 probate court may vacate its order
Neb. 46; Fraley v. Featlier, 46 N. J. L. or decree: In re Marquis, 85 Mo.
429; State v. Sowders, 42 Kan. 312; 615.
§ 91 VACATING JUDGMENTS. 124
unless previously adjourned sine die} Until that time
the judgment may be modified or gtricken out.^ While
the right to have a judgment set aside upon sufficient
showing is secured to the applicant by the granting of an
appeal in case of a denial of the right, the party whose
judgment is vacated before the lapse of the term has no
remedy. The action of the court in granting a motion to
set aside a judgment is discretionary, and not to be re-
viewed in any appellate court.^ The power of vacating a
judgment must be exercised by the court, and not by a
judge at chambers.'' This power must be exercised solely
by the judiciary. The legislature cannot set aside a judg-
ment, nor can it empower any court to set aside a judg-
ment which had been rendered and had passed beyond
the control of the court prior to the passage of the act;
because in doing so the legislature is exercising judicial
functions not accorded to it by the constitution.^ There-
fore, a statute which declares " that in all cases where
judgment heretofore has been, or hereafter may be, ob-
tained in any court of record by means of perjury, or any
fraudulent act, practice, or representation of the prevail-
ing party, an action may be brought by the party aggrieved
to set aside such judgment at any time within three years
after the discovery of the facts constituting such fraudu-
lent act, practice, or representation," must be restricted in
its operation to judgments rendered after its enactment.^
§91. Who may Apply for. — An application to set
aside a judgment may be made by either of the parties.
J Townsend v. Chew, 31 Md. 247. Bridge Co., 18 How. 421; Cooley's
2 Doss V. Tyack, 14 How. 297; Tay- Const. Lim., 94; Griffin v. Cunning-
lor V. Lusk, 9 Iowa, 444. ham, 20 Gratt. 31; United States v.
2 Bolton V. McKinley, 22 111. 203. Klein, 13 Wall. 128; White v. Hern-
♦ Ross V. Grange, 27 U. C. Q. B. 306; don, 40 Ga. 493; De Chastellux v.
Mearns v. Grand Trunk E'y Co,, 6 Fairchild, 15 Pa. St. 18; 53 Am. Dec.
U. C. L. J. 62. 570; Taylor v. Place, 4 R. I. 324;
* Arnold v. Kelley, 5 W. Va. 446; Ratcliflfe v. Anderson, 31 Gratt. 105;
Merrill v. Sherburne, 1 N. H. 199; 8 31 Am. Rep. 716; Davis v. Menosha,
Am. Dec. 52; Burch v. Newbury, 10 21 Wis. 491. Contra, Ex parte Bibb,
N. Y. 374*; Lewis v. Webb, 3 Greenl. 44 Ala. 140.
326; Hill V. Town of Sunderland, 3 « Wielaud v. Shillock, 24 Minn.
Vt. 507; State /;. Wheeling and Belmont 345.
125 VACATIXG JUDGMENTS. § 91
The one who has been injured by the judgment may have
it vacated, though it is in his favor, unless it was given
at his instance, with knowledge on his part of its irregu-
larity.^ In fact, the propriety and necessity of striking
out a judgment on application of him in whose favor it
is are apparent. The judgment may be so irregular as
to furnish no justification for any proceedings to execute
it. If so, the party recovering it is entitled to have it set
aside, to enable him to proceed against the defendant
regularly.^ Or through fraud, mistake, or irregularity,
the defendant may procure a judgment to be entered for
much less than the amount due. In this case, the plain-
tiff's right to have the judgment vacated is as obvious as
though it were entirely in favor of the defendant. As a
general rule, none but the parties to a judgment can have
it set aside.^ Every litigant, if an adult, is presumed to
understand his own interests, and to be fully competent
to protect them in the courts. He has the right to waive
all irregularities in proceedings by which he is affected,
and is entitled to exclusively decide upon the propriety
of such waiver. To allow disinterested third persons to
interpose in his behalf, and to undertake the manage-
ment of his business, according to their judgment, would
create intolerable confusion and annoyance, and produce
no desirable result. To permit third persons to become
interested after judgment, and to overturn adjudications
to w4iich the original parties made no objection, would
encourage litigation, and disturb the repose beneficial to
society. Therefore, if the defendant is the real as well as
1 Downing v. Still, 43 Mo. 309. But to have such proceedings or judgments
the person applying must show that set aside ": Gere v. Gundlach, 57 Barb,
he was prejudiced by the judgment 15.
at its rendition: Hervey v. Edmunds, ^ Herdic v. Woodward, 75 Pa. St.
68 N. C. 243; Hardin v. Lee, 51 Mo. 479.
241. "Nothing can be clearer than * Hinsdale v. Hawley, 89 N. C. 87;
that for defects or irregularities not Merchants' & M. N. B. v. Harman, 80
affecting the jurisdiction of tlie court, Ga. 624; Coleman v. Case, 66 Iowa,
and wliere no fraud or collusion is im- 53i; Parsons v. Johnson, 66 Iowa, 455;
puted, the remedy for such defects is Walton v. Walton, 80 N. C. 26; Baugh
given to the party alone, and that an- v. Baugh, 37 Mich. 59; 26 Am. Kep.
other judgment creditor is not entitled 495.
§ 92 VACATING JUDGMENTS. 126
the nominal party affected, as long as he is satisfied with
the judgment, all other persons must be.^ None of his
subsequent assignees can complain for him. He who
purchases lands liable to a judgment lien cannot have
the judgment vacated for irregularity, to avoid the lien.
The best position he can occupy is that of a purchaser
cum onere,^ even though he ofi'ers to prove that he made a
vain search for such liens before completing his purchase.^
Third persons may sometimes have a judgment vacated
on the ground that it is collusive, or that the cause of ac-
tion on which it is based was fictitious; but they are not
allowed to take advantage of errors or irregularities of
proceeding.* If a judgment prejudicially affects two or
more persons, either of them may move for its vacation,
and if proper cause is shown, may obtain relief.^ Whether
this relief must necessarily be extended to all the parties
wall depend upon the further question whether the judg-
ment must be regarded, under the circumstances of the
case and the laws of the state, as an entirety.^
§ 92. When Third Persons may Apply. — The rule that
none but parties to the judgment are permitted to inter-
fere admits of exceptions, excluding from its operation
persons not nominal parties to the action, but who are
necessarily affected by the judgment, and who have
equities entitled to be protected from its operation.'^
Thus if a party confesses judgment for too much, or not
in conformity to the statute, it may be set aside by a
judgment creditor; or if the defendant is a trustee about
compromising the rights of his cestui que use, by confes-
sion, by default, by carelessness, or by a palpably mistaken
view of his duty, the court, at the instance of the real
1 Drexel's Appeal, 6 Pa. St. 272. Fall v. Evans, 20 Ind. 210; St. John v.
2 Jacobs V. Burgwyn, 63 N. C. 196. Holmes, 20 Wend. 609; 32 Am. Dec.
3 Packard v. Smith, 9 Wis. 184. 603.
* Hauer's Appeal, 5 Watts & S. * Post, sec. 136.
473. ■' McClurg v. Schwartz, 87 Pa. St.
* Storm Lake V. Iowa Falls, 62 Iowa, 521: McWillie v. Martin, 25 Ark. 556;
218; Franks v. Lockey, 45 Vt. 395; ^tna Ins. Co. v. Aldrich, 38 Wis. 107.
127 VACATING JUDGMENTS. § 93
party in interest, -uill interpose. The comptroller of a
city, having charge of its finances, has a right to have a
judgment against the city set aside, upon showing that it
was obtained by the collusion or consent of other city
officials.' Doubtless, as intimated in the preceding sec-
tion, where one of the parties is a nominal and not a real
litigant, the rights of the latter may be protected by per-
mitting him, in a proper case, to move for and obtain the
vacation of a judgment prejudicial to his interests.^ If a
judgment operates as a lien, or otherwise affects the title
to property, a transfer of such property may work a
change in the parties, who may move to vacate the judg-
ment. Thus in Nebraska, if a defendant by a transfer of
property is placed in such a position that he can no longer
be prejudiced by a judgment, he cannot procure it to be
vacated.^ On the other hand, such transfer, whether by
conveyance or by the death of the defendant, may give
his grantees, representatives, or successors in interest a
right to move to vacate the judgment, as where he, having
no longer any interest in the controversy, suffers default.*
Even though the transfer is made after the entry of judg-
ment, the grantee may move to vacate it on the ground
that it is void because process was not served on the de-
fendant.^
§ 93. Law in California. — In California the jurisdic-
tion of a court over its judgments, except where otherwise
expressly provided by statute, is, unless continued by some
appropriate proceeding, exhausted at the close of the term.
The process continues to be subject to the control of the
court, but the judgment cannot be vacated on any ac-
count,^ except that it is a nullity, " a dead limb on the
1 Lowber v. Mayor of New York, 26 Knott v. Taylor, 99 K C. 410; 6 Am.
Barb 262 * St. Rep. 547; Ladcl v. Stevenson, 112
•^ yEtna'ins. Co. v. Aldrich, 38 Wis. N. Y. 325; 8 Am. St. Rep. 748.
107; Mann v. ^tna Ins. Co., 38 Wis, * People v. MuUan, 65 Cal. 396.
]14 « Baldwin v. Kramer, 2 Cal. 582;
3 Powell V. McDowell, 16 Neb. Robb v. Robb, 6 Cal. ?1; Bell v.
424. Thompson, 19 Cal. 706; Shaw v. Mc-
« Plummer v. Brown, 64 Cal. 429; Gregor, 8 Cal. 521.
§ 94 VACATING JUDGMENTS. 128
judicial tree, which should be lopped off." ' This denial
of the power of the courts to set aside their judgments has
probably been made in no other state. On the contrary,
this power has been fully recognized and liberally em«
ployed in England and in the United States, both at law
and in equity. The remedy by application to the court
in which judgment was pronounced seems in many states
as complete as could be obtained by proceedings in chan-
cery, and in nearly all the states has entirely superseded the
remedy of audita querela, and by writ of coram nobis. As
most of the authorities concede that a judgment may now
be vacated on motion for any of the matters for which a
writ of coram nobis or an audita querela would formerly
lie, the consideration of the matters to whjch those rem-
edies were successfully applied is material.
§ 94. Writs of Error Coram Nobis and coram vobis have
frequently been treated as identical. The object sought
by each writ is the same; but the method of seeking it is
different. The former writ issued out of the court where
the error was alleged to have occurred, and was returnable
before the same court. It recited that "because in the
record and proceedings, and also in the rendition of the
judgment of a plea in our court before us, it is said a
manifest error hath happened"; and it then directs the
judges to inspect the " record and proceedings .which be-
fore us now remain," and to do what of right ought to be
done to correct that error. The latter writ was made re-
turnable before some superior tribunal, and required the
record and proceedings to be certified to such tribunal for
its revisory action.^ A judgment is not to be set aside
because improperly entered, unless the showing is suffi-
cient to £tuthorize a writ of error coram nobis. If there is
error in the process, or through the default or misprision
of the clerk, it must be corrected in the same court. But
this writ cannot reach error in matters of law. A plea in
1 People V. Greene, 74 CaL 400; 5 » Camp v. Bennett, 16 Wend. 48.
Am. St. Rep. 448.
129 VACATING JUDGMENTS. § 94
abatement setting up the death of one of the parties, or that
he is a slave or a kinatic, if overruled, estops the party
who presented it from again urging those matters in the
same court; for in this case it is evident that the court
misapprehended the law, but understood the facts/ If,
however, the proceedings are based upon facts presumed
by the court to exist, as when one of the parties is insane,
or is an infant or a feme covert, or has died before ver-
dict, and the court, supposing such party to be alive and
competent to appear as a litigant, renders judgment, it
may be set aside by a writ of coram nobis} But this writ
does not lie to correct any error in the judgment of the
court, nor to contradict or put in issue any fact directly
passed upon and affirmed by the judgment itself. If this
could be, there would be no end to litigation. Accord-
ingly, where the judgment stated that defendant appeared
and confessed, he was not allowed to controvert that state-
ment, after the lapse of the term, for the purpose of vacat-
ing the judgment.^ The writ of error coram nobis is not
intended to authorize any court to review and revise its
opinions; but only to enable it to recall some adjudication
made while some fact existed which, if before the court,
would have prevented the rendition of the judgment, and
which, without any fault or negligence of the party, was
not presented to the court. That defendant was sum-
moned by a wrong name, and was unable to find the
declaration, and therefore did not appear, does not entitle
him to this writ. It is his own fault that he did not plead
the misnomer or take judgment of nolle prosequi.* These
writs have been generally, if not universally, superseded,
and redress formerly obtained through their aid is now
sought by motion.^
I Hawkins v. Bowie, 9 Gill & J. 428; ' Richardson's Ex'r v. Jones, 12
Bridendolph v. Zellers's Ex'rs, 3 Md. Gratt. 53.
325. * Brandon v. Diggs, 1 Heisk. 472.
•^ Kemp V. Cook, 18 Md. 130; 79 ^ Pickett v. Legerwood, 7 Pot. 144;
Am. Dec. GSl; Mississippi & T. R. R. McKindley v. Buck, 43 111. 4SS; Lifa
Co. V. Wynne, 42 Miss. 315; Hurst v. Ass'u v. Fasaett, 102 III. 315.
Fisher, 1 Watts & S. 438.
J0DG. I.— 9
§ 95 VACATING JUDGMENTS. 130
§ 95. Audita Querela. — The proceeding by writ of
audita querela is said to have commenced about the tenth
year of the reign of Edward III. It gradually gave way
in England, in most cases, to the more simple and equally
efficient remedy by motion. It is, nevertheless, still used
in some of the United States, and is sometimes sanctioned
in cases where the writ of coram nobis seems peculiarly
appropriate. The original purpose of the writ, and the
one to which it is generally confined, is that of relieving a
party from the wrongful acts of his adversary,^ and of
permitting him to show any matter of discharge which
may have occurred since the rendition of the judgment.''
It is in the nature of a bill in equity; and was invented,
says Blackstone, "lest in any case there should be an
oppressive defect of justice, where a party who hath a
good defense is too late to make it in the ordinary forms
of law." It is a judicial wa^it founded upon the record
and directed to the court where the record remains.^ It
has the usual incidents of a regular suit, with its issues of
law and of fact, its trial and judgment;^ and the persons
whose judgment is sought to be vacated must be made
parties and given notice.^ Besides being an appropriate
remedy where some matter of discharge has arisen, the
audita querela may be employed w^hen a good defense to
the action has accrued since the entry of the judgment, or
where such defense, though existing prior to the judgment,
was not brought to the attention of the court, on account
of fraud or collusion of the prevailing party.^ Where the
defendant during the pendency of the suit paid the debt,
and the plaintiff afterward took judgment, it was held
1 Kimball V. Randall, 56 Vt. 558; ' Brooks v. Hunt, 17 Johns. 484.
Hawley v. Mead, 5'2 Vt. 343; Lovejoy ^ Gleason v. Peck, 12 Vt. 56; 36 Am.
V. Webber, 10 Mass. 103; Little y. Dec. 329; Melton v. Howard, 7 How.
Cook, 1 Aiken, 363; 15 Am. Dec. 698; (Miss.) 103; Troop v. Ricardo, 9 Jur.,
Brackett i;. Winslow, 17 Mass. 159. N. S., 887; H Week. Rep. 1014; 8
2 Powell's Appellate Proceedings, L. T., N. S., 757; 33 Beav. 122.
377; Barker v. Judges, 4 Johns. 191. « Bryant v. Johnson, 24 Me 304;
3 Poultney v. Treasurer, 25 Vt. 168; Wetmore v. Law, 34 Barb, olo; btani-
' Harper v. Kean, 11 Serg. & R. 280; foi-d v. Barry, 1 Aiken, 321; lo Am.
Warner v. Crane, 16 Vt. 79. Dec. 692.
131 VACATING JUDGMENTS. § 95
that this writ would lie.' It has also been applied for the
purpose of vacating a judgment against an infant who
defended without appointment of a guardian;^ and a judg-
ment against a lunatic whose guardian was not notified.^
In Vermont, it seems to be employed with more frequency
than elsew^here, and to answer as a specific for all sorts of
mischiefs not otherwise provided against. It there has
power to vacate a judgment rendered after a suit is dis-
continued by agreement, or by failure of the parties to
appear for trial or for irregularity,* or in cases where a
justice of the peace should have allowed an appeal, but
refused to do so.^ It is the proper remedy when two judg-
ments have been rendered on the same cause of action,
and one of them is paid.® It is not sustained b}'- error of
the court in a matter of law or of fact; ^ and is never per-
missible in a case where a writ of error is proper by the
common law, though the right to such writ has been
taken away by statute.^ But a party having an oppor-
tunity of making his defense, or who is injured through
his own neglect, cannot be relieved by audita querela.^
Nor can a party, by audita querela, obtain relief from a
judgment rendered against him on the unauthorized
appearance of an attorney.^" The fact that the judgment
debtor had an equitable defense not cognizable at law
does not entitle him to this writ;" nor can he by it obtain
affirmative relief other than the setting aside of the judg-
ment, and the relief incidentally following therefrom.'^
Proceedings hj audita querela are in the nature of a direct
rather than of a collateral attack, and therefore the party
seeking relief may contradict the record.'^ A judgment
' Lovejoy v. Webber, 10 Mass. 101. ' Thatcher ?-. Gammon, 12 Mass. 270;
« Starbird v. Moore, 21 Vt. 529. Griswoldv. Rutland, 23 Vt. 324; Avery
» Lincoln V. Flint, 18 Vt. 247. v. United States, 12 Wall. 304; Barker
* Jenney v. Glynn, 12 Vt. 480; Pike v. Walsh, 14 Allen, 175.
V. Hill, 15 Vt. 183. !« Abbott v. Dutton, 44 Vt. 551;
5 Edwards v. Osgood, 33 Vt. 224; Spaulding v. Swift, 18 Vt. 214.
Harriman v. Swift, 31 Vt. 385. " Garfield v. University, 10 Vt. 536.
« Bowne v. Joy, 9 Johns. 221. '^ Foss v. Witham, 9 Allen, 572.
' Lamson v. Bradley, 42 Vt. 165; " Folsom i'. Connor, 49 Vt. 4; Pad-
School IJistrict V. Hood, 27 Vt. 214. dlofonlw. Bancroft, 22 Vt. 529; Hill v.
8 Spear v. Flint, 17 Vt. 497. Warren, 54 Vt. 73.
§ 96 VACATING JUDGMENTS. 132
debtor residing out of the state and who has not been
served with process may, by aid of this writ, have an exe-
cution set aside which has been taken out by a creditor,
without first filing a bond required by statute.' An audita
querela, like a motion to set aside a judgment, is only
available in behalf of one who was prejudiced by the judg-
ment at its rendition. If the party does not seek to avoid
the judgment, his subsequent alienee will not be allowed
to interfere with it.^ A party who has been discharged
in insolvency, if he suffers default to be taken against him,
is not entitled to have the judgment set aside for the
purpose of pleading his discharge.^ As a general rule,
whenever audita querela would lie at common law, relief
may now be obtained on motion. But perhaps in some
of the states and in England, if the right to relief is ques-
tionable, or if the facts of the case are disputed, the party
moving may be compelled to have recourse to this writ.*
In a majority of the states it is undoubtedly superseded
by the more summary method of application by motion
upon notice to the adverse party."
§ 96. Vacating Judgments after Lapse of Term — Gen-
eral Principles Controlling. — All judgments regularly
entered must become final at the end of the term. After
that time the courts which entered them have no power
to set them aside,^ unless some proceeding for that object
has been commenced within the term and has been con-
' Folan V. Folan, 59 Me. 566; Ding- Falvey, 18 Wis. 571; Smock v. Dade,
man v. Meyers, 13 Gray, 1; Harnioa 5 Rand. 639; 16 Am. Dec. 780; Dun-
V. Martin, 52 Vt. 255. lap r. Clements, 18 Ala. 778; Chambers
■^ Beard V. Ketchum, 8 U. C. Q. B. v. Neal, 13 B. Mon. 256; Huston v.
523. Ditto, 20 Md. 305.
3 Faxon v. Baxter, 11 Cush. 35. « Bronson v. Schulten, 104 U. S. 410;
* Giles V. Nathan, 5 Taunt. 558; Trawick v. Trawick, 67 Ala. 271;
Lister v. Mundell, 1 Bos. & P. 427; Moore v. Heunant, 90 N. C. 163; Hall
Symonds v. Blake, 4 Dowl. P. C. 263; v. Paine, 47 Conn. 429; Clemmons v.
2 Cromp. M. & R. 416; 1 Gale, 182; Field, 99 N. C. 400; Memphis & C.
BakertJ. Ridgway, 2Bing. 41; 9 Moore, R. R. Co. v. Johnson, 16 Lea, 387;
114; Wardeil v. Eden, 2 Johns. Cas. Morgan v. Hayes, Breese, 126; 12 Am.
258. Dec. 147; Wood v. Payea, 138 Mass.
* McMillan v. Baker, 20 Kan. 50; 61; Rogers v. Watrous, 8 Tex. 62; 58
Longworth v. Screven, 2 Hill (S. C.) Am. Dec. 100; Rawdon v. Rapley, 14
298; 27 Am. Dec. 381; McDonald v. Ark. 203; 58 Am. Dec. 370.
133 VACATING JUDGMENTS. § 96
tinued for hearing, or otherwise remains undisposed of.^
In those cases in which the court afterward interferes to
vacate or annul a judgment, the interference can only be
justified on the ground that the judgment was procured
in such a manner as to indicate that it was not intended
to be authorized by the court, or if authorized by the
court, that it is nugatory for want of jurisdiction over the
parties.^ The interests of society demand that there
should be a termination to every controversy. Courts
have no power, after fully deliberating upon causes, and
ascertaining and settling the rights of parties, to add
clauses to their judgments authorizing the losing party to
apply at a subsequent term to have the judgment against
him set aside. If a vacillating, irresolute judge were
allowed to thus keep causes ever within his power, to de-
termine and redetermine them term after term, to bandy
his judgments about from one party to the other, and to
xihange his conclusions as freely and as capriciously as a
chameleon may change its hues, then litigation might be-
come more intolerable than the wrongs it is intended to
redress. Leave granted in one term to move to set aside
a judgment at the next term is void.' It is doubtful
whether after the lapse of a term after a judgment has
been regularly entered, the court does not lose jurisdiction
over the action so that the parties cannot by their consent
confer power upon it to set aside the judgment and rede-
termine the controversy;* and whether this is so or not,
the parties cannot by their stipulation make it the duty
of the court to vacate the judgment and retry the cause.®
The want of power to vacate judgments after the lapse
of the terra at which they were regularly entered exists in
the appellate as well as in the subordinate courts.* The
1 Green v. P. W. & K. R. R. Co., ' Hill v. City of St. Louis, 20 Mo.
11 W. Va. 6S5; Windett v. Hamilton, 584.
52 111. 180. * Little Rock v. Bullock, 6 Ark.
2 Cook V. Wood, 24 111. 295; Ashby 282; Anderson v. Thompson, 7 Lea,
V Glasgow, 7 Mo. 320; State Sav. 259.
Inst. V. Nelson, 49 IlL 171; Merle v. * Kidd v. McMillan, 21 Ala. 325.
Andrews, 4 Tex. 200. * DonuoU v. Hamilton, 77 Ala. 610.
§ 97 VACATING JUDGMENTS. 134
power of courts to set aside judgments after the lapse of
the term is subject to settled principles, and the action of
courts, if not authorized by those principles, is susceptible
of review and reversal in the appellate courts.^ It must
be confessed, however, that while those principles may ^e,
and probably are, sufficiently defined in each state, they
vary in material respects in the different states. One state
withholds this power altogether, others confine it to judg-
ments rendered contrary to the practice or without the
authority of the court, while in some it is applied within
very broad limits, and seems to be kept, like reserved
troops at a battle, for desperate emergencies not otherwise
to be overcome.^ Some courts regard judgments by de-
fault or upon confession as always within their control,
and therefore as subject to vacation at any time, if, in
their opinion, notwithstanding the lapse of time, that re-
lief ought to be granted.^
§ 97. For Irregularity. — " Irregular and improper
conduct in procuring judgment to be entered is a well-
settled ground for vacating it. This has become one of
the settled remedies where the impropriety or irregularity
has not been induced by the fault or negligence of the
judgment debtor." * A judgment is said to be irregular
whenever it is not entered in accordance with the prac-
tice and course of proceeding where it was rendered,^
» Huntington v. Finch, 3 Ohio St. 17 Pick. 169; Wolfe v. Davis, 74 N. C.
445: Henderson v. Gibson, 19 Md. 597.
234. 2 Breden v. Gilliland, 67 Pa. St. 36;
^ In Massachusetts, where a wrong King i'. Brooks, 72 Pa. St. 363; Powell
verdict had been rex^orted to the court v. Jopling, 2 Jones, 400; Wilson v.
through mistake, and a judgment was Tarbert, 3 Stew. 296; 21 Am. Dec.
entered thereon, the court said: "We 637; Hall v. Jones, 32 111. 38.
think it clear that the court had power * Huntington v. Finch & Co., 3 Ohio
at a subsequent term, in the exercise St. 445; Downing v. Still, 43 Mo. 309;
of a judicial discretion, on satisfactory Doan v. Holly, 27 Mo. 256; Harkuess
proof that an erroneous entry had been v. Austin, 36 Mo. 47; Craig v. Wroth,
made on the docket through mistake, 47 Md. 281; O'Hara v. Baum, 82 Pa.
to order the case to be brought for- St. 416.
ward for the purpose of vacating the * Dick v. McLaurin, 63 N. C. 185^
previous erroneous order, and making Davis v. Shaver, 1 Phill. (N. C.) 18;
such disposition of the case as the 91 Am. Dec. 92. A judgment inad-
rights of the parties might require ": vertently entered by the clerk will be
Capen v. Inhabitants of Stoughton, 16 stricken out: Merrick v. Baltimore, 43
Gray, 365. See also Stickney v. Davis, Md. 219.
135 VACATING JUDGMENTS. § 97
When the writ was not returned until two months after
the return day, and the judgment was entered as of the
same day, it was set aside as irregular, on the ground
that if entered before the return, it was unauthorized;
and if entered subsequent to its date, it was a false record/
Judgments prematurely entered by default'^ and those
entered after the death of a party ^ are irregular, and may
be stricken out on motion. Taking judgment upon a
warrant of attorney without filing a copy is, in Ohio, such
irregularity as authorizes the vacation of the judgment
after the term.* Where the duty of plaintiff required him
to give notice of the taxing of costs, and he failed to do
so, the judgment was set aside, and he was compelled to
give a notice at his own expense.^ The irregularities
which have been treated as sufficient to justify the vaca-
tions of judgments are very numerous, and it is not possi-
ble to prescribe any test by which, in all jurisdictions,
to determine whether or not a particular irregularity
is such as to require the vacation of a judgment. When
the irregularity does not go to the jurisdiction of the court,
its action will be largely controlled by the promptness
with which the application is made, and by the consider-
ation whether or not the irregularity is one which could
have operated to the prejudice of the applicant.® Gener-
ally, judgments will not be set aside after the lapse of the
term, on account of mere technical defects, such, for in-
stance, as that the name of the defendant was not correctly
stated in the summons,^ or that the time at which he was
to appear was imperfectly described, where he could
have had no doubt as to the time intended.® The follow-
' Graff V. M. & M. Trans, Co., 18 Am. St. Rep. 547; Holmes v. Honie,
Mel. HG4. 8 How. Pr. 384.
2 Mailhouse v. Inloes, 18 Md. 329; ♦ Knox Co. Bank v. Doty, 9 Ohio St.
Browning v. Roane, 9 Ark. 354; 50 505; 75 Am. Dec. 479.
Am. Dec. 218; Branstetter v. Rives, * Fenton v. Garlick, 6 Johns. 288.
34 Mo. 318; Walters v. Walters, 132 ^ Stancill v. Gay, 92 N. C. 455.
111. 467. ' Jones v. San Francisco Sulphur
» Bowen V. Troy Mill Co., 31 Iowa, Co., 14 Nev. 172.
460; Grossman's Appeal, 102 Pa. St. » Roberta v. Allman, 106 N. 0.
137; Knott v. Taylor, 99 N. C. 511; 6 391.
§ 97 VACATING JUDGMENTS. 13G
ing are instances of the vacation of judgments for irreg-
ularity: Where judgment was entered as by default when
there was a demurrer on file and not disposed of;^ where
an answer had been filed and judgment was, notwdth-
standing, entered by default;^ where creditors who were
made co-defendants did not serve their answers on the
parties comj)laining, nor give any notice of the trial, and
where, also, judgment was entered by default against a
decedent without making his representatives parties;^
where the cause was tried by a judge when the parties
were entitled to jury trial ;^ where there was a failure to
give notice of the trial ;° where judgment was taken against
a garnishee without serving notice of the garnishment on
the principal debtor;^ where the judgment was entered by
the clerk without authority;' where judgment on a joint
contract was entered against a part only of the defendants
liable thereon.® Defects in the process, or in its service,
constitute the most unquestionable ground for the vaca-
tion of judgments after the lapse of the term. If there is
an entire absence of service of process, and this fact appears
by the record, or by such evidence as, under the prac-
tice of the court where the judgment is entered, is compe-
tent, it may be vacated on motion at any time.® Though
process was served in some manner or was defective in
form, and the judgment is not therefore absolutely void,
it will generally be vacated on motion, as where the sum-
mons was served on Sunday, though the return declared it
to have been served on Monday,^*' or was left at defendant's
residence with a person who did not reside there," or the
notice of an application for the probate of a will was pub-
lished but twice, when it was directed to be published three
times,^^ or the summons was served on the return day.^^
' Norman v. Hooker, 35 Mo. 366; ^ Mullendove v. Silvers, 34 Ind. 98.
Oliphant v. Whitney, 35 Cal. 25. ' Smith v. Rollins, 25 Mo. 408; Allen
^ Knowles v. Fritz, 58 Wis. 216. v. Rogers, 27 Iowa, 106; post, sec. 98.
s Edwards v.Woodroof, 90 N. Y. 396. " Smith v. Noe, .30 Ind. 117.
* Cowles V. Hayes, 69 N. 0. 406. " Hefifner v. Gunz, 29 Minn. 108.
^ People V. Bacon, 18 Mich. 247. ** In re Charlebois, 6 Mont. 373.
* Searle v. Fairbanks, 80 Iowa, .307. " Simcock v. First Nat. Bank, 14
' Wharton v. Harlan, 68 Cal, 422. Kan. 529.
137 VACATING JUDGMENTS. § 98
§ 98. Nullities. — A judgment which is a nullity on ac-
count of being rendered against a corporation that does
not exist will be vacated by the court which entered it.^
And, as a general rule, all void judgments will be so
treated.^ In a case in South Carolina, the court asked
itself this pertinent question: "Should the court whose
process is abused by an attempt to enforce a void judg-
ment interfere, for its own dignity and for the protection
of its officers, to arrest further action?" and answered
itself by saying: "Certainly, on proper application."' In
New York, judgment was vacated on motion, on the ground
that the summons was served by publication, and the
record did not, on its own face, show sufficient facts to
confer jurisdiction upon the court.* In most of the states,
a judgment will be set aside, though procured according
to the ordinary forms of practice, upon showing a want
of jurisdiction over the person of the judgment debtor.^
This has been done in cases of appearance made by un-
authorized attorneys, upon showing by affidavits the want
of authority in those persons, and that the defendant did
not know of their action in his name when it occurred.
The courts have acted in these cases without inquiring
whether the attorneys were solvent or insolvent;^ but in
this respect they probably disregarded the current of the
authorities. While it is universally conceded that a judg-
ment void for want of jurisdiction over the person of the
defendant may be vacated on motion, irrespective of the
lapse of time,^ there is, as we shall hereafter show, a wide
» City of Olney v. Boyd, 50 111. 453. 12; McKelway w. Jones, 17 N.J. L. 345;
2 Fonnan v. Carter, 9 Kan. 674; 12 Kenyon v. Shreck, 52 111. 382; Latnner
Am, Law Rep. GO; Hervey v. Ed- v. Latimer, 22 S. 0. 257; Vihis v.
munds 6SN.C. 243; Winsloww. Ander- Plattsburgh etc. R. R. Co., 12., JN. y.
soa 3 Dev. & B. 9; 32 Am. Dec. 651; 440; 20 Am. St. Rep. 771; Bradley v.
Outhwite V. Porter, 13 Mich. 533; Welch, 100 Mo. 258; Winters?'. Means,
Pantall v. Dickey, 123 Pa. St. 431. 25 Neb. 274; 13 Am. St. Rep. 489;
» Mills & Co. V. Dickson, 6 Rich. 487. Woods v. Dickinson, 7 Mackey, 301.
♦Hallettv. Righters, 13How. Pr.43. ' People r. Greene, 74 Cal. 103; 5
» Shuford V. Cain, 1 Abb. 302; In Am. St. Rep. 448; People v. Mullan,
re College Street, 11 R. I. 472; Cotton 65 Cal. 396; Ladd v. Mason, 10 Or.
V McGehee, 54 Miss. 621; Pettua v. 308; People v. Pearson, 76 Cal. 403;
McClanahaii, 52 Ala. 55. Kx parte Crenshaw, 15 Pet. 119; Mills
« Yates V. Horanson, 7 Rob. (N. Y.) v. Dickson, 6 Rich. 487; State w.Wau-
§ 98 VACATING JUDGMENTS. 138
divergence of opinion as to what judgments are void for
this reason, and as to whether a motion to vacate a judg-
ment is a direct attack upon it so as to warrant the reception
of evidence not found in the record, and perhaps incon-
sistent with that which is to be found there. Where an
appellate court has deliberately determined that it had
jurisdiction over the subject-matter of an action, it will
perhaps refuse, at a subsequent term, though convinced
that its former conclusion was erroneous, to vacate its
judgment for want of such jurisdiction.' Unless this ex-
ception be sustainable, we believe the decided preponder-
ance of authority justifies, or rather requires, a court, on
motion being made to vacate its judgment because it was
without jurisdiction over the person or the subject-matter,
to inquire whether such was the fact, and if so, to grant
the relief sought. It is true that the supreme court of
California has very recently apparently decided that a
motion to vacate a judgment cannot be granted unless
the record upon its face discloses a want of jurisdiction,
and that though the record shows that the service of
summons was apparently constructive, and was made un-
der circumstances not warranting such service, yet that
a judgment cannot be vacated if it contains a recital that
the defendants "were regularly served with process as
required by law,"^ though in previous cases the same
court had unquestionably authorized the reception of evi-
dence not found in the judgment roll, and had declared
that motions to vacate judgments were direct and not col-
lateral attacks.^ In Alabama, the rule is also enforced that
before a judgment can be vacated after the term, for want
of jurisdiction, its invalidity must appear on the face of
the record.'* When a motion to vacate a judgment, on
paca Co. B.. 20 Wis. 640; Wharton v. ^ State v. Waupaca Co. Bank, 20
Harlan, 68 Cal. 442; Noreman v. Car- Wis. 640.
ter, 9 Kan. 674; Hanson v. Wolcott, ^ People v. Harrison, 84 Cal. 607;
19 Kan. 207; Bruce v. Strickland, 47 People v. Goodhue, 80 Cal. 199.
Ala. 192; Baker v. Barclift, 76 Ala. ^ People v. Mullan, 65 Cal. 396;
414; Crane?;. Barry, 47 Ga. 476; Olney People v. Pearson, 76 Cal. 400.
V. Harvey, 50 111. 453; 99 Am. Dec. 630. * Pettus v. McClanahan, 52 Ala. 55.
139 VACATING JUDGMENTS. § 98
the ground that defendant had never been served with
process, is made, It is doubtless incumbent on the moving
party to clearly prove his case;^ but to hold that he must
establish it by the record is to deny him relief in all cases
in which relief is necessary; for if a judgment record pro-
claims its own invalidity, it must be denied effect every-
where, and it is of little or no consequence whether it is
formally set aside or not. Generally, though there is a
return showing that process was served, this return may
be contradicted on motion to vacate the judgment and
the motion granted, if notwithstanding the return the
court is convinced that it had not acquired jurisdiction
over the defendant.^ So far as the cases, or any of them^
affirm that a motion to vacate a judgment is a direct at-
tack thereon, and may therefore be supported by evidence
not admissible on a collateral attack, we think them erro-
neous. Judgment having been entered in an apparently
legal manner, and the jurisdiction of the court not being
retained by any motion or proceeding taken either during
the term or within the time allowed by some statute, the
court loses all control over the action and the parties
thereto, and its subsequent interference to vacate its judg-
ment can only be justified on the ground that the judg-
ment might be avoided in any collateral proceeding, and
for that reason to permit it to stand unvacated may
probably cause innocent parties to purchase titles based
thereon, or to be otherwise deluded by it. If the defend-
ant has not been served with process, or otherwise brought
within the jurisdiction of the court, he has been denied
due process of law. Whether he has been so denied or
not is a question to be determined by the national courts,
and their determination, when known, should be and
generally is followed by state courts.' If the judgment
cannot be enforced without depriving the defendant of
^ Hunt V. Childress, 5 Lea, 247. Plattsburf,'h etc. R. R. Co., 12.3 N. Y.
2 Hanson v. Wolcott, 19 Kan. 208; 440; 20 Am. St. Rep. 771; Parker v.
Carr v. Commercial Bank, 16 Wis. 50; Spencer, 61 Tex. 155.
HefiFner v. Gunz, 29 Minn. lOS; Stan- » Belcher v. Chambers, 53 Cal. 635.
cill V. Gay, 92 N. C. 455; Vilas v.
§ 99 VACATING JUDGMENTS. 140
due process of law, it should not be enforced at all, but
treated as void, and because void, vacated on motion, and
thereby deprived of its falsely assumed form of a judicial
determination. A judgment entered while an order of
reference is unexecuted is an irregularity, and will there-
fore be vacated at any time.' And a judgment against
an infant who did not appear by guardian stands on the
same footing.^ Where the court ordered a case to stand
over and to be continued for argument, and the clerk, by
mistake, entered judgment on the verdict, and issued exe-
cution, the judgment was set aside and the execution
quashed at the next term, on motion.^
§ 99. For Fraud. — The maxim " that fraud vitiates
everything" is applicable to judgments. Whether the
maxim is to be given effect on motions to vacate them is
more doubtful. In many instances judgments have been
vacated for fraud in their procurement, upon motions
made after the lapse of the term at which they were
entered;* but we judge the safer practice is to require re-
lief to be sought by suits in equity.* Even in the case of
decrees of divorce they have been vacated on motion for
fraud, nor have the courts hesitated to do so even after
marriages have been contracted in reliance upon the
fraudulent decree, and one of the parties was innocent of
all complicity in or knowledge of the fraud,^ On the
' Stacker v. Cooper Circuit Court, ^ Olmstead v. Olmstead, 41 Minn.
25 Mo 401. 297; Young v. Young, 17 Minn. 181;
2 Keaton v. Banks, 10 Ired. 381; Allen v. McClellan, 12 Pa. St. .S28; 51
51 Am. Dec. 303. Am. Dec. 60S. The courts in Massa-
3 United States v. McKnight, 1 chusetts also exercise the power of
Cranch C. C. 84. vacating judgments after the lapse of
♦ Cannan v. Reynolds, 5 El. & B. the term. In a recent case a decree
301; Phillipson v. Earl of Egremont, 6 of divorce was vacated upon petition
Ad. & E., N. S., 587; Mcintosh v. addressed to the court, showing that a
Commissioners, 13 Kan. 171; In re decree had been obtained at a former
Fisher, 15 Wis. 511; Dial v. Farrow, 1 term against petitioner on false testi-
McMu'll. 292; 36 Am. Dec. 267; Taylor mony, on a libel of which she had no
V. Sindall, 34 Md. 38; Pyett v. Hat- notice, and of which actual knowledge
field, 15 Lea, 473. was kept from her by the other party,
^ Syme v. Trice, 96 N. C. 243; Fow- and that the jurisdiction of the court
ler V. Poor, 93 N. C. 466; Sharp v. was founded on a false allegation of
Danville M. & S. W. R. R. Co., 106 domicile: Edson v. Edson, 108 Mass.
N. C. 308; 19 Am. St. Rep. 533. 590; 1 1 Am. Rep. 393.
141 VACATING JUDGMENTS. § 100
other hand, there are courts which deny the right to
vacate decrees of divorce for fraud, though under the cir-
cumstances they would order the decrees vacated if they
did not involve the marital status of parties.^
§ 100. Vacating Decrees, — In relation to decrees, there
seems to be no doubt that the power of the court to dis-
charge the enrollment and open the decree never ter-
minated unless there had been a regular trial on the
merits. The general rule "that a decree once enrolled
cannot be opened except by bill of review, or by an ori-
ginal bill for fraud, is subject to well-founded exceptions,
arising in cases not heard upon the merits, and in which
it is alleged that the decree was entered by mistake or
surprise, or under such circumstances as shall satisfy the
court, in the exercise of a sound discretion, that the decree
ought to be set aside.^ The decree in such cases being by
default, the cause of the default can never be the subject
of inquiry until the decree has been pronounced, and
generally not until after the term has passed. Without
the exercise of this power in the court to vacate the en-
rollment, a party against whom a decree had been enrolled
by mistake or surprise, and without any laches on his part,
would be without redress. A bill of review would be of
no avail, because his claim to relief is not based on error
apparent on the face of the decree, nor on account of
newly discovered evidence; and unable to charge fraud
in obtaining the decree, he would be unable to reverse it
on that ground. Accordingly, it is laid down by the most
eminent elementary writers, and fully sustained by the
adjudged cases, that when a case has not been heard on
the merits the court will, good cause being shown, exer-
cise a discretionary power of vacating an enrollment, and
giving the party an opportunity of having his case dis-
cussed." The fact that the merits of the case were never
» Parish v. Parish, 9 Ohio St. 534; « Cawley v. Leonard, 28 N. J. Eq.
75 Am. Dec. 482; Lewis v. Lewis, 15 4G7; Smith v. Alton, 22 N. J. Eq.
Kau. 181. 572.
§ 100 VACATING JUDGMENTS. 142
before the court seems to be the controlling one in all
applications for the exercise of this discretionary power.
Therefore, where the decree is perfectly regular so far as
regards the appearance of the parties, and is in confor-
mity with the general practice, it may be vacated at the
discretion of the court, upon a showing of mistake, acci-
dent, or surprise, or of negligence of the solicitor, by which
the decision on the merits was prevented;' or that the
merits of the case were not presented to the court, on ac-
count of the guardian ad litem appointed for an infant,
not sufficiently understanding the matters constituting
his defense.^ Principles about as ample and liberal as
those recognized at equity, upon application to vacate de-
crees, seem to be applied to judgments in the courts of
Maryland and Michigan, The courts of the former state
vacate judgments upon clear proof of fraud, surprise, or
irregularity,^ while those of the latter state relieve, upon
motion, irrespective of the question whether the term
has passed, all who have suffered from inability to make
their defense.'' And in England, little, if any, more strin-
gency is applied to applications made after than to those
made during the term. In Cannan v. Reynolds,^ the court
set aside a judgment by default on application of plaintiff,
on the ground of mistake on his part in including de-
mands in the judgment which were due from others than
the defendants, and in excluding equal amounts due from
defendants, whereby, if the judgment was not set aside,
the plaintiffs would be prejudiced. The court thought it
had power to set aside a judgment, at any time, in its dis-
cretion; and stated that it was in the habit of doing so
every day, even after execution executed, and without in-
quiring whether it was in term or not. In Illinois, a
1 2 Daniell's Chancery Practice, 626; Robson v. Cranwell, 1 Dick. 61;
1230; 2 Maddox's Chancery Practice, Beekman v. Peck, 3 Johns. Ch. 415;
466; Herbert v. Rowles, 30 Md. 271; Bennett w. Winter, 2 Johns. Ch. 205.
Kemp V. Squires, 1 Ves. Sr. 205; Mills- ' Curtis v. Ballagh, 4 Edw. Ch. 635.
paugh V. McBride, 7 Paige, 509; 34 * Hall v. Holmes, 30 Md. 558.
Am. Dec. 360; Erwin v. Vint, 6 Munf. * Loreen Reeves, 2 Mich. 133; Hurl-
267; Carter v. Torrance, 11 Ga. 654; burt v. Reed, 5 Mich. 30.
Hargrave v. Hargrave, 9 El. & E. '' 5 El. & B. 301.
14; Benson v. Vernon. 3 Bro. P. C.
143 VACATING JUDGMENTS. §§ 101, 101 a
judgment confessed by attorney was vacated on the ground
that usury entered into the consideration upon which the
confession was made. This action was said to be war-
ranted by the practice in England, though not by that of
some of the United States.*
§ 101. Error as a Ground for. — But neither a final
judgment nor a final decree, pronounced upon a hearing
on the merits, can be set aside after the term, upon mo-
tion, for any errors into which the court may have fallen.
The law does not permit any judicial tribunal to exercise
a revisory power over its own adjudications, after they
have, in contemplation of the law, passed out of the
"breasts of the judges." ^ That a judgment was rendered
upon default, upon considering evidence offered by plain-
tiff, for a sura much larger than that evidence warranted,
is not a ground for vacating the judgment. The matter
complained of is attributable to an error of the court,
which might have happened if the defendant had been
present at the trial.^ Neither is an error or misapprehen-
sion of the parties, nor of their counsel, any justification
for vacating the judgment, although the counsel consented
to it because deceived by fraudulent misrepresentations
of third parties,'* or failed to attend the trial on account
of a misapprehension as to the time of holding court.*
§ 101 a. Vacating Judgments against Minors. — Acting
under the assumption that the remedy by motion to
vacate judgments has taken the place of that by writ of
error coram nobis, and that it may accomplish all the pur-
poses formerly realized by that writ, and that among these
was the correcting of errors of fact, the courts of some of
1 Fleming v. Jencks, 22 111. 475. Wis. 2G2; Brown v. Bennett, 55 Ga.
' Charman v. Charman, 16 Ves. Jr. 189.
115; Assignees v. Dorsey, 2 Wash. =* Green u Hamilton, 16 Md. 317; 77
C. C. 433; Bank of U. S. v. Moss, 6 Am. Dec. 295.
How. 31; Peake v. Redd, 14 Mo. 79; * Murphy v. Merritt, 63 N. C.
McBride v. Wright, 75 Wis. 306; Brett 502.
V. Myers, 65 Iowa, 274; State v. Hor- * Harljor v. Pacific R. R. Co., 32
ton, 89 N. 0. 581; Loomis v. Rice, 37 Mo. 423.
§ 101 b VACATING JUDGMENTS. 144
the states have, on motion, after the lapse of the term,
vacated judgments against minors when the fact of their
minority was not known to the court when it rendered
judgment, and they did not appear by guardian.^ If this
remedy be conceded to be proper, it is obvious that when
minors are regularly served wdth process they must seek
redress within a reasonable time after attaining their
majority, otherwise their delay will preclude their obtain-
ing relief.^
§ 101 b. Exceptional Instances of Vacating Judgments.
— Various instances have occurred in which judgments .
have been vacated after the expiration of the term at
which they were entered, when there was no irregularity
in their entry, and in which the action of the court in
vacating them can hardly be justified except on the broad
assumption that it has a right, upon motion, to prevent
any w'rong which might otherwise be perpetrated by the
aid of its judgments. Among these may be mentioned
the vacation of a judgment because it imposed a fine
which the governor had afterwards remitted;*"' because the
judgment was by default, and payments made by the de-
fendant had not been allowed;^ or was upon a note appar-
ently barred by the statute of limitations;^ or was confessed
by warrant of attorney in consideration of the stifling of a
prosecution for forgery.^ The judgments vacated in these
instances were, generally, either by default or upon con-
fession, and their vacation probably proceeded upon the
ground that judgments of the classes to which they be-
longed were always within the control of the court. Fre-
quently, facts arise after the entry of a judgment which
render its execution clearly inequitable, and where there
I Powell V. Gott, 13 Mo. 458; 53 ^ Chisholm v. State, 42 Ala. 527.
Am. Dec. 153; Randalls v. Wilson, 24 * United States v. Millinger, 17
Mo. 76; Levy v. Williams, 4 S. C. Blatchf. 451.
515; Townsend v. Cox, 45 Mo. 401. " Ellinger's Appeal, 114 Pa. St.
See Dig. Stats. Ark. 1884, sec. 3909; 505.
Rev. Stats. Ohio 1880, sec. 5354. « Bredin's Appeal, 92 Pa. St. 241: 37
■■' Eisenmenger v. Murphy, 42 Minn. Am. Rep. 677.
84; 18 Am. St. Rep. 493.
145 VACATING JUDGMENTS. § 102
is no mode of procuring redress by appeal or motion for
new trial, or other revisory proceeding. The remedy for
such cases at the common law, as we have heretofore
shown, was by audita querela. Though that remedy lias
fallen into disuse, its purpose may, in many jurisdictions,
be accomplished by motion to vacate the judgment when
facts occurring since its rendition make its enforcement
inequitable.^ Hence, where a judgment was based upon
a previous judgment, and the latter was subsequently re-
versed, it was held that relief might be obtained from the
second judgment by motion to vacate it.'^
§ 102. Merits, and Want of Laches. — The most worthy
object attained by the granting of motions to vacate judg-
ments is that of allowing a full investigation of the mat-
ters in controversy, in order that a disposition of the case,
according to the merits, may be made. Whenever that
object does not appear to be the one sought, an applica-
tion based on mere irregularity of proceeding will be
treated with no favor.^ The rules will be strictly applied,
and any laches shown against the moving party will prove
fatal to his desires.'* But what delay necessarily amounts
to laches is uncertain. In an early case in New York,
eight days' notice of trial being given, when the defend-
ant was entitled to fourteen days' notice, he treated it as
void, and judgment was given against him. A subsequent
motion based on the irregularity, made after the inter-
vention of a full term, was considered too late.® In the
^Weaver v. Mississippi and Rum without requiring any showing of
River Boom Co., 30 Minn. 477; Chis- merits: Hanson v. Wolcott, 19 Kan.
holm V. State, 42 Ala. 527. 207.
2 Etna Ins. Co. v. Aldrich, 38 Wis. * Kerr v. Bowie, 3 U. C. L. J. UO;
107; Heckling v. Allen, 15 Fed. Rep. Cagger v. Gardiner, 1 How. Pr. 142;
196. Ammcrman v. State, 98 Ind. 165; Mc-
^ But in Missouri, if a judgment be Cormick v. Hogan, 48 Md. 404; San-
" irregularly obtained against the pro- derson v. Dox, 6 Wis. 164; Altman v.
visions of a statute or the rules of a Gabriel, 28 Minn. 132; Foster v. Haus-
court, a party is entitled to have it set writh, 5 Mout. 566; Williams v. Bu-
aside without showing any merits ": chanan, 75 Ga. 789; Leo ?>. Basey, 85
Doan V. Holly, 27 Mo. 256. See also Ind. 543; Nicholson v. Nicholson, 113
Hughes V. Wood, 5 Duer, 603, note. Ind. 131.
If the judgment be void for want of ^ McEvers v. Markler, 1 Johns. Caa.
jurisdiction, the court will set it aside 248.
JUDG. I. — 10
§ 102 VACATING JUDGMENTS. 146
same state, a third of a century later, an application based
on an irregularity, in giving too short a notice of an
inquisition on a writ of inquiry, made after lapse of two
special terms, was refused, because "as this was an at-
tempt to deprive the plaintiff of his judgment on the
ground of a mere irregularity, the defendant would be
held to the strictest rules of proceeding, and having been
guilty of laches in making his motion, he was not entitled
to be heard." * This decision has been indorsed in Wis-
consin, by holding that a short notice being suflQcient to
put a party upon inquiry, he must ascertain whether his
adversary proceeds to judgment upon it; that a motion
to set aside such judgment, there being no pretense of
merits, must be made at the same term, unless he can show
some good cause for his delay; and that where defendant
waited more than two months, and until the expense of
advertising real estate for sale had been incurred, he
waived the irregularity.^ The defendant must not, ac-
cording to some of the authorities, take any step in the
case after the irregularity occurs, or it will be deemed a
waiver. Thus where an appeal was taken because no
notice of the motion for judgment was served, and the
appellate court declined to interfere, on the ground that
the appropriate remedy was by motion to vacate the judg-
ment, and the defendant then applied in the court where
judgment was rendered to have it set aside, the taking of
the appeal was deemed to be such a proceeding as pre-
cluded him from taking advantage of the irregularity.'
It is said in England that the true rule is, that if there be
an irregularity, the party suffering by it is not bound to
have it set aside in any specific time; that he may reason-
ably presume that his adversary, discovering the error,
will abandon the defective proceeding. But if the ad-
versary take one step more, showing that he has not
• Nichol3 V. Nichols, 10 Wend. 560. ' Jenkins v. Eaterly, 24 Wis.
* Etna Life Insurance Co. v. McCor- 340.
mick, 20 Wis. 265.
147 VACATING JUDGMENTS. § 103
abandoned liis process, then the movement to have the
irregularity set aside must be commenced.' An infant
having confessed judgment by attorney, and permitted it
to stand until six years after coming of age, the court
held that his application to vacate it came too late.^ If
the ground of the motion is, that the court did not have
jurisdiction of the defendant, and that the judgment is
therefore void, the court will act irrespective of lapse of
time, if it finds that the facts are such as to sustain the
motion.^
§ 103. Notice of Application. — During the term at
which a judgment was rendered, the power of the court
over it is so absolute that it may vacate it on its own
motion, and whether on its own motion or not, without
requiring notice to be given to the party to be affected by
its order.* At the close of the term, the parties are dis-
missed sine die, and can no longer be regarded as being
in court. Proceedings taken after that time, to set aside
a judgment, must therefore be upon notice to all the
parties affected,^ and the order of a court acting in the
absence of such notice will be reversed upon appeal.®
Notwithstanding the retainer of an attorney ordinarily
terminates with the entry of final judgment, a motion
to vacate the judgment may be served on him, and when
so served, gives the court jurisdiction to dispose of the
motion.'
1 Fletcher v. Wells, 6 Taunt. 191. Coleman v. McAnulty, 16 Mo. 173;
* Kemp V. Cook, 18 Md, 130; 79 57 Am. Dec. 229; Burnside v. Ennis,
Am. Dec. 681. 43 Ind. 411; Bajourine v. Ramelli, 34
* Vilas?;. Plattsburgh etc. R. R. Co., La. Ann. 554. Hence if property has
123 N. Y. 440; 20 Am. St. Rep. 771; been sold under the judgment, the
Feikert v. Wilson, 38 Minn. 341; court, before hearing a motion to vacate
Thompson v. Thompson, 73 Wis. 84; it, will require notice to be given the
Stocking V. Hanson, 35 Minn. 207; purchaser: Molloy v. Batchelder, 69
Wharton v. Harlan, 68 Cal. 422; Mo. 503; Hettrick v. Wilson, 12 Ohio
Koonce v. Butler, 84 N. C. 221; ante, St. 130; 80 Am. Dec. 337; Nuckolls v.
sec. 88. Irwin, 2 Neb. 60.
* Rich V. Thornton, 69 Ala. 473; « Vallejo v. Green, 16 Cal. 160.
Desrihes v. Wilmer, 69 Ala. 25; 44 ' Branch v. Walker, 92 N. C. 87;
Am. Rep. 501; Lake v. Jones, 49 Ind. Lee v. Brown, 6 Johns. 132; Doane v.
297. Glonn, 1 Col. 454; Beach v. Beach,
* Lane v. Wheless, 46 Miss. 666; Dakota (1889).
§§ 104, 104 a VACATING JUDGMENTS. 148
§ 104. Conditional Vacation. — Where the circuit court
made an order setting aside a judgment upon payment of
the costs which had accrued, the neglect of plaintiff's
counsel to insist upon their payment impliedly waived
the condition upon which the judgment was to be vacated,
and he could not therefore proceed upon the judgment
as still in force.^ In Alabama, an order that a cause stand
dismissed unless plaintiff, within one hundred and twenty
days, answer certain interrogatories is not considered a
final order. It was said that the matter still remained in
the control of the court; that it was competent for the
court at a subsequent term to modify or vacate the order;
that the order could not become effective until the hap-
pening of the contingency was judicially ascertained at
the next term.'^ The courts of the same state hold that
an order setting aside a judgment upon payment of costs
is a conditional order, dependent upon the payment being
made, and that it may be set aside at any subsequent term
prior to the compliance with its condition.^ In this opin-
ion they are probably in error.*
§ 104 a. The Entry of a Second Judgment may follow
the vacation of the first in proper circumstances. The
party in whose favor a judgment has been entered irregu-
larly may, after it has been vacated, proceed as if it had
never been rendered, and in due time and upon proper
proceedings obtain a valid judgment.' But the entry of a
second judgment has been held not to operate as a vaca-
tion of the first. In a case arising in Nebraska, the record
showed the entry of two judgments in the same action at
different dates. Speaking of this state of facts, the court
said: "But as there can be but one final judgment in a
' Ransom v. City of New York, 20 must comply with the condition, or
How. 581. the grant of relief is inoperative: Haxt-
2 Ex parte McLendou, 33 Ala. man v. 01 vera, 49 Cal. 101.
276. * Dana v. Gill, 5 J. J. Marsh. 242;
* Willis V. Bank of Mobile, 19 Ala. 20 Am. Dec. 255; Johnson v. Taylor,
141. And generally, if relief be granted 3 Smedes & M. 92.
upon certain conditions, the party * Moore v. Haskina, 66 Miss. 496l
149 VACATING JUDGMENTS. § 104 b
cause, we have the question, Which is the judgment in the
case? That seems to be not a very difficult question.
When a judgment is once entered of record it must stand
as the judgment until it is vacated, modified, or disposed
of by some means provided b}'' law; entering additional
judgment entries is not one of them. A ca e brought
regularly into court is presumed to be attended at regular
terms of court by the attorneys having it in charge; and
all proceedings of the court in reference to them, in the
absence of fraud, wnll be binding on the parties, whether
present or not. But when judgment is entered they may
cease their attention. The further proceedings in the
case, by petition to vacate or modify the judgment, or on
error to this court, must be on proper notice, provided by
statute."^
§ 104 b. The Effect of an Order Vacating a Judgment
may be considered, — 1, With reference to the persons
against whom the order is sought to be asserted; and
2. With reference to the causes on account of which the
order was entered. So far as third persons are concerned,
it seems clear that their acts, done by authority of a
judgment which was not void, but voidable only, may be
justified under the judgment, notwithstanding its subse-
quent vacation, except when they have been given notice
of the motion, and the court, after giving them an oppor-
tunity to be heard, has determined that it should be set
aside, notwithstanding their interests may be affected.^
With the parties to the suit this rule is not always ap-
plicable; and whether it is applicable or not depends on
the causes producing the vacation. The judgment may
have been regularly and properly entered, and its subse-
quent vacation may have been in the exercise of mercy
toward the defendant. In such case, as the plaintiff has
been guilty of no neglect or misconduct, he may no doubt
1 Nuckolls V. Irwin, 2 Neb. 60. * Schinidtt v. Niemeyer, 100 Mo.
See, however, Laae v. Kingsberry, 11 207.
Mo. 402.
§ 104 b VACATING JUDGMENTS. 150
justif}^ all his acts done under the judgment before it
was set aside. But where the order of vacation is made
because of some fault or misconduct of the plaintiff in
procuring the original judgment, a different rule may be
invoked. "If the judgment or execution has been set
aside for irregularity, the party cannot justify under it, for
that is a matter in the privity of himself and his attorney;
and if the sheriff or officer, in such case, join in the same
plea with the party, he forfeits the benefit of his defense.
The sheriff or officer, however, may justify under an
irregular judgment as well as an erroneous one, for they
are not privy to the irregularity; and so as the writ be
not void, it is a good justification, however irregular, and
the purchaser will gain a title under the sheriff." ^ The
case of a judgment set aside for irregularity differs maCte-
riall}'- from that of one reversed upon appeal. In the lat-
ter case, the error for which the judgment is ultimately
avoided is imputed to the court, and the parties are not
left without protection for the acts which they have done,
based upon the judgment, and upon their confidence in
the correctness of the decision of the court. But a judg-
ment obtained irregularly, and against law or the practice
of the court, is tainted with vices liable to result in its
destruction, and for which the party practicing the irregu-
larity is alone responsible. When, on account of these
vices, the judgment is vacated, the party guilty of the
irregularity seems to be as completely without any means
of justification as though no judgment had ever been
entered.'^
» Tidd's Practice, 1032. Dec. 229; Turner v. Felgate, 1 Lev. 95;
2 Young V. Bircher, 31 Mo. 139; Allen v. Huntington, 2 Aiken, 249"; 1&
Simpson v. Hornbeck, 3 Lans. 54; Am. Dec. 702; Nelson v. Guflfey, 131
Barker v Braham, 3 Wils. 3G8; Cole- Pa. St. 273.
man v. McAnulty, 16 Mo. 173; 57 Am.
151 VACATING JUDGMENTS UNDER STATUTES. § 105
CHAPTER VII.
OF VACATING JUDGMENTS UNDER STATUTES, ON ACCOUNT
OF MISTAKE, INADVERTENCE, SURPRISE, OR EXCUSABLE
NEGLECT.
§ 105. Summary of statutes.
§ 106. Discretion is subject to review.
§ 107. Party recovering may move to vacate.
§ 108. Affidavit of merits.
§ 109. May contradict the record, but not the affidavit of merits.
§ 110. New motion may be regarded as continuation of an old one.
§ 111. Lenience of the New York courts.
§ 111 a. Fraud and perjury.
§ 112. Neglect of attorney or agent.
§ 113. Mistake.
§ 114. Excusable neglect.
§ 115. Inexcusable neglect.
§ 115 a. Surprise, unavoidable casualty, and misfortune.
§ 105. Summary of Statutes. — The authority of the
courts over regular judgments has, in several of the states,
been extended beyond the term in certain cases specified
by statutes. The most liberal of these statutes authorize
"the court, at its discretion, and on such terms as may be
just, at any time within one year after notice thereof, to
relieve a party from a judgment taken against him through
his mistake, inadvertence, surprise, or excusable neglect."^
In other states this provision has been substantially
copied, except that the period in which an aggrieved
party is authorized to apply for relief is computed from
the rendition of the judgment instead of "from notice
thereof."^ In several of the states a judgment may in a
specified time, though the term has passed, be relieved
from "for unavoidable casualty or misfortune preventing
the party from defending or prosecuting," or for "fraud
* Sanborn and Berryman's Wis. Rev. « Cal. Code Civ. Proc, sec. 473; Ind.
Stats., sec. 2832; N. Y. Code, sec. 724; Rev. Stats., ed. 1881, sec. 396; N. C.
Idaho Rev. Stats., ed. 1887, sec. 4229; Code Civ. Proc, 274; Nov. Rev. Stats.,
Pier ». Millerd, 6:nVis. 33; Vt. Stats., ed. 1885, sec. 3217; Col. Code Civ.
ed. 1880, sec 1422. Proc, 75; Dakota Code Civ. Proc, 143.
§ 105 VACATING JUDGMENTS UNDER STATUTES. 152
practiced by the successful party in obtaining the juflg-
ment."^ The statutes of these states further provide that
the proceeding shall be by petition and summons, and
that the judgment shall not be vacated unless it be first
adjudged that there is a valid defense or a valid cause of
action. Where the application for relief is sought by
motion, and the statute does not otherwise provide, notice
of the motion may be served on the attorney of the adverse
party, who, notwithstanding a judgment apparently final
has been entered, must be regarded as authorized to repre-
sent his client in all proceedings begun within the time
limited by statute.^ In Vermont, the county court may set
aside a judgment of a justice of the peace, recovered
against a party who was prevented from appearing by
reason of " fraud, accident, or mistake."^ In Connecticut,
relief may be had on account of mistake, accident, or
other reasonable cause.^ The statutes referred to in this
section do not supersede the necessity for moving for a new
trial in cases where a trial has been had, at which the par-
ties seeking to have the judgment vacated were properly
represented.^ If they were represented at the trial, they
can obtain relief only by an application made in conform-
ity with the rules of procedure provided by law in reference
to new trials. But if they were not at the trial, or were not
represented there, on account of some mistake or excusable
neglect, then their remedy is not by application for a new
trial, but by an application addressed to the discretion
of the court, and made under the statute authorizing relief
to be granted from judgments rendered against a party
through "his mistake, in advertence, or excusable neglect."^
These statutes must be regarded as limiting the cases in
which relief can be granted to applications made within
the time, and for some of the causes specified in the stat-
' Ark. Dig. Stats., ed. 1884, sec. =* Vt. Rev. Stats., ed. 1863, p. 334,
3909; Ohio Rev. Stats., ed. 1890, sec. * Coun. Gen. Stats., ed. 1888, sec.
5354; Kan. Comp. Laws, ed. 1885, sec. 1126.
4382; McClain's Iowa Stats., ed. 1888, * Hobbs v. Comm'rs, 122 Ind. 180;
sec. 4383. McCullock v. Doak, 68 N. C. 267.
2 Merriam v. Gordon, 17 Neb. 325. « McKiuley v. Tuttle, 34 Cal. 239.
153 VACATING JUDGMENTS UNDER STATUTES. § 105
ute/ provided the relief is sought upou some of the grounds
mentioned in such statutes. If, however, the motion is to
vacate a judgment because irregularly entered, it may be
granted, although not made within the time named in
these statutes.'^ Neither do these statutes preclude a
party, in a proper case, from obtaining relief in equity,
after the time for applying for relief under these statutes
"has elapsed, provided proper reasons are shown for not
making such application.'" Nor do these statutes apply
to motions made during the term at which the judgment
was entered.* A judgment will not be vacated on motion
of a stranger to the cause, to enable him to be made a
party to the action.^ Error of law is no ground for relief
under these statutes.^ While these statutes designate a
time within which application must be made for relief,
the proceedings thereunder are equitable in character,
and the delay of the moving party after he had notice,
actual or implied, of the judgment against him may jus-
tify the court in denying relief on the ground of his
laches, though his motion was made or his petition filed
within the time named in the statute.^ But in Iowa, the
maxim is proclaimed that " laches will not be imputed in
the exercise of a legal right within the time prescribed
by statute";^ and hence it was determined that whosoever
brings his action or motion within the year cannot be
barred of his rights on the ground of laches in not sooner
seeking relief.^ In many instances, where service of
process is constructive, and the defendant had no actual
notice thereof in time to defend, he may doubtless obtain
relief under the statutes already referred to. In several of
1 Gerrish v. Johnson, 5 Minn. 23. * Spaflford v. Janesville, 15 Wis. 474;
* Cowles V. Haynes, 69 N. C. 406; Landou v. Burke, 33 Wis. 453.
Ladd V. Stevenson, 1 12 N. Y. 325. ' Jonet v. Mortimer, 29 La. Ann.
3 Coates u. Chillicothe Bank, 23 Ohio 206; Williams v. Williams, 70 N. C.
St. 415; Darst v. Phillips, 41 Ohio St. 665; Bradford v. TJoit, 77 N. C. 72;
514; Lumpkin v. Snook. 63 Iowa, 515; Altinau v. Gabriel, 28 Minn. 132; Bi-
District Township v. White, 42 Iowa, rech v. Frantz, 77 Ind. 199.
608; Bond v. Epley, 48 Iowa, 600. ^ Independent School District w,
*McCullock V. Doak, 68 N. C. Schreiner, 46 Iowa, 172.
2G7. ^ Indei)en(leiit School District t;.
^ Smith V. Newbern, 73 N. C. 303. Schreiner, 46 Iowa, 172.
§ 105 VACATING JUDGMENTS UNDER STATUTES. 154
tlie states, however, special provision has been made by-
statute for this cLass of cases, and where the service was
by publication only, the defendant is allowed a specified
time, either after the date of the judgment or after notice
thereof, within which to appear and make an application
to have the judgment opened and to be let in to defend.
In some of these statutes the time given is five years,
while in others it is a much shorter period. Notice of
the defendant's application must be given to the adverse
party, and the defendant must show that he had no actual
notice of the pendency of the action in time to appear
and make his defense. On complying with the conditions
oj^the statute, the moving party secures an absolute right
to have the judgment opened, which the court has no
discretion to deny;^ but if he omits to do any act required
of him, his motion will be denied.^ Under some of the
statutes, the rights of bona fide purchasers cannot be preju-
diced by ^proceedings to open the judgment and to be let
in to defend.' Under the statute of Iowa declaring that
"when a judgment has been rendered against a defendant
or defendants served by publication only, and who did
not appear, such defendants, or any one or more of them,
or any person legally representing him or them, may, at
any time within two years after the rendition of the
judgment, appear in court and move to have the action
retried," it was held that one who claimed to have suc-
ceeded to the interest of the defendant during the pen-
dency of the action was not entitled to have the judgment
opened.* There are also statutes in force in some of the
states authorizing the setting aside, on application made
within a time designated, of a judgment rendered against
a defendant in his absence, upon his complying with the
1 Savage v. Aiken, 14 Neb. 315; Al- 278; Kinney v. O'Bannon, 6 Bush, 692;
bright V. Warkentin, 31 Kan. 442; McLean v. McLean, 84 N. C. 366.
Ohio Rev. Stats., ed. 1890, sec. 5355; ^ Satterlee v. G-ruhb, 38 Kan. 234.
McClain's Iowa Stats., ed. 1888, sec. ' Ohio Rev. Stats., ed. 1890, sec.
4087; Idaho Rev. Stats., ed. 1887, sec. 5356.
4229; Frankoviz v. Smith, 35 Miun. * Parsons v, Johnson, 66 Iowa, 455.
155 VACATING JUDGMENTS UNDER STATUTES. § 106
conditions in such statutes enumerated.^ The courts are
unable to agree upon what constitutes absence Avithin the
meaning of these statutes. On the one side it is insisted
that if a defendant is not physically present at the trial,
he is necessarily absent and entitled to the benefit of
the statute;^ while on the other side it is held that when
a defendant has been personally served with process, or
has entered his appearance in the action, he is brought
into court, and cannot thereafter be regarded as absent
therefrom so as to entitle himself to be relieved from the
judgment.^
§ 106. Discretion is Subject to Review. — Under tbe
uniform construction given to these statutes, the signifi-
cation of the words " at its discretion " has been materially
limited. The " discretion " here referred to is not "the
power of acting without other control than one's own
judgment." " It is not a mental discretion, to be exercised
ex gratia, but is a legal discretion, to be exercised in con-
formity to law.* If the power of the court were discre-
tionary in the ordinary sense of that term, the practice
would necessarily be as varied as are the different tem-
peraments of judges; and even in proceedings before
the same judge, would as probably be shaped by the per-
sonal pleasures or annoyances of the several occasions in
which he happened to act as by those unvarying rules
which, whenever applied to identical circumstances, pro-
duce identical results. But the power of the court is
nevertheless to be liberally exercised.^ These statutes are
remedial in their character, intended to furnish a simple,
speedy, and efficient means of relief in a most worthy
class of cases. An order of the court vacating a judgment
» Strine v. Kignsbaker, 12 Neb. 52; 122; James v. Townsend, 104 Mass.
Covart V. Haskius, 39 Kan. 571; Riloy 367; Smith v Brown Ub Mass 41b.
V. Hale, 146 Mass. 465. * Bailey v. Taaffo^ 29 Cal. 422; John-
2 Covart V. Haskins, 39 Kan. 571. son v. Eldred, 13 Wis. 482; Powell v.
» Riley V. Hale, 146 Mass. 465; Weith, 68 N. C. 342.
Strine v. Kaufman, 12 Ncl). 423; ' Roland v. Kreyenhagen 18 Cal.
Matthewsou v. Moultou, 135 Mass. 455; Mason v. McNamara, 57 HI. 274.
§ 106 VACATING JUDGMENTS UNDER STATUTES. 156
entered by default will not be disturbed by the appellate
court, except in case "of gross abuse of the discretion of
the court." ^ Both orders granting and orders denying
applications under these statutes are subject to review
upon appeal;^ but onl}^ in extreme cases is the action of
a trial court likely to be reversed. If the moving party
makes a clear and unquestionable showing that he has a
good defense or cause of action on the merits, of the
benefit of which he has been deprived without fault on
his part, the court has no discretion to deny him relief,
and should it do so, its action will be set aside, and proper
relief ordered by the appellate court.* On the other hand,
if the facts are disputed, the finding of the lower court
will be treated as conclusive on appeal;* and even when
the facts are not questioned, its action will not be re-
versed, except it clearly appears that its discretion has
been abused,^ or arbitrarily exercised.^ If it appears
proper to the trial court to grant relief, it may also exer-
cise a sound discretion as to terms and conditions upon
which it will be granted. It may omit all conditions,^ or
may impose any condition whatever not savoring of a
capricious or arbitrary use of its powers. Thus in a
proper case, the defendant, as a condition of having judg-
ment against him opened or set aside, may be required to
confine his evidence to a particular, ground of defense,^ or
to consent to the appointment of a receiver,® or to stip-
ulate not to bring an action against parties who have
acted under the judgment,^" or to pay all costs accrued up
to the date of its vacation," or to deposit money in court
' Howe I). Independence Co., 29 Cal. Waggoner, 82 N. C. 173; Parsons
72; Merritt v. Putnam, 7 Minn. 493. Bank v. Wentworth, 28 Kan, 183;
^ Haight V. Green, 19 Cal. 113; Mul- Brophy v. J. M. Brunswick and Balke
holland v. Heyneman, 19 Cal. 605; 29 Co., 2 Wyo. 86.
Cal. 422; Hill v. Crump, 24 Ind. 291. « Pry v. Hannibal & St. J. R. R. Co.,
* Craig V. Smith, 65 Mo. 536; Cleve- 73 Mo. 123.
land V. Hopkins, 55 Wis. 387; Cleve- ' Ryan v. Mooney, 49 Cal. 33.
land V. Burnham, 55 Wis. 598; Hag- * Houston Township and Fire Ins.
gerty v. Walker, 21 Neb. 596. Co. v. Beale, 110 Pa. St. 321.
* Weil V. Woodward, 104 N. C. 94; ^ Exley v. Berryhill. 36 Minn. 117.
Wernet's Appeal, 91 Pa. St. 319. " Young v. Bircher, 31 Mo. 136; 77
^ Smith V. Black, 51 Md. 247; Kerch- Am. Dec. 638.
ner v. Baker, 82 N. C. 169; Hiatt v. " Howe v. Coldren, 4 Nev. 171.
157 VACATING JUDGMENTS UNDER STATUTES. §§ 107, 108
to pay so mucli of the claims sued upon as he admits to
be due/ The imposition of this last condition seems to
us to be, in ordinary circumstances, an abuse of discre-
tion, because it may require the defendant, in order ta
escape from an unjust demand, to pay another but just
demand which he is without pecuniary liability to dis-
charge. In two instances, the imposing of a condition
that defendant should give a bond with sureties for the
payment of such judgment as might ultimately be recov-
ered against him was, decided to be an abuse of discretion.^
§ 107. Party Recovering may Move to Vacate. — The
literal meaning of the words employed in these statutes
has been further modified by judicial construction. The
statute says the court may relieve a party from a judg-
ment " taken against him." But a party in whose favor
a judgment has been rendered has been decided to be
within the meaning, but not within the words, of the stat-
ute, on the ground that the law, being of a remedial char-
acter, must be liberally construed.^ Such a party, however,
though nominally prevailing, may lose part of his de-
mand. To that extent he would be entitled to an appeal;
and it is no far-fetched construction to say that he is,
therefore, within the words as well as within the meaning
of the statute.
§ 108. Affidavit of Merits. — These statutes are to be
employed only in furtherance of justice, and never for th©
purpose of enabling a party to raise some technical objec-
tion. Even where the statute does not so expressly direct,
no judgment will be opened unless it is shown to be un-
just. "Every consideration of expediency and justice is
opposed to the opening up cases in which judgment by
default has been entered, unless it be made to appear
prima facie that the judgment as it stands is unjust."* In
' Magoon v. Callahan, 39 Wis. 141. » Montgomery v. Ellis, 6 How. Pr.
» Brown v. Brown, 37 Minn. 128; 32G.
Union Bank v. Benjamin, 61 Wis. * Parrottu Den, 34 Cal. 79; Thatcher
512, V. Haun, 12 Iowa, 303; Wooster Coal
§ 108 VACATING JUDGMENTS UNDER STATUTES. 158
all cases an affidavit of merits must be made and filed,
except where it appears that the court had never acquired
jurisdiction over the moving party, and that its judgment
against him is void;^ but in this class of cases he is en-
titled to relief independently of these statutes.'' Where
the affidavit to open a default stated that, after a careful
examination, the attorneys are of the opinion that they
have a good legal defense to the complaint, the judgment
was not set aside, because the matter shown appeared to
be of a technical character;' and for aught that appeared
to the contrary, the judgment might be perfectly consist-
ent with fair dealing. A verified answer has been held
not to obviate the necessity for an affidavit of merits.
The reasoning upon which this view is based is, that
while an answer might he true, and the matters set forth
in it might, upon their face, seem to form a sufficient
defense to the complaint, yet they might be affected by
other matters in avoidance, well known to the defendant,
but which he was under no obligation to state in his
answer; that in order to authorize the interposition of the
court, something more ought to be required than an ex-
hibition of facts which, if neither explained nor avoided,
would present an obstacle to plaintiff's recovery; that to
bring a case completely within the statute, it must appear
prima facie that the defendant, in addition to having an
answer to the complaint, has a defense which is sufficient
and meritorious when viewed in all the light which can
be thrown upon it by all the facts involved in the action.*
We see, however, no sufficient- reason for denying to a
verified answer the effect of an affidavit of merits, provided
its contents are such as must be regarded as sufficient
when found in an affidavit of merits." In some of the
Co. V. Nelson, 4 U. C. P. 343; Mulhol- ^ ^^f^^ ggc. 98.
Ian V. Scoggin, 8 Neb. 202; Anderson ' People v. Rains, 23 Cal. 127.
V. Beebe, 22 Kan. 768: Niagara Ins. * Jones v. Russell, 3 How. Pr. 324;
Co. V. Rodecker, 47 Iowa, 162; Bank Mowry v. Hill, 11 Wis. 146. But the
of Statesville v. Foot, 77 N. C. 131; rule has, in Wisconsin, been changed
Mauney v. Gedney, 88 N. C. 200; by statute: See Town of Omrou. Ward,
l5raper v. Bishop, 4 R. I. 489. 19 Wis. 232.
^ Dobbins v. McNamara, 113 Ind. ^ Huebner v. Farmers' Ins. Co., 71
64. Iowa, 30.
159 VACATING JUDGMENTS UNDEK STATUTES. § 108
states a motiou to set aside a judgment and to be let in to
defend must be accompanied by a verified answer,^ As
to tlie contents of the affidavit of merits, the practice differs
essentially in different states. The more reasonable, in
our judgment, is the one which requires the moving party
to disclose his cause of action or ground of defense with
such particularity as enables the court to determine
whether or not it is good and sufficient on the merits.^
The other and less defensible practice substitutes the
moving party and his counsel for the court and accepts
their judgment as conclusive,^ and requires his affidavit
to show that he " has fully and fairly stated the case to
his counsel," and that after such statement he is advised
by his counsel and believes that " he has a good, full, and
perfect defense to the action upon the merits." An affi-
davit showing that defendant had stated " his defense" is
insufficient, because it does not show that he has disclosed
all the material facts affecting the action, nor what mat-
ters in avoidance of his defense exist. It should show
that he had stated " the case." * An affidavit that defend-
ant had fully stated the facts of the case to his counsel
has been held insufficient; it should declare that he has
fully and fairly stated such facts.® It is not indispensable
that the affidavit of merits be made by the defendant per-
sonally. His attorney may make it.^ Where the affidavit
is made by some person other than, the defendant, it
should appear that such person is acquainted with the
facts he attempts to make known to the court.' An affi-
1 Spencer v. Thistle, 13 Neb. 227; MVoodvvard ». Backus, 20 Cal. 137;
Cleveland v. Burnham, 55 Wis. 598. Burnham v. Smith, 11 Wis. 258; Bern-
■■^ Lamb v. Nelson, 34 Mo. 501; Fos- stein v. Brown, 23 Neb. 64.
ter u. Martin, 20 Tex. 118; Roberts?;. * Burnham v. Smith, 11 Wis. 258;
Corby, 86 III. 182; Castlio v. Bishop, Nickerson v. California R. R. Co., 61
51 Mo. 162; Railway Co. v. Gates, 23 Cal. 268.
Ind. 238; Goldsberry v. Carter, 28 Ind. * Morgan v. McDonald, 70 Cal.
69; Frost v. Dodge, 15 Ind. 139; Slagle 32.
V. Bodner, 75 Ind. 380; Contreras v. *' Francoviz v. Smith, 35 Minn. 278;
Haynes, 61 Tex. 103; Crossman v. Jean v. Hennessy, 74 Iowa, 348.
Wohlleben, 90 111. 537; Williams v. ' Hitchcock v. Hcrzur, 90 111. 543;
Kessler, 82 Ind. 183; Jaeger v. Evans, Baker v. Knickerbocker, 25 Kan.
46 Iowa, 188; Palmer v. Rodgers, 70 28S; Woodworth v. Coleman, 57 Vt.
Iowa, 381. 368.
§ 109 VACATING JUDGMENTS UNDER STATUTES. 160
davit by the attorney that from an examination of the
defendant's case, so far as he has been able to examine it,
he verily believes it is better than plaintiff's, is therefore
insufficient. It does not show that the attorney knows
what the defense is; nor whether the examination was
meager or thorough. Neither does he state that the de-
fendant had fully and fairly stated the case, and " what,
in view of such statement, is his professional opinion
touching the defense." But this omission in an affidavit
made by an attorney is immaterial; for the statements of
the defendant, incorporated into an affidavit made by
another person is nothing " but hearsay, and therefore
entitled to no weight." * Under these statutes, the courts
discriminate against defenses of a technical character, re-
garding them as not " on the merits." There is no very
safe and unquestionable test by which defenses good and
sufficient under the laws of the state may be recognized as
meritorious or non-meritorious; and perhaps the courts
would do best to treat with equal forbearance all defenses
which are sufficient in law, unless they are assailed upon
some clear ground of equitable jurisdiction. Therefore
the defense of the statute of limitations has been treated
as " on the merits," so as to entitle a judgment to be
opened to permit it to be interposed;'^ while on the other
hand the defense of usury ^ and of the statute of limita-
tions* have been held to be defenses which the court
might, in the exercise of its discretion, refuse to open a
judgment to entertain.
§ 109. May Contradict the Record, but not the AflB-
davit of Merits. — In applications under these statutes the
parties are at liberty to contradict tlie record, and to es-
tablish, by any competent evidence, the truth of the facts
upon which their claim to relief is based.* But the hear-
1 Bailey v. Taaffe, 29 Cal. 422. * Sheets v. Baldwin, 12 Ohio, 120;
^ Ellinger's Appeal, 114 Pa. St. 505; Newsom's Adm'r v. Ran, 18 Ohio, 240.
Mitchell V. Campbell, 14 Or. 454. * McKinley v. Tuttle, 34 Cal. 235;
^ Hazelrigg v. Wainright, 17 Ind. Mosseaux v. Brigham, 19 Vt. 457;
215. Gay v. Graat, 101 N. G. 206.
161 VACATING JUDGMENTS UNDER STATUTES. §§ 110, 111
ing of evidence is confined to the question, whether the
judgment has been taken through the inadvertence, mis-
take, surprise, or excusable neglect of the defendant. The
applicant is not required to make more than such a prima
facie showing of merits as arises from his own affidavits.
The code did not intend that there should be two trials of
the merits. Therefore the defendant is not required to
prove his defense, as he would at the trial, nor can his
affidavits of merits be controverted.^
§ 110. New Motion Treated as Amendment of an Old
One. — In Wisconsin, an application granted in the lower
court was dismissed in the supreme court for want of an
affidavit of merits, without prejudice to a new motion.
But during the time involved in determining the first
motion, the period in which the statute authorized an
application for relief expired. A new motion was, how-
ever, at once made, and was opposed on the ground that
it came too late. Whereupon it was adjudged to be sub-
stantially a continuation of the old motion, in the nature
of an amendment of the papers on which that motion was
founded; and being otherwise meritorious and in confor-
mity to the practice, it was granted.^
§ 111. Lenience of New York Courts. — These statutes
surely were not designed to confer upon the same court
both an original and an appellate jurisdiction over the
same cause; ^ nor yet to allow a party, once having an
ample opportunity to present his defense or cause of ac-
tion, to re-present it at some future time, with such other
features as a more mature reflection happened to suggest.
Yet there are cases scarcely reconcilable with any other
theory. They have chiefly, if not exclusively, been deter-
' Pratt V. Keils, 28 Ala. 390; Fran- Ind. 81; Brestor v. Galvin, 62 Ind.
cis V. Cox, 33 Cal. 323; Hill v. Crump, 352; Joerns v. Le Nicca, 75 Iowa, 705.
24 Ind. 271; Gracier u. Weir, 45 Cal. ^Butler v. Mitchell, 17 Wis. 52.
53; Bank v. Harrison, 4 U. C. P. See also Howell v. Harrell, 71 N. C.
331; Wooster Coal Co. v. Nelson, 4 161.
U. C. P. 343; Buck v. Havens, 40 ' Greer v. Mayor of New York, 4
Ind. 221; Beatty v. O'Connor, 106 Rob. (N. Y.) 675.
JUDG. I. — 11
§111 VACATING JUDGMENTS UNDER STATUTES. 162
mined in a state where judgments seem to be regarded,
not as inviolate and enduring testimonials, but as tempo-
rary structures, to be torn down, remodeled, or rebuilt
whenever the builders feel competent to improve the ori-
ginal workmanship or design. Thus in one case, a judg-
ment in all respects regular, and resulting from a trial in
which there was no pretense of any want of opportunity
to defend, and at which both parties were represented by
counsel, was set aside because of an error of the court in
estimating the value of a life estate. The defendant w^as
a municipal corporation, whose counsel was an elective
oflBcer not under its control. This counsel was obliged to
attend to a vast amount of business, and could not, there-
fore, devote much attention to any particular case. These
w^ere the reasons upon which the court justified its inter-
position. In another case, the action was for an amount
due under a contract for work upon the streets. Judg-
ment was obtained, the defendant being properly in court,
and contesting plaintiff's right to recover part of his de-
mand. The defendant was afterward relieved from a
portion of the judgment, on the ground that a misappre-
hension existed betw^een plaintiff and defendant, in mak-
ing the original contract, by reason of which neither had
assented to the contract as understood by the other.^ The
mistake of counsel in conducting the case, arising out of
his ignorance of the law, was the only ground upon which
relief from another judgment was granted. The prin-
ciples which, in the opinion of the court, should be ap-
plied to the case were indistiuctly defined as follows:
" There may be a case so novel and peculiar in its nature,
in which it is so palpable that actual injustice may and
probably has been done, and wdiere there are no other
means of relief, that the court will feel bound to relieve
the party from the consequence of the inadvertence and
mistake of his counsel, although it arose from a misap-
prehension of the law or rules of practice, if that can be
' Pettigrew v. Mayor of New York, 17 How. Pr. 492.
163 VACATING JUDGMENTS UNDER STATUTES. § 111 a
done without prejudice to the rights of the parties; by
which is meant, without any loss to them, other than
such as may necessarily result from establishing what
may be shown to be the rights of the party applying." ^
§ 111 a. Fraud Practiced in Obtaining a Judgment is
sometimes specified in the statutes as one of the grounds
which entitle an innocent and injured litigant to have it
vacated.^ Even if this ground were not specifically enu-
merated in the statute, it would generally be available to
the injured party on the ground that it had occasioned
the rendition of a judgment against him by surprise, or
mistake, or under circumstances which, as to him, might
well be deemed excusable neglect. A very serious ques-
tion arises, whether the fraud for which a judgment may
be vacated under these statutes includes, in any case, the
willful perjury of the successful litigant at the trial. In
a comparatively recent case which was heard in the
supreme court of Kansas on two or three separate appeals,
that tribunal concluded that a judgment wholly unjust,
and procured by the willful perjury of the plaintiff*, ought
to be vacated, although the defendants did not show
"unavoidable casualty or misfortune, preventing them
from defending the original action."^ "A party," said
the court, "is never required to exercise more than rea-
sonable and ordinary diligence in preventing a fraud
from being perpetrated upon him, and fraud vitiates
everything it touches. Of course, a defendant failing to
defend cannot have the judgment vacated on account of
any innocent mistake or want of recollection on the part
of the plaintiff or other witness, nor even on account of
the perjury of the other witnesses, provided the plaintiff"
himself is wholly guiltless. Nor can he have the judg-
ment vacated on account of any mistake or error on the
' Levy ?'. Joyce, 1 Bosw. 622. 7 Kan. 254; Baldwin v. Sheets, 39
^ Indepen<lcnt School District v. Ohio St. 024. See Heatheoote v. Has-
Schreiner, 46 Iowa, 172. kins, 74 Iowa, 566, 670.
* Laithe v. McDonald, 12 Kan. 340;
§ 112 VACATING JUDGMENTS UNDER STATUTES. 164
part of the court or jury, unless the record affirmatively
shows such mistake or error. All such mistakes or errors
each party is bound to anticipate, and to prepare for by
extraordinary diligence. But no party is bound to antici-
pate or to suppose that the other party will commit will-
ful and corrupt perjury; and no party is bound to exercise
extraordinary diligence in preparing to meet such per-
jury. In this case we think the defendants exercised
reasonable ,diligence." The diligence which was in this
case adjudged to be reasonable and sufficient consisted of
filing an answer so that judgment could not be obtained
by default, nor otherwise than through false testimony;
of taking ineffectual steps to procure witnesses in time for
the trial; and on ascertaining that the witnesses could
not be obtained in time, of writing a letter to counsel to
obtain a continuance, the letter being written in time, but
not reaching its destination, owing to delay in the United
States mails. We are not sure that these decisions are
not sustainable under the peculiar facts of the case; but,
manifestly, great caution must always be exercised before
vacating or granting relief from a judgment when the
parties are regularly in court, the cause regularly brought
on for trial, and the alleged grounds for relief involve a
re-examination of the issues already tried. ^
§ 112. Neglect of Attorney. — The neglect of an attor-
ney or agent is uniformly treated as the neglect of the
client or principal,^ except in New York and North Caro-
lina.^ A default will not be opened because the attorney
had prepared a demurrer, but had failed to file it by
' Flower v. Lloyd, 8 Cent. L. J. 415; eiater a plea, when employed to do so,
6 L. R. Ch. Div. 297; 37 L. T., N. S., was held to entitle his client to relief
419; post, sees. 289, 435, 503. on the ground of surprise: Griel v.
2 Austin V. Nelson, 11 Mo. 192; Vernon, 135 N. C. 70; but when the
Kerby v. Chadwell, 10 Mo. 392; Mer- only showing was that the defendant
ritt V. Putnam, 7 Minn. 493; Jones v. had written to an attorney to appear
Leech, 46 Iowa, 186; Gherke v. Jod, for him, who did not do so, relief was
59 Mo. 522; Matthis v. Town of Cam- denied: Burke v. Stokely, 65 N. C.
eron, 62 Mo. 504; Niagara Ins. Co. v. 569.
Rodecker, 47 Iowa, 162. In North ^ Gwathney v. Savage, 101 N. C.
Carolina, the failure of an attorney to 103.
165 VACATING JUDGMENTS UNDER STATUTES. § 113
reason of his miscalculating the time when it was due;*
neither will relief be granted because the attorney forgot
the day fixed for the trfal.^ And, in general, no mistake,
inadvertence, or neglect attributable to the attorney can
be successfully used as a ground for relief, unless it would
have been excusable if attributable to the client.* The
neglect of a person who undertook to act for the attor-
ney is treated in the same manner as if committed by
the attorney. Thus w^here the petitioner's attorney, being
suddenly called away, requested another person to attend
the suit, and to get an attorney to appear, and the party
agreed to comply with the request, but forgot the matter
entirely, it was held that the neglect of this party could
only be regarded as the neglect of the attorney, and that,
considered in that light, it was not excusable.* In New
York, a default and judgment thereon were set aside on
showing that proceedings were utterly neglected by the
attorney, who was rendered incompetent by his habits,
because an attorney ought not to be permitted to inflict
unbounded damage on his client, there being no redress
except the doubtful one of an action for negligence,*
§ 113. Mistake. — A mutual and honest mistake be-
tween the defendant and an attorney, in relation to the
retainer of the latter, by reason of which the defendant
was not represented at the trial, authorizes the granting
of relief from the judgment.^ Where the defendants at-
tended court until the judge announced that the cause
would not be tried at that term, when they left, and the
cause was afterward called and judgment entered, it was
1 People V. Rcains, 23 Ccal. 127. Clark v. Ewing, 93 111. 572; McFarland
» Babcock v. Brown, 25 Vt. 550; 60 v. White, 13 La. Ann. 394.
Am. Dec. 290. * Webster v. McINJahan, 13 Mo. 582;
^ Spaulding v. Thompson, 12 Ind. Davison v. Heffron, 31 Vt. 087.
477; 74 Am. Dec. 221; Smith v. Tun- " Elston v. Schilling, 7 Rob. (N. Y.)
stead, 56 Cal. 175; Harper v. Mallory, 74; Meacham v. Dudley, 6 Wend.
4 Nev. 447; Brumbaugh v. Stockman, 514.
83 Ind. 583; Welch v. Challen, 31 « McKinley v. Tuttle, 34 Cal. 235;
Kan. 096; Sharp v. Moffitt, 94 Tnd. Panesi v. Boswell, 12 Heisk. 323. Kor
240; Kreite v. Kreite, 93 Ind. 583; Tar- contra opinion, see Kite v. Lumpkin,
rant Co. v. Lively, 25 Tex. Sup. 399; 40 Ga. 50C.
§ 113 VACATING JUDGMENTS UNDER STATUTES. 166
opened upon application, accompanied by an affidavit of
merits.^ The mistake of defendants in concluding that
the judgment would not be entered against them person-
ally, but only against them as trustees, that being the
only capacity in which they were liable, justifies the court
in vacating a judgment taken against them individually.^
Judgment should not be set aside on the ground that the
defendant mistook the court in which the action was
pending,^ nor because he did not appear on account of
his having no recollection of the service of summons.*
A German was prosecuted in a criminal and in a civil
action at the same time, for obstructing a highway. He
understood the English language very imperfectly, and
seemed to confound the two actions. He attended to the
criminal action diligently, but was defaulted in the civil.
He applied on the next day after the entry of the default,
to have the judgment set aside, and the application was
granted on payment of the attorney's fees.* So where a
very illiterate man applied to an attorney, and stated that
his goods had been attached, that he did not owe the debt,
and that he wished to have the goods released, and the
attorne}^ took proceedings to have the goods released, but
did not make any defense to the action, because he did
not know that any summons had been served, the judg-
ment was set aside, because the defendant, being an illiter-
ate man, did not know that he need give his attorney any
other information than that his propert}?- was attached,
and the attorney, by not having further information, was
misled as to the immediate necessit}': of making a defense.*
The grounds of mistake most frequently relied upon for
relief are in the fact of the service of process, or in the date
at which the party served must appear, or at which the
action is set for trial. Because the lower courts exercise
a discretion with which the appellate courts are loath to
1 Ratliff V. Baldwin, 29 lud. 16; 92 * Lansrdon v. Bullock, 8 Ind. 341.
Am. Dec. 3.S0. ^ Bertline v. Bauer, 25 Wis. 48(5.
. - Butler V. Mitchell, 17 Wis. 52. « Nash v. Cars, 92 Ind. 216; Sweet
^ Robertson v. Bergen, 10 Ind. 402. o. McGlynn, 5 Pac. L. Rep. 155.
1G7 VACATING JUDGMENTS UNDER STATUTES. § 113
interfere, as well as from other causes, there is not an
entire harmony of decision upon these subjects, but we
think it a fair inference from the reported cases that if
the court is convinced that the alleged mistake was an
honest one and was the sole cause of the moving party's
not being represented at the trial or not appearing in the
action in due time, relief will be granted. A court is
justified in vacating a judgment obtained in the absence
of the defendant when he had been led to believe that the
cause would not be tried, or had been otherwise misin-
formed as to the time of trial, and there is no doubt of
his acting in good faith,^ or where the attorney overlooked
the case on the trial calendar by reason of its being placed
there under a title calculated to mislead, though he might
have ascertained that the cause had been set for trial by
inquiring at the clerk's office,^ though probably, in such
cases, if the trial court had denied to open the judgment
its action could not have been reversed as an abuse of
its discretion.^ So a failure to appear or to answer may
be excused, and a judgment resulting therefrom may be
vacated, if the moving party or his attorney mistook the
term day,^ or supposed that a rule was in force giving a
particular time in which to answer,^ or made a mistake
as to the day when summons was served,® or was acting
under the belief that the summons served was a subpoena
to attend court as a witness, and this belief was caused by
the officer who served the process,^ or the process was
served on an agent of a corporation, who by mistake sent
it to the wrong ofiB.cer of the defendant.^ If, however, the
judgment was due to a mistake of the defendant regard-
ing his legal rights, resulting in the belief that it would
be fruitless to answer, relief will not be granted," nor will
^ Cruse V. Cunningham, 79 Inrl. 402; * Farmers' Mut. Fire lus. Co. v.
Sanders v. Hall, 37 Kan. 271; Jean v. Reynolds, 52 Vt. 405.
Hennessy, 74 Iowa, 348; Bnena Vista ^ English v. English, 87 N. C, 497.
County V. Iowa Falls etc. R. R. Co., « j^ei^y ^ Scott, 53 Cal. 09.
49 Iowa, 657; Branch v. Walker, 92 ' Hite v. Fisher, 76 Ind. 231.
N. C. 87. ^ Houston etc. R. R. Co. v. Burke,
2 Allen V. Hoffman, 12 111. App. 573. 55 Tex. 323.
2 OConnor v. Ellniaker, 83 Cal. 452, * Thacher v. Thacher, 125 lud. 489.
§ 114 VACATING JUDGMENTS UNDER STATUTES. 168
it be granted because defendant supposed the process had
not been served on him in the mode required by law, arid
thought that a copy of the complaint must be given to
him, as well as a copy of the summons.^
§114. Excusable Neglect. — Where the statute enu-
merates excusable neglect as one of the grounds for vacat-
ing a judgment, it seems superfluous to name any other;
for such other grounds as have been named, to wit, mis-
take, surprise, inadvertence, unavoidable casualty, or mis-
fortune, if they or any of them exist under circumstances
such as entitle the moving party to relief, constitute a
case of excusable neglect. The circumstances under which
a party may be entitled to relief because of his excusable
neglect are of infinite variety. The most familiar in-
stances are: Illness of the party, or of a member of his
family,^ or of his counsel or of his family,^ whereby the
losing party was prevented either from appearing in the
action within the time required by law or from attending
at the trial; or the death of counsel,* or by his being called
away on important business and unavoidably detained so
that he could not reach the court-room until after the
cause was called for trial ;^ or because of a misunderstand-
ing between parties and counsel;^ or because counsel was
unavoidably detained in the trial of another cause in an-
other court;' or was otherwise unavoidably absent;^ or
because an attorney entered the appearance of a defend-
ant unintentionally and without authority;^ or the moving
party was absent in compulsory attendance on a court,^" or
in the military service;" or, being a married woman, her
1 Churchill v. Brooklyn Life Ins. Co., ferle v. Merchants' Bank, 32 Ark. 717;
88 N. C. 205. Heaps ?;. Hoopes, 68 Md. 383.
^ Flanagan v. Patterson, 78 Ind. '' Ellis v. Butler, 78 Iowa, 632; Mc-
514; Benedict v. Spendifif, 9 Mont. 85; Arthur v. Slawson, 60 Wis. 293.
Goodhuew. Meyers, 58 Tex. 405; Slagle ^ jyic^rthur v. Slawson, 60 Wis.
V. Bodner, 75 Ind. 330. 293; Beall v. Marietta, 45 Ga. 28.
* Tidwell V. Witherspoon, 18 Fla. Contra, Claussen v. Johnson, 32 S. C.
282; Nye v. Swan, 42 Minn. 243. 86.
* Kivett V. Wynne, 89 N. C. 39. » Stocking v. Hoopes, 35 Minn. 207;
* Ellis V. Butler, 78 Iowa, 633. Heaps v. Hoopes, 68 Md. 383.
«Beatty v. O'Connor, 106 Ind. 81; '» Tullis v. Scott, 38 Tex. 537.
Howell V. Glover, 65 Ga. 466; Kup- " Piper v. Aldrich, 41 Mo. 421.
169 VACxVTIXG JUDGMENTS UNDER STATUTES. § 114
husband, without her authority, caused her attorney to
withdraw her appearance;^ or because defendant or his
attorney was prevented from attending the trial by an
unavoidable accident^ or because the return day was in-
correctly stated in the writ;' or because of the excusable
neglect* or inadvertence' of the defendant's attorney; or
because the cause was taken up in the absence of defend-
ant's counsel, contrary to agreement;^ or because of the
forgetfulness of the person to whom the defense was com-
mitted, arising from his financial troubles;^ or because
defendant acted on the assurance of counsel of plaintiff
and also of an ofiicer of the court that the matter would
be arranged,*
The defendant, as soon as served with summons, set
about making such inquiries as were necessary to his
defense. He was soon compelled to go beyond the state
on important business, and to remain away several weeks.
On returning home, he was obliged, by important busi-
ness, to go into another state, and to remain there several
weeks. He constantly intended to prepare his answer,
but owing to his absence from home and the pressure of
his other engagements, he mistook the time when his de-
fault was due. The action of the lower court in refusing
to grant relief upon a showing of these facts was reversed
because " the mistake arising from the urgency and mul-
titude of defendant's business was such a mistake as any
prudent and vigilant man might, under like circum-
stances, fall into."® An affidavit showing that defendant
had employed counsel and had caused a subpoena to issue
for his witness, but had been prevented from attending
court by the dangerous illness of his wife; that his counsel
1 Crescents. Co. v. CuUins, 125 Ind. * Wadsworth v. Wadswortli, 81 Cal.
110. 1S2; Norwood v. King, 86 N. C. 80.
•^ Fulweilerr. Hog's Back C. M. Co., ^ McGauglmey v. Woods, 92 Ind.
S3 Cal. 126; McGauglmey v. Woods, 296.
92 Ind. 296; Yetser v. Martin, 58 Iowa, ' Heardt v. McAllister, 9 Mont.
612. 405.
3 Kimball v. Kelton, 54 Vt. 177. « Weil v. Woodward, 104 N. C.
■* Dougherty v. Nevada Bank, 68 94.
Cal. 275. • Johnson v. Eldred, 13 Wis. 482.
§ 114 VACATING JUDGMENTS UNDER STATUTES. 170
was provost-marshal, and on account of being engaged in
enforcing the draft had been unable to attend the trial,
— discloses such a state of facts that it would be an abuse
of the discretion of the court to refuse to vacate the judg-
ment.* A defendant who was constr actively served, and
was absent from the state, suffering from such a bodily
disability as prevented his return, is entitled to have his
default set aside.^ That defendant was attacked by a
severe illness, during which his life was despaired of and
his mind so impaired that he was incapable of making
his defense, is a good ground for vacating a judgment.^
Failure of counsel to attend the trial, owing to his illness,*
is a sufficient ground for relief, particularly if the illness
was of such a character that his " forgetfulness " is ex-
cusable neglect.^ Although a stipulation is not binding
on the parties to it unless made in writing, yet the
neglect of a party, occasioned by a verbal agreement
between himself and his adversary, is "excusable."® And
where the plaintiff promised to call at the defendant's
office " and fix the matter up," and the defendant, relying
upon the promise, neglected the suit, the judgment was
opened by the court. An aj)peal being taken, the appel-
late court thought that there was negligence on the part
of the defendant, but that it was of the excusable nature
which the statute was provided to relieve; that while it
was imprudent to rely on the promise, j^et it was in ill
grace for the plaintiff to urge that the negligence occa-
sioned by himself was inexcusable.^
That the moving party was mentally incompetent to
make his defense, as where he was, at the time of the ser-
vice of process upon him, and of the trial, insane, is suffi-
cient to require that relief be granted, although his
property has in the mean time been sold to an innocent
' Hill V. Crump, 24 Ind. 291. * Montgomery Co. v. American E.
* Sage V. Matheny, 14 Ind. Co., 47 Iowa, 91.
369. « Montgomery v. Ellis, 6 How. Pr.
3 Luscomb V. Maloy, 26 Iowa, 326; Chicago & N. W. R. R. Co. v.
444. Gillett, 38 Iowa, 434.
* Bristol V. Galvin, 62 Ind. 352. ' Stafford v. McMillan, 25 Wis. 566.
171 VACATING JUDGMENTS UNDER STATUTES. § 114
purchaser under process issued upon the judgment;^ and
there are many instances in which, though the party is
not insane nor so mentally incompetent to attend to busi-
ness as to require the appointment of a guardian, yet he
is either so ignorant of the language of the country or its
mode of business, or is so simple-minded and credulous
as to be with the spirit if iiot within the language of the
statute. In such cases relief will generally be granted,
as where the applicant was an elderly woman unable to
read or write and did not understand the nature of the
proceedings against her;'^ or a Mission Indian, ignorant
and helpless, who for many years had occupied lands for
the recovery of which judgment in ejectment was entered;'
or a married woman, physically and mentally helpless,
whose husband had forged her name to the mortgage
which the mortgagor is foreclosing against her.^
No matter what is the alleged cause upon which the
moving party seeks to have a judgment against him
vacated, the court will not relieve him, unless convinced
that he has acted in good faith and that the accident
mistake, or other cause by which he seeks to excuse him-
self was the real cause of his suffering default or not at-
tending the trial, and that, notwithstanding its existence,
he could not have protected himself by the exercise of
reasonable diligence. Thus it is not sufficient that he or
his counsel was ill, if that illness was not the cause of the
judgment;^ nor that there was some misunderstanding^
through which counsel failed to enter proper pleas, if the
client was guilty of laches in not giving any attention
to his case himself, and in failing to make any inquiry
concerning it for a long period of timef or in failing to
employ other counsel, when he heard his own counsel
would not be able to defend him.'' If the defendant could
1 Dickerson v. Davis, 111 Ind. 433. non v. Harrold, Gl Ga. 158; Johnsou v.
* Ailams u. Citizens' State Bank, 70 Lindstrom, 114 Ind. •152; Edwards v.
Ind. 89. McKay, 73 111. 570.
3 Byrne v. Alas, 68 Cal. 479. * Youiigniau v. Tonner, 82 Cal. 611;
* Clandy w. Caldwell. lOG Ind. 256. Schroer v. WesscU, 89 111. 113; Mc-
* Sliaffer v. Sutton, 49 111. 500; Gar- Lean v. McLoan, 84 N. C. 3G6.
deuhire v. Vinson, 39 Ark, 270j Can- ' Clark v. Ewing, 93 111. 572.
§ 115 VACATING JUDGMENTS UNDER STATUTES. 172
not attend the trial because of illness of himself or of some
member of bis family, but was represented by counsel,
who, notwitlistanding, announced himself as ready, and
proceeded to trial, the judgment subsequently recovered
will not be vacated because of the absence of defendant
when his case was tried.^
§ 115. Inexcusable Neglect. — Every suitor should
personally attend to his case, or be represented by an at-
torney in fact. Therefore an affidavit showing that the
defendant expected the witnesses, whom he had subpoe-
naed, to appear at the trial, and on that account, and
because his counsel knew of the defense, did not attend
personally, and the witnesses did not attend, and judg-
ment was obtained on account of their absence, there
being no one present to .make an affidavit for a continu-
ance, does not show an excusable neglect. The duty of
the counsel did not extend to procuring witnesses, nor
to making affidavits for continuances. The defendant,
neither being present to perform that duty, nor having
any one to represent him for that purpose, was culpably
negligent.^ A judgment by default should not be vacated
on the ground of excusable neglect because the answer
required more than ordinary time for its preparation, and
the attorney was, during a part of the time, out of town.*
Any difficulty arising from this source could, undoubtedly,
be obviated by an application to the court or the plain-
tiff's counsel for an extension of time. An affidavit show-
ing that defendant, when he retained counsel in the case,
was under the impression that the time to answer had not
expired; that he did not recollect the precise day when
the summons was served; that he was quite ill at the
time, and did not as carefully note the time as he would
otherwise have done, — is entirely insufficient. It does
not appear that the illness of defendant extended beyond
1 Skinner v. Bryce, 75 N. C. 287. » Bailey v. Taaflfe, 29 Cal. 422.
» Waddell V. Wood, G4 N. C. 024.
173 VACATING JUDGMENTS UNDER STATUTES. § 115 a
one (lay; nor lliat, during that day, .it rendered him unfit
for ordinary business.^ The fact that the defendant did
not appear and answer because he supposed the summons
served on him to be a subpoena,^ or some paper in another
case;*' does not entitle him to relief. His failure to exam-
ine the paper is inexcusable.
§ 115 a. Surprise and Unavoidable Casualty and Mis-
fortune. — The instances in which judgments have been
vacated for surprise are infrequent; relief, when given at
all, generally being placed upon some other ground. In
North Carolina, if an attorney employed to appear and
answer fails to do so, the client may be relieved from the
judgment on the ground of surprise, provided he has not
been guilty of laches himself.* So where there was a
petition, a demurrer thereto, and also an answer, all on
file, and the demurrer to the petition was argued and sub-
mitted, and when it was decided the court not only over-
ruled the demurrer but also gave judgment for the
petitioner on the ground that the answer was defective,
it was held that this ruling upon the sufficiency of the
answer, there being no motion for judgment on the plead-
ings, operated as a surprise to the defendant, and entitled
him to relief.^ Where a judge was disqualified to try a
cause, and a special judge was chosen in the absence of
the defendant, and without his knowledge and that of his
counsel, and the cause tried in his and their absence, this
was held to be a surprise justifying the granting of relief
from the judgment.^ In most of the states surprise is a
ground for a new trial, and we apprehend that such sur-
prise as may be relieved from by motion for a new trial is
» Elliott V. Shaw, 16 Cal. 377. dell, 1 N. Mex. 400; Bowen v. Bragui-
« State V. O'Neil, 4 Mo. App. 221. ner, 88 Jiid. 558.
3 White V. Snow, 71 N. C. 232. * Griel v. Vernon, 65 N. C. 76; Mc-
For other instances of neglect deemed Lean v. McLean, 84 N. C. S66; Whit-
iaexeusable, see Governor v. Lassiter, son v. Western N. C. 11. 11. Co., 95
83 N. C. 38; Lowell v. Ames, 6 Mont. N. C. 385.
.'',69; Bash v. Van Osdal, 75 Ind. 186; ^ Heilbrou u Campbell, 23 Pac. Rep,
Birch V. Frantz, 77 Ind. 199; Smythe 10.32.
V Kastlor, 10 Neb. '264; Brown v. " Bennett z;. Jackson, W. Va., June,
Hale, 93 N. C. 188; Metzger w. Wad- 1890.
§ 115 a VACATING JUDGMENTS UNDER STATUTES. 174
not available on motion to vacate the judgment; in other
words, that if the parties are represented at the trial, and
are surprised by the rulings of the court, or by anything
else which takes place at that time, they must move for a
new trial, instead of making an application to vacate the
judgment.^
Relief upon the ground of unavoidable casualty or mis-
fortune may be had because of the insanity of the moving
party ,^ or his illness,' or the illness of his counsel,* or be-
cause of a railway accident preventing his being at the
trial.^ It is fatal to the claim for relief that a casualty or
misfortune, conceding it to have existed, would not have
injured the applicant had he exercised reasonable dili-
gence, after it happened, in preparing for trial or otherwise
attending to his interests.® If one is ignorant of the Eng-
lish language, this will not excuse him from seeking in-
formation from those who understand it, and he cannot,
after process is served upon him, which he did not un-
derstand, neglect to obtain any information concerning
it, and after suffering judgment procure its vacation for
unavoidable casualty or misfortune;' nor can a married
woman disregard process served upon her, under the sup-
position that it did not relate to her individual rights, and
by insisting that her supposition was an unavoidable
casualty or misfortune, have the judgment against her set
aside.^
^ Breed v. Ketchum, 51 Wis. 164. * Omro v. Ward, 19 Wis. 232.
« Bean v. Hoflfendorfer, 84 Ky. 685. « Izard County v. Huddleston, 39
»Luscomb V. Maloy, 26 Iowa, 444; Ark. 107.
Brewer v. Holborn, "A Iowa, 473; ' Heisterhagen v. Garland, 10 Mo.
Gheer v. Huber, 32 Kan. 319. 66; Heathcote v. Haskins, 74 Iowa,
* Snell V. Iowa Homestead Co., 67 566.
Iowa, 405. * Teabout v. Roper, 62 Iowa, 603.
175 VOID JUDGMENTS. § 118
CHAPTER VIII.
VOID JUDGMENTS -INQUIRIES IN COLLATERAL PROCEEDINGS
IN RELATION TO THE JURISDICTION OF COURTS OF RECORD.
§ 116. Description of void judgments.
§ 117. Effect of.
§ 118. Jurisdiction.
§ 118 a. Conflicting concurrent jurisdiction.
§ 119. Sources of jurisdiction.
§ I'^.O. Jurisdiction over tlie subject-matter.
§ 120 a. Jurisdiction over tlie person.
§ 120 b. Jurisdiction over corporations.
§ 120 c. Judgments void because court exceeded its juri.sdiclion.
§ 121. Loss of jurisdiction.
§ 122. Courts of record and courts not of record.
§ 123. Courts of record in exercise of special authority.
§ 124. Presumptions of jurisdiction.
§ 125. No presumption against the record.
§ 126. Defects in process, and the service thereof.
§ 127. Constructive service.
§ 128. Appearance by attorney.
§ 129. Defaults.
§ 130. Jurisdictional findings.
§ 131. Jurisdictional inquiries confined to the record.
§ 132. Silence of record.
§ 133. Cases permitting inquiry beyond the record.
§ 134. Reasons for holding record conclusive.
§ 135. Judgment never void for error.
§ 135 a. .Judgments without any issue.
§ 136. Judgments void as to some of the parties.
§ 137. Judgment for contempt.
§ 138. Rendered on Sunday.
§ 139. Rendered without authority of the court.
§ 140. Judgment after death of defendant.
§ 141. Against party not named in the record.
§ 142. When jurisdiction over party ceases.
§ 143. Jurisdiction limited to certain purposes.
§ 144. Disqualification of judges,
§ 145. Disqualification of judges at common law.
§ 146. Statutory prohibition.
§ 147. Judges sittiu'^ pro forma.
§148. Judges de facto.
§ 148 a. Judgment wrongfully altered.
§116. Void Judoinents. — The judgment, being for-
mally entered upon the record, and remaining unaffected
8 115 VOID JUDGMENTS. 176
by any proceeding to vacate it in the case wherein it was
pronounced, is likely to be offered as evidence in some
other action or proceeding. The material inquiry then
arising is, whether this professed determination of the
rights of the parties is what it assumes to be, or whether,
from some latent or patent infirmity, it is to be regarded
as waste paper, — a mere brutum fulmen. The manner in
which this inquiry should be conducted, and the sources
from which information should be received, are subjects
over which there has been, and there still is, much dis-
cussion and dissension, in which adverse conclusions
have been announced on either side with an assurance
approaching to dogmatism. No specific description of
void judgments can be framed which does not conflict
with the decisions of many of the courts. If a judgment
is void, it must be from one or more of the following
causes: 1. Want of jurisdiction over the subject-matter;
2. Want of jurisdiction over the parties to the action, or
some of them; or 3. Want of power to grant the relief
contained in the judgment. In pronouncing judgments
of the first and second classes, the court acts without juris-
diction, while in those of the third class it acts in excess
of jurisdiction. If the want of jurisdiction over either the
subject-matter or the person appears by the record, or by
any other admissible evidence, there is no doubt that the
judgment is void. It has been said that a judgment is
void if "it emanated from a court of limited jurisdiction
not acting within its legitimate prerogative, or in a court
of general jurisdiction, where the parties are not actually
or by legal construction before the court and subject to its
jurisdiction. Judgments of courts of general or compe-
tent jurisdiction are not considered under any circum-
stances as mere nullities, but as records importing absolute
verity and of binding efficacy, until reversed by a compe-
tent appellate tribunal. They are voidable, not void.
1 Ponder v. Mosely, 2 Fla. 267; 48 Am. Dec. 194.
}) 1
177
VOID JUDGMENTS. 8 117
This language goes beyond what would anywhere be
regarded as sound principle, if it is to be understood
as asserting that aZ^ judgments of courts of general juris-
diction, having jurisdiction over the subject-matter, are
valid. To hold a judgment binding, when the record dis-
closed a want of authority over the defendant, would be
to impeach rather than to sustain the absolute verity of
the record. Some judges, while refusing to permit any
inquiry beyond the record, to show that a court, when
pronouncing judgment, did not have jurisdiction over the
defendants, have nevertheless said that a judgment with-
out such jurisdiction is void, but that rules of evidence
dictated by public policy exclude such testimony, not in
the record, as is necessary to make its void nature appar-
ent. But the word " void" can with no propriety be applied
to a thing which appears to be sound, and which, while
in existence, can command and enforce respect, and whose
infirmity cannot be made manifest. If a judgment ren-
dered, without in fact bringing the defendants into court,
cannot be attacked collaterally on this ground, unless the
want of authority over them appears in the record, it is
no more void than if it were founded upon a mere mis-
conception of some matter of law or of fact occurring in
the exercise of an unquestionable jurisdiction.* In either
case, the judgment can be avoided and made functus officio
by some appropriate proceeding instituted for that pur-
pose; but if not so avoided, must be respected and enforced.
§ 117. Effect of Void Judgments. — A void judgment
is, in legal effect, no judgment.^ By it no rights are di-
vested. From it no rights can be obtained. Being worth-
less in itself, all proceedings founded upon it are equally
worthless.^ It neither binds nor bars any one. All acts
1 Allen V. Huntington, 2 Aiken, 249; Dec. 508; Blanton v. Carroll, 84 Va.
16 Am. Dec. 702. 539; ('liicaj,'o etc. R. R. Co. v. Sum-
2 Agnew V. Adams, 26 S. C. 101; mers, 113 Incl. 10; 3 Am. Sfc. Rep. 015,
Cain V. Go.la, 84 In.l. '209; Paul v. ' White ii. Foote L. & M. Co., 29
Willis, 69 Tex. 261; Carn.ii v. Martin, W. Va. aK5; Am. St. Rep. ()50; Fur-
26 N. J. L. 594; 69 Am. Dec. 584; geson v. Jones, 17 Or. 204; 11 Am. St
Gray v. Fox, 1 N. J. Eq. 259; 22 Am. Rep. 808.
JVDQ. I.— 12
§ 118 VOID JUDGMENTS. 178
performed under it and all claims flowing out of it are
void. The parties attempting to enforce it may be respon-
sible as trespassers. The purchaser at a sale by virtue of
its authority finds himself without title and without re-
dress.^ The first and most material inquiry in relation
to a judgment or decree, then, is in reference to its valid-
ity. For if it be null, no action upon the part of the
plaintiff, no inaction upon the part of the defendant,^ no
resulting equity in the hands of third persons, no power
residing in any legislative or other department of the
government,^ can invest it with any of the elements of
power or of vitality. It does not terminate or discontinue
the action in which it is entered, nor merge the cause of
action; and it therefore cannot prevent the plaintiff from
proceeding to obtain a valid judgment upon the same
cause, either in the action in which the void judgment
was entered^ or in some other action.^
§ 118, Jurisdiction. — "The power to hear and deter-
mine a cause is jurisdiction; it is coram judice whenever a
case is presented which brings this power into action; if
the petitioner states such a case in his petition, that on a
demurrer the court would render judgment in his favor,
it is an undoubted case of jurisdiction."® "Before this
power can be affirmed to exist, it must be made to appear
that the law has given the tribunal capacity to entertain
the complaint against the person or thing sought to be
charged or affected; that such complaint has been pre-
^ Campbell v. McCahan, 41 111. 45; Freeman on Void Judicial Sales, sec.
Roberts v. Stowers, 7 Bush. 295; Huls 56; Griffin v. Cunningham, 20 Gratt.
V. Buntin, 47 111. :^97; Dane's Abr., e. 109; Lane v. Nelson, 79 Pa. St. 407;
146, art. 5, sees. 1, 8; Sherrell v. Good- 3 Cent. L. J. 44; Denny v. Mattoon, 2
rum, 3 Humph. 430; Andrews w. State, Allen, 361; 79 Am. Dec. 784; Israel v.
2Siieed, 550; Hollingsworth v. Bagley, Arthur, 7 Col. 5; McDaniel v. Correll,
35 Tex. 345; Morton v. Root, 2 Dill. 19 111. 226; 68 Am. Dec. 587; Richards
312; Coin. Bank v. Martin, 9 Smedes v. Rote, 68 Pa. St. 248.
& M. 613; Doe v. McDonald, 27 Miss. ■♦ Moore v. Haskins, 66 Miss. 496.
610; Hargis w. Morse, 7 Kan. 417. MVestern U. T. Co. v. Taylor, 84
2 Kramer v. Holster, 55 Miss. 243. Ga. 408; Linn v. Carson, 32 Gratt.
' Pry or v. Downey, 50 Cal. 388; 19 170.
Am. Rep. ^5 5; Maxwell w. Goetschius, ^ United States v. Arredonda, 6 Pet.
40 N. J. L. 383; 29 Am. Rep. 242; 709.
179 VOID JUDGMENTS. § 118
ferred; and Uiat such person or thing has been properly-
brought before the tribunal to answer the charge therein
contained." 1 There must be a cause to be heard, and
when the tribunal is a court of record, sucli cause must
be submitted to it by a complaint in writing.^ There can
be no doubt that the filing of a petition or complaint,
such as ought not to be deemed sufficient upon demur-
rer, may confer jurisdiction. The power to decide
upon the sufficiency of a cause of action as presented
by the complainant's pleading, like the power to de-
cide any other legal proposition, though erroneously
applied, is binding until corrected by some superior
authority.' The definition of the word "jurisdiction " has
undergone various judicial modifications within the past
few years. It was formerly, as we have stated, defined
to be the power to hear and determine. The supreme
court of California, not entirely satisfied with this defi-
nition, said that " it is, in truth, the power to do both
or either; to hear without determining, or to determine
without hearing.'"* The later decisions of the supreme
court of the United States introduce a new element
in the description of jurisdiction, and, in effect, declare
that it is the power and the willingness to hear and de-
termine. " Wherever one is assailed in his person or his
property, there he may defend; for the liability and the
right are inseparable. This is a principle of natural jus-
tice, recognized as such by the common intelligence and
conscience of all nations. A sentence of a court pro-
nounced against a party without hearing him, or giving
him an opportunity to be heard, is not a judicial deter-
mination of his rights, and is not entitled to respect in
any other tribunal.* Where a court having jurisdiction
' Shelrlon v. Newton, 3 Ohio St. 494. 111. 92; Plume v. Howard S. T., 4G N.
« Beckett V. Cuenin, 15Col. 2S1; 22 J. L. 211; Cooper v. Siimlerlaud, 3
Am. St. Rep. Sr9; Young v. Rosea- Iowa, 114; C6 Am. Dec. 52; Wood v.
baum, .39 Cal. 654. Blythe, 40 Wis. 650.
3 McNamaraon Nnllitie^i. 1.37; Rowe * Ex jiarte Bennett, 44 Cal. 84.
r. Palmer, 29 Kan. .337; P.mlr. Smith, » Windsor v. McVeigh, 93 U. S,
82 Ky. 451; Barnard v. Barnard, 119 277; 4 Ceut. L. J. 61.
§ 118 VOID JUDGMENTS. 180
over the subject-matter causes its process to be regularly-
issued and served upon the defendant, we should, but for
the decision from which we have just quoted, consider
that any irregular, erroneous, or even arbitrary act on its
part — such, for instance, as striking out his answer, or
otherwise refusing to consider his defense — would be no
more than the erroneous exercise of its jurisdiction, and
would therefore not endanger the validity of its judgment
otherwise than by subjecting it to reversal on M-rit of
error or appeal. But according to the reasoning of the
supreme court, the issue and service of process is equiva-
lent to a direction to the defendant to appear and present
his defense for the consideration of the court, and its re-
fusal, after he does so appear, to hear him or to permit
him to assert his rights is, in legal effect, a revocation of
its process, and thereafter it has no other jurisdiction
over him than it had prior to the issuing of such process.^
The statement that jurisdiction is the power to hear and
determine is liable to produce the impression that where
it exists any determination which the court may make is
valid, though in excess of its powers and liable to be set
aside by appeal or by some other correctory proceeding.
The determination of an action is not confined to the de-
cision of issues of law and fact and ordering judgment for
one party and against another, but embraces the relief
granted; and that there should be power to grant the relief
specified in the judgment is as essential as that there
should be power to entertain the action and dispose of the
issues of law and fact therein. It is true that there is
^ Windsor v. McVeigh, 93 U. S. 278. could be no hearing or opportunity of
•'It was not," said Mr. Justice Field, being heard, and therefore could be
in this case, "within the power of the no exercise of jurisdiction. By the
jurisdiction of the district court to act of the court, the respondent was
proceed with the case so as to efifect excluded from its jurisdiction." Jus-
the rights of the owner after his ap- tices Mller, Brailley, and Hunt dis-
ptarance had been stricken out, and sented. Judge FieKl, at page 283, re-
the benefit of the citation thus denied, fers to various instances which, in his
For jurisdiction is the right to hear judgment, involve such a departure
and ileterniine, not to determine with- from the established modes of proce-
out hearing. An<l where, as in that dure as to render a judguieut void,
case, no appearance was allowed, there
181 VOID JUDGMENTS. § 118 a
great difficulty in formulating any test by which to deter-
mine whether a judgment granting relief other or in excess
of that authorized by law may be disregarded as void, or
must be treated as valid until vacated by appeal or other-
wise; but that it is possible for a court having jurisdiction
both of the subject-matter of and of the parties to an
action to pronounce a judgment so far in excess of its'
powers as to be wholly or partly void, we think must be
conceded.^
§ 118 a. Conflicting Concurrent Jurisdiction. — It may
happen that while an action is pending, over the subject-
matter and parties to which the court has jurisdiction
another action is commenced, to which the same persons
are parties, in another court, involving the same subject-
matter, and it may further happen that both actions
proceed to judgment and that the judgments are wholly
irreconcilable. If so, then the question arises. To which
shall be given precedence? The authorities agree that
when a court has obtained jurisdiction over an action, it
is entitled to pursue such jurisdiction to final judgment,
and that, its jurisdiction cannot be divested by the bring-
ing of another action in a court of concurrent jurisdiction,
and that, notwithstanding the bringing of the second ac-
tion, the court first acquiring jurisdiction will not hesitate
to proceed, irrespective of what may be done in the other
action by the other court.'' So far as we are aware, no
instance has ever occurred in which the court last acquir-
ing jurisdiction has proceeded to judgment and sought to
enforce such judgment notwithstanding the pendency of
the prior action. Generally, the conflict of jurisdiction is
avoided by suggesting to the second court the fact that
' See pott, sec. 120 c. Home Ins. Co. v. Howell, 24 N. J. Eq.
^ Sharon v. Terry, 13 Saw. 3S7; 2.39; Brooks v. Delaplaine, 1 Md. Ch.
Wallace v. McConnell, 13 Pet. 13(3; 354; Merrill v. Lake, IG Oliio, 373;
Taylor v. Taintor, 16 Wall. .3()6; Shoe- 47 Am. Dec. 377; Chapin v. James, II
makers. French, Chase Dec. 207; Gay- R I. 86; 23 Am. Re[). 412; Keatini^ v.
lord V. Ft. Wayne etc. R. R. Co., G Spink, 3 Ohio St. 105; 62 Am. Dec.
Biss. 2SG; Union M. L. I. Co. v. Chi- 214; H.iines w. Rawson, 40 Cia. 356; 2
cago, 10 Biss. Ill; Bank of Bellows Am. Rep. 581; Grilliu v. Briukhead,
Falls V. Rutland R. R. Co., 28 Vt. 470; 84 Va. 612.
§ 119 VOID JUDGMENTS. 182
another court had previously acquired jurisdiction of the
controversy, and that, to avoid any unseemly conflict,
the trial of the second action should be stayed until the
first is disposed of; and in some instances, parties institut-
ing the second action have been enjoined from its further
prosecution. Still, it may happen that when one of the
national courts has acquired jurisdiction of an action, one
of the parties thereto may thereafter resort to a state court
and there commence an action against his adversary, in-
volving the same subject-matter, and thus attempt to
transfer the controversy to the state courts; and the
latter may, notwithstanding any objections made, insist
upon proceeding to trial and judgment. In this event,
will its judgment be valid, or not? This question seemed
about to arise in a very celebrated case, but its decision
was finally rendered unnecessary by the reversal of the
judgment of the state court. So far as any opinion was
expressed upon the subject in this case, the courts of the
state inclined to the view that their judgment was not
void,' while the national courts, on the other hand, were
obviously determined, if necessary, to entirely disregard
it.^ It seems impossible that two courts can, at the same
time, possess the power to make a final determination of
the same controversy betwe.en the same parties. If either
has authorit}'- to act, its action must necessarily be exclu-
sive, and therefore it is our judgment that whenever
either the state or the national courts acquire jurisdiction
of an action and the parties thereto, this jurisdiction can-
not be destroj^ed, diminished, or suspended by one of the
parties bringing an action in another court, and that any
■judgment or order of the latter court is void so far as it
conflicts with any judgment or order of the court first
acquiring jurisdiction.
§ 119. Sources of Jurisdiction, — Jurisdiction is con-
ferred upon courts by the constitution and laws of the
> Sharon v. Sharon, 79 Cal. 633. » Sharon v. Terry, 13 Saw. 387.
183 VOID JUDGMENTS. § 120
country in which they are situate, ''authorizing them to
hear and determine causes betAveen parties, and to carry
their judgments into effect." ' Jurisdiction over the sub-
ject-matter is a condition precedent to the acquisition of
authority over the parties, and is conferred by the " au-
thority which organizes the court, and is to be sought for
in the general nature of its powers, or in authority spe-
cially conferred," The jurisdiction of a court over a
particular question or subject-matter is generally depend-
ent on the act of the parties, or of some of them. Though
either the constitution, the statute, or the common law, or
all combined, confer upon courts authority to hear and
determine causes, they are not ordinarily authorized to
act unless some petition or complaint, oral or WTitten, is
presented to them and relief sought from them because of
the matters stated therein. Jurisdiction over the person
is obtained by service of process within the jurisdiction
of the court, or in some other manner authorized by law,
as by the voluntary appearance of a party during the
progress of a cause. Jurisdiction over the res "is obtained
by its seizure under process of the court," ^ and, as we
shall hereafter see, is sometimes conceded to exist tliough
no seizure is made, as where process is served construc-
tively, by publication or otherwise.*
§ 120. Jurisdiction over the Subject-matter. — A judg-
ment pronounced by a tribunal having no authority to
determine the matter in issue is necessarily and in-
curably void, and may be shown to be so in any colhiteral
or other proceeding in which it is drawn in question.* A
criminal information in the court of common pleas, or a
common recovery or writ of riglit in the king's bench,
1 Withers v. Patterson, 27 Tex. 49] ; Ponce v. Underwood, ^5 Ga. TOl ; Lyles
83 Am. Dec. 64.3. v. Bolls, 8 S C. 258; Western U. T.
^ C. oper V. Reynolds, 10 Wall. 308. Co. v. Tavlor, 84 Ga. 408; Beverly w.
»Po.< sec. 120a. Burke, 9 Ga. 440; 54 Am. Dec :^5 ;
* Gilliland v. Seller's AdmV, 2 Ohio S\vii:garfc v. Hather, 4 Scam. 8()4; .^»
St. 2-23; Morse v. Presby, 5 F..st. 21)9; Am. Dec. 418; St. Louis & h. C. ( o
Eaton V Badger, 3.3 N. H. 228; Wams- v. Sandoval C. Co., 1 1 1 HI. 32; Frankel
ley V. Robiusou. 28 La. Ann. 793; ». Satterfield, 19 Atl. Kop. 898 (Del).
g 120 VOID JUDGMENTS. 184
would be simply void, and could not even be pleaded in
justification by the officer of the court who executed it.^
When a tribunal has not jurisdiction over the subject-
matter, no averment can supply the defect; no amount of
proof can alter the case. As power over the subject-matter
is given by law, nothing but an additional grant from
legislative authority can extend that power over a class of
cases formerly excepted; and neither the acquiescence of
the parties, nor their solicitations, can authorize any court
to determine any matter over which the law has not au-
thorized it to act.2 The grant of jurisdiction must proceed
from competent authority. Where a court acts under and
by virtue of a certain act, and such act is unconstitutional,
its judgments are void. The jurisdiction resting on the
act, and the act resting on no sufficient support, both,
must fall.^ Jurisdiction, being conferred by the laws of a
state or country, is necessarily confined within the terri-
torial limits in which such laws are operative. Lands
and other property situate in another state or country are
not within the jurisdiction of the courts of this state, and
cannot be directly aff'ected by their judgments.* If, how-
ever, the court has jurisdiction of the action and the par-
ties, and is competent to give part of the relief granted,
its judgment, so far as within its powers, is valid. There-
fore a judgment enforcing a mechanic's lien may, on the
1 Moore v. Houston, 3 Serg. & R. Ann. 97; Irwin's Succession, 33 La.
169; Williamson's Case, 26 Pa. St. 9, IS; Ann. 63; Reed v. Wright, 2 G. Greene,
Case of the Marshalsea, 10 Coke, 68, 15. Tn Dower v. Johnson, 9 Rep. 329,
7(3. 100 U. S. 158, the supreme court of
^ Dicks V. Hatch, 10 Iowa, 380; the United States declared void a
State V. Fosdick, 21 La. Ann, 258; judgment of one of the courts of Lou-
Mora V. Kuzac, 21 La. Ann. 754; isiana, rendered against an officer in
Moore v. Ellis, 18 Mich. 77; Damp v. the military service of the United
Town of Dane, 29 Wis. 419; Richard- States, for injuries resulting from the
son V. Hunter, 23 La. Ann. 255; Pea- execution of orders issued by him as
body V. Thatcher, 3 Col. 275; Fleisch- such officer, on the ground that the
man v. Walker, 91 111. 318; Block v. courts of an invaded nation have no
Henderson, 82 Ga. 23; 14 Am. St. Rep. jurisdiction to compel the officers and
138; Burnley r. Cook, 13 Tex. 586; 65 so diers of the invading army to ac-
Am. Dec. 79; Stanton v. Ballard, 133 count to them civilly or criminally.
Mass. 465; Home Ins. Co. v. Morse, 2J * Wimer v. Wimer, 82 Va. 890; 3
Wall. 451. Am St. Rep. 126; Lindley r. C'Reilly^
» In re Fourth Drainage Dist., 34 La. 50 N. J. L. 636; 7 Am. St. Rep. 802.
185 VOID JUDGMENTS. § 120
law conferring the lien being adjudged unconstitutional,
be treated as valid as a personal judgment against the
defendant.^ It is essential that the jurisdiction of the
court over a subject-matter be called into action by some
party and in some mode recognized by law. A court
does not have power to render judgment in favor of one
as plaintiff if he has never commenced any action or pro-
ceeding calling for its action,'^ nor has it, as a general
rule, power to give judgment respecting a matter not sub-
mitted to it for decision, though such judgment is pro-
nounced in an action involving other matters which have
been submitted to it for decision and over which it has
jurisdiction.' A petition or complaint must be filed in
the court whose action is sought, or otherwise presented
for its consideration in some mode sanctioned by law. If
it is filed in one court and there dismissed, and the plain-
tiff thereupon changes the file-marks so as to make it
appear to have been filed in another court and at a later
date, but without changing its caption or other contents,
it still remains a petition to the court to which it was ori-
ginally presented, and does not invest the other court
with any jurisdiction over the subject-matter of such peti-
tion.* It is not, however, essential to the jurisdiction of
the court that the complaint in action be filed within the
time required by law,* nor by a person entitled to main-
tain the action. Hence a judgment in partition is valid
though the plaintiff, while he was a proper party defend-
ant, was not entitled to maintain the action.* The rule
that a judgment is absolutely void if pronounced by a
court not having jurisdiction of the subject-matter is
equally applicable whether the judgment proceeded from
a court of general or of special, of foreign or of domestic,
jurisdiction, and whether the judgment is questioned
• Koppket>. Dyer, 80 Mich. 311. Blackstnck, 83 Va, 232; 5 Am. St.
« Dunlap V. Soutlierlin, 63 Tex. .38. Rep. 262.
3 Mnnily v. Vail, 3t N. J. L. 41S; * Jordan v. Brown, 71 Towa, 421.
Eeynolds v. Stockton, 43 N. J. Eq. * Uildreth v. H:irnev. 62 Iowa, 420.
211; 3 Am. St. Rep. 3U5; Seaiastcr v. * iiced v. Reed, 107 N. Y. 045.
§ 120 VOID JUDGMENTS. 186
directly or co^^ate^all3^ But courts not having jurisdic-
tion over a subject-matter may, when an improper case
is attempted to be litigated before them, determine their
own want of jurisdiction, and, as incident to that deter-
mination, may render judgment for costs.*
Instances of want of jurisdiction over the subject-matter
are found more frequently in probate proceedings than
elsewhere. If the statute of a state governing the settle-
ment and distribution of the estates of deceased persons
makes no provision concerning the estates of persons
who died prior to the passage of such statute, then an at-
tempt to administer on one of the last-named estates is a
usurpation of authority over a subject-matter not within
the 'jurisdiction of the court, and the proceedings are
therefore invalid.^ So if a probate court should make an
order for the sale of property situate in another state than
the one in which the order is made, this would also be an
assumption of authority over a subject-matter not within
the jurisdiction of the court, and would be void.^ This
rule has been held to be applicable even where personal
property, though in another state at the death of its
owner, was subsequently brought within the state where
the order was made.* Courts of probate have no power to
grant letters of administration, nor letters testamentary,
on the estate of a living person. Letters may be granted,
under a mistake of fact, upon the supposition that the tes-
tator or other person is dead. The case is nevertheless
one in which the court has no jurisdiction. If he who
was supposed to have died is in fact living, all probate
sales and other proceedings are void, and can have no
' King V. Poole, 36 Barb. 242; First Congresational Society, 4 West
Gorinly v. Mcintosh, 22 Barb. 271; Coast Rep. 421; (56 Cal. 105.
Jordan ?\ Dennis, 7 Met. 590; Blair u. ^ Novvler v. Coit, 1 Ohio, 519; 13
Cunimings, 39 Cal. 667; Burke v. Jack- Am. Dec. 640; Salmond v. Price, 13
son, 2-2 Ohio St. 268. Ohio, 368; 42 Am. Dec. 204; Watts v.
■^Downer v. Smith, 24 Cal. 114; Waddle, 6 Pet. 389; Wills v. Cowper,
Coppincrer v. Rice, 33 Cal. 408; Grimes 2 Ohio, ]-J4; Latimer v. R. R. Co., 43
V. Norris, 6 Cah 621; 65 Am. Dec. 545; Mo. 10.1; 97 Am. Dec. 378; Price v.
Adams v. Norris. 23 How. 353; Tevis Johnson. 1 Ohio St. 390.
V. Pitcher, 10 Cal. 465; McNeil v. * Varner v. Bevil, 47 Ala. 286.
187 VOID JUDGMENTS. § 120
effect on his title.^ Grants of letters of administration
were formerly judged to be void unless the deceased did
in fact die intestate.^ Surrogate and probate courts are
usually limited in their jurisdiction to a specified class of
cases. Thus it is generally required that a man's estate
be settled in the county where he resided at the time of
his death. If it appears that letters testamentary or of
administration were granted in a county in which the de-
ceased did not reside, the whole proceedings must be
regarded as void.^ How and in what circumstances this
fact may be made to appear are questions to which diverse
answers may be found in the authorities. Undoubtedly
the records of the court may be inspected. If they show
the non-residence of the deceased, they are competent evi-
dence of their own invalidity. If they fail to assert any-
thing about the residence, either in the averments of the
petition or in the findings of the court, we should judge
this to be fatal. In every case it ought to appear, prima
facie, that the court has jurisdiction over the estate.
* Duncan v. Stewart, 25 Ala. 408; 60 the appointees of the court in the
Am. Dec. 527; Griffith v. Frazier, 8 same position as if the decree never
Cranch, 9; Fisk u. Norvel, 9 Tex. 13; existed. On the contrary, all acta
58 Am. Dec. 128; Jochumsen v. Suf- done in the due course of administra-
folk Sav. Bank, 3 Allen, 87; Withers tion, while such decrees remained in
r. Patterson, 27 Tex. 496; 86 Am. Dec. force, must be held entirely valid":
643; Beckett v. Selover, 7 Cal. 215; 68 Redtield on Wills, pt. 2, p. 109; Bige-
Am. Dec. 237. But a majority of the low v. Bigelow, 4 Ohio, 138; 19 Am.
court of appeals of New York declared, Dec. 597; Kittredge v. Folsom, 8
in Rodfirigas v. East River Sav. Inst., N. H. 98; Ward v. Oakes, 42 Ala. ^25;
63 N. Y. 460, 20 Am. Rep. 555, that a Jennings v. Moses, 38 Ala. 402;
grant of administration upon the es- Broughton v. Bradley, 34 Ala. 694; 73
tate' of a living person was not void; Am. Dec. 474; Brock v. Frank, 51 Ala.
but see a further decision in the same 91. But one who deals with an execu-
case, 76 N. Y. 316; 32 Am. Rep. 309. tor is not protected if he has notice of
!* Holyoke v. Haskins, 5 Pick. 24; 16 the existence of a later will than the
Am. Dec. 372; Brock v. Frank, 51 Ala. one admitted to prohate: Gaines v. De
91; Kane v. Paul, 14 Pet. 39; Griffith la Croix, 6 Wall. 720.
V. Frazier, 8 Cranch, 24. This rule is * Beckett r. Selover, 7 Cal. 215; 68
believed to be obsolete in the United Am. Dec. 237; Haynes v. Moeks, 10
States. In its stead we have adopted Cal. 110; 70 Am. Dec. 703; Harlan's
the rule that a grant of administration. Estate, 24 Cal. 182; 85 Am. Dec. 58;
made by a court having jurisdiction of Moore v. Pliilbrick, .32 Me. 102; 52
the subject-matter and of the particu- Am. Dec. 642; Munson v. Newson, 9
lar case, while it remains unrevoked, Tex. 109; Cutts v. Haskins, 9 Mass,
cannot be regarded as void. "Nor 543; Holyoke v. Haskins, 5 Pick. 20;
can the recall or the repeal of the ap- 9 Pick. 259; 16 Am. Dec. 372; Good-
poiatmeut be fairly regarded as placing rich v. Pendleton, 4 Johns. Ch. 549.
§ 120 a VOID JUDGMENTS. 188
Usually a petition is presented to the court or judge, in
which the facts authorizing the assumption of jurisdiction
in the particular case are stated. The duty of the court
or judge is to investigate and determine the truth of these
jurisdictional allegations. Its subsequent grant /of letters
implies that these allegations have been, found to be true.
Hence in a case where a probate court has, upon a peti-
tion asserting the essential jurisdictional facts, and after
notice to the parties in interest, given in the manner pre-
scribed by law, granted letters testamentary or of admin-
istration, the proceedings cannot be avoided collaterally,
in the majority of the states, by proof that the deceased
did not die within the jurisdiction of the court.^ Any
other rule would lead to the most embarrassing results.
The residence of a deceased person can be determined
only by hearing parol evidence. Different judges may
reach opposite conclusions from the same evidence. The
parties in interest may at separate times produce different
evidence on the same issue. If, after a court had heard
and decided the issue concerning the residence of the de-
ceased, the question remained unsettled to such an extent
that it could be relitigated for the purpose of avoiding all
the proceedings of the court, no person would have the
temerity to deal with executors or administrators.
§ 120 a. Jurisdiction over the Person of plaintiff or
complainant is acquired by his suing out some writ or
presenting to the court a petition or complaint; or, in
other words, by his voluntarily submitting his cause to
its decision. The defendant may also give the court
jurisdiction by his voluntary action, as where he appears
by his answer, or in some other mode recognized by law.^
» Irwin V. Scribner, 18 Cal. 499; bott, 27 Vt. 581; 65 Am. Dec. 214;
Lewis V. Dutton, 8 How. Pr. 103; Burdett v. Silsbee, 15 Tex. 615; Monell
Andrews v. Avery, 14 Gratt. 236; 72 v. Demiison, 17 How. Pr. 422; Abbott
Am. Dec. 355; Warfield's Estate, 22 r. Coburn, 28 Vt. 663; 67 Ain. Dec. 735;
Cal. 51; 83 Am. Dec. 49; Sutton v. Rarborg »\ Hammond, 2 Har. & G. 42.
Sutton, 13 Vt. 71; Fisher r. Bassett, 9 See also Riley v. McCord, 24 Mo. 265;
Leigh, 119; 33 Ain. Dec. 227; Barrett Wight v. Wallbaum, 39 111. 554.
V. Garney, 33 Cal. 530; Dnggs v. Ab- « Letuey v. Marshall, 79 Tex. 513.
189 VOID JUDGMENTS. § 120 a
If he does not do so volnntarily, then, hefore the court
can rightfully exercise jurisdiction over him, it must be
authorized to require him to appear before it and submit
to its judgment in the action or proceeding, and its process
requiring such appearance must be issued and served
upon him in substantial compliance with the law. As a
general rule, the authority of the courts of every state or
nation is restricted to the territory of such state or nation,
and they have no power to require persons not within
such territory to appear before them. Therefore, any
personal judgment which a state court may render against
one who did not voluntarily submit to its jurisdiction,
and who is not a citizen of the state, nor served with
process within its borders, no matter what the mode of
service, is void, because the court had no jurisdiction over
his person.^ To this rule there is this apparent exception:
If a court has jurisdiction over an action and the parties
thereto, with power to render, and it in fact does render,
a valid judgment therein, from which the losing party
has a right to appeal, such process as may be required to
prosecute an appeal to the appellate court may be served
on a non-resident respondent, and if so served, the judg-
ment of the appellate court based thereon is valid.^
All persons residing or being within a state are subject
to the jurisdiction of its courts, whether their residence is
temporary or permanent; so that process served upon
them within its territory is as effectual to confer jurisdic-
1 Ewer V. Coffin, 1 Cush. 23; 48 Eliot v. McCormick, 144 Mass. 10;
Afn. Dec. 587; Lovejoy v. Albee, 33 Eastman v. Dearborn, 63 N. H. 304.
Me. 414; 54 Am. Dec. 630; Martia v. Silver v. Luck, 42 Ark. 268; Pennoyer
Cobb, 77 Tex. 544; Latimer v. Union v. Neff, 95 U. S. 714; Hall r. Williams,
Pac. R'y Co., 43 Mo. 105; 97 Am. Dec. 6 Pick. 2.32; 17 Am. Dec. 356; Fol-er
378; Paxton v. Daniell, 23 Pac. L. Rep. v. Columbian Ins. Co., 99. Mass. 267;
441 (Wash.); Cudabec v. Strong, 67 96 Am. Dec. 747; Price v. Hickok, 39
Miss. 705; Kimmarle v. Houston etc. Vt. 292; McEwen r. Ziinmer, 38 -Mich.
R. R. Co., 76 Tex. 686; Barrett v. Mc- 7()5; 31 Am. Rep. .••!.32; Lntz v. Kelly,
AUister, 33 W. Va. 738; De Meli v. 47 Iowa, 307; Smith v. Eaton, 36 Me.
De Meli, 120 N. Y. 485; 17 Am. St. 298; 58 Am. Dec. 746; Hart v. San-
Rep. 6.52; Sowders v. Edmunds, 76 som, llOU. S. 151.
Ind.123; Shepard w.Wriyht, 113N. Y. '^Nations v. Johnson, 24 How.
682; Mickey v. Stratton, 5 Saw. 475; 195.
§ 120 a VOID JUDGMENTS. 190
tion on a court as if tliey were citizens/ unless they are
ambassadors, other public ministers, or consuls or vice-
consuls of a foreign nation, in which event the jurisdiction
of the national courts is exclusive, and though they appear
in such courts in response to process served upon them,
and answering the complaint, proceed to trial upon the
merits, they may at any time avoid the judgment by
suggesting that the court did not have jurisdiction over
them.^ The place of residence of a foreign minister or
ambassador is not regarded as a part of the state for the
purpose of conferring jurisdiction on the state courts over
him, his diplomatic attendants, or his family or servants,
all of whom are exempt from the jurisdiction of the state.'
All property within a state is subject to the jurisdiction
of its courts,^ and they have the right to adjudicate the
title thereto, to enforce liens thereupon, and to subject it
to the payment of the debts of its owners, whether resi-
dents or not. It must be confessed that it is somewhat
difficult, upon principle, to reconcile this statement with
the rule that a court has no jurisdiction over persons who
are neither citizens nor residents of the state whose tri-
bunal it is. This difficulty has been solved by regarding
as quasi proceedings in rem all actions or proceedings the
direct object of which is to affect the title,® or to enforfte
liens upon property, or to make it contribute to the satis-
faction of such judgment as may be recovered. There-
fore a judgment in partition,^ or setting aside a conveyance
1 Mowry v. Chase, 100 Mass. 79; * Sturgis v. Fay, 16 Ind. 429; 79
Sturgis V. Fav, 16 Inrl. 429; 79 Am. Am. Dec. 440; United States v. Fox,
Dee. 440; Downer v. Shaw, 22 N. H. 94 U. S. 315; Arndt v. Griggs, 116
277; Murphy v. Winter, 18 Ga. 600; U. S. 151; Castrique v. Imrie, L. R. 4
March v. Eastern R. R. Co., 40 N. H. H. L. 414.
548; 77 Am. Dec. 732; Molvneux v. * Applegate v. Lexington etc., 117
Seymour. 30 Ga. 440; 76 Am. Dec. 662; U. S. 2G6; Loaiza v. Superior Court, 85
Alley V. Caspari, 80 Me. 234; 6 Am. Cal. 11; 20 Am. St. Rep. 197; Young v.
St. Rep. 178. Upshur, 42 La. Ann. 362: 21 Am. St.
2 Miller v. Van Loben Sels, 66 Cal, Rep. 381; Hee fitter v. Elizabeth Oil
341; Boers v. Preston, 111 U. S. 256. Co.. 112 U. S. 301.
^ United States »). Benner, Bald. 234; "Williams v. Westcott, 77 Iowa,
Ex parte Cabrera, 1 Wash. C. C. 232; 332; 14 Am. St. Rep. 287; Wunstel v.
Uni;ed States v. Lafoutauie, 4 Crauch Landry, 39 La. Ann. 312; Taliaferio tv
C. C. 173. Butler, 77 Tex. 578.
191 VOID JUDGMENTS. § 120 a
as fraudulent/ or for specific performance of a contract to
convey real estate,^ or condemning lands in the exercise of
the right of eminent domain,'^ or foreclosing liens, or de-
termining conflicting claims to real estate and quieting
title thereto/ is valid even against non-residents, though
based upon constructive service of process. So where an
action is to enforce a pecuniary liability, and during its
pendency the property is levied upon under a writ of
attachment issued therein, whether by taking it into the
actual possession of the attaching officer or not, and the
defendant is a non-resident constructively served with
process, the judgment against him is so far valid that it
may be enforced by the sale of the property attached,
though in all other respects it is inoperative.* In actions
of this class, as authorii^ed by the statutes in most of the
states, though property is attached, the service of process,
by publication or otherwise, is essential to confer juris-
diction to enter judgment, and a judgment without such
service is void.® In all cases in which a defendant does
not voluntarily appear, service of process upon him in
some mode authorized by law is indispensable, and if it
appears, even in a collateral proceeding, that any judg-
ment has been rendered against one who has neither
voluntarily appeared nor been served with process, it must
be treated as void.^
' Adams v. Cowles, 95 Mo. 501; 6 e.SO; Easterly v. Goodwin, 35 Conn.
Am. St. Rep. 74; Lane v. Innes, 43 273; 95 Am. Dec. 3'J7; Johnson v.
Minn. 136. Dodge, 19 Iowa, 106; Payne v. Wither-
^ Boswell's Lessee v. Otis, 9 How. spoon, 14 B. Mon. 270; Stone v.
330; Felchv. Hooper, 119 Mass. 52. Meyers, 9 Minn. .SOS; 86 Am. Dec.
3 Hilling V. Kaw Valley R. R. Co., 101; Freeman v. Alderson, 119 U. S.
130 U. S. 559. 1S5.
* Arndt v. Grigcrs, 134 U. S. 316; ^ Great W. M. Co. v. Woodmas etc.
Watson V. Ulbricli, 18 Neb. ISO; Cloyd Co., 12 Col. 46; 13 Am. St. Rep. 204;
V. Trotter, 118 III. 391; Essig v. Lower, Barber v. Morris, 37 Minn. 194; 5 Am.
120 Ind. 239; Perkins v. Wakeham, 86 St. Rep. 836.
Cal. 580; 21 Am. St. Rep. 67; Ven- ' Fanner d. Hafley, 38 La. Ann. 232;
able V. Dutch. 37 Kan. 515; 1 Am. St. Boyd v. Roane, 49 Ark. 397; Earl v.
Rep. LT)0; Bennett v. Fenton, 41 Fed. Cureton, 13 S. C. 19; Condry ?'. C'liesh-
Rep. 2Si. ire, 88 N. C. 375: Dorr v. Rohr, 82
"Anderson v. GofiF, 72 Cal. 65; 1 Va. 359; 3 Am. St. Rep. 106; Gre<,'ory
Am. St. Rep. 34; Eastman v. Wad- v. Stetson, 133 U. S. 579; Cassidy v.
leigh, 65 Me. 251; 20 Am. Rep. 695; Woodward, 77 Iowa, 355; Duncan v.
Tab!erw. Mitcliell, 0"/ Miss. 437; Love- Gerdiiie, 59 Miss. 550; Arthur v. la-
joy V. Albee, 33 Me. 414; 54 Am. Dec. rael, 15 Col. 147.
§ 120 a VOID JUDGMENTS. 192
If there are two or more defendants, there is no author-
ity to enter judgment against all until all have been served,
unless it can be found in the provisions of some statute in
force in the state; ^ and though there is such a statute in
existence, before judgment affecting one not served can
be validated by it, it must appear that the action or pro-
ceeding in which it was rendered was prosecuted under
and in conformity to such statute.^ If a partnership is
doing business in a state or country of which some of its
members are non-residents, there is no doubt that upon
service of process upon the resident defendants a judg-
ment may be entered which will bind them personally and
be enforceable against the partnership assets found within
the jurisdiction of the court.* It has been contended that
a statute authorizing judgment to be entered against a
partnership, or against persons jointly indebted, on ser-
vice of process on some only of the persons jointly liable,
enforceable ag'ainst those served and against the joint
property of all, is unconstitutional, on the ground that it
deprives those not served of property without the process
of law. That a judgment cannot be given any effect
against a partner or other joint debtor personally must
be conceded in all cases where it clearly appears that pro-
cess has not been served upon him, and he has not volun-
tarily appeared in the action. It will not support a levy
made on his individual property nor an action against
him to obtain another judgment, nor will it even stop the
running of the statute of limitations.'* It is also doubtful
whether, in case the defendants are joint debtors merely,
a judgment against all, based upon personal service upon
some only, can be enforced against property which they
own as co-tenants, so as to deprive a defendant not served,
^Gaiennie v. Akin, 17 La. 42; .% Cal. 389; Hamilton r. Rogers, 67 Mich.
Am. Dec. 604; Hall v. Lanning. 91 135.
U. S. 166; Landsbreg v. Bullock, 79 ^ Winters v. Means, 25 Neb. 241; 13
Mich. 278; Proctor v. Lewis, 50 Am. St. Rep. 489; Leese v. Martin, L.
Mich. 329; Junkansw. Bergin, 64 Cal. R. 13 Eq. 77; Gunzberg v. Jacobson,
203. 39 Mioh. 80.
•^ Davidson v. Knox, 67 Cal. 143; * Tay v. Hawley, 39 Cal. 95; Bruea
Garden S. & M. L W. v. Davidson, 73 v. Bokee. 4 Deuio, 56; 47 Am. Dec. 239.
193 VOID JUDGMENTS. § 120 a
of his share or interest in such property; but as to a part-
nership, it is competent for the legislature of a state to
authorize a judgment to be entered against it upon service
of process upon any one or more of the partners, enforce-
able against the partnership property and the individual
property of the partners so served.^
Various questions may arise as to whether facts claimed
to constitute an alleged appearance, or service of process,
are sufficient to bring the defendant within the jurisdic-
tion of the court. We cannot undertake to here state fully
what will be deemed an appearance by a defendant nor
what a sufficient service of process upon him. It has
been held that the fact that one was made a party defend-
ant on his own motion did not authorize the entry of his
default without any farther notice or process;^ that a
motion to set aside judgment and for leave to plead, if
denied, left the question of jurisdiction just as it was be-
fore;^ and that the overruling of a motion for a new trial
cannot cure a default void for want of jurisdiction, unless
it appears that the motion was made or authorized by the
defendant.-* It is obvious that any proceeding taken by a
defendant for the purpose of obtaining relief from a judg-
ment, on the ground that it was rendered against him
without first acquiring jurisdiction over him, and any ap-
pearance made professedly for a special purpose, ought
not to be held to give the court jurisdiction over the de-
fendant, except to the extent of hearing and determining
the question which he specially presents to it for con-
sideration.
As a general rule, the jurisdiction of courts in an action
is confined to the parties thereto, and must be procured
in some mode sanctioned by law. Though there are
rights and causes of action arising out of or connected
1 Patten v. Cunnington, 63 Tex. 6G6; ^ pagan v. Barnes 14 Fla. 53.
Burnett v. Sullivan, 58 Tex. 5S5; ' «lo»4 ^- P'f ^f %, ^^ ^^O; 357.
Johnson V. Lough, 22 Minn. 203; * Martmu Cobb, i7 lex. 544; God-
Harker v Brink 24 N. J. L. 333; frey v. Valentine, 39 Mum. 336; 12
Sugg V. Thornton, 132 U. S. 524. Am. St. Rep. 657.
JUDQ. I. — 13
§ 120 b VOID JUDGMENTS. 194
with the action before the court, it has not, unless author-
ized by statute, power to compel the attendance of persons
before it by notice or citation, and to give such judgments
against them as might be proper in an action instituted
against them and conducted in conformity with the law
governing such action. Hence where one who had be-
come a surety on the bond of a purchaser at a judicial
sale was upon motion and notice brought before the court,
and a judgment thereupon entered against him, it was ad-
judged to be void because not in conformity to established
modes of procedure.*
§ 120 b. Jurisdiction over Corporations. — A corpora-
tion, for the purposes of a suit, is a person, and, like a
natural person, may be either resident or non-resident.
Its residence is in the state under whose laws it was cre-
ated,^ and there it may be served with process in such
mode as the laws of the state prescribe.^ As long as a
corporation confines its- business to the state of which it
is by law a resident, the courts of other states can exer-
cise no jurisdiction over it, except to the same extent as
over other non-residents. If its officers go into another
state, they do not take it with them, and service of process
upon them there cannot confer upon its courts jurisdiction
to render a judgment against it which can be enforced
elsewhere, but may probably operate as a constructive
service, sufiicient, in connection with the attachment of its
property within the state, to support a judgment enforce-
able out of the property so attached.* So far as a foreign
^ Anthony v. Kasey, 83 Va. 33S; 5 ble principal to whom it can be de-
Am. St. Rep. 277; Thurman v. Mor- livered. For a discussion of the ques-
gan, 79 Va, 367. tion upon what agents of a corporation
^ Railway Co. v. Whitton, 13 Wall, process against it must be served see
270; St. Clair v. Cox, 106 U. S. 350; note to Hampson v. Weare, 66 Am.
Western U. T. Co. v. Dickinson, 40 Dec, 119.
Mo. 444; 13 Am. Rep. 295. * Peckhamr. North Parish, 16 Pick.
» New Albany & S. R. R. Co. v. Til- 286; Latimer v. U. P. R'y, 43 Mo. 105;
ton, 12 Ind. 3; 74 Am. Dec. 195. The 97 Am. Dec. 378; State v. Ramsey
service of process must necessarily be Dist. Ct., 26 Minn. 234; McQueen v.
upon the officers and other agents of a Middletln M. Co., 16 Johns. 5.
corporation, because there is no taiigi-
195 VOID JUDGMENTS. § 120 b
corporation has or claims property within a state, we
doubt not that its courts may authorize actions affecting
the title to or enforcing liens against such property, to the
same extent as if the corporation were a non-resident
natural person. A corporation, like a, natural person,
may voluntarily subject itself to the jurisdiction of a
court, either by commencing an action therein or by ap-
pearing in an action against it, without objecting to the
jurisdiction of the court, and having done so, is bound by
the judgment to the same extent as a natural person,
whether the court could have rightfully exercised juris-
diction against its objections or not/
If a corporation is authorized by the laws of a state,
other than that of its creation, to do business in the for-
mer, and to there have the same privileges and exercise
the same powers as in the state of its creation, and it
avails itself of the privileges and exercises the powers
thus conceded, it consents to the assumption by the courts
of the former state of jurisdiction over it in proceedings
arising out of transactions within its territory;^ and we
apprehend that if a corporation engages in business in
another state than that of its creation, even in the ab-
sence of any express authorization by law, its courts may
acquire jurisdiction over such corporation by service of
process on its resident agents in the mode provided by
the local laws.^ In many of the states, statutes have been
enacted by which foreign corporations are forbidden to
do business therein unless they first designate some offi-
cer or agent upon whom service of process against them
may be made. If a corporation, pursuant to such statute,
' Pierce v. Equitable L. A. Soc, 145 Hannibal R. R. v. Crane, 102 111. 254;
Mass. 146; 1 Am. St. Rep. 433; North Bawknight v. L. S. & G. M. Co., 55
M. R. R. Co. V. Akers, 4 Kan. 388; 9G Ca. 195; Merriwether v. Bank of Ham-
Am. Dec. 183; March v. Eastern R. R. burg. Dud. (Ga.) 36; Hartford C. F, I.
Co., 46 N. H. 548; 77 Am. Dec. ^:^2. Co. v. Carriage, 40 Ga. 670; Moulin v.
''■ Baltimore & O. R. R. v. Gallahue's Insurance Co., 24 N. J. L. 24; Colorado
Adm'r, 12Gratt. 655; 68 Am. Dec. 254; I. W. v. Sierra Grande M. Co., 15 Col.
Railroad Co. V. Harris, 12 Wall. 65. 499; 22 Am. St. Rep.; Milk Co. v.
3 Lafayette Ins. Co. v. French, 18 Brandenburgh, 40N. J. L. 112; Newby
How. 404; Mineral Point R. R. v. v. Colt's Firearm Co., L. K. 7 Q. B.
Keep, 22 III. 9; 74 Am. Dec. 124; 293.
§ 120 C VOID JUDGMENTS. 196
designates such officer or agent, service of process upon
him is effectual to give the courts of such state jurisdic-
tion over it, and a judgment suj)ported b}'' such service is
as valid as if rendered by the courts of the state of which
the corporation is a resident, upon due service of process
on it there;* and even where a foreign corporation does
business in a state without complying with its statute re-
quiring the designation of an agent on whom service of
process can be made, it will probably not be permitted to
urge its non-observance of the law for the purpose of
avoiding the jurisdiction of the courts of the state.^ To
entitle a judgment rendered against a corporation in a
state of which it is not a resident to full faith and credit
in another state, it must appear by the record either that
the corporation voluntarily submitted itself to the juris-
diction of the court, or was doing business within the
state; and in the latter contingency, the corporation will
be permitted to attack and avoid the judgment by show-
ing that the person on whom process was served as its
officer or agent was not such, or did not occupy such re-
lation to it as authorized process against it to be served
upon him.*
§ 120 c. Judgments Void because the Court Exceeded
its Jurisdiction. — It is very easy to conceive of judgments
which, though entered in cases over which the court had
undoubted jurisdiction, are void because they decided
some question which it had no power to decide, or granted
some relief which it had no power to grant, and yet it
will probably not be possible to formulate any test by
which to unerringly determine whether the action of the
court is in similar cases void, or erroneous only. If a
court grants relief which, under no circumstances, it has
any authority to grant, its judgment is to that extent void;
1 Lafayette Ins. Co. v. French, 18 Co., 25 N. J. L. 67; 64 Am. Dec.
How. 404; Ex parte Schollenberger, 96 412.
U. S. 369; Goodwin v. Colorado M. & ^ Hagerman v. Empire Slate Co., 97
I. Co., 110 U. S. 1; St. Clair v. Cox, Pa. St. 534.
106 U. S. 350; Capen v. Pacific M. L ^ gt. Clair v. Cox, 106 U. S. 350.
197 VOID JUDGMENTS. § 120 C
as where it orders a donation out of the public treasury,*
or enters judgment for an amount greater than it is au-
thorized to give judgment for in any event,^ or where, on
a conviction in a criminal prosecution, the court sentences
the defendant to undergo a punishment different from or
in excess of that which it is authorized to impose for the
offense of which he was convicted.^ So it has been held
that a judgment rendered by a justice of the peace against
a prosecuting witness for costs, when there was no finding
that the prosecution was instituted without probable cause
or through malicious motives, is void for want of power
in the justice to enter such judgment.^ In some instances
courts have undertaken to decide questions not involved
in the suit or action before them, and to grant relief
therein; and their judgments have been assailed for that
reason, and to the extent which they departed from the
matters embraced within the record they have been de-
nied effect. Where a creditor instituted an action, alleging
that he had loaned money, relying on a promise that he
should be given a mortgage as security therefor upon
certain land, and that the borrower had conveyed such
land, in trust, for himself and his wife for life, with re-
mainder to his children, and asked that the trust be
declared void with respect to his claim, and the court,
proceeding beyond the prayer of the bill, annulled the
deed as between the trustee and the cestuis que trust, and
thereby attempted to destroy the estate of the latter, it
was held that this part of its decree was void.* In a later
> Bridges v. Clay Co. Supervisors, be adjudged belongs; 2. The proper
67 Miss. 252. parties must be present; and 3. The
» Feiliett v. Engler, 8 Cal. 76. point decided must be, in substance
» Ex parte Lange, 18 Wall 163; post, and efifect, within the issue. That a
sec 625. court cannot go out of its appointed
♦Little V. Evans, 41 Kan. 578. sphere, and that its action is void with
* Munday v. Vail, 43 N. J. L. 418, respect to persons who are strangers
In this case the court said: "Jurisdic- to its proceedings, are propositions
tion may be defined to be the right to established by a multitude of authori-
adjudicate concerning the subject- ties. A defect in a judgment arising
matter in the given case. To consti- from the fact that the matter decided
tute this there are three essentials: was not embraced within the issue has
1. The court must have cognizance of not, it woulil seem, received nuich
the class of cases to which "the one to judicial consideration. And yet I
§ 120 C VOID JUDGMENTS. 198
case in the same state, the doctrine of the case last cited
was reaffirmed, and the general rule promulgated that "a
judgment or decree which is not appropriate to any part
of the matter in controversy before the court cannot have
any force." ^ Where a widow brought suit for the sole
purpose of having her dower assigned to her, and the
court, after assigning it of its own accord, directed the sale
of the residue of the land for division among minor heirs,
the decree of sale was adjudged void.^ A statute of the
state of Missouri authorized a statutory foreclosure of mort-
gages and a judgment for the sale of the premises and a
personal judgment against the mortgagor. A court of
general jurisdiction at law and in equity, proceeding un-
der this statute, rendered against the vendee of the mort-
gagor a foreclosure, and also a personal judgment. This
personal judgment, in an elaborate opinion, was held to
be void, on the ground that, in addition to having juris-
diction over the subject-matter and of the person, the
court must be authorized to give the kind of relief which
its judgment assumes to grant.' In most of the cases
cited, the judgment or decree disposed of a subject-matter
cannot doubt that, upon general prin- such a case the court would have acted
ciples, such a defect must avoid a within the field of its authority, and
judgment. It is impossible to concede the proper parties would have been
that because A and B are parties to a present; the single but fatal flaw hav-
suit, that a court can decide any mat- ing been the absence from the record
ter in which they are interested, of any issue on the point determined,
whether such matter l)e involved in The invalidity of such a decree does
the pending litigation or not. Persons, not proceed from any mere arbitrary
by becoming suitors, do not place rule, but it rests entirely on the ground
themselves for all purposes under the of common justice. A judgment upon
control of the court, and it is only a matter outside of the issue must, of
over those particular interests which necessity, be altogether arbitrary and
they choose to draw in question that unjust, as it concludes a point upon
a power of judicial decision arises. If, which the parties have not been heard;
in an ordinary foreclosure case, a man and it is upon this very ground that
and his wife being parties, the court the parties have been heard, or have
of chancery should decree a divorce had the opportunity of a hearing, that
between them, it would require no the law gives so conclusive an effect to
argument to convince every one that to matters adjudicated."
8uch decree, so far as it attempted to >■ Reynolds v. Stockton, 43 N. J. Eq.
affect the matrimonial relation, was 211; 3 Am. St. Rep. 305.
void; and yet the only infirmity in such ^ Seamster r. Blackstock, 83 Va. 232;
a decree would be found, upon analysis, 5 Am. St. Rep. 262. See also Anthony
to arise from the circum-stance that the v. Kasey, S3 Va. 33S; 5 Am. St. Rep.
pomt decided was not within the sub- 277; Wade v. Hancock, 76 Va. 620.
stance of the pending litigation. In ^ Fithian v. Monks, 43 Mo. 502.
199 VOID JUDGMENTS. § 121
not included in the action or proceeding, and granted
relief not germane to that there sought. A more difficult
question arises when, in an action to recover a sum of
money, or the possession of real or personal property, the
court gives judgment for a sum in excess of that prayed
for in the complaint or shown to be owing by its allega-
tions, or for the possession of property different from or
in excess of that described in the complaint. As to such
excess, there has been no pleading or process seeking to
recover it or notifying the defendant that it was claimed
of him. Nevertheless, it has been assumed, rather than
decided, that a judgment larger than the complaint justi-
fied, or for more than specified in the writ, cannot be
avoided collaterally.'
§ 121. Loss of Jurisdiction. — A tribunal having un-
doubted jurisdiction of a cause at a certain stage may
lose such jurisdiction at some subsequent stage of the pro-
ceedings. This frequently happens when a judgment has
been pronounced in the appellate court upon appeal. The
judgment of the superior court in this case cannot be
varied in the original tribunal,^ nor examined for any
other purpose than to carry it into effect, nor reviewed for
error apparent, nor intermeddled with, further than to
settle so much as has been remanded.^ Neither can the
lower court do anything to prevent the immediate execu-
tion of the judgment of the appellate court.* So if in an
action pending in a state court the proper petition is filed
and proceedings taken to require its removal to the
national courts, the jurisdiction of the state court is
divested, and its subsequent action, should it take any, is
' Gillit V. Truax, 27 Minn. 528; 7 Met. 415. But of course the juris-
Chaffee v. Hooper, 54 Vt. 513. diction of the trial court cannot be
^ McKinney v. Jones, 57 Wis. suspended or destroyed by an attemp-
301 ted but invalid appeal: Brady v. Burke,
3 Ex parte Sibbald v. U. S., 12 Pet. 90 Cal. 1.
488; M< Clanahan's Heirs v. Hender- * MarysviUe v. Buchanan, 3 Cal.
son's, 1 T. B. Mon. 261; McArthur v. 212; McMillan v. Richards, 12 CaJ.
Dane, 61 Ala. 539; Boyuton v. Foster, 468.
121
VOID JUDGMENTS.
200
coram non judice.'' If the statute requires regular terms to
be held for the trial of causes, the court in the intervals
between those terms is, for the purpose of conducting
trials, in the same condition as though its authority over
the case were entirely withdrawn. It is no longer a court.
Judicial powers cannot be conferred upon it by consent of
the parties, and any judgment rendered upon a trial had
in pursuance of such consent is void,^ and is so wanting
in even the color of judicial authority that it will not be
reversed upon appeal.^ If the same district is composed
' Steamship Co, v. Tugman, 106
U, S. 118; Railroad Co. v. Koontz, 104
U. S. 14. Contra, Johnson v. Brewers'
F. I. Co., 51 Wis. 570.
2 State Nat. Bank v. Neel, 53 Ark.
110; 22 Am. St. Rep. 185; Garlick
V. Dunn, 42 Ala. 404; Kimports v.
Rawson, 29 W. Va. 487; Brumley
V. State, 20 Ark. 77; Gahisha v.
Butterfield, 2 Scam. 227; Ex parte
Osborn, 24 Ark. 479; Hernandez v.
James, 23 La. Ann. 483; Dodge v.
Coffin, 15 Kan. 277; Dixon v. Judge
Fifth Dist., 26 La. Ann. 119; Earls v.
Earls, 27 Kan. 538; Filley v. Cody, 4
Col. 109; Francis v. Wells, 4 Col. 274;
Bruce v. Doolittle, 81 111. 103; Laughin
V. Peckham, 66 Iowa, 121; Marshall v.
Ravisies, 22 Fla. 583; Balm v. Nunn,
63 Iowa, 641; King v. Green, 2 Stew.
133; 19 Am. Dec. 46; Davis v. Fish, 1
G. Greene, 406; 48 Am. Dec. 387.
2 Wricks V. Ludwig, 9 Cal. 175; Nor-
wood V. Kenfield, 34 Cal. 333; Doss v.
Waggoner, 3 Tex. 515; Leclair v. Glo-
benski, 4 L. C. Rep. 139. In the ab-
sence of any statute providing to the
contrary, the term is lost unless the
judge appear at the appointed time
and open court, and all subsequent
proceedings are void: People v, San-
chez, 24 Cal. 17; People v. Bradwell,
2 Cow. 445. The presence of the
judge is also indispensable to the con-
tinuation of a term properly opened.
Thus in a case in Illinois, the judge,
having held the term until a certain
day, adjourned it till the next day.
He then left, authorizing, so far as he
could, the clerk and sheriff to open
and adjourn court, from day to day,
until another judge arrived. But
when this action was called in ques-
tion, the supreme court of the state
held that "the judge had no power
to authorize the ministerial officers of
the court to exercise judicial powers,
even in opening and adjourning the
court," and that, as a consequence,
the term expired on the first day of
the judge's absence: Wight v. Wall-
baum, 39 111. 554. If special terms
are authorized to be held after the
giving of certain notice, a trial had
and judgment entered at such a term,
but in the absence of the required no-
tice, is certainly so irregular as to be
set aside on appeal, and is probably
void: Oram v. Riley, 16 Cal. 186. In
the cases cited, declaring proceedings
void because ti-ansacted at a time or
place where the court was not author-
ized to transact business, the facts
rendering the action coram non judice
seem to have appeared on the record
or to have been admitted by the par-
ties. But a question of some difficulty
may arise where the record does not
show whether the judgment was en-
tered in term or not. The general
presumptions indulged in favor of the
proceedings of courts of general juris-
diction ought, so far as they are con-
cerned, to make a prima facie case in
favor of those proceedings in all cases,
and to shield them from all collateral
attacks in those states where, as in
California, jurisdictional presumptions
seem to be sacred. In Tennessee the
objection was made on appeal that
while the court appeared to have
been opened at the proper place at
the first day of the term, it was no-
where shown where its subsequent
sessions were held. But the objec-
tion was overruled, because it was
presumed by law that the court Avas
held where it first met, until the cou-
201
VOID JUDGMENTS.
§121
of different counties, a trial in one of the counties on the
commencement day of a term in another county, though
sanctioned by the written stipulation of both parties, is
coram non judice} A judge in one district may preside in
another district in place of the judge of the latter district.
trary was shown: Smith v. State, 9
Humph. 10. In regard to a case
where the records of the court failed
to disclose what adjournments were
made after opening the term, the su-
preme court of North Carolina said:
"The term of a court is, in legal con-
templation, as one day; and although
it may be open many days, all its
acts refer to its commencement, with
the particular exceptions in which the
law may direct certain acts to be done
on certain other days. It is ^seldom
necessary that the day of any proceed-
ing should appear in making up the
record, distinct from that of the be-
ginning of each term, although a min-
ute may be kept of each day's doings.
Nor is it necessary that there should
be adjournments from day to day, after
the term is once opened by the judge;
nor, if there should be, that they
should be recorded, in order to pre-
serve the authority of the court to
perform its functions. The court may
in fact not adjourn during the whole
term, but be always open; though, for
the convenience of suitors, an hour of
a particular day, or of the next day,
may be given them for their attend-
ance. If the record state the time
of doing an act, as the statement is
unnecessary, so it is harmless sur-
plusage, unless the day be beyond the
period to which the term legally ex-
tends": State V. Martin, 2 Ired. 122.
In New York it is said that a court
will be presumed to have continued
open until its adjournment is shown:
People V. Central City Bank, 53 Barb.
412. Language employed by Chief
Justice Wallace of California in the
matter of the application of Bennett,
44 Cal. 84, on hahens corpm, goes far
toward asserting that a judgment en-
tered in vacation, without either trial,
argument, or submission, is valid. He
said: "The principal objection made
for the petitioner, as we uodorstand
it, is, that the cause here was tried in
chambers, and not in open court; and
it is said that there is no authority to
try a cause except in open court. Bat
even if this be so, we do not see that
it would follow that a judgment ren-
dered in a cause which had been tried
at chambers would, for that reason,
necessarily be void in the absolute
sense. The district court unques-
tionably had jurisdiction of the sub-
ject-matter and of the parties litigant.
Had the court itself rendered the judg-
ment in question in open session at a
regular term, without trial, without
proof, and even without submission
of the cause for decision, such judg-
ment, however erroneous, would not
be held void upon a mere collateral
attack. To maintain that it would,
would be to ignore the obvious dis-
tinction between a total want of au-
thority upon the one hand, and the
erroneous exercise of the conceded au-
thority upon the other." And speak-
ing of the power to enter judgment in
vacation, the judge, in the same opin-
ion, says: "It is a power, too, which
is no more dependent upon or affected
by the fact of trial had, or trial not
had, than if the judgment had been
entered in term time by the court.
The hearing of proofs, the argument
of counsel, — in other words, the trial
had, — or the absence of any or all
these, neither confer jurisdiction in
the first instance, nor take it away
after it has once fully attached."
1 Bates V. Gage, 40 Cal. 183; Gregg
V. Cooke, Peck, 82. But in Iowa, by
statute, a trial commenced with a bona
fide expectation of being finished be-
fore the close of the term may be
prosecuted until its close, though it
reaches into the succeeding term : State
V. Knight, 19 Iowa, 94. In some of
the states, judgment may, by consent,
be signed in vacation, and ordered
entered as of ensuing term: Hervey v.
Edmunds, 68 N. C. 243; or tried in
vacation and entered in term time:
Roy V. Horsley, 6 Or. 382; 25 Am.
Rej). 537. See also Morrison v. Citi-
zens' Bunk, 27 La. Ann. 401.
§ 121 VOID JUDGMENTS. 202
But this does not authorize two judges to hold separate
courts in the same district at the same time. Therefore
an order made by a judge presiding out of his district, at
a time when the judge of the district where the order is
made is also holding court therein, is void; and no one
can be punished for contempt of court in disobeying such
order.^ In many of the states a judgment by virtue of
statute authority may be entered in vacation.^ If in a
cause the court orders that " upon filing of proofs and
testimony as taken by the court commissioner the case
be submitted to the court and decided at chambers, and
the decision and judgment be entered as of this term of
the court," and the court thereafter considers such testi-
mony after the adjournment of the term, and enters its
judgment in vacation, such judgment is not void. The
order amounted to a submission in praesenti. Such sub-
mission having been made in term time, the court w\as
authorized to enter judgment thereon in vacation.^ While
the general statement is sometimes made that a judgment,
to be valid, must be rendered at the time and place author-
ized by law,* we have not been able to discover any de-
cision, in which the question was involved, holding that
a judgment rendered by a court sitting at a place other
than that designated by law is void. On the contrary, so
far as the question has been judicially considered, judg-
ments have been protected from collateral assault on that
ground, and it may fairly be inferred from the decisions
made that a court may, when necessary, hold its session
and pronounce judgment at places other than those ap-
pointed by law\^ In Wisconsin " the failure of a justice
> People V. O'Neil, 47 Cal. 109. ing a jiidgment is not judicial, it may
» Phelan v. Giiuelnn, 5 Col. 14. ordinarily be performed in vacation as
* Ex parte Bennett, 44 Cal. 85. well as in term time: Iliff v. Arnott,
Statute authorizing cases to be taken 31 Kan. 672; Sieber v. Frink, 7 Col.
under advisement does not warrant 148; Earls v. Earls, 27 Kan. 538;
their entry in vacation: Wilson v. Manitowoc County v. Sullivan, 51
Rodewold, 61 Miss. 228; and it has Wis. 115.
been held that a judgment entered in * State v. Roberta, 8 Nev. 239; Dal-
vacation, withoutthejudgeseeingorap- ton v. Libbey, 9 Nev. 192; Cooper v.
proving it, is void, though pronounced American Cent. Ins. Co., 3 Col. 318.
during the term: Mitchell w. St. John, ^ Le Grange v. Ward, 11 Oliio, 257;
98 Ind. 598. But as the duty of enter- Herndon v. Hawkins, 65 Mo. 265.
203 VOID JUDGMENTS. § 121
of the peace to enter in his docket the place as well as the
time to which a cause pending before him is adjourned
divests his jurisdiction and renders all subsequent pro-
ceedings void." ^
When an action is finally determined by the entry of
final judgment and the lapse of the term, the court, for
most purposes, has exhausted its jurisdiction over it, and
is in the same condition with respect to both the subject-
matter and the parties as if no action had been begun.
Therefore if after final judgment, or after an order setting
aside a homestead or confirming a judicial sale, the court
proceeds to enter another judgment, or to disturb the
order setting aside the homestead or confirming the sale,
its action is void, unless its jurisdiction has been con-
tinued by some motion or proceeding appropriate for
that purpose.^ It is now settled that a court may, in
eflfect, abdicate its jurisdiction over the parties by refusing
to hear them after they have been regularly brought into
court, as where it orders their answer to be stricken out
because they refused to take an oath of loyalty, and judg-
ment thereafter rendered by it is void.' A very remark-
able decision upon the question of loss of jurisdiction
during the pendency of an action is one that affirms that
the continued existence of plaintiff's right to recovery is
essential to the continuance of the jurisdiction of the
court over the subject-matter, and therefore if he, after
bringing suit, accepts payment of the demand sued upon,
but subsequently takes judgment therefor, it is void, be-
cause the subject-matter of the action has been extin-
guished by its payment." But this decision is based upon
a mistaken conception of the subject-matter of the action.
It is not the existence of a cause of action which constitutes
the subject-matter, but the allegation of such existence.
The allegation may be found on judicial investigation to
1 Witt V Henge, 58 Wis. 244. Windsor v. McVeigh, 93 U. S.
» State «. Railroad, 16 Fla. 708; Fob- 274
sett V. McMahan, 74 Tex. 546. * Two Rivers Mfj^. Co. v. Beyer, 74
s Heury v. Carson, 96 lad. 412; Wis. 210; 17 Am. bt. ilcp. 131.
§ 121 VOID JUDGMENTS. . 204
be false; but this is not equivalent to a finding that there
is no subject-matter of the action, and, instead of demon-
strating that the court cannot proceed further, makes it
incumbent upon it to pronounce final judgment. The
discharge of a cause of action by payment after the com-
mencement of a suit can no more divest the jurisdiction
of the court than the payment of the same cause of action
before suit was brought could have made it impossible for
the court to entertain the action and to require the de-
fendant to appear in response to its process.
The complete exercise of jurisdiction over a subject-
matter may exhaust the jurisdiction, not only of the court
so exercising it, but of another court possessing concur-
rent jurisdiction over the same subject-matter. Thus if
in the progress of the administration of an estate in the
probate court of a county certain lands of a decedent are
authorized to be and are sold, the sale confirmed, and a
conveyance made to the purchaser, the jurisdiction of the
court over such lands is clearly exhausted. They become
the property of the purchaser, and cannot again be sub-
ject to administration during the continuance of his life
and ownership. If the district court of the county also
possesses probate jurisdiction, and subsequently assumes
authority over the estate of the same decedent, and orders
the same lands to be sold, and they are in fact sold to a
purchaser having no knowledge of the former proceed-
ings, such sale is void, because the former sale completely
exhausted all probate jurisdiction over the lands, and the
latter sale was a mere unauthorized assumption of author-
ity over the property of a living person.^ If a probate
court appoints an executor or administrator, it cannot,
while he continues in office, appoint another. Its juris-
diction is exhausted. Its further grant of letters is void.^
Neither can it appoint another administrator after an
estate has been fully administered upon and distributed
' Lindsay v. JaEFray, 55 Tex. 62G; ^ Griffith v. Frazier, 8 Cranch, 9;
Smith V. Woolfolk, 115 U. S. 143. Flinu v. Chase, 4 Denio, 90.
205 VOID JUDGMENTS. § 122
to the heirs.' Where a statute forbade the "administration
upon the estates of persons who had been dead for more
than twenty years, a grant of administration in defiance
of the statute was adjudged void.^ If notice is given that
a petition for the sale of lands will be presented at a time
specified, and it is not then presented, the persons inter-
ested in opposing it may regard it as abandoned. The
court has no authority to hear it without giving a new
notice.' But if the failure to present the application arises
from the fact that the term of court is not opened, no pre-
sumption of abandonment can be indulged. The petition
may, it has been held, be presented at the next term, with-
out any new notice.*
§ 122. Courts of Record and Courts not of Record. —
If in the examination of a judgment it is satisfactorily
ascertained that the court whose sentence it is had juris-
diction over the subject-matter of the action, and was, at
the rendition of its judgment, authorized to act as a court^
the next inquiry will be, whether the court was empow-
ered to determine the rights of the parties over whom it
assumed to act. The first question to be considered is,
wdiether the judgment was rendered by a court of general
or of special jurisdiction. There is no well-defined test
by which to determine in all cases whether a court be-
longs to the one class or to the other. But all courts in-
vested with a general common-law jurisdiction, in law or
in equity, are, when exercising such jurisdiction, prop-
erly included in the first class; while all such courts as
are erected upon such principles that their judgments
must be disregarded until proceedings conferring juris-
diction are shown belong to the second class.® These
classes are frequently designated as courts of record and
' Fisk V. Norvel, 9 Tex. 13; 58 Am. Am, Dec. 243. See also fiost, sec.
Dec. 128. 52G.
« Wales V. Willard, 2 Mass. 120. * Hanks v. Neal, 44 Miss. 224.
« Turney v. Turney, 24 111. 625; Gib- ' Harvey v. Tyler, 2 Wall. 328;
son V Roll 30 111. 172; S3 Am. Dec. Kempe's Lessee r. Kennedy, 5 Cranch,
181; Morris t>. Hogle, 37 HI. 150; 87 185.
§ 122 VOID JUDGMENTS. 206
courts not of record. Courts of record having authority
over the subject-matter are competent to decide upon
their own jurisdiction, and to exercise it to final judgment,
without setting forth upon their records the facts and
evidence upon which their decision is based. Their rec-
ords are absolute verities, not to be impugned by averment
or proof to the contrary.^ A court may possess powers of
a limited and subordinate character, and yet not be a
court of special or limited jurisdiction in the sense that
it ought to certify everything precisely.^
"The use of the words 'superior' and 'inferior,' or 'lim-
ited' and 'general,' however apt they may have once been,
are less so at this time and place, and their duties, in view
of our system and mode of procedure, would be better
performed by the terms 'courts of record' and 'courts
and tribunals not of record.'"^ "A court of record is
that where the acts and judicial proceedings are enrolled
on parchment for a perpetual memorial and testimony,
which rolls are called the records of the court, and are of
such high and supereminent authority that their truth is
not to be called in question."* The circuit, district/^ and
territorial courts of the United States are courts of record,
and so are the orphans' courts in Pennsylvania and Ala-
bama,® and the probate courts in Arkansas, Minnesota,'
Missouri,* California,^ Ohio,^^ Vermont,'^ and South Caro-
lina.'^ Prior to 1858 the probate court in California was
' Grignon's Lessee v. Astor, 2 How. ^ Johnsoa v. Beazley, 65 Mo. 250;
319;Rexv. Carlile, 2Barii. &Adol. 367; 27 Am. Rep. 276; Camden tj. Plain. 91
Molins V. Werly, 1 Lev. 76; Cole t;. Mo. 117; Rowden v. Brown, 9. Mo.
Green, 1 Lev. 309; Bowsse v. Canning. 429.
ton Cro. Jac. 244. ® Luco v. Commercial Bank, 70 Cal.
« Peacock v. Bill, 1 Saund. 74. 339; McCauley v. Harvey, 49 Cal. 497.
* Halm V. Kelly, 34 Cal. 391; 94 Am. In this state the jurisdiction formerly
Dec. 742. exercised by the probate court is now
* 3 Steph. Com. 583; 3 Bla. Com. 24. vested in the superior court. The
* Page V. United States, 11 Wall, alcalde's court, which existed in this
268; Reed v. Vaughan, 15 Mo. 137; 55 state while it belonged to Mexico, was
Am. Dec. 133. one of general jurisdiction: Braly v.
6 Musselman's Appeal. 65 Pa. St. Reese, 51 Cal. 447.
485; Lex's Appealj" 97 Pa. St. 289; i" Shroyer v. Richmond, 16 Ohio St.
Teach v. Rice, 131 U. S. 293. 455.
' Dayton v. Mintzer, 22 Minn. 393; " Doolittle v. Helton, 28 Vt. 819; 67
Osborne v. Graham, 30 Ark. 67; Apel Am. Dec. 745.
V. Kelsey, 52 Ark. 341; 20 Am. St. '^ Turner v. Malone, 24 S. C. 398;
Rep. 183. Angell v. Angell, 14 R. L 541.
207 VOID JUDGMENTS. § 123
a court of limited jurisdiction, and its proceedings were
required to show the facts conferring upon the court
its authority to act.^ The judgments of justices of the
peace are favored with the same presumptions as though
they were pronounced in courts of record, in the states of
Pennsylvania,^ Connecticut/ Vermont/ Tennessee/ Missis-
sippi,^ and Texas.^
§ 123. Special Powers. — The jurisdiction exercised by
courts of record is, in many cases, dependent upon special
statutes conferring an authority in derogation of the com-
mon law, and specifying the manner in which such au-
thority shall be employed. The decided preponderance
of adjudged cases upon the subject establishes the rule
that judgments arising from the exercise of this jurisdic-
tion are to be regarded in no other light, and supported
by no other presumptions, than judgments pronounced
in courts not of record. The particular state of facts
necessary to confer jurisdiction will not be presumed;
and if such facts do not appear, the judgment will be
treated as void.^ The supreme court of the United States
has laid down the rule that when a statute prescribes the
manner in which the rights conferred by it are to be
pursued, and the powers delegated by it are to be exer-
cised in a special and summary manner, the proceedings
1 Grimes v. Norris, 6 Cal. 621; 65 6 Wheat. 119; Striker v. Kelly, 7 Hill,
Am. Dec. 545; Haynes v. Meeks, 10 24; Deuning v. Corwin, 1 1 Wend. 647;
Cal. 110; 70 Am. Dec. 703. Ludlow v. Johnson, 3 Ohio, 553; 17
i' Billings V. Russell, [23 Pa. St. 189; Am. Dec. 609; Mitchell v. Runkle, 25
62 Am. Dec. 330; Clark w. McComman, Tex. Supp. 132; Adams v. Jeffries, 12
7 Watts & S. 469. Ohio. 253; 40 Am. Dec. 477; Cone v.
3 Fox V. Hoyt, 12 Conn. 491; 31 Am. Cotton, 2 Blackf. 82; Earthman v.
Dec. 760. Jones, 2 Yerg. 493; Barry v. Patter-
nVright V. Hazen, 24 Vt. 143. son, 3 Humph. 313; Wight v. Warner,
* Turner v. Ireland, 11 Humph. 1 Doug. (Mich.) 384; Gunn v. Howell,
447. 27 Ala. 663; 62 Am. Dec. 785; Chicago
« Stevens v. Mangum, 27 Miss. 481. & N. W. R. R. Co. v. Gait, 23 N. E.
^Heck V. Martin, 75 Tex. 469; 16 Rep. 425 (111.); Brown v. Wheelock, 75
Am. St. Rep. 915; Holmes v. Buckner, Tex. 385; Graham v. Reynolds, 45 Ala.
67 Tex. 107; Williams v. Ball, 52 Tex. 578; Emlmry v. Conner, 3 N. Y. 511;
603; 36 Am. Rep. 730. 53 Am. Dec. 325; Cooper v. Sunder-
« Shivers y. Wilson, 5 Har. & J. 130; land, 3 Iowa, 114; 66 Am. Dec. 52;
19 Am. Dec. 497; Foster v. Glazener, Goodwin v. Sims, 86 Ala. 102; 11 Am.
27 Ala. 391, 663; Thatcher v. Powell, St. Rep. 21.
§ 123 VOID JUDGMENTS. 208
of the court will be considered as of the same character
as the proceedings of courts not of record; but when the
statute confers new powers and rights, to be brought into
action by the usual form of common-law or of chancery
practice, the proceedings and judgments of the court will
have all the characteristics of the proceedings and judg-
ments of courts of record.*
The doctrine that the judgments of courts of record are
of any less force, or are to be subjected to any closer scru-
tiny, or that they are attended with any less liberal
presumptions, when created by virtue of a special or
statutory authority, than when rendered in the exercise
of ordinary jurisdiction, has been repudiated in some
of the states;^ and the reasons sustaining this repudia-
tion have been stated with such clearness and force
as to produce the conviction that the doctrine repudiated
has no foundation in principle, however strongly it may
be sustained by precedent. In the first place, it is shown
that the discrimination between courts of record and courts
' Harvey v. Tyler, 2 Wall. 342. If cial powers by special statute, and
the facts necessary to confer jurisdic- such special powers are exevcis&d. jiidi-
tion are shown to exist, a judgment daily, that is, according to the course
cannot be collaterally attacked, though of the common law and proceedings
rendered by a court in the exercise of in chancery, such judgment cannot be
a special statutory authority: Secombe impeached collaterally.
V. R. R. Co., 23 Wall. 108; McCahill "3. But where a court of general
V. Equitable Life Ins. Co., 26 N. J. Eq. jurisdiction has conferred upon it spe-
531. The question whether and when cial and summary powers, wholly de-
the judt,'ments of courts of general rived from statutes, and which do not
jurisdiction may be treated as of no belong to it as a court of general juris-
greater dignity than those of courts of diction, and when such powers are not
special and limited jurisdiction was exercised according to the course of
very elaborately considered by the the common law, its action being
supreme court of the United States in ministerial only, and not judicial, in
Galpin v. Page, IS Wall. 350. From such case its decision must l3e regarded
a full review of the recent decisions, and treated like those of courts of
the court of appeals of Virginia deter- limited and special jurisdiction, and
mined that there might be extracted no such presumption of jurisdiction
therefrom "the following general legal will attend the judgment of the court,
propositions of universal application: — But in such cases tlie facts essential to
" 1. When a court of general juris- the exercise of the* special jurisdiction
diction acts withiu the scope of its must appear on the face of the rec-
general powers, its judgments will be ord": Pulaski Co. v, Stuart, 28 Gratt.
presumed to be in accordance with its 879.
jurisdiction, and cannot be collaterally ^ Falkner v. Guild, 10 Wis. 572;
impeached. Hahn v. Kelly, S4 Cal. 391 ; 94 Am. Dec.
"2. So, also, when a court of general 742; Newcomb's Ex'rs v. Newcomb, 13
jurisdiction has conferred upon it spe- Bush, 544; 26 Am. Rep. 222.
209 VOID JUDGMENTS. § 124
not of record "is founded upon considerations of the wis-
est policy, which are obvious to all. Courts of record
are presided over by men of experience and learned in
the law, assisted by counsel also of experience and learn-
ing, who, in the discharge of their duties to their clients,
necessarily act as advisers of the court. Their proceedings
are conducted with solemnity and deliberation, and in
strict conformity with established modes, with which long
experience has made the court and bar familiar, and above
all, they are taken down and made a matter of record at or
about the time they transpire. Of inferior courts, as a
general rule, none of these things can be affirmed." In the
second place, it is shown that none of those reasons upon
which the discrimination between different courts rests
tends to justify any discrimination between different pro-
ceedings conducted by the same court; that whether a
court proceeds according to the "course of the common
law," or according to some authority conferred and some
course prescribed by a statute, it is, in either case, pre-
sided over by the same judge, assisted by the same coun-
sel and officers, and conducted with the same wisdom,
caution, and solemnity. In either case its proceedings
are equally matters of record, and equally subject to fixed
and well-understood laws. And finally, it is suggested
that, as no reason has been given for regarding the same
tribunal with different degrees of consideration, accord-
ing to circumstances which seem not to affect its claims
to crur confidence, therefore all its adjudications, though
arising out of the exercise of lawful jurisdiction conferred
at different times, or from different but equally competent
sources, should be subjected to similar rules and indulged
with equal presumptions.^
§ 124. Presumption in Favor of Jurisdiction. — If it is
ascertained that the judgment or decree under examina-
tion was rendered by a court of record in the exercise of
1 See opinion of Sanderson, J., in Habn v. Kelly, 34 Cal. 391; 94 Am. Dec.
742.
JUDG. I. —14
§ 124 VOID JUDGMENTS. 210
its ordinary jurisdiction over the subject-matter in litiga-
tion, the next fact to be determined is, whether the court
had jurisdiction over the person against whom the judg-
ment has been obtained. The preponderance of authori-
ties shows that in a collateral proceeding this fact must
be determined by an inspection of the matters contained
in what, at the time of entering the judgment, constituted
the record or judgment roll. Any other paper which
happens to be on file in the case, and improperly attached
to the record, must be disregarded. The record, however,
may be silent upon the subject of jurisdiction. It may
fail to show whether the proceedings taken to bring the
defendant within the authority of the court were sufficient
or insufficient; or, for aught that appears by the judgment
roll, no attempt may have been made to perform some
act essential to jurisdiction. "Nothing shall be intended
to be out of the jurisdiction of a superior court but that
which expressly appears to be so." ' Hence, though the
existence of any jurisdictional fact may not be affirmed
upon the record, it will be presumed upon a collateral
attack that the court, if of general jurisdiction, acted cor-
rectly and with due authority, and its judgment will be
as valid as though every fact necessary to jurisdiction
affirmatively appeared. The decisions to this effect are
very numerous.^ If a statute required a certain affidavit
' Gosset V. Howard, 10 Q. B. 453; Skillinan v. Greeawood, 15 Minn. 102;
Guilford v. Love, 49 Tex. 715; Goar v. Arnold v. Nye, 23 Mich. 286; Smith
Maranda, 57 Ind. 339. v. Pomeroy, 2 Dill. 414; Adams v. Jef-
2 Withers u. Patterson, 27 Tex. 491; fries, 12 Ohio, 253; 40 Am. Dec. 477;
86 Am. Dec. 643; Holmes w. Campbell, Palmer v. Oakley, 2 Doug. (Mich.) 433;
12 Minn. 221; Spaulding v. Baldwin, 47 Am. Dec. 41; Hering v. Chambers,
31 Ind. 376; Evans v. Ashby, 22 Ind. 103 Pa. St. 172; Coit w. Haven, 30
15; Butcher v. Bank of Brownsville, 2 Conn. 190; 79 Am. Dec. 244; Weaver
Kan. 70; 83 Am. Dec. 446; Reynolds v. Brown, 87 Ala. 533; Woodhouse v.
V. Stansbury, 20 Ohio, 344; 55 Am. Filbatis, 77 Va. 317; Stahl v. Mitchell,
Dec 459; Bushw, Lindsey, 24 Ga. 245; 41 Minn. 325; Horan ?;.Wahrenberger,
71 Am. Dec. 117; Hahn v. Kelly, 34 9 Tex. 313; 58 Am. Dec. 439; McCor-
Cal. 391; 94 Am. Dec. 742; Calkius v. mick v. Webster, 89 Ind. 105; Reinig
Packer, 21 Barb. 275; Prince ?;. Griffin, v. Hecht, 58 Wis. 212; Cummisky v.
16 Iowa, 552; Grignon's Lessee v. As- Cummisky, 109 Pa. St. 1; Tunell v.
tor, 2 How. 319; Cox v. Thomas, 9 Warren, 25 Minn. 9; Exchange Bank
Gratt. 323; Wells v. Waterhouse, 22 u Ault, 102 Ind. 322; Wilkins w. Tour-
Me 131; Ely v. Tallmau, 14 Wis. 28; tellott, 42 Kan. 176; Kenney v. Greer,
Potter V. Mechanics' Bank, 28 N. Y. 13 111. 432; 54 Am. Dec. 439.
656; Kelsey v. Wyley, 10 Ga. 371;
211 VOID JUDGMENTS. § 124
to be filed or a certain fact to be found prior to the rendi-
tion of judgment, it will be presumed, in the absence of
any statement or showing upon the subject, that such
affidavit was filed ^ or such fact found.^ One acting in a
court of record as attorney in fact for a party will be pre-
sumed to have satisfied the court of his authority to act,
and the proceedings cannot be collaterally attacked be-
cause the proof of such authority does not appear in the
record.^
A case decided at an early day in New York seemed
to be in opposition to the current of authorities on the
subject of the presumptions which attend the proceed-
ings of courts of record w^hen called in question col-
laterally.* The opinion in this ca^e, so far as it placed
proceedings of "superior" courts upon the same footing
with those of "inferior" courts, was soon after overruled.*
A few other cases are reported which do not seem to be
entirely consistent with the rule upon this subject.® But
it was reserved to the court deciding the case of Sieen v.
Steen, 25 Miss. 513, to exhibit an extraordinary miscon-
ception of the law, by the use of the following language:
"It is also a fixed rule on this subject that the record of
the judgment must show upon its face that the court did
have jurisdiction of the person. Unless it so appears, the
judgment is a nullity, for it will not be presumed that
the court had jurisdiction unless the record shows that
fact." The courts of the states of Kansas and Missouri
seem to be following close in the wake of those of the
state of Mississippi. In a case in the first-named state,
the plaintiff's title depended upon a certain judgment,
sale, and sheriff's deed. In attempting to prove his title,
1 Dean v. Thatcher, 32 N. J. L, 470; * Foot v. Stevens, 17 Wend. 483.
Newcomb's Executor v. Newcomb, 13 * Gwin v. McCarroU, 1 Sinedes & M.
Bush, 544; 26 Am. Rep. 222. 351; Clineu Gibson, 23 Iiul. II; Glide-
2 Thornton v. Baker, 15 R. I. 553; well v. Spaugh, 26 Ind. 319. liut the
2 Am. St. Rep. 925. recent Indiana decisions indulge pre-
5 Pillsbury w. Dugan, 9 Ohio, 117; sumptions in support of the judgments
34 Am. Dec. 427. of courts of record in extrt;mc cases:
* Dennine v. Corwin, 11 Weud. O'Brien v. St:ite, 1'_'5 Ind. 38; Auder-
648. sou V. VVilsou, 100 Ind. 402.
§ 125 VOID JUDGMENTS. 212
he showed first that the files of the case were all burned,
and next produced a journal entry of the judgment. This
entry contained the statement that the defendant had
been duly served by publication in a newspaper which it
specified. Upon these facts the court determined that
" until it appears, not merely that the papers are gone,
but also that there is no secondary proof of their contents,
there is no presumption, even in favor of a court of gen-
eral jurisdiction, from the existence of one part of a record,
that the remainder would, if produced, contain the facts
necessary to give the court jurisdiction."^ In a very
recent decision in the state of Missouri, we find the gen-
eral rule announced that " if the w^hole record, taken to-
gether, does not show that the court had jurisdiction over
the defendant, then the judgment would be a nullity."^
§ 125. No Presumption against the Record. — Pre-
sumptions in favor of proceedings of courts of record are
indulged only in relation to those jurisdictional matters
concerning which the judgment roll is silent. But no
presumptions in support of the judgment are to be allowed
in opposition to any statement contained in the record-
If an act is stated in the roll to have been done in a
specified manner, no presumption arises that, at some
future time, the act was done in a better or more efiicient
manner. If it appears that the process was served in a
particular mode, no other and difi'erent service can be
presumed. To indulge such a presumption would be
to contradict the record, which imports absolute verity.
When, therefore, the record shows that certain steps were
taken to procure jurisdiction, and the law does not con-
sider those steps sufiicient, the judgment will be regarded
as void, for want of jurisdiction over the defendant.^
And where the record shows that the court was not in
' Hargis v. Morse, 7 Kan. 417. tine, 39 Minn. 336; 12 Am. St. Rep.
« Howard v. Thornton, 50 Mo. 291. 657; Clark v. Thompson, 47 111. 25;
s Barber v. Morris, 37 Minn. 194; 5 95 Am. Dec. 457; Hahn v. Kelly, 34
Am. St. Rep. 836; Godfrey v. Valeu- Cal. 391; 94 Am. Dec. 742.
213 VOID JUDGMENTS. ' § 126
session on a particular day, a proceeding cannot be sup-
ported, at least in Missouri, by parol evidence that the
court was in fact in session and transacting business on
the day designated, " but that by mistake in writing up
the records they failed to show the fact." ^
§ 126. Defects in Process or the Service thereof. —
There is a difference between a want of jurisdiction and
a defect in obtaining jurisdiction. At common law the
defendant was brought within the power of the court by
service of the brevia, or original writ. In this country
the same object is accomplished by service of summons,
either actual or constructive, or of some other process
issued in the suit; or by the voluntary appearance of the
defendant in person or by his attorney. From the mo-
ment of the service of j)rocess, the court has such control
over the litigants that all its subsequent proceedings,
however erroneous, are not void. If there is any irregH
ularity in the process, or in the manner of its service, the
defendant must take advantage of such irregularity by
some motion or proceeding in the court where the action
is pending. The fact that defendant is not given all the
time allowed him by law to plead,^ or that he was served
by some person incompetent to make a valid service, or
any other fact connected with the service of process, on
account of which a judgment by default would be reversed
upon appeal, will not ordinarily make the judgment vul-
nerable to a collateral attack.' In case of an attempted
' Ange V. Corby, 70 Mo. 257. v. Fullerton. 4 Minn. 473; Cole v. But-
^ Ballinger v. Tarbell, 16 Iowa, 491; ler, 43 Me. 401; Hendrick v. Whitte-
85 Am. Dec. 527; McAlpin v. Sweet- more, 105 Mass. 23; Drake v. Duve-
ser, 76 Ind. 78; Estate of Newman, 75 nick, 45 Cal. 455; Lane v. Innes, 43
Cal. 213; 7 Am. St. Rep. 146. Contra, Minn. 136; Schobacher v. Germantown
Johnson v. Baker, 88 111. 98; 87 Am. F. M. Co., 59 Wis. 86; Hume p. Con-
Dec. 293. duitt, 76 Ind. 598; McCormick v.
3 Whitwell V. Barbier, 7 Cal. 54; Webster, 89 Ind. 105; Dutton v. Hob-
Dorente V. Sullivan, 7 Cal. 279; Smith son, 7 Kan. 196; Myers v. Davis, 47
V. Bradley, 6 Smedes & M. 485; Iowa, 325; Sims v. Gray, 5 Rep. 504
Moomey v. Maas, 22 Iowa, 380; 92 Town of Lyons i;. Cooledgc, 89 111. 529
Am. Dec. 395; Peck v. Strauss, 33 Cal. De Tar v. Boone Co., 34 Iowa, 488
678; Myers v. Overton, 2 Abb. Pr. Pope v. Hooper, 5 Rep. 72; Sao. Sav-
344; Hunter i;. Lester, 18 How. Pr. 347; ings Bank v. Spencer, 53 Cal. 737.
Haughey v. Wilson, 1 Hilt. 259; Kipp " A distinction is to be made betweea
§ 126 VOID JUDGMENTS. 214
service of process, the presumption exists that the court
considered and determined the question whether the acts
done were sufficient or insufficient. If so, the conclusion
reached by the court, being derived from hearing and
deliberating upon a matter which, by law, it was author-
ized to hear and decide, though erroneous, cannot be
void. When in a proceeding by attachment the ground
required by the statute for the issuing and execution of
the process has been laid, and the process has been issued
and executed, the jurisdiction of the court is complete.
If the subsequent proceedings do not conform to law, the
judgment may be reversed. When there has been an in-
sufficient publication, or an entire failure to publish, the
proceedings are not so invalidated as to be made void.'
A service of process defective in giving four days' notice,
when the law required five daj'^s' notice, is nevertheless
sufficient to support the judgment of a justice of the peace.^
In proceedings in personam, a judgment is undoubtedly
void if it is shown that the party against whom it was
rendered did not appear in the action and that process
was not served upon him;' but it is not indispensable to
the jurisdiction of the court that either the process or its
a case where there is no service what- in which the courts have, in other re-
ever, and one which is simply defective spects, been loath to accord any favors
or irregular. In the first case, the to records suffering from symptoms of
court acquires no jurisdiction, and its jurisdictional infirmity: Christian v.
judgment is void; in the other case, if O'Neal, 46 Miss. 669; Harrington v.
the court to which the process is re- WofFord, 46 Miss. 31;, Campbell v.
turnable adjudges the service to be Hays, 41 Miss. 561.
sufficient, and renders judgment there- ^ Martin v. Hall, 70 Ala. 421; Paine'a
on, such judgment is not void, but Lessee v. Moreland, 15 Ohio, 435;
only subject to be set aside by the Beech v. Abbott, 6 Vt. 5S6; Matter of
court which gave it, upon seasonable Clark, 3 Denio, 167; Williams v. Stew-
and proper application, or reversed art, 3 Wis. 773; Drake on Attach-
upon appeal ": Isaacs v. Price, 2 Dill, ments, sees. 447, 448.
351. A judgment is not void because ^ Balliuger v. Tarbell, 16 Iowa, 492;
rendered before or after the return day 85 Am. Dec. 527.
named in the summons. It is only ^ Freeman u. Alderson, 11917. S. 188;
liable to be vacated for irregularity: Elliot v. McCormack, 144 Mass. 11;
Glover v. Holman, 3 Heisk. 519; West St. Clair v. Cox, 106 U. S. 353; Flint
V. Williamson, 1 Swan, 277. The rule R. S. Co. v. Roberts, 2 Fla. 102; 48
that defective service of process does Am. Dec. 178; Capehart v. Cunning-
not render the judgment liable to sue- ham, 12 W. Va. 750; Anderson v.
cessful collateral attack has been fre- Hawhe, 115 111. 33; Horner v. State
quently enforced in Mississippi, a state Bank, 1 Ind. 130; 48 Am. Dec. 355.
215 VOID JUDGMENTS. § 126
service should be in all respects regular. We therefore
proceed to consider what defects, either in the process or
its service, are sufficient and what insufficient to over-
throw the judgment. In many of the states, their stat-
utes declare what the summons or other process designed
to bring defendant into court shall contain, and some-
times these statutory provisions have been deemed man-
datory, and judgments declared void for non-compliance
therewith. Thus in Colorado, a summons was adjudged
to be fatally defective, and the judgment based thereon
void, because of the omission to state in such summons, as
required by statute, "the cause and general nature of an
action," and because it notified defendant that judgment
would be taken against him for a sum designated, when
it should have informed that the plaintiff would " apply
to the court for the relief demanded in the complaint";^
but even in this state it is conceded that a literal compli-
ance with the statute is not necessary, and the omission
of some of the words w^hich it directs the summons to
contain not fatal to the judgment.^ The objects to be
accomplished by process are to advise the defendant that
an action or proceeding has been commenced against him
by plaintiff, and warn him that he must appear within a
time and at a place named and make such defense as he
has, and in default of his so doing, that judgment against
him will be applied for or taken in a sum designated, or
for relief specified. If the summons actually issued accom-
plishes these purposes, it should be held sufficient to confer
jurisdiction, though it may be irregular in not containing
other statements required by the statute. If, on the other
hand, it is wanting in these essential particulars, it will
generally fail to give the court jurisdiction.^ In Iowa, a
judgment was held void because the name of the plaintiff",
as shown by the summons, was Pike, when in fact, and
according to the complaint, it was Hike;* and in Idaho a
1 Atchison, Topeka etc. R. R. Co. v. ^ Pickering v. State, 106 Ind. 228.
Nicholla, 8 Col. 188. " Newman v. Bowers, 72 Iowa,
2 Kimball v. Castagnio, 8 Col. 525. 465.
§ 126 VOID JUDGMENTS. 216
like conclusion was announced because defendants were
named in the alternative, as A, B, C, or D.' The general
rule is, that if process is amendable it is not void, and
will support a judgment,^ unless it is not sufficient to
warn defendant of an action against him, and when and
before what court he must make his defense.^ Therefore
a judgment will, when collaterally attacked, be supported
by process though it contains a statement that " plaintiff
will take judgment for a sum named," when the statute
requires it to state that "the plaintiff will apply to the
court for the relief demanded in the complaint";* or directs
defendants "to appear on the first Monday, 1877, of the
next term of the court to be holden at Carthage," when
the court referred to held terms at the place designated,
the time of commencement of which was fixed by law;^ or
declared that the plaintiff would apply to the court for the
relief demanded in the complaint, when it should have
stated that plaintiff will take judgment for a sum specified
in the summons;® or because the summons was not at-
tested by the seal of the court,^ or did not show where the
defendants should appear.^ In an action to foreclose a
lien, if the summons refers to the petition on file, the
fact that it does not state that a money judgment is sought
is not fatal to such judgment if rendered.^
So far as a personal service of summons is concerned,
it seems to us that it should be deemed suflficient to
support a judgment when collaterally attacked that the
summons was delivered to the defendant under such
circumstances as to advise him that it was intended as a
service of process upon him. A judgment was, however,
declared void in Kentucky because the action was in the
name of a sheriff, though he had no pecuniary interest
* Alexander v. Leland, 1 Idaho, ^ Miller w. Zeigler, 3 Utah, 17.
N. S., 425. ' Boyd v. Fitch, 71 Ind. 306.
2 Baker v. Thompson, 75 Ga. 164. ^ Hollingsworth v. State, 111 Ind.
3 Kitsmiller v. Kitchen, 24 Iowa, 289.
163. 9 Blair v. Wolf, 72 Iowa, 246; York
* Keybers v. McComber, 67 Cal. 395. v. Boardman, 40 Iowa, 57.
* Jasper Co. v. Wadlow, 82 Mo. 172.
217 VOID JUDGMENTS. § 126
therein, and the service of process was made by liim.^
That a copy of the summons given to the defendant was
incorrect, and designated the amount which the phiintiff
sought to recover as less than that named in the original
writ cannot render a judgment by default based thereon
void.^ A defect in the form of a return made by an
officer serving a summons is not sufficient to avoid the
judgment, especially if it appears from other evidence
that the service was properly made.* A service of process
before an action is commenced,* or upon a person other
than the defendant,^ or upon an employee of a corpora-
tion,^ when the law requires it to be upon its general agent,
or the acceptance of its service by one not authorized to
do so,^ is not in law any service at all, and a judgment
thereon is void.
Because a court has no jurisdiction to compel the ap-
pearance of a non-resident personally, but may by service
of its process constructively or beyond the state acquire
jurisdiction over his property which is attached in the
action, sufficient to authorize it to render a judgment to
be enforced out of such property, the service of the sum-
mons and the levy of the attachment are both essential
to the support of the judgment,^ unless the statute author-
izes a proceeding so clearly in rem that judgment may be
pronounced upon seizing the property, and without at-
tempting to serve the summons. It is further essential
that the cause of action on which the attachment issued
should be sustained. Plaintiff cannot, by taking out an
attachment and levying it upon the property of a non-
resident, and the constructive service of process on him,
entitle himself to a judgment enforceable out of such
property, if the cause of action on which he recovers is
1 Knott V. Jarboe, 1 Met. (Ky.) 505. « Great West etc. Co. v. Woodmaa
2 Bassett v. Mitchell, 40 Kan. 549; etc. Co., 12 Col. 46; 13 Am. St. Rep.
Hale V. McComas, 59 Tex. 484. 204
^ Schee V. Granger, 78 Iowa, 101. ' Finney v. Clark, 84 Va 354
* South Bend P. Co. v. Manahan, 62 « Segar v. Muskegon etc. Co 81
Mich 143. Mich. 344; Stuart i>. Aiidersou, /O lex.
^ Heffuer v. Gunz, 29 Minn. 108. 58S.
§ 127 VOID JUDGMENTS. 218
not the one upon which he procured the attachment, nor
one upon which any writ of attachment was authorized
to be issued.^ And, generally, it appears proper to limit
the effect of process to the claims and causes of action of
which it gives notice; and where a complaint is filed, an
attachment levied, and process issued and constructively
served, all founded upon and referring to a particular
cause, of action, the plaintiff has no right to thereafter
amend his complaint by setting forth a different cause of
action, and then to take judgment based upon the levy
of attachment and the service of process, founded on the
original complaint; and such judgment, if so taken, is
probably void.^
§ 127. Constructive Service of Process. — Under the
fourteenth amendment to the constitution of the United
States, declaring that no state shall "deprive any person
of life, liberty, or property without due process of law," it
is manifest that a state cannot authorize a judgment
against a defendant without giving him some opportu-
nity to show that it is unjust; that what is due process of
law is a question for the determination of the national
courts; and that such determination as they have made, or
shall hereafter make, respecting it must be followed by
the state courts.' As yet we have no very precise judicial
definition of due process of law, and must therefore apply
such general definitions as have been given. " It is suf-
ficient," said the supreme court of the United States, " to
observe here that by due process is meant one which, fol-
lowing the forms of law, is appropriate to the case and
just to the parties to be affected. It must be pursued in
the ordinary mode prescribed by law; it must be adapted
to the end to be attained; and wherever it is necessary
for the protection of the parties, it must give them an
1 Mudge V. Steinhart, 78 Cal. 34; 12 » Belcher v. Chambers, 53 Cal. 635;
Am. St. Rep. 17. Pennoyer v. Neff, 95 U. S. 714; Stuart
2 Stuart V. Anderson, 70 Tex. 588; v. Palmer, 74 N. Y. 183; 30 Am. Rep.
McRee v. Brown, 45 Tex. 507; Morri- 289; Davidson v. New Orleans, 96
son V. Walker, 22 Tex. 20. U. S. 97.
219 VOID JUDGMENTS. § 127
opportunity to be heard respecting the justice of the judg-
ment sought. The clause in question means, therefore,
that there can be no proceeding against life, liberty, or
property which may result in the deprivation of either,
without the observance of those general rules established
in our system of jurisprudence for the security of private
rights." ' It is, perhaps, not essential that the service of
process and the opportunity to be heard occur before the
formal entry of judgment, if the parties affected thereby,
notwithstanding its entry, retain the right to resist and
prevent its enforcement whenever it is sought to be used
against them or their property.^
The service of process need not be personal. To require
it to be personal in all instances would be to deny justice
in all cases where the party from whom it was due ab-
sented or concealed himself, or otherwise eluded the
agents of the law. Each state may, doubtless, provide the
mode in which the process of its courts may be served,^
provided the parties against whom it issues are not de-
prived of " an opportunity to be heard respecting the jus-
tice of the judgment sought." Therefore citizens and
residents of a state may, if its laws so provide, be served
with process by the publication thereof, or by leaving it
at their usual place of abode, or in such other mode as the
legislature deems proper under the circumstances of the
case, if it appears probable that it will advise them of
the proceedings against them and afford them an oppor-
tunity to defend.^ It is true that on such service no per-
1 Hagar v. Reclamation Dist., Ill Cush. 183; Henderson v. Stanford, 105
U. S. 708; Hurtado v. California, 110 Mas3. 104; Morrison v. Underwood, 5
U. S. 516. Cush. 52; post, sec. 120 a; Otis v. Dar-
2 Flint River Steamboat Co. v. Fob- gan, 53 Ala. 178; Burman v. Common-
ter, 5Ga. 194; 48 Am. Dec. 248; Hagar wealth, 1 Ducr, 210. In the only
V. Reclamation Dist., Ill U. S. 701. case in which, so far as we are aware,
3 Welch V. Sykes, 3 Gilm, 197; 44 tlie question has directly presented
Am. Dec. 689. itself for decision, it was decided that,
* Thouvenin v. Rodrigues, 24 Tex. as to residents upon whom process
468; Hurlburt v. Thomas, 55 Conn, could be personally served, it was be-
181; 3 Am. St. Rep. 43; Happy v. yond the power of the legislature to
Mosher, 48 N. Y. 313; Rockwell v. authorize service by publication. The
Nearing, 35 N. Y. 202; Beard v. Beard, action was to foreclose a mortgage,
21 Ind. 321; Orcutt v. Ranncy, 10 and in determining it, the court said
127
VOID JUDGMENTS.
220
sonal ju(3gment can be rendered against one not a citizen
or a resident of the state; but this result does not follow
(Bardwell v. Collins, 44 Minn. 97; 20
Am. St. Rep. 547): "The only remain-
ing question, therefore, is, whether it
is competent tor the legislature to
authorize such service in such a-ctions
upon residents of the state personally
present, and capable of being found
and personally served, within its juris-
diction. Is such service ' dae process
of law ' ? In determining this ques-
tion, it becomes important, first, to
consider the character of an action to
foreclose a mortgage. It is not an
action in rem, but an action in per-
sonam. It is true, it has for its object
certain specific real property against
which it is sought to enforce the lien
of the mortgage; and in that sense it
partakes somewhat of the nature of a
proceeding in rem, but not differently,
or in an}'' other sense, than do actions
in ejectment, replevin, for specific per-
formance of a contract to convey, to
determine adverse claim to real estate,
and the like. The rights and equities
of all parties interested in the mort-
gaged premises are to be adjusted in
the action, which proceeds, nob against
the property, but against the persons;
and the judgment binds only tliose
who are parties to the suit, and those
in privity with them: Whalley v. El-
dridge, 24 Minn. 358. Next, it is not
only an action in personam, but is also
strictly judicial in its character, pro-
ceeding according to the due course of
common law, like any other ordinary
action cognizable in courts of equity or
common law. These facts are impor-
tant for the reason that what would be
due process of law in one kind of pro-
ceeding might not be such in another,
for reasons that will be alluded to
hereafter. No court has ever at-
tempted to give a complete or exhaust-
ive definition of the term 'due process
of law,' for it is incapable of any such
definition. All that can be done is to
lay down certain general principles,
and apply these to the facts of each
case as they arise. Mr. Webster, in
his argument in the Dartmouth College
case, gave an exposition of the worda
'law of the land,' and 'due process
of law,' which has often been quoted
by the courts with approval, viz. :
' The general law, which hears before
it condemns; which proceeds upon in-
quiry, and renders judgment only af ,er
trial.' In judicial proceedings, 'due
process of law ' requires notice, hear-
infT, and judgment. It does not mean,
of course, the general body of the law,
common and statute, as it was at the
time the constitution took effect; for
that would deny to the legislature the
power to change or amend the law in
any particular. Neither, on the other
hand, does ' the law of the land' or
' due process of law' mean anything
which the legislature may see fit to
declare to be such; for there are cer-
tain fundamental rights which our
system of jurisprudence has always
recognized which not even the legisla-
ture can disregard in proceedings by
which a person is deprived of life,
liberty, or property; and one of these
is, notice before judgment in all judi-
cial proceedings. Although the legis-
lature may at its pleasure provide new
remedies or change old ones, the power
is nevertheless subject to the condition
that it cannot remove certain ancient
landmarks, or take away certain funda-
mental rights which have been always
recognized and observed in judicial
procedures. Hence it becomes im-
portant, in determining what kind of
notice would constitute 'due process
of law ' in any judicial proceeding
affecting a man's property, to ascertain
what notice has always been required
and deemed essentially necessary in
actions or proceedings of that kind,
according to that system of jurispru-
dence of which ours is derivative. In
proceedings in rem, as in admiralt}',
and the like, where the process of the
court goes against the thing, which is
in the custody of the court, and is
technically the defendant, and persons
are not made parties to the suits, but
come in rather as interveners, it is not
essential to the jurisdiction that the
persons having an interest in the thing
to be affected by the judgment should
have personal notice of the proceeding,
or in fact any other notice than such
as is implied in the seizure of the thing
itself. There are other proceedings in
the nature of proceedings in rem, many
of them not strictly judicial, and none
of them proceedings according to the
221
VOID JUDGMENTS.
§127
from the mode of serving process, but from the fact that
he is not personally within the jurisdiction of the state,
course of common law, — siich as the
probate of wills, administratioa on
the estates of deceased persons, the
exercise of the right of eminent
domain, the exercise of the power of
taxation, — which affect property
rights, but in which personal notice
to persons interested in the subject or
object of the proceedings has never
been deemed necessary. Some form
of substituted service of notice, as by
publication, has always, from consid-
erations of public policy or necessity,
been deemed appropriate to such pro-
ceedings, and hence, as to them, ' due
process of law.' But we think that,
from the earliest period of English
jurisprudence down to the present, as
well as in the jurisprudence of the
.United States, derived from that of
England, it has always been considered
a cardinal and fundamental principle
that, in actions in personam proceeding
according to the course of common
law, personal service (or its equiva-
lent, as by leaving a copy at his
usual place of abode) of the writ,
process, or summons must be made on
all defendants resident and to be found
within the jurisdiction of the court.
We do not mean that the term ' pro-
ceeding according to the course of the
common law,' as used in the books, is
to be understood as meaning, neces-
sarily and always, personal or actual
service of process; for although service
by publication is of modern origin,
there has always been some mode by
which jurisdiction has been obtained
at common law by something amount-
ing to or equivalent to constructive
service, where the defendant could not
be found and served personally. But
what we do mean to assert is, that the
right to resort to such constructive or
substituted service, in personal actions
proceeding according to the course of
the common law, rests upon the necessi-
ties of the case, and has always been
limited and restricted to cases where
personal service could not be made
because the defendant was a non-resi-
dent, or had absconded, or had con-
cealed himself for the purpose of avoid-
ing service. As showing what means
were resorted to as amounting or equiv-
alent to constructive service, and how
strictly it was limited to cases of neces-
sity by both courts of common law and
courts of chancery, reference need only
be had to 3 Blackstone's Commenta-
ries, 283, 444. As a substitute for the
means formerly resorted to in England
in such cases, most of the American
states have adopted service of the pro-
cess or summons by publication. But
we have found no statute, except the
one now under consideration, which has
assumed to authorize such a mode of
service, and have found no case where
its validity has been sustained by the
courts, except as to defendants who
could not be found within the juris-
diction, either becaiise of non-resi-
dence, or because they had absconded,
or concealed themselves to avoid the
service of process. We think this will
be found true in every instance, from
the earliest decisions on the subject
down to the latest utterance of the
supreme court of the United S bates,
in Arndt v. Griggs, 134 U. S. 316, in
which that court took occasion to set
at rest some misapprehensions as to
the scope of their previous decision
in Hart v. Sansom, 110 U. S. 151. We
think it would be a surprise to the
bench and the bar of the country if it
should be held that process or sum-
mons in ordinary civil actions might
be served on resident defendants,
present and capable of being found
within the jurisdiction of the court,
merely by publication in a newspaper.
The dangers and abuses that would
arise from such a practice are too ap-
parent to require to be named or even
suggested. So radical a departure is
this from the uniform and well-estab-
lished ideas of what constitutes due
process of law in such cases that, al-
though this act has been on the statute-
books for twenty-four years, we doubt
whether one lawyer in twenty is aware
of its existence; and we have yet to
hear of any case, except the present,
where any one has ventured to act
upon it. It is, in our judgment, be-
yond the power of the legislature to
disregard so fundamental iind long-
established a principle of our juris-
prudetice. Service l)y pul)lication,
under such circumstancus, i.s not 'due
process of law,' and therefore any
§ 127 VOID JUDGMENTS. 222
and cannot by any means be required to appear in its
courts.
In many of the decisions upon the subject, statutes au-
thorizing the service of process by publication against
non-residents have been construed as in opposition to the
course of proceedings at common law; and a strict com-
pliance with all the material directions of the statutes has
been required to appear upon the face of the record, in
order to impart validity to the judgment.^ A publication
made in the absence of any law authorizing it is the same
in effect as no publication. A judgment based upon it is
void.^ The same result follows when the publication was
made without any affidavit or order of court to support it,^
or when, though there is an order of court, there is noth-
ing upon which to base it, as where such order could only
be made upon a verified complaint, and the complaint is
not verified.*
"The general presumption indulged in support of the
judgments and decrees of the superior courts is, however,
limited to jurisdiction over persons within their territorial
limits, — persons who can be reached by their process, —
and also over proceedings which are in accordance with
the course of the common law. Whenever it appears, either
from inspection of the record or by evidence outside of
the record, that the defendants were, at the time of the al-
leged service upon them, beyond the reach of the process
of the court, the presumption ceases, and the burden of
establishing the jurisdiction over them is thrown upon
statute assuming to authorize it is un- Zacharie v. Bowers, 1 Smedes & M.
constitutional. It would be of little 584; 40 Am. Dec. Ill; O'Rear v.
use to cite authorities upon a subject Lazarus, 8 Col. 608; Hebel v. Amazon
which has been so much and so often Ins. Co., 33 Mich. 400; Bryan v. Mc-
discussed in its many phases, as each Dowell, 15 Lea, 581.
case must be determined upon its own ^ HoUingsworth v. Barbour, 4 Pet.
facts, and hence the decided cases 466; Shields v. Miller, 9 Kan. 390.
would ordinarily be ia point only by ^ People v. Mullan, 65 Cal. 396;
way of analogy. See, however, BroM^n Murphy v. Lyons, 19 Neb. 689; Peo^Dle
V. Board of Levee Comm'rs, 50 Miss. v. Greene, 74 Cal. 400; 5 Am. St. Rep.
468." 448; Chase v. Kavnor, 78 Iowa, 449;
1 Hallett V. Righters, 13 How. Pr. Hyde v. Redding, 74 Cal. 493.
43; Boyland v. Boyland, 18 111. 552; * Frisk v. Reigelman, 75 Wis. 499;
Brownfield v. Dyer, 7 Bush, 505; 17 Am. St. Rep. 98.
223 VOID JUDGMENTS. § 127
the party who invokes the benefit or protection of its
judgments and decrees. So, too, the presumption ceases
when the proceedings are not in accordance willi tl;ie
course of common law." ' Constructive service by publi-
cation in a case where the defendants are beyond the ter-
ritorial limits of the court by virtue of an order made and
enforced by the military authorities in time of war, and
are not allowed to return, is a mere idle ceremony. It
can by no possibility afford to defendants an opportunity
of making a complete defense or of appearing in court
and attending to their interests. A judgment based upon
it is void.'^ But a party who voluntarily entered the con-
federate lines to engage in hostilities against the United
States, and who, on that account, was not able to return,
cannot urge a condition of facts resulting from his own
wrong as a valid objection to proceedings against him as
an absentee.' But in quite a number of cases, the same
presumptions have been applied to judgments based upon
constructive service as to those based upon actual service.
The position is taken that presumptions of regularity are
applicable to the proceedings of courts of record, not be-
cause of the particular means which those tribunals hap-
pen to employ, under the authority of the law, for the
purpose of acquiring jurisdiction over the defendant, but
because of the high character of the courts themselves;
and that this character is essentially the same in all cases,
irrespective of the methods employed in the service of
process. Therefore the fact that the affidavit required by
law to precede and authorize the order for publication
does not appear from the record will not make the judg-
' Judge Field in Gray v. Larrimore, 117 U. S. 255, shown in the latter
2 Abb. 542; and in Galpin v. Page, 18 part of this section.
Wall. 350; 3 Saw. 93; Neff v. Pen- •' Dean v. Nelson, 10 Wall. 158;
noyer, 3 Saw. 274; Belcher v. Cham- Lassere v. Rocherean, 17 Wall. 437;
bers, 53 Cal. 635; 9 Rep. 40. We know Earle v. McVeigh, 91 U. S. 503;
not how to reconcile the language of Dorr v. Rohr, 82 Va. 359; 3 Am. St.
the court, in Galpin v. Page, quoted Rep. 106.
above, with its more recent utterances * Ludlow v. Rimsey. 11 Wall. 581;
in Applegate v. L. & C. Co. Min. Co., Foreman v. Carter, 9 Kan. 681.
§ 127 VOID JUDGMENTS. 224
merit vulnerable to collateral attack.' Constructive ser-
vice, though not employed in the manner now generally
authorized by statute, was nevertheless well known to the
common law and to the chancery practice at an early
23eriod.^ It is therefore " a proceeding according to the
course of common law."^
The tendency of recent decisions is to strengthen the
position that the orders and proceedings of courts of gen-
eral jurisdiction, where process is constructively served,
are supported by the same presumptions as where the
court proceeds upon personal service, and can no more
be avoided for mere errors or irregularities than can its
other orders and judgments.* The authorities upon this
side of the question have apparently received an unex-
pected accession from the supreme court of the United
States. From the language employed by that tribunal in
the case of Galpin v. Page, already quoted in this section,
we understood it to be firmly committed to the doctrine
that when it appeared that the defendants were served
with process by publication, no jurisdictional presump-
tions could be indulged in favor of the judgment, but its
language is now limited in its application to cases in
which it does not appear that the court made any order
justifying such publication. On the other hand, if it is
shown that the court ordered such service, its judgments
are supported b}^ the same presumptions as in other cases,
unless the statute requires that evidence of some jurisdic-
tional fact shall appear by record and it does not so ap-
pear. The question upon which doubt yet remains is as
to what the court understands to be a requirement that a
^ Nash V. Church, 10 Wis. 312; Law- v. HoUoway, 55 Iowa, 179; Quarl v.
ler's Heirs v. White, 27 Tex. 250; Abbett, 102 Ind. 2.33; 52 Am. Rep.
Gemmell v. Rice, 13 Minn. 400; New- 662; Williams v. Morehead, 33 Kan.
comb's Ex'rs v. Newcomb, 13 Bush, 609; Spillman v. Williams, 91 N. C.
544; 26 Am. Rep. 222. 483; Williams v. Hudson, 93 Mo, 524;
2 3 Bla. Com. 283, 444. Oswald v. Kempmann, 28 Fed. Rep.
5 Hahn v. Kelly, 34 Cal. 417; 94 36; Stuart v. Anderson, 70 Tex. 588;
Am. Dec. 742. Adams v. Cowles, 95 Mo. 501; 6 Am.
* Fanning v. Krapfl, 68 Iowa, 244; St. Rep. 74.
Dowell V. Lahr, 97 Ind. 146; Everhart
225
VOID JUDGMENTS.
§127
jurisdictional fact shall appear by the record. If it means
that when the statute declares that an affidavit or other
writing shall be filed to procure an order of publication,
and that some written evidence shall be presented to the
court of the publication as ordered, that these affidavits
or other writings are, wiiether made so by statute or not,
indispensable parts of the record, so that when they are
not found in the record, the existence of jurisdiction
is disproved, little has been gained by the decision
referred to. If, on the other hand, it means that, ex-
cept as to matters which the statute has expressly re-
quired to be a part of the record or judgment roll, the
court must always presume that jurisdiction was obtained,
where the record does not rebut such presumption, then
this decision is an important aid to the ultimate estab-
lishment of the rule that judgments of courts, based upon
constructive service of process, are supported by the same
presumptions as if such service were personal.^ There
^ Appelgate v. Lexington and Carter
County Min. Co., 117 U. S. 255. In
this case the statute under which the
proceeding resulting in the judgment
in question had been conducted au-
thorized the court to appoint a day for
the absent defendants to enter their
appearance in the suit, and required
that a copy of its order should be pub-
lished "in the Kentucky Gazette or
Herald, and continued for two months
successively, and shall also be pub-
lished on some Sunday, immediately
after divine service, in such church or
meeting-house as the court shall direct,
and another copy shall be posted at
the front door of said court-house." In
support of the judgment, extrinsic
evidence was offered of the publication
of the Qrder in the Kentucky Gazette,-
in nine successive weekly issues of
that paper, commencing December 12,
1798, and ending February 7, 1799;
but there was no evidence of the pub-
lication of the order in church or its
posting at the door of the court-house.
Proceeding to determine the case,
after stating these facts, the court
said: "But the record contained no
proof of the publication and posting of
the notice as required by the statute,
JUDQ. 1.-15
and it is insisted by the defendants in
this case that the record itself must
show the publication and posting of
the notice as required by law, other-
wise the jurisdiction of the court does
not appear, and its decree is abso-
lutely void. While it must be con-
ceded that, in order to give the court
jurisdiction over the persons of the
defendants, all the steps pointed out
by the statute to effect constructive
service on non-residents were neces-
sary, yet it does not follow that the
evidence that the steps were taken
must appear in the record, unless, in-
deed, the statute expressly or by im-
plication requires it. The court which
made the decree in the case of Clark v.
Cotdiling was a court of general juris-
diction. Therefore every presumption
not inconsistent with the record is to
be indulged in, in favor of its jurisdic-
tion: Kempe's Lessee v. Kennedy, 5
Cranch, 173; Voorhees v. Bank of the
United States, 10 Pet. 449; Grignon
V. Astor, 2 How. 319; Harvey v. Tyler,
2 Wall. 328. It is to be presumed
tliat the court, before making its de-
cree, took care to see that its order for
constructive service, on which its riglit
to make the decree depended, had
§127
VOID JUDGMENTS.
225
are decisions indicating that when a statute requires the
hVm<r of an affidavit to precede an order for the publica-
been obeyed. That this presumption
is authorized will appear by the follow-
ing cases: In Harvey v. Tyler, 2 Wall.
328, the court, speaking by Mr. Jus-
tice Miller, said: 'The jurisdiction
which is now exercised by the common-
law courts in this country is, in a very
large proportion, dependent upon spe-
cial statutes conferring it la
all cases where the new powers thus
conferred are to be brought into ac-
tion in the usual form of common-law
or chancery proceedings, we appre-
hend there can be little doubt that the
same presumptions as to the jurisdic-
tion of the court and the conclusiveness
of its action will be made as in cases
falling more strictly within the usual
powers of the court ' : Page 342. In
Hall ,..Law, 102 U. S. 461, the validity
of a partition of lands made by acircuit
court of the state of Indiana was at-
tacked. This court, speaking by Mr.
Justice Field, said: 'AH that the stat-
ute designates as necessary to author-
ize the court to act is, that there
should be an application for the parti-
tion by one or more joint proprietors,
after giving notice of the intended ap-
plication in a public newspaper for at
least four weeks. When application
is made, the court must consider
whether it is by a proper party, whether
it is sufficient in form and substance,
and whether the requisite notice has
been given, as prescribed. Its order
made thereon is an adjudication on
these matters ' : Pages 463, 464. The
case of Voorhees v. Bank of the United
States, 10 Pet. 449, was an action of
ejectment, and the casi turned on the
validity of a sale of the premises in
controversy under a judgment of the
court of common pleas of Hamilton
County, Ohio, in a case of foreign at-
tachment. The sale was attacked on
the following among other grounds:
1. Because the statute authorizing
the proceeding by foreign attachment
required that an affidavit should be
made and filed with the clerk before
the writ issued, and no such affidavit
was found in the record; 2. Because
the statute directed three months' no-
tice to be given, by publication in a
newspaper, of the issuing of the at-
tachujeut, before judgment should be
entered, and also required fifteen days'
notice of the sale to be given, neither
of which appeared by the record to
have been done; 3. Because the stat-
ute require<l that the defendant should
be put in default at each of the three
terms preceding the judgment, and
the default entered of record, but no
entry was made of the default at the
last of the three terms. But the
court overruled the objections, and
sustained the validity of the judgment
and the sale. It said: 'But the provis-
ions of the law do not prescribe what
shall be deemed evidence that such
acts have been done, or direct that
their performance sliall appear on the
record. The thirteenth section (of
the attachment law), which gives to
the conveyances of the auditors the
same efifect as a deed from the defend-
ant in the attachment, contains no
other limitation than that it shall be
•'in virtue of the authority herein
granted." This leaves the question
open to the application of those gen-
eral principles of law by which the
validity of sales made under judicial
process must be tested, in the ascer-
tainment of which we do not think it
necessary to examine the record in the
attachment for evidence that the acts
alleged to have been omitted appear
therein to have been done ' : Page 471.
The result of the authorities, and what
we decide, is, that where a court of
general jurisdiction is authorized in a
proceeding, either statutory, or at law,
or in equity, to bring in by publication
or other substituted service non-resi-
dent defendants interested in or having
a lien upon property lying within its
territorial jurisdiction, l)ut is not re-
quired to place the proof of service
upon the record, and the court orders
such substituted service, it will be
presumed in favor of the jurisdiction
that service was made as ordered, al-
though no evidence thereof appears of
record, and the judgment of the court,
so far as it afifects such property, will
be valid. The case of Galpm v. Page,
18 Wall. 350, cited by counsel for de-
fendant, is not in contlict with this
proposition. The judgment set up on
one side and attacked on the other, in
that case, was rendered on service by
227 VOID JUDGMENTS. § 128
tion of process, that though it was made in due time, and
filed on the day the judgment was entered, yet that the
failure to so file it at the time required by tlie statute
renders the judgment void.^ Where the atfidavit or other
proof of the steps constituting the constructive service of
process cannot be found in the judgment roll, or in the
files of the court, or being found is defective, such proof
may be amended or supplied, and the judgment thereby
supported.^
§ 128. Appearance by Attorney. — By the ancient prac-
tice, the litigants appeared in person, and were not author-
ized to appear by attorney without special authority from
the crown. At a later day, the right to appear by attor-
ney was recognized by various statutes. Under these,
the attorney was at first appointed orally in court. Sub-
sequently, he was required to have his authority to act
reduced to writing and filed in the court. The rules have
been gradually relaxed, until now it is presumed, in all
collateral proceedings, that an attorney who has appeared
for a litigant, without service of process, had authority to
act for the person whom he assumed to represent.' The
only question is, whether, in collateral proceedings, this
presumption is conclusive, or not. There are many au-
thorities holding it to be indisputable,* and it is difficult
publication. The law permitted ser- 17 Am. St. Rep. 19S; Burr v. Sey-
vice to be made by publication only mour, 43 Minn. 401; 19 Am. St. Rep.
where certain facts were made to ap- 245. Tliese cases are, however, ir-
pear to the satisfaction of the court, reconcilable with expressions to be
and the court by a precedent order, found in the opinion of the court ia
which must necessarily appear of rec- Reinhart v. Lugo, 86 Cal. 395; 21
ord, authorized service to be made by Am. St. Rep. 52.
publication. But the record showed ^ Har.shey v. Blackmarr, 20 Iowa,
no such order, and the publication, IGl; 89 Am. Dec. 520; Arnold ?>. Nye,
therefore, was the unauthorized act of 23 Mich. 286; Martin v. Judd, CO 111.
the party, and appeared affirmatively 78; Bunton v. Lyford, 37 N. H. 512;
to be invalid and ineffectual." 75 Am. Dec. 144.
« Birber v. Morris, 37 Minn. 191; 5 * Fitdd v. Gibl)s. 1 Pet. C. C. 155;
Am St Rep. 8'Mi. Biker w. StonebraUer's AdmV, .34 Mo.
•■'Allison V. Thomas, 72 Cal. 502; 1 175; Reed v. Pratt, 2 Hill, G4; Hoff-
Am. St. Rep. 829; Shenamio.ih V. mire ?;. Hoffmire, 3 Edw. Ch. 174: Am.
R. R. Co. V. Ashl)y's Trustees, Sti Va. Ins. Co. v. Oakh^y, 9 Paige, 490; .38
232; 19 Am. St. Rep. 891; Newm-in's Am. Dec. 501; Carpentier j;. Oakland,
Estate, 75 Cal. 213; 7 Am. St. Rep. 30 Cal. 439; Han-dton v. Writ'lit, .37
14li; Fisk v. Reigeluian, 75 Wia. 499; N. Y. 502; Browu v. Nichols, 42 N. Y.
§ 129 VOID JUDGMENTS. 228
to determine whether they are in the majority, or not;
but we think that with respect to cases in which process
has not been served in any mode, and jurisdiction rests
entirely upon the appearance of an attorney on behalf
of defendant, the rule which permits him to collaterally
avoid the judgment, by proving that such appearance was
without his authority or knowledge, is gaining adherents
and destined to obtain the ascendency.^ But even where
the authority of the attorney to appear is, after judgment,
an open question, and the judgment is liable to be treated
as a nullity upon showing that the attorney acted without
authority, the judgment may be validated by a subsequent
recognition of the attorney's acts, such, for instance, as
paying him for his services in the action in which the
judgment was entered.^ Where a warrant of attorney has
been given to confess judgment, and the plaintiff engages
an attorney to act under such warrant, the case is very
different from that of an ordinary appearance. If the
warrant is insufficient, the defendant is not bound by
the judgment.^
§ 129. Default. — The record may show that the judg-
ment was entered by the clerk, upon the default of the
defendant. The clerk has no judicial functions. The
statute directs the judgment. The clerk acts as the agent
of the statute in writing out and filing its judgment
among the records of the court. If the law did not au-
thorize its agent to act, the judgment is without any
26; Wandling v. Straw, 25 W, Va. Am. St. Rep. 204; Shelton v. Tiffin, 6
692; St. Albans v. Bush, 4 Vt. 58; 23 How. 163; Green v. Green, 42 Kaa.
Am. Dec. 246; Newcomb v. Peck, 17 654; 16 Am. St. Rep. 510; Reber v.
Vt. 302; 44 Am. Dec. .340; Abbott v. Wright, 68 Pa. St. 471; Brinkman v.
Dutton, 44 Vt. 546; « Am. Rep. .394; Sliatter, 23 Kan. 528. In New York,
Everett v. Warner Bank, 58 N. H. though an appearance by an attorney
340. cannot be questioned collaterally, the
^ Barker v. Spencer, 61 Tex. 155; defendant is permitted to show that
Kepley i\ Irwin, 14 Neb. 300; Hess v. the alleged appearance was a forgery:
Cole, 23 N. J. L. 125; Reynolds v. Ferguson v. Crawford, 70 N. Y." 253;
Fleming, 30 Kan. 106; 46 Am. Rep. 26 Am. Rep. 589.
86; Bodurtha v. Goodrich, 3 Gray, 5U8; ^ Ryan v. Doyle, 31 Iowa, 53.
Shumway v. Stillman, 6 Wend. 453; ^ Merchants' etc. Bank v. Boyd, 3
15 Am. Dec. 374; Great West etc. Co. Denio, 257; Merchants' etc. Bank v,
V. Woodmaa etc. Co., 12 Col. 46; 13 St. John, 5 Hill, 497.
229 VOID JUDGMENTS. § 130
authority, and is therefore void. Thus where several
defendants were sued upon a joint liability, and a portion
summoned to answer tlie complaint, tlie clerk, not being
so authorized by law, entered judgment by default against
those who were summoned, and in default the judgment
was declared to be void.^ Judgment for costs entered by
the clerk in the absence of a cost bill is also void.^ A
judgment by default, entered within the time prescribed
for the defendant to appear in a justice's court, is void in
Missouri.^ The service of notice of a motion to dissolve
an attachment on account of irregularity, made by the
defendant's attorney, is not such an appearance as will
support a judgment by default.* If, however, in a case
where the authority of a clerk to enter judgment is un-
doubted, he errs in the performance of his duty, as by
making the entry for too large a sum, his action is not
void, but only erroneous.^
§130. Findings of Jurisdiction. — It may happen,
when that part of the record containing the evidence of
service shows an insufl&cient service, that other parts
of the record, and especially the judgment, disclose the
fact that the matter of jurisdiction has been considered
and determined by the court. The conclusion or finding
upon this subject may appear by recitals stating that de-
fendant has been cited to appear, or that he has entered
his appearance, or that his default for not appearing has
been duly entered. These findings are as conclusive upon
the parties, in all collateral proceedings, as any adjudica-
tion of the court can be. It must be presumed that they
were supported by sufficient testimony, not set forth in
the record. Thus though the return upon a summons
against A B certifies a service of such summons upon
C D, and the judgment states that A B has been sum-
» Kelly V. Van Austin, 17 Cal. 5C4; France v. Evans, 90 Mo. 74; Williams
Junkans v. Bergin, Hi Cal. 20.S. v. Bower, 20 Mo. (iOl.
« Cliapin V. Broilnr, 16 Cal. 403. * Gliddea v. Packard, 28 Cal. 649.
» Howard v. Clark, 43 Mo. 344; * Boud v. Pacheco, 30 Cal. 630,
§ 130 VOID JUDGMENTS. 230
moned, the record is not necessarily contradictory. The
error in the service of process may liave been corrected
by service of the summons on the proper person. And
since the statement to this effect is made by the court, it
will be conclusively presumed that it acted upon ample
evidence and with due deliberation before making such
statement; and the judgment will be impregnable to any
collateral assault.^ ■ A finding or recital showing that the
court had jurisdiction is, in the vast majority of the states,
not disputable when a judgment based thereon is drawn
in question collaterally.^ The same rules and presump-
tions attach to proceedings in a court of general jurisdic-
tion in California to enforce the payment of taxes as to
proceedings in any other class of actions. A recital in
the decree "that all owners and claimants of the property
above described have been duly summoned to answer the
complaint herein, and have made default in that behalf,"
is sufhcient to bind all claimants of the property in suit.
The fact that the summons as served by publication
omitted the name of one of the defendants, to whom the
property was assessed, is not fatal to the decree; because
from the above recital it must be presumed that the court
had sufficient proof of the service of such defendant,
though it does not appear in the judgment roll.^ In some
of the cases already cited in this section, the effect of
jurisdictional findings was carried to its utmost limit, and
further, perhaps, than is justified by the more recent ad-
judications. The recital in the judgment of the due ser-
iHahnt). Kelly, 34Cal.391;94 Am. St. Rep. 497; Farmers' Ins. Co. v.
Dec. 742; Qaivey v. Baker, 37 Cal. Highsmith, 44 Iowa, ,330; E,hodes v.
465; McCauley v. Fulton, 4 Pac. L. Gunn, 35 Ohio St. 387; Harris v. Mc-
Rep. 170; 44 Cal. 355; Dunham v. Clanahan, 11 Lea, 181; Wilcher v.
Wilfong, 69 Mo. 355; Blaisdell v. Pray, Robertson, 78 Va. 602; Dunham v.
68 Me. 269. Wilfong, 69 Mo. 355; Heck v. Martin,
■' Weir V. Monahan, 67 Miss. 434; 75 Tex. 669; 16 Am. St. Rep. 915;
Hartman v. Ogborn, 54 Pa. St. 120; Schee v. La Grange, 78 Iowa, 101;
93 Am. Dec. 679; Hall v. Lowther, 22 Treadway v. Eastburn, 57 Tex. 209;
W. Va. 570; Dufour v. Camfranc, 11 Edwards t>. Moore, 99 N. C. 1; Davis
Mart. 607; 13 Am. Dec. 360; Goodwin v. Robinson, 70 Tex. 394; Ex parte Ah
V. Sims, 86 Ala. 102; 11 Am. St. Rep. Men, 77 Cal. 198; 11 Am. St. Rep. 263.
21; Moffittw. Moffitt, 69111. 641; Brick- ^ p^gjiy „, Lancaster, 39 Cal. 354;
house V. Sutton, 99 N. C. 103; 6 Am. Branson v. Caruthers, 49 Cal. 375.
231 VOID JUDGMENTS. § 130
vice of process ought unquestionably to prevail over any
inference to be drawn from the fact that the other parts
of the record fail to show when or in what manner the
process was served.^ Generally, the recital of jurisdiction
or of service of process contained in the judgment will be
construed in connection with the whole record, and will
be deemed to refer to the kind of service shown by the
other parts of the record. Hence if one part of the rec-
ord shows that process was served constructively, as by
the publication thereof, a personal service will not be pre-
sumed, because in the judgment the court adjudges " that
service of notice has been made upon said defendant,"^
especially where an affidavit is found among the papers
on file showing that the residence of the defendant was
unknown, and could not be ascertained. In Kansas, "a
finding of notice is at best but prima facie evidence of
notice. If an attempt at notice appears in the record, the
finding, if a general one, refers to and is limited by such
attempted notice. If that be fatally defective, there is no
presumption of notice in any other or better way.'" In
Illinois, the general recital or finding of notice or of service
of process is, as we understand the decisions in that state,
conclusive as against any evidence not contained in the
record,* but is disregarded when from the whole record
it appears to be untrue, or when the record discloses the
evidence upon which the recital was based, and further,
that such evidence overthrows rather than supports the
recital.®
The recitals or findings of jurisdiction may affirm, in
general terms, the service, or due service, of process, with-
out indicating that the attention of the court has been
specially called to the kind of service made, or that it has
1 Rumfelt V. O'Brien, 57 Mo. 569; Mnlvey w. Gibbons, 87 111. 307; Barnett
Bannon v. People, 1 111. App. 496. v. Wolf, 70 111. 76; Harris v. Lester,
^ May field v. Bennett, 48 Iowa, 80 111. 307.
194. "Barnett v. Wolf, 70 111. 76; Scn-
3 Mickel V. Hicks, 19 Kan. 578; 27 iehka v. Lowe, 74 111. 274; Turner v.
Am. Rep. 161. Jenkins, 79 111. 228; Bauuou v. People,
* Andrews v. Bernhardi, 87 111. 3G5; 1 111. App. 49(i.
§ 131 VOID JUDGMENTS. 232
probal)!}^ based its finding upon other evidence than that
disclosed by the record. In such cases it is not reason-
able that the general statement should prevail over the
evidence contained in the record. It should rather be
construed as referring to and founded upon it; and if the
service shown by it is not such as will support the judg-
ment, it should be treated as void, notwithstanding the
general statement in the judgment that process has been
duly served.^
§ 131. Jurisdictional Inquiries Confined to the Rec-
ord. — We have hitherto assumed that the question of
the jurisdiction of a court of record over the parties to
any domestic judgment must, in all collateral proceedings,
be determined by the record; and that the answer to this
question is not, except in some direct proceeding insti-
tuted against the judgment, to be sought from any extra-
neous proof. This doctrine seems to be the natural and
unavoidable result of that stamp of authenticity which,
from the earliest times, was placed upon the "record,''
and which gave it such "uncontrollable credit and verity
that no plea, proof, or averment could be heard to the
contrary." Proceeding undoubtedly from the reliance
which, in the primitive stages of practice, was placed on
the official memorials of the proceedings of courts, and
supported by the rule that the best evidence ought always
to be heard, to the exclusion of all inferior evidence, this
doctrine has received the indorsement of the courts of
last resort in more than a majority of the states of this
Union. The principles on which it rests are clearly and
ably stated by Gholson, J., in Callen v. Ellison, 13 Ohio St.
446, 82 Am. Dec, 448, in the following language: "When
process is instituted, — when on a demand for it in the
prescribed mode the process of the court is issued, — the
steps taken under that process must be matter proper for
' Settlemier v. Sullivan, 97 U. S. v. Cow, 83 Ind. 417; Hobby «;. Bunch,
444; Cheely v. Clayton, 110 U. S. 708; 83 Ga. 1;20 Am. St. Rep. 301 ; Adams v.
Cloud V. Pierce (Jity, 8(5 Mo. 357; Ooau Cowles, 95 Mo. 501; Am. St. Rep. 74.
233 VOID JUDGMENTS. § 131
the consideration of the court. The court must determine
whether the suit is prosecuted; whether the demand for
the thing to which a right is asserted is continued. So
if it be claimed that process has been waived, the fact of
waiver, or the authority to waive, as shown by tlie evi-
dence, must be decided by the court. This determination
or decision may be express on the very point, as by an
assertion on the record that the process has been served,
or that the party has appeared by an attorney, or it may
be necessarily implied in the action of the court upon the
demand of the party. The determination or decision
that a party has been served with process, or that he has
given authority to waive process, if in truth he has not
been served or given such authority, is a determination
or decision, when he has had no opportunity to be heard.
Hence the right to show, in opposition to the record of
such determination or decision, the truth by evidence has
been claimed, as required by the principles of natural
justice. If the court act at all upon the question whether
a party has been served with process, or has authorized an
appearance in the absence of such party, then the decision
must be made at the risk of an incorrect conclusion. And
it would be absurd to require notice of such inquiry, as
that would involve a similar inquiry whether there was
notice of that notice. The court must act upon the de-
mand for which process has been instituted, either with
or without inquiry into the fact whether such process had
been served. That there should be no inquiry that a
judgment by default should be rendered without inquiry
into the fact whether the process has been served on the
defendant, cannot, with any propriety, be claimed. If,
then, the inquiry should be made, wiiat effect is to be
given to the determination or decision? Is it obligatory,
unless impeached or set aside in the mode prescribed as
to other decisions of the court ? or may it be disregarded
as null and void whenever brought in question upon
alleo-ation and proof that the party in truth had no notice
g 131 VOID JUDGMENTS. 234
or opportunity to be heard? Here arises a conflict be-
tween principles of policy, which require the former con-
clusion, and principles of natural justice, which lead to
the latter; and as might be expected in cases of such
conflict, the decisions of courts have differed. As to the
judgments of courts of general jurisdiction, the decisions
in this state, though perhaps not entirely uniform or
consistent, do undoubtedly show a strong inclination
to sustain such judgments against indirect or collateral
attacks on their validity and effect. It appears to have
been thought that natural justice is satisfied when no-
tice is required, and an impartial tribunal established
to ascertain and determine whether it has been given.
Nor can it properly be said that such a tribunal has juris-
diction because it has so decided. Its decision is bind-
ing because it w^as authorized to make it, and because
public policy, and the respect due to the sovereignty it
represents, at least in tribunals acting under the same
sovereignty, require that the decision should be regarded,
while it remains on the record unimpeached and unre-
versed. In the case of Lessee of Fowler v. Whiteman, 2 Ohio
St. 270, it is said to have 'become established by a series of
decisions in Ohio that the finding of a court of general
jurisdiction, upon a subject-matter properly before it, can-
not be impeached.' The finding in that, and in the pre-
vious cases there referred to, was upon the question of
notice." In this case from which this quotation is made the
records stated that "defendants, by George Collins, Esq.,
their attorney, came into court, and by virtue of his power
of attorney filed in this court confessed judgment for the
defendants," etc. It was claimed that the power of attor-
ney found among the records did not appear to be exe-
cuted by some of the defendants, and that other of the
defendants were married women, incapable of executing
such power. But the court held tliat this power, though
found among the papers in the ca-e, was no part of the
record; that the object of filing the power was not to
235 VOID JUDGMENTS. § 131
furnish means to render the judgment void, "hut to fur-
nish the parties affected by the judgment ready means to
apply to the court itself to correct any irregularity or er-
ror"; and that no such application having been made, the
judgment must be regarded as valid.
The rule that evidence will not be lieard in a collateral
proceeding, for the purpose of avoiding a judgment, is
thus defended in the case of Coit v. Haven, 80 Conn. 199;
79 Am. Dec. 244: "But the counsel for the defendants
urge the extreme hardship to which a party may be sub-
jected, if he may not deny and disprove the service of the
writ, when he can clearly show that in fact no service
was ever made on him, and that he never had notice of
the suit in any form, and never heard of the judgment
against him until it was made the ground of an action.
They say, with great emphasis, — and the argument is cer-
tainly a forcible one, — Can it be that a clerk of a court may
fabricate a record, or an officer make a false return of
service, and yet there be no escape for one who is thus by
a judgment in the suit made heavily indebted, or found
guilty of a wrong, when in fact he is perfectly innocent,
or never owed the debt, and could show it clearly if he
had a chance? Will a court, they ask, because it has a
general jurisdiction, protect and give effect to such a
fraud? It will not be denied, and has not been on the argu-
ment, that when a court has jurisdiction its record speaks
absolute verity, because it is the record of the court's
doings; and being a court of final jurisdiction, there must
be an end to the matter in dispute, if it be possible to
reach that end at all. And it is so necessary that confi-
dence should be reposed in courts of a high character, as
well as in the records of such courts, that on the whole,
and in view of all the considerations affecting the subject,
it is the only safe rule to give the decisions of courts of
general jurisdiction full effect so long as they remain in
force, rather than to leave them open to be attacked in
every way and on all occasions. Being domestic judg-
§ 132 VOID JUDGMENTS, 286
ments, tLey can, if erroneous, be reviewed by proceedings
instituted directly for the purpose, and reversed on error,
or by a new trial; and if the danger is imminent and
special, relief can be temporarily, if not finally, obtained
by application to a court of equity. Any other rule with
regard to judgments of such courts would be attended in
its application with very great embarrassment, and would
be very dangerous in its general operation. The general
good clearly requires, and has therefore established the
rule, that domestic judgments of courts of general jurisdic-
tion cannot be attacked collaterally.'*
If the record of a domestic court of general jurisdiction
declare notice to have been given, such declaration cannot
be contradicted by plea or proof, because, for reasons of
public policy, the records of such courts are presumed to
speak the truth, and can be tried only by inspection.^ "It
is not to be denied that a court of superior jurisdiction
may so make a record in a case where in fact it has no
jurisdiction that the validity of the judgment cannot be
questioned collaterally."^ The fact of jurisdiction appear-
ing on the record, it cannot be controverted. Any other
matter determined by the court might as well be disputed
as this.'^
§ 132. Silence of the Record. — A large proportion of
the decisions denying the right to collaterally impeach a
judgment or decree for want of jurisdiction over the party
against whom the determination has been made have
' Selin V. Snyder, 7 Serg. & R. 166; v. Lefevre, 58 Miss. 639; Swift v.
Farr v. Ladd, 37 Vt. 156; Eastman v. Meyers, 37 Fed. Rep. 37; Westerwelt
Waterman, 26 Vt. 494; Lyles w. Rob- v. Lewis, 2 McLean, 511; Riley v.
in'jon, 1 Biil. 25; Aultman v. McLean, Waugh, 8 Cush. 2-20; Borden v. State,
27 Iowa, 129; Penobscot R. R. Co. v. 11 Ark. 519; Delaney v. Gault. 30
Weeks, 52 Me. 456; Hotchkiss v. Cut- Pa. St. 63; Galpin v. Page, 1 Saw.
ting, 14 Minn. 537; Morgan v. Bur- 318; Miller zj. Ewing, 8 Smedes & M.
nett, 18 Ohio, 535; Segee v. Thomas, 3 421; Wright v. Weisinger, 5 Smedes
Blatchf. 11; Harman v. Moore, 112 & M. 210; Riggs w. Collins, 2 Biss. 268;
Ind. 221. Peyroux v. Peyroux, 24 La. Ann. 175;
* Dequindre v. Williams, 31 Ind. 444. McCreery v. Fortson, 35 Tex. 641.
^ Pugh V. McCue, 86 Va. 475; Probably this rule does not prevail in
Starnes v. Hadnot, 42 La. Ann. 360; New York: Ferguson v. Crawford, 70
People V. Harrison, 84 Cal. 607; Rigby N. Y. 253; 26 Am. Rep. 589.
237 VOID JUDGMENTS. § 132
been pronounced where the service of process appeared
distinctly or by necessary implication upon the record.
The authorities, however, all concede that the mere fact
that the record is silent respecting the existence of some
jurisdictional fact cannot create the presumption that such
fact did not exist. On the contrary, its existence will be
presumed.^ The only question is, whether the presump-
tion may be overcome by extrinsic evidence. The pre-
ponderance of the decisions upon this question supports
the doctrine that " it is a matter of no consequence
whether the jurisdiction of the court affirmatively appears
upon the judgment roll or not; for if it does not, it will be
conclusively presumed.'"^ In a recent case it is said:
" We concur fully in the doctrine of the numerous cases
cited for plaintiff, where it is held that a domestic judg-
ment of a court of record of general jurisdiction, proceed-
ing according to the course of the common law, cannot be
impeached by the parties to it, where a want of jurisdic-
tion is not apparent upon the record, while it remains
neither annulled nor reversed."^ It is a familiar principle
that the judgment or decree of a court of general jurisdic-
tion cannot be collaterally questioned, except for want of
authority over the matter adjudicated upon.^ Fraud in
procuring a judgment cannot be shown by the parties to
' Pope V. Harrison, 16 Lea, 82; Fer- Mo. 309; Williams v. Haynes, 77 Tex.
guson V. Teel, 82 Va. 690; Oavanaugh 283; 19 Am. St. Rep. 752: Littleton v.
V. Smith, 84 Ind. 380; Nye v. Swan, Smith, 119 Incl. 230; Crim v. Kessing,
42 Minn. 243; Treat v. Maxwell, 82 89 Cal. 478; Cassady v. Meller, 106
Me. 76; Clyburn v. Reynolds, 31 S. C. Ind. 69; Wdkerson v. Schoonmaker,
91; Horner v. State Bank, 1 Ind. 130: 77 Tex. 615; 19 Am. St. Rep. 803.
48 Am. Dec. 355; Fogg v. Gibbs, 8 » Pratt w. Dow, 56 Me, 81; Granger
Baxt. 464; Acklen v. Goodman, 77 t. Clark, 22 Me. 128; Fitch v. Boyor,
Ala, 521; Evans W.Young, 10 Col. 316; 8 Rep. 185; Turrell v. Warren, 25
3 Am. St. Rep. 583; Luco v. Commer- Minn. 9.
cial Bank, 70 Cal. 339; Adams v. * Yaple v. Titus, 41 Pa. St. 202;
Cowles, 95 Mo. 501; 6 Am, St. Rep. Shawhan v. LofiFer, 24 Iowa, 217; Cook
74; Benefield v. Albert, 132 111, v. Darling, 18 Pick. 393; Stephenson
g65_ V. Newcomb, 5 Harr. (Del.) 150; Crafts
2 Sharp V. Brunnings, 35 Cal. 528; v. Dexter, 8 Ala. 767; 42 Am. Dec.
Mitchell >\ Meuley, 32 Tex. 4()0; Hahn 666; Cox v. Tliomas's Adm'r, 9 Gratt.
V. Kelly, .34 Cal. 391; 94 Am. Dec. 742; 323; Finneran v. Leonard, 7 Allen, 54;
Lawler's Heirs v. White, 27 Tex. 2.50; 83 Am. Dec. 665; Blythe v. Richards,
Coit V. Haven, 30 Conn. 190; 79 Am. 10 Serg. & R. 260; 13 Am. Dec. 672;
Dec. 244; McClauahan v. West, 100 Bragg v. Lorio, 1 Woods, 209.
§ 133 VOID JUDGMENTS. 23S
such judgment, in any collateral proceeding.* An offer
being made to prove that the defendant, at the time of
entering judgment, was but two years old, and that no ser-
vice of process had been made upon him, the court said:
" The record in this case is not silent. It recites that due
notice had been given. This is a finding of the court, and,
being shown by a record importing absolute verity, can-
not be contradicted."^ An action was commenced against
a person upon judgment rendered for costs of suit in a
case wherein he was plaintiff. He offered to prove that
he did not authorize the act of the attorney who instituted
the former suit. It was held that while the judgment re-
mained of record he was bound by it, and could only be
relieved by some direct application.^ If the judgment or
decree is silent upon the subject of the service of sum-
mons, and the service shown by the return upon the sum-
mons is not such as will give the court jurisdiction, no
doubt the judgment is void.* This, however, does not
present a case wherein the record is silent, but rather
illustrates the proposition that while one part of the rec-
ord is silent another part may bear witness to a jurisdic-
tional infirmity, destructive of the life and validity of the
judgment.
§ 133. Cases Admitting Parol Evidence. — Other courts,
however, have been deeply impressed by the apparent
violation of natural justice involved in condemning a
party who has had no opportunity of presenting his de-
fense, — no notice that any of his rights or interests were
in jeopardy. Yielding, through a tenderness for the spe-
cial and unavoidable injustice occasionally done to liti-
gants, they have, in a measure, overlooked the interest of
the community as a whole; and rather than sacrifice the
1 Carpentier v. Oakland, :?0 Cal. 4H9; ^ V^^ard v. Barber, 1 E. D. Smith,
Smith ?>. Smith, 22 Iowa, 516; People 423; St. Alhaiis r. Bush, 4 Vt. 58;
V. Downing, 4 Sand. 189; Blauchard ?;. 2.3 Am. Dec. 246: Finneran i\ Leon-
Webster, 62 N. H 467. ard, 7 Allen, 54; S3 Am. Dec. 665.
'Richards v. Skiff, 8 Ohio St. * Swearengen v. Gulick, 67 111. 208;
5S6. Baunon v. People, 1 111. App. 496.
239 VOID JUDGMENTS. § 133
individual for the safety of the community, they have
jeopardized the best interests of the community to secure
the safety of the individuah To the end that each citizen
may feel assured that no injury can be done him in the
courts without his notice, actual or constructive, they
have impaired public confidence in judicial authority;
they have made the title to a large class of property pre-
carious and unstable, by taking away the uncontrollable
verit}' of the record, and substituting for it the intermina-
ble uncertainties of parol evidence; and instead of allow-
ing parties who have acquired title at judicial sales to rest
secure in the presumption that courts of record always
" act by right," those parties have been required, often
without notice of the intended attack, to defend proceed-
ings occurring many years previous, and apparently free
from vice or infirmity.
The principles which it is thought are sufficient to sup-
port the practice of leaving the question of jurisdiction
over the parties always open to dispute on collateral pro-
ceedings are, that the high and uncontrollable verity of
the record never attaches until the court has obtained
jurisdiction of the person of the defendant, as well as of
the subject-matter of the action; that in the absence of
the fact of jurisdiction over the parties, there is no power
competent to make a record; that the thing offered as a
record may be nothing but an unauthorized paper; that
the law contemplates, upon reasons of natural justice, that
no man shall be deprived of any of his rights of person or
property without an opportunity of being heard; that
whenever the judgment of any tribunal is about to be
used in any proceeding, whether direct or collateral, it is
incumbent on the court wherein it is ojffered to inquire
into the jurisdiction of the court rendering the judg-
ment; and that no court can bring a party within its
power by virtue of false findings and recitals.* It is
iGoiuly?.. Hall, 30 111. 109; Web- win v. Kiminel, 16 Al)b. Pr. 353; 1
ster V. Rei<l, 11 How. 437; Gwiii r. Roh. (N. Y.) 109; Job u son v. VVrigbt,
McCarroU, 1 Siuedes & M. 351; Bald- 27 Ga. 55 j.
I 133 VOID JUDGMENTS. 240
worthy of consideration that in the greater number of
cases usually cited as authority for collateral attacks the
lano-uage used by the court, though sufficiently general to
apply to domestic judgments of courts of general jurisdic-
tion, valid on their face, was employed in determining
the effect of judgments either of a sister state, or of a
court of limited jurisdiction, or of a court whose want of
jurisdiction appeared upon the record. The opinion of
Judge Marcy in Starbuck v. Murray, 5 Wend. 148, 21 Am.
Dec. 172, is frequently cited to show that want of jurisdic-
tion over the defendant may always be proven. He, in
deciding whether such proof should be received against a
record made in another state, said: "But it is strenuously
contended that if other matter may be pleaded by the de-
fendant, he is estopped from asserting anything against
the allegation contained in the record. It imports perfect
verity, it is said, and the parties to it cannot be heard to
impeach it. It appears to me that this proposition as-
sumes the very fact to be established, which is the only
question in issue. For what purpose does the defendant
question the jurisdiction of the court? Solely to show
that its proceedings and judgments are void, and there-
fore the supposed record is not in truth a record. If the
defendant had not proper notice of and did not appear to
the original action, all the state courts, with one excep-
tion, agree in opinion that the paper introduced as to him
is no record; but if he cannot show, e\en against the pre-
tended record, that fact, on the alleged ground of the
uncontrollable verity of the record, he is deprived of his
defense by a process of reasoning that is, to my mind,
little less than sophistry. The plaintiffs, in effect, declare
to the defendant, the paper declared on is a record, be-
cause it says you appeared, and you appeared because the
paper is a record. This is reasoning in a circle. The
appearance makes the record uncontrollable verity, and
the record makes the appearance an unimpeachable fact.
The fact which the defendant puts in issue is the validity
241 VOID JUDGMENTS. § 133
of the record, and yet it is contended that he is estopped
by the unimpeachable credit of that very record from dis-
proving any one allegation contained in it. Unless a
court has jurisdiction, it can never make a record which
imports uncontrollable verity to the party over whom it
has usurped jurisdiction, and he ought not therefore to be
estopped, by any allegation in that record, from proving
any fact that goes to establish the truth of a plea alleging
a want of jurisdiction. So long as the question of jurisdic-
tion is in issue, the judgment of a court of another state
is in its effect like a foreign judgment; it is 'prima facie
evidence; but for all the purposes of sustaining that issue,
it is examinable into the same extent as a judgment ren-
dered by a foreign court. If the jurisdiction of the court
4s not impeached, it has the character of a record, and
for all purposes should receive full faith and credit." The
language of this opinion, though general in terms, was
used in relation to the judgment of a court of another
state, and therefore, so far as it reflects upon other judg-
ments, is a mere dictum. A number of other cases in the
same state and elsewhere are, like the one just cited,
sound and undoubted as to the points necessarily involved;
but as to reflections upon domestic judgments of courts of
record, are mere dicta}
1 Borden v. Fitch, 15 Johns. 140; S Kan. 458; 27 Am. Rep. 149; reported
Am. Dec. 225; Pollard v. Wegener, lo as Mastin v. Duncan, 6 Cent. L. J. 328.
Wis. 569; Bloom v. Burdick, 1 Hill, In this last case the court permitted
130; 37 Am. Dec. 299; Rape v. Heaton, the return of service of summons made
9 Wis. 328^ 76 Am. Dec. 269; Pendle- by a constable to be controverted in
ton w. Wee'd, 17 N. Y. 72; Steen v. an action of ejectment where the judg-
Steen", 25 Miss. 513; Chemung Canal ment founded on such return was col-
Bank 'v. Judson, 8 N. Y. 254; Edwards laterally drawn in question. The most
V. Tooiiier, 14 Smedes & M. 80; Noyes candid and comprehensive review of
V. Butler,' 6 Barb. 613; Fitzhugh v. this question which has come within
Custer 4' Tex. 399; 51 Am. Dec. 728; our observation is that contained in
Hard v. Shipman, 6 Barb. 621; Stal- the opinion of Rapallo, J., in Fergu-
lings V. Galley, 3 Jones, 345; Corwin son v. Crawford, 70 N. Y. 253; 26
V. Merritt, 3 Barb. 341; Elliott v. Am. Rep. 589. That case was an
Piersol, 1 Pet. 340; Dobson v. Pearce, action brought to foreclose a mort-
12 N. Y. 156; 62 Am. Dec. 152; Smith gage. The defense interposed was,
V. Po'meroy, 2 Dill. 414; McCauley v. that the plaintiff's rights had been
Hargrove3,'48 Ga. 50; 15 Am. Rep. barred by a judgment foreclosing a
660; Pennywit v. Foote, 27 Ohio St. prior mortgage. On the trial the
600; 22 Am. Rep. 340; Spier v. Corll, judgment roll in the former case was
33 Ohio St. 236; Mastin v. Gray, 19 put iu evidence. It contained a no-
JupQ. I. —16
133
VOID JUDGMENTS.
242
The rule that a judgment of a court of general jurisdic-
tion, whether the record shows jurisdiction affirmatively
tice of appearance for the present
plaintiff, purporting to be signed by
one Mills as his attorney, and also a
consent to judgment signed on behalf
of plaintiff by the same attorney.
The judgment also recited that sum-
mons had been served on the defend-
ants, and that none of them had
appeared except the present plaintiff,
by John W. Mills, his attorney. The
plaintiff then called Mills as a wit-
ness, and offered to prove by him, — 1.
That Mills's signature to the consent to
judgment and notice of appearance
was forged; 2. That Mills was never
authorized to appear for plaintiff; and
3. That he never did appear.
The learned judge first disposed of
the objection that the evidence could
not be received without overruling
Brown v. Nichols, 42 N. Y. 26. That
case, he said, was authority for the
position that when an attorney had
appeared, his want of authority to do
so could not be shown on a collateral
attack; but here the offer was to show,
not only that the attorney had no au-
thority, but further, that he did not
in fact appear, and that his supposed
signature was a forgery. His honor
then proceeded: "The only difBculty
in the case arises upon the objection
that the evidence offered tends to
contrarlict the record, and from the
adjudications which attach to the
judgment of a court of general juris-
diction, a conclusive presumption of
jurisdiction over the parties, which
cannot be contradicted except by
matter appearing on the face of the
record itself.
" After considerable research I have
been unable to find a single authorita-
tive adjudication, in this or any other
state, deciding that in the case of a
domestic judgment of a court of gen-
eral jurisdiction, want of jurisdiction
over the person may be shown by ex-
trinsic evidence, while there are a
great number of adjudications in neigh-
boring states holding that, in the case
of such judgments, parties and privies
are estopped in collateral actions to
deny the jurisdiction of the court
over the person as well as the subject-
matter, unless it appear on the face
of the record that the court had not
acquired jurisdiction, and that in
such cases there is a conclusive pre-
sumption of law that jurisdiction was
acquired by service of process or the
appearance of the party. The cases
are very numerous, but the citation
of a few of them will suffice.
"In Cooke v. Darling, 18 Pick. 393,
in an action of debt on a domestic
judgment, the defendant pleaded that
at the time of the supposed service
upon him of the writ in the original
action he was not an inhabitant of
the state of Massachusetts; that he
had no notice of the action, and did
not appear therein.
"This plea was held bad on de-
murrer, on the ground that the judg-
ment could not be impeached collat-
erally. In Granger v. Clark, 22 Me.
128, also an action on a judgment, '
the plea was the same, with the addi-
tion that the judgment had been ob-
tained by fraud; but it was held to
constitute no defense. Coit v. Haven,
30 Conn. 190, 79 Am. Dec. 244, was
a scire facias on a Jlidgment, and the
defendant pleaded that the writ in
the original action was never served
upon him, etc.; and the court held,
in an elaborate opinion, that a judg-
ment of a domestic court of general
jurisdiction could not be attacked
collaterally, unless the want of juris-
diction appeared on the face of the
record, and that jurisdictional facts,
such as the service of the writ, and the
like, were conclusively presumed in
favor of such a judgment, unless the
record showed the contrary, although
this rule did not apply to foreign
judgments, or judgments of the courts
of sister states, or to domestic jiidg-
ments of inferior courts, and that the
only remedy in such a case was by
writ of error or application to a court
of equity. The same rule is held in
Penobscot K R. jCo. v. Weeks, 52 Me.
456; Wingate v. Haywood, 40 N. H.
437; Clarke v. Bryan, 16 Md. 171;
Callen v. Ellison, 13 Ohio St. 446; 82
Am. Dec. 448; Horner v. Doe, 1 Ind.
131; 48 Am. Dec. 355; Wright v.
Marsh, 2 Iowa, 94; Prince v. Griffin,
16 Iowa, 552; and in numerous other
cases which are referred to in the case
of Hahn v. Kelly, 34 CaL 391, 94 Am.
243
VOID JUDGMENTS.
§133
or is silent upon that subject, is not subject to collateral
attack based upon extrinsic evidence showing want of
Dec. 742, which adopts the same rule
and contains a full and . instructive
discussion of the question.
"There are many cases in other
states, and in the courts of the United
States, containing expressions general
in their character, which would seem
to sanction the doctrine that a want of
jurisdiction over the person or subject-
•matter may in all cases be shown by
extrinsic evidence, and they are some-
times cited as authorities to that
effect: Elliott v. Piersol, 1 Pet. 340;
Hollingsworth v. Barbour, 4 Pet. 466;
Hickey v. Stewart, 3 How. 750;
Shriver v. Lynn, 2 How. 43; William-
son V. Berry, 8 How. 495; Williamson
V. Ball, 8 How. 566; Gwin v. McCar-
roU, 8 Smedes & M. 351; Enos v.
Smith, 7 Smedes & M. 85; Campbell v.
Brown, 6 How. (Miss.) 106; Shaefer
V. Gates, 2 B. Mon. 453; 38 Am. Dec.
164; Wilcox v. Jackson, 13 Pet. 498;
Miller v. Ewing, 8 Smedes & M. 421;
and numerous other cases not cited.
But an examination of these cases
discloses that they all relate either
to judgments of inferior courts, or
courts of limited jurisdiction or courts
of general jurisdiction acting in the
exercise of special statvitory powers,
which proceedings stand on the same
footing with those of courts of limited
and inferior jurisdiction (3N. Y. 511),
or courts of sister states, or to cases
where the want of jurisdiction ap-
peared on the face of the record, or to
cases of direct proceedings to reverse
or set aside the judgment. I have not
found one which adjudicated the point
now under consideration, otherwise
than those to which I have referred.
There are some cases which hold that
the want of authority of an attorney to
appear may be shown by extrinsic evi-
dence, although the record states that
an attorney appeared for the party,
but those are placed expressly on the
ground that such evidence does not
contradict the record: Bodurtha v.
Goodrich, 3 Gray, 508; Shelton v.
Tiffin, 6 How. 186; 14 How. 340.
Those cases are, however, in conflict
with the decision of this court in
Brown v. Nichols, 42 N. Y. 26, and
in many other cases.
•'The learned annotators of Smith's
Leading Cases, Hare and Wallace (1
Smith's Lead. Cas., marg. p. 842), sum
the matter up by saying: 'Whatever
the rule may be where the record is
silent, it would seem clearly and con-
clusively established by a weight of
authority too great for opposition, un-
less on the ground of local and peculiar
law, that no one can contradict that
which the record actually avers, and
that a recital of notice or appearance,
or a return of service by the sheriff
in the record of a domestic court of
general jurisdiction, is absolutely con-
clusive, and cannot be disproved by
extrinsic evidence.'
"It is quite remarkable, however,
that notwithstanding the formidable
array of authority in its favor, the
courts of this state have never sus-
tained this doctrine by any adjudica-
tion, but, on the contrary, the great
weight of judicial opinion, and the
views of some of our most distinguished
jurists, are directly opposed to it.
"As has been already stated, our
courts have settled by adjudication, in
regard to judgments of sister states,
that the question of jurisdiction may
be inquired into, and a want of juris-
diction over the person shown by evi-
dence, and have further decided (in
opposition to the holding of courts
of some of the other states) that
this may be done even if it involves
the contradiction of a recital in the
judgment record. In stating the rea-
sons for this conclusion, our courts
have founded it on general principles,
quite as applicable to domestic judg-
ments as to others, and, save in one
case (Kerr v. Kerr, 41 N. Y. 272),
have in their opinions made no dis-
crimination between them: Borden v.
Fitch, 15 Johns. 121; 8 Am. Dec. 225;
Starbuck v. Murray, 5 Wend. 148; 21
Am. Dec. 172; Noyest?. Butler, 6 Barb.
613, and cases cited.
"When we come to consider the
effect of these authorities, it is difficult
to find any solid ground upon which
to rest a distinction between domestic
judgments and judgments of sister
states in regard to this question; for
under the provisions of the constitu-
tion of the United States, wliich re-
quire that full faith and credit shall
133
VOID JUDGMENTS.
244
jurisdiction, is supported by as great a preponderance of
authority as is ever likely to support any proposition
be given in each state to the public
acts, records, and judicial proceedings
of every other state, it is now well
settled that when a judgment of a
court of a sister state is duly proved
in a court of this state, it is entitled
here to all the effect to which it is en-
titled in the courts of the state where
rendered. If conclusive there, it is
equally conclusive in all the states of
the Union; and whatever pleas would
be good to a suit therein in the state
where rendered, and none others, can
be pleaded in any court in the United
States: Hampton v. McConnel, 3
Wheat. 234; Story's Commentaries on
the Constitution, sec. 183; Mills v.
Duryee, 7 Cranch, 481.
"In holding, therefore, that a de-
fense that the party was not served
and did not appear, although the rec-
ord stated that he did, was good, our
courts must have held that such is the
law of this state and the common law,
and consequently that in the absence
of proof of any special law to the con-
trary in the state where the judgment
was rendered, it must be presumed to
be also the law of that state. The
judgments of our courts can stand on
no other logical basis. The distinction
which is made in almost all the other
states of the Union between the effect
of domestic judgments and judgments
of sister states, in regard to the con-
clusiveness of the presumption of
jurisdiction over the person, is sought
to be explafhed by saying that in re-
gard to domestic judgments the party
aggrieved can obtain relief by applica-
tion to the court in which the judg-
ment was rendered, or by writ of
error, whereas in the case of a judg-
ment rendered against him in another
state he would be obliged to go into a
foreign jurisdiction for redress, which
would be a manifestly inadequate pro-
tection, and therefore the constitution
may be construed so as to apply only
where the persons affected by the
judgment were within the operation
of the proceeding. This explanation,
however, does not remove the difficulty
in making the distinction, for if there
is a conclusive presumption that there
■was jurisdiction, that presumption
must exist in one case as well as in the
other. The question whether or not
the party is estopped cannot be made
to depend upon the greater inconve-
nience of getting rid of the estoppel in
one case than in another.
"But aside from this observation as
to the effect of the authorities, an ex-
amination of them shows that our
courts did in fact proceed upon a
ground common to both classes of
judgments. The reasons are fully
stated in the case of Starbuck v. Mur-
ray, 5 Wend. 148; 21 Am. Dec. 172.
In that case, which was an action
upon a Massachusetts judgment, the
defendant pleaded that no process was
served on him in the suit in which the
judgment sued on was rendered, and
that he never appeared therein in per-
son or by attorney, and this plea was
held good, notwithstanding that the
record of the judgment stated that the
defendant appeared to the suit. Marcy,
J., in delivering the opinion of the
court, and referring to the argument
that the defendant was estopped from
asserting anything against the allega-
tion of his appearance contained in the
record, says." The judge here quoted
that part of the opinion of Judge
Marcy quoted a7ite, section 133, and
then proceeded as follows: —
"This is but an amplification of
what is sometimes more briefly ex-
pressed in the books, that where the
defense goes to defeat the record, there
is no estoppel. That the reasoning of
Marcy, J., is applicable to domestic
judgments is also the opinion of the
learned annotators to Phillipps on Evi-
dence: Cowen and Hill's Notes, 1st
ed., p. 801, note 551. Referring to
the opinion of Marcy, J., before cited,
they say: 'The same may be said re-
specting any judgment, sentence, or
decree. A want of jurisdiction in the
court pronouncing it may always be
set up when it is sought to be enforced,
or when any benefit is claimed under
it; and the principle which ordinarily
forbids the impeachment or contradic-
tion of a record has no sort of applica-
tion to the case.' The dicta of our
judges are all to the same effect, al-
though the precise case does not seem
to have arisen. In Bigelow ?'. Steai-ns,
19 Johns. 41, 10 Am.l)ec. 189, Spen-
245
VOID JUDGMENTS.
133
equally debatable, and it must gain strength and adher-
ents unless the national courts shall finally determine
cer, C J., laid down the broad rule
that if a court, whether of limited
jurisdiction or not, undertakes to hold
cognizance of a cause without having
gained jurisdiction of the person by
having him before them in the manner
required by law, the proceedings are
void. In Latham 7\ Edgerton, 9 Cow.
227, Sutherland, J., in regard to a
juilgment of a court of common pleas,
says: 'The principle that a record can-
not be impeached by pleading is not
applicable to a case like this. The
want of jurisdiction is a matter that
may always be set up against a judg-
ment when sought to be enforced or
where any benefit is claimed under it.'
Citing Mills V. Martin, 19 Johns. 33,
he also says (p. 229): 'The plaintiflF
below might have applied to the court
to set aside their proceedings, but he
was not bound to do so. He had a
right to lie by until the judgment was
set up against him, and then to show
that the proceedings were void for
want of jurisdiction.' In Davis v.
Packard, 6 Wend. 327, 332, in the
court of errors, the chancellor, speak-
ing of domestic judgments, says: 'If
the jurisdiction of the court is general
or unlimited both as to parties and
subject-matter, it will be presumed to
have had jurisdiction of the cause,
unless it appears affirmatively from
the record, or by the shoiving of the
party denying the jurisdiction of the
court, that some special circumstances
existed to oust the court of its juris-
diction in that particular case.' In
Bloom r. Burdick, 1 Hill, 130, 37 Am.
Dec. 299, Bronson, J., says: 'The dis-
tinction between superior and inferior
courts is not of much importance in
this particular case, for whenever it
appears that there was a want of
jurisdiction, the judgment will be void
in whatever court it was rendered ';
and in People v. Cassels, 5 Hill, 164,
168, the same learned judge makes
the remark that no court or officer
can acquire jurisdiction by the mere
assertion of it, or by falsely alleging
the existence of facts upon which
jurisdiction depends. In Harrington
V. People, 6 Barb. 607, 610, Paige, J.,
expresses the opinion that the jurisdic-
tion of a court, whether of general or
limited jurisdiction, may be inquired
into, although the record of the judg-
ment states facts giving it jurisdiction.
He repeats the same view in Noyes v.
Butler, 6 Barb. 613, 617, and in Hard
V. Shipman, 6 Barb. 621, 623, 624,
where he says of superior as well as
inferior courts, that the recoi-d is
never conclusive as to the recital of a
jurisdictional fact, and the defendant
is always at liberty to show a want of
jurisdiction, although the record avers
the contrary. If the court had no
jurisdiction, it had no power to make
a record, and the supposed record is
not in truth a record; citing Star-
buck V. Murray, 5 Wend. 15S, 21 Am,
Dec. 172. The language of Gridley,
J., in Wright v. Douglass, 10 Barb.
97, 111, is still more in point. He
observes: 'It is denied by counsel for
the plaintiff that want of jurisdiction
can be shown collaterally to defeat a
judgment of a court of general juris-
diction. The true rule, however, is
that laid down in the opinion just
cited (opinion of Bronson, J., in Bloom
V. Burdick, 1 Hill, 138, 143; 37 Am.
Dec. 299), that in a court of general
jurisdiction it is to be presumed that
the court has jurisdiction till the con-
trary appears, but the want of juris-
diction may always be shown by
evidence, except in one solitary case,'
viz. : ' When jurisdiction depends on a
fact that is litigated in a suit, and is
adjudged in favor of the party who
avers jurisdiction, then the question of
jurisdiction is judicially decided, and
the judgment record is conclusive evi-
dence of jurisdiction, until set aside or
reversed by a direct proceeding.'
"The general term in that case held
that a judgment of the supreme court
was void for want of service of an at-
tachment, notwithstanding tiiat the
record averred that the attachment
had been duly served and returned,
according to law. The judgment in
the case cited was reversed (7 N. Y.
564), but not upon tlie point referred
to here. It cannot, however, be held
to be an adjudication upon that point,
because the judgment was not ren-
dered in tiie exercise of the general
powers of the court, but in pursuance
of.a special statutory authority.
133
VOID JUDGMENTS.
24S
that it cannot be reconciled with the Fourteenth Amend-
ment to the constitution of the United States, providing
"In the Chemung Canal Bank v,
Judson, 8 N. Y. 254, the general prin-
ciple is recognized that the jurisdic-
tion of any court exercising authority
over a subject may be inquired into;
and in Adams v. Saratoga and Wash-
ington K R. Co., 10 N. Y. 328, 333,
Gridley, J., maintains, as to the judg-
ments of all courts, that jurisdiction
may be inquired into, and disproved
by evidence, notwithstanding recitals
in the record, and says that such is
the doctrine of the courts of this state,
although it may be different in some
of the other states, and perhaps also
in England; and he says the idea is
not to be tolerated that the attorney
could make up a record or decree re-
citing that due notice was given to the
defendant of a proceeding, when he
never heard of it, and the decree held
conclusive against an offer to show
this vital allegation false. That was a
case of a special proceeding, and there-
fore not an authority on the point.
In Pendleton v. Weed, 17 N. Y. 75.
where a judgment of the supreme
court was sought to be attacked col-
laterally, it is said by Strong, J.: 'It
is undoubtedly true that the want of
jurisdiction of the person is a good de-
fense in answer to a judgment when
set up for any purpose, and that such
jurisdiction is open for inquiry '; and
by Comstock, J. (p. 77): '1 assent to
the doctrine that where there is no
suit or process, appearance or con-
fession, no valid judgment can be ren-
dered in any court; that in such a case
the recital in the record of jurisdictional
/acts is not conclusive '; citing Starbuck
V. Murray, 5 Wend. 158; 21 Am.
Dec. 172. 'I think it is always the
right of a party against whom a record
is set up to show that no jurisdiction
of his person was acquired, and conse-
quently that there was no right or
authority to make up the record against
him.' Selden and Pratt, JJ., con-
curred in these views, but the case was
disposed of on a different point.
"In Porter v. Bronson, 29 How. Pr.
292, 19 Abb. Pr. 236, the court of
common pleas of the city of New York
held, at general term, that, assuming
the marine court to be a court of rec-
ord, a defendant in an action on a
judgment of that court might set up
that he was not served with process
and did not appear, notwithstanding
recitals in the record showing jurisdic-
tion; and in Bolton v. Jacks, 6 Rob.
(N. Y.) 198, Jones, J., says that it is
now conceded, at least in this state,
that want of jurisdiction will render
void the judgment of any court,
whether it be of superior or inferior,
of general, limited, or local, jurisdic-
tion, or of record or not, and that the
bare recital of jurisdictional facts in
the record of a judgment of any court,
whether superior or inferior, of gen-
eral or limited jurisdiction, is not con-
clusive, but only prima facie, evidence
of the truth of the fact recited, and
the party against whom a judgment is
offered is not, by the bare fact of such
recitals, estopped from showing, by
affirmative proof, that they were un-
true, and thus rendering the judgment
void for want of jurisdiction. He
cites in support of this opinion several
of the cases which I have referred to,
and Dobson v. Pearce, 12 N. Y. 164,
and Hatcher v. Rocheleau, 18 N. Y.
92.
"It thus appears that the current
of judicial opinion in this state is very
strong and uniform in favor of the
proposition stated by Jones, J., in
Bolton V. Jacks, 6 Rob. (N. Y.)
198, and if adopted here is deci-
sive of the present case. It has not
as yet, however, been divactly ad-
judicated, and if sustained it must rest
upon the local law of this state, as it
finds no support in adjudications else-
where. There are reasons, however,
founded upon our system of practice,
which would warrant us in so holding.
The powers of a court of equity being
vested in our courts of law, and equi-
table defenses being allowable, there
is no reason why, to an action upon a
judgment, the defendant should not be
permitted to set up, by way of de-
fense, any matter which would be
ground of relief in equitj^ against the-
judgment; and it is conceded in those
states where the record is held con-
clusive, that when the judgment has
been obtained by fraud or without
bringing the defendant into court, and
the want of jurisdiction does not ap-
247
VOID JUDGMENTS.
§133
that no state shall " deprive any person of life, liberty, or
property without due process of law." It may be very
pear upon the face of the record, relief
may be obtained in equity.
"The technical difficulty arising from
the conclusiveness of th^ record is thus
o b viated. In the present case the judg-
ment is set up by the defendants as a bar
to the plaintiff's action. But it must be
borne in mind that this is an equitable
action, being for the foreclosure of a
mortgage. The defendants set up the
foreclosure in the McFarquahar case
as a bar, but being in a court of equity,
the plaintiff had a right to set up any
matter showing that the defendants
ought not in equity to avail themselves
of that judgment. They offered to
show that it was entered ex pai-ie on
forged papers. It does not appear
that the plaintiff ever had any knowl-
edge of it, and it is not pretended that
he was legally summoned. Such a
judgment would never be upheld in
equity, even in favor of one ignorant
of the fraud and claiming bona Jide
under it. He stands in no better posi-
tion than any other party claiming
bona fide under a forged instrument.
"The case is analogous in principle
to that of Bridgeport Savings Bank
V. Eldredge, 28 Conn. 557; 73 Am.
Dec. 688. That was a bill filed by a
second mortgagee to redeem mortgaged
premises from a first mortgagee. The
first mortgagee had obtained a decree
of foreclosure against the second, and
the time limited for redemption had
expired. The record of the decree
found the fact that legal service of the
bill in the first suit had been made on
the second mortgagee, but in fact none
had been made, and he had no actual
knowledge of the pendency of the suit
until after the time limited for redemp-
tion had expired; and he would have
redeemed if he had known of the de-
cree.
"It was held, — 1. That the decree
was not in any proper sense a bar to
the present suit, as a judgment at law
would be a bar to a suit at law; but
that, without impugning the decree,
the court could, for equitable reasons
shown, allow a further time for re-
demption;
"2. That, therefore, the question
whether the plaintiff could contradict
the record, by showing that no service
of the bill was in fact made upon
hiui, did not present itself as a tech-
nical one, to be determined by the
rules with regard to the verity of judi-
cial records, but only in its relation to
the plaintiff's rights to equitable relief,
and therefore, that evidence of want
of notice was admissible.
" The bill to redeem was not framed
to open the former decree, and con-
tained no allegations adapted to or
praying for such relief, but was in the
ordinary form of a bill for redemption,
taking no notice of the previous de-
cree. The decree was set up in the
answer, and it was averred that it was
rendered on legal notice to the plain-
tiff. The court, however, held that
this defense might be rebutted by evi-
dence of facts which should preclude
defendants from taking advantage of a
decree of which they could not con-
scientiously avail themselves.
"Under the system of practice in
this state, no reply to an answer set-
ting up new matter is required, but
the plaintiff is allowed to rebut it by
evidence. Neither is it necessary to
anticipate a defense arising upon a
deed or record by inserting matter in
the complaint in avoidance of it. The
defense may never be set up, and the
plaintiff is not bound to suppose that
it will be. The state of the pleadings,
therefore, presents no difficulty. The
only question which might be raised
is, that McFarquahar, in whose name
the decree was obtained, sbould be be-
fore the court; but no such objection
was made at the trial, and if it had
been, I do not see that he has any in-
terest in the question. All the parties
claiming under the decree and sale are
parties to this action, and I see no rea-
son why the validity of the McFarqua-
har foreclosure cannot be tried herein
as well as upon a motion or in a sepa-
rate suit to set aside the decree. The
judgment should be reversed, and a
new trial ordered." Upon a new trial
of this cause, it was held that defend-
ant must assume the burden of satis-
factorily disproving jurisdiction; and
as he was not able to do this, the
judgment against him was sustained:
Ferguson v. Crawford, 80 N. Y.
6oy.
§ 133 VOID JUDGMENTS. 248
seriously contended that to permit a state, through its
courts, to make a judicial record against a person, in his
absence and without service of process, and then to deny
him the right to show that he had no knowledge or notice
of the action, and therefore no opportunity to defend it,
is to deprive him of property without due process of law.
Undoubtedly, if the defendant was not a citizen of the
state, and he is sued upon the judgment in another state,
he may show that the court did not have jurisdiction over
him, no matter what jurisdictional findings or recitals it
placed in its record;^ but this right to controvert in one
state the judgment of a court of another state existed inde-
pendently of the Fourteenth Amendment. AVhether that
amendment can affect a judgment in a state in which it
was pronounced is a question which has never, so far as
we are aware, been presented to the supreme court of the
United States. In Massachusetts it has been decided, and
we think correctly, that one against whom an action is
brought in that state, upon a judgment rendered therein,
may avoid it by proving that he was not served with pro-
cess, nor did he appear in the action, and that at the time
of the alleged service of process he was an inhabitant and
resident of another state.'' The court pronouncing this
decision thought it to be a necessary consequence of the
Fourteenth Amendment; but in our judgment, it could
more properly have been placed upon the ground that, as
the defendant was not a resident or citizen of the state, its
courts could not, independently of that amendment, make
any record by which to bind him personally. The Four-
teenth Amendment is as much a prohibition of the action
of a state against its own citizens as against citizens of
other states. The chief object of that amendment was the
protection of residents of each state from any action on
its part which could deprive them of life, liberty, or prop-
' Knowles w. Gas L. Co., 19 Wall. « Needham v. Thayer, 147 Mass.
58; Thompson v. Whitniau, IS Wall. 536; Elliott v. McCormick, 144 Mass.
457. 10.
249 VOID JUDGMENTS. § 134
erty without due process of law, rather than their protec-
tion against the action of states in which they did not
reside; and we apprehend that it is not a sufficient
answer to one claiming the protection of this amendment,
that he is a citizen or resident of the state against or
against whose courts he invokes its aid. On the other
hand, it may be contended, with equal and we think with
greater force, that the rules of law giving effect to juris-
dictional recitals, and creating presumptions, whether dis-
putable or indisputable, in favor of judgments of domestic
courts of general jurisdiction, are not the result of any
legislative or other action on the part of a state, prohibited
by the amendment; that these rules existed prior to the
adoption of the amendment, independent of any special
legislative action, and necessarily attended the creation of
the judicial department of the government and the invest-
ing it with power to take and exercise jurisdiction over
certain subject-matters, and, for that purpose, to require
all citizens or residents to appear and submit to its exer-
cise; that it is essential to the effective exercise of this
jurisdiction that the courts shall have power, as at com-
mon law, to make judicial records of uncontrollable verity,
and that such hardships as may arise shall be borne, unless
the circumstances are such as warrant the granting of re-
lief in courts of equity, upon the equitable principles there
recognized and enforced.
§ 134. Reasons for Holding the Record Conclusive. —
All the arguments adduced to show that the inquiry into
the jurisdiction over the parties in the tribunal pronoun-
cing judgment should on all occasions be considered as
open seem to admit of ready answers. That the matters
intended by a court of record for its memorials may be
proved not to be a record by parol evidence is in conflict
with the principle recognized from the earliest times of
our common law that the plea of nul tiel record was to be
decided only by inspection of the alleged matter of record.
§ 135 VOID JUDGMENTS. 250
He may appeal to some higher tribunal and have the judg-
ment reversed; he may move in the tribunal where it was
pronounced and have it set aside; or he may seek and
obtain equitable aid to prevent its execution. It is true^
the court has ample authority to make a record; and it is
not true that this authority is dependent upon jurisdiction
over the party against whom the record speaks. Neither
is it true that maintaining the verity of the record in
collateral proceedings is more repugnant to natural jus-
tice than the opposite course would be. A party who has
been wronged by being judged without any opportunity
to make his defense may avoid the adjudication in vari-
ous ways. He cannot generally affect the rights of inno-
cent third parties, growing out of a judgment regular on
its face. But as to those parties, it would be as great a
violation of the principles of " natural justice" to deprive
them of property acquired for a valuable consideration,
by establishing some hidden infirmity preceding the
judgment, as it is to deprive the defendant of his rights
by maintaining the integrity of the record. And as the
law cannot minister abstract justice to all the parties, it
is at liberty to pursue such a course as will best subserve
public policy. This course requires that there should be
confidence in judicial tribunals, and that titles resting
upon the proceedings of those tribunals should be re-
spected and protected. The hardship arising from an
erroneous or inadvertent decision upon jurisdictional
questions is no greater than that issuing from an erro-
neous or inadvertent decision upon other matters. That
the reversal of a judgment in an appellate court shall not
affect rights acquired under it by third parties, is a rule
universally and uncomplainingly acknowledged,
§ 135. Judgment never Void for Error. — Jurisdiction
being obtained over the person and over the subject-
matter, no error or irregularity in its exercise can make
251
VOID JUDGMENTS.
§135
the judgment void.^ The authority to decide being shown,
it cannot be divested by being improperly or incorrectly
employed. Error of decision may be corrected, but not
so as to reach those who have in good faith relied upon
its correctness.^ The same rules apply to actions to re-
cover delinquent taxes as in other cases, in respect to
collateral attacks.^ It cannot be shown, to avoid the effect
of such judgments, that the taxes were previously paid.*
Neither will such judgment be any the less effective be-
cause it appears from the judgment roll that the assess-
ment was illegal and void.® The following are instances
» Wimbish v. Breeden, 77 Va. 324;
Walker v. Goldsmith, 14 Or. 125;
Rosenheim v. Hartsock, 90 Mo. 357;
Brooks V. Brooks, 97 N. C. 136; Levan
V. Millholland, 114 Pa. St. 49; Young
V. Sellers, 106 Ind. 101; Saner v. Twin-
ing, 81 Ind. 366; Scranton v. Ballard,
64 Ala. 402; Fox v. Cottage B. F. A.,
81 Va. 677; Lindsey v. Delano, 78
Iowa, 350; McCoy v. Ayres, 2 Wash.
203; Roby v. Verner, 31 Kan. 306;
Lancaster v. Wilson, 27 Gratt. 629;
Thaw V. Falls, 136 U. S. 519; State o.
Smith, 100 N. C. 550; Sweet v. Ward,
43 Kan. 695; Rollins v. Henry, 84 N. C.
569; Wimberly v. Hurst, 33 111. 166;
83 Am. Dec. 295; Cloud v. El Dorado
Co., 12 Cal. 128; 73 Am. Dec. 526; Es
parte Watkins, 3 Pet. 193; Preston v,
Clark, 9 Ga. 246; Blakely r. Calder, 61
Pa. St. 621; Boston etc. R. R. Co. v.
Sparhawk, 1 Allen, 448; 79 Am. Dec.
750; Cailleteau v. Ingouf, 14 La. Ann.
623; Bolgiano v. Cooke, 19 Md. 375;
Savage v. Hussey, 3 Jones, 149; Hath-
away V. Hemmingway, 20 Conn. 191;
Feaster v. Fleming, 56 111. 457; Flem-
ing V. Johnson, 26 Ark. 421; Barnum
V. Kennedy, 21 Kan. 181; Maloney v,
Dewey, 127 111. 395; 11 Am. St. Rep.
131; Chase v. Christianson, 41 Cal. 253.
«Pursly V. Hayes, 22 Iowa, 11; 92
Am. Dec. 350.
3 Scott V. Pleasants, 21 Ark. 364;
Eitel V. Foote, 39 Cal. 439; Wellshear
V. Kelly, 69 Mo. 343; Graceland C. Co.
V. People, 92 111. 619; Schmidt v. Nei-
meyer, 100 Mo. 207; Brown r. Walker,
85 Mo. 262; Driggers v. Cassady, 71
Ala. 529. In Illinois, however, judg-
ments for taxes are not conclusive,
where there was no personal service
upon or appearance by the owner of
the property: Gage v. Busse, 114 111.
589.
* Cadmus v. Jackson, 52 Pa. St. 295.
» Mayo V. Ah Loy, 32 Cal. 477; 91
Am. Dec. 595; Mayo v. Foley, 40 Cal.
281; Jones o: Gillis, 45 Cal. 541; An-
derson V. Ryder, 46 Cal. 134; Allen
V. Ray, 96 Mo. 542; Ward v. Dough-
erty, 75 Cal. 240. These cases seem
to me irreconcilable with a portion of
the opinion in the case of Reilly v.
Lancaster, 39 Cal. 354. In Mayo v.
Ah Loy, 32 Cal. 477, 91 Am. Dec. 595,
the court said, that while a tax im-
posed on property on I Street, to pay
for improving J Street, would be un-
authorized and invalid, yet if such a
tax were assessed, and a suit begun
for its collection, a judgment in favor
of the plaintiff, if the court had juris-
diction, would be valid. In the case of
Mayo V. Foley, 40 Cal. 281, it appeared
from the record that several lots had
been assessed in gross, and that a judg-
ment by default had been rendered in
a suit upon such assessment. The
assessment was conceded to be in-
valid. But its want of validity was
held not to affect the judgment ren-
dered to enforce it. But in Reilly v.
Lancaster, 39 Cal. 354, it appeared
from the complaint in the record that
the tax was levied and assessed by
virtue of a certain act of the legislature.
This act was unconstitutional. The
court decided that the judgment and
the sale thereunder were void. Why
and upon what principles a person
sued for a tax levied by virtue of an
unconstitutional law may suffer judg-
ment to be entered against him without
§ 135 VOID JUDGMENTS. 252
of judgments which, though erroneous or irregular, are
not void: Judgments on obligations not yet due,^ or en-
tered before the expiration of the time allowed to answer,^
or based upon an assessment of damages by the court
when a party was entitled to a jury,^ or for liquors retailed
without a license when the statutes declared that no one
shall obtain such judgment;* judgment in the absence of
taking evidence and making findings, the statute requir-
ing the court, before proceeding to judgment, to take
evidence and make findings;^ a judgment against lands
for a sum in gross, when it should have been against each
parcel separately,^ or on a demand which the record shows
was barred by the statute of limitations;^ an order approv-
ing the surrender to the firm creditors by the survivors
of a partnership of the interest of a deceased partner;^
an order making an irregular and erroneous appointment
of an assignee in bankruj)tcy;^ a decree authorizing a sale
without redemption, when the statute gave the right to
redeem;*" a judgment based on irregular but amendable
proceedings in attachment;" an order approving the bond
of an assignee in insolvency in a sum less than that fixed
by a previous order of the court;*'' an order alleged to
have been influenced by the interests of infants, when
the court had no right to consider such interest;" a decree
in foreclosure which was founded on a complaint which
affecting his rights is not explained, ' Essig v. Lower, 120 Ind. 239; Solo-
This action was brought in a court of mon v. Newell, 67 Ga. 572.
general jurisdiction. The court had * Carter v. Roland, 53 Tex. 540.
authority to determine whether the * Rasberry v. Pullian, 78 Ala. 191.
tax was levied under a constitutional ^ Garner v. State, 28 Kan. 790;
law. By rendering judgment for plain- Johnston ?;. San Francisco S. U., 75
tilf, it affirmed the validity of the tax Cal. 134; 7 Am. St. Rep. 129.
and of the law. Why was this judg- ^ Pritchard v. Madren, 31 Kan. 38.
ment coram nonjudice? If not coram '' Head v. Daniels, 38 Kan. 1.
720)1 judice, why was it void? The ® Tua «. Carriere, 117 U. S. 201,
court had jurisdiction of the subject- ® Raymond v. Morrison, 59 Iowa,
matter and of the parties. Its decis- 371.
ion was erroneous, but not more so '" Moore v. Jeffers, 53 Iowa, 202.
that the judgments in question 'in the i' Connolly v. Edgerton, 22 Neb. 82;
cases of Mayo v. Ah Loy, 32 Cal. 477, Harvey v. Foster, 64 Cal. 296.
91 Am. Dec. 595, and Mayo v. Foley, i^ l^i^j-s v. Kelly, 67 Cal. 289.
40 Cal. 281, 13 Woodhouse v. Fillbates, 77 Va.
» Mikeska v. Blum, 63 Tex. 44, 317.
253 VOID JUDGMENTS. § 135 a
did not set out the conditions of the mortgage foreclosed;*
a decree appointing a new trustee, without giving notice to
the trustee superseded thereby;^ a judgment in a national
court founded on an order erroneously directing the re-
moval of a cause from the state court.* A judgment of a
state court, after it had erroneously refused to remove a
cause to the national courts, has also been held to be valid^
as long as the party affected thereby does not procure its
vacation or reversal in some manner;* but this holding
was probably erroneous, because on the filing of the
proper petition and the taking of proper proceedings for
the removal of a cause to a national from a state court,
the jurisdiction of the latter seems to absolutely terminate.*
§ 185 a. Judgments without Issue Joined. — In the
preceding section we have shown by numerous cita-
tions that when jurisdiction over both the parties
and the subject-matter is once obtained, no error com-
mitted in the exercise of that jurisdiction can make
the proceedings or judgment of the court void. We do
not remember ever meeting any direct denial of this
rule. But there are cases, or perhaps, more accurately
speaking, expressions of the courts, which we are unable
to reconcile with the rule. Among these expressions are
some, made upon different occasions in the state of Missis-
sippi, in regard to the effect of judgments rendered in the
absence of any issue of law or of fact. The high court of
errors and appeals in that state, but a few years ago, twice
declared that "a judgment without an issue to be deter-
mined by it is a nullity";^ and this language was subse-
quently cited and approved by the supreme court of the
same state.' In neither of the cases was any jurisdictional
1 Berry v King, 15 Or. 165. ' Railroad Co. v. Koontz, 104 U. S.
2 Bassett v. Crafts, 129 Mass. 513; 14; Steamship Co. v. Tugiiian, 106
McKim?;. Doane, 137 Mass. 195. U. S. 118.
s Ues Moines Nav. & R. R. Co. v. " Steele v. Palmer, 41 Miss. 89;
Iowa Homestead Co., 123 U. S. 552; Armstrongs Barton, 42 Miss 506.
Girardy v. Bessman, 77 (^a. 483. ' Porterfield r. Butler, 47 Miss. 170;
* Johnson v. Brewers' Fire lus. Co., 12 Am. Rep. 329.
61 Wis. 670.
§ 136 VOID JUDGMENTS. 254
question presented. The parties seem to have been prop-
erly in court. The rendition of the judgments was there-
fore but an erroneous exercise of the powers possessed by
the court. The error, in each instance, was corrected
upon appeal. The parties did not undertake to treat the
judgments as void; and no doubt the language of the
court is attributable to the use of the words "void" and
" erroneous " as convertible terms, rather than to any in-
tent of declaring that the judgments before them on ap-
peal were " nullities," in the absolute sense of that term.
It has nevertheless, though somewhat timidly, been sug-
gested that it may be true that a judgment without an
issue is void, because until an issue is formed there is no
question presented to the court for decision, — no subject-
matter upon which it can act.* If this were true, the
power of the judiciary could and would be entirely evaded
by defendants neglecting to interpose any defense, for it
is only by such interposition that an issue can be formed.
§ 136. Judgments as Entireties. — At a comparatively
early day in American jurisprudence, a dictum was pro-
nounced to the effect that if a judgment is void as against
one of the parties thereto it is void as against all.^ This
dictum was founded upon an early New York case ^de-
claring that on certiorari a judgment must be affirmed or
reversed as a whole. That in many cases a judgment
against two or more must be wholly reversed or vacated
because void or erroneous as to one only of them, is true;*
but whether it is wholly void, if neither reversed nor
vacated, is an entirely different question. Upon what
principle can a defendant before the court claim its
judgment to be void as against him, when the court had
^ Black on Judgments, sec. 184. Williams, 24 Ohio, 625; Gargan v.
2 Hall V. Williams, 6 Pick. 232; 17 School District, 4 Col. 53; Streeter
Am. Dec. 356. v. Marshall, 4 Col. 535; Wootters v.
* Richards v. Walton, 12 Johns. Kauffman, 67 Tex. 488; Williams v,
434. Chalflant, 82 111. 218; Donnelly v. Gra.
■• Newburg v. Munshower, 29 Ohio, ham, 77 Pa. St, 274; Claflin v. Dnnne,
617; 23 Am. Rep. 769; Frazier v. 129 111. 24; 16 Am. St. Rep. 263.
255 VOID JUDGMENTS. § 137
jurisdiction over him and over the subject-matter, and he
chooses to take no measures to correct its error? Gener-
ally, the courts following the dictum mentioned above
have contented themselves with citing it as their author-
ity; but so many of them have followed it, that it was at
one time very doubtful whether it was not sustained by
the majority of the adjudications upon the subject/ We
think this doubt no longer exists, and that the decided
preponderance of authorities maintains that a judgment
against two or more is not void as against those of whom
the court had jurisdiction, though void as against others.^
§ 137. Judgment for Contempt of Court. — In Tennes-
see, it was decided that it is essential to the validity of a
judgment for contempt that it should state as ground for
its jurisdiction the matters constituting the alleged con-
tempt.^ But this decision professes to be a departure from
the common law, and such it undoubtedly is;* for the
authorities upon this subject generally affirm that a judg-
ment or sentence for contempt need not state the facts or
conduct constituting the supposed contempt,' though it
should show that the sentence was imposed as a punish-
ment for contempt; and if it merely directs a party to be
imprisoned, without indicating that such imprisonment
» Holbrook v. Murray, 5 Wend. 161; Holton v. Towner, 81 Mo. 360; Shall-
92 Am. Dec. 584; Wilbur v. Abbott, cross v. Smith, 81 Pa. St. 132; York
60 N. H. 40; Martin v. Williams, 42 Bank's Appeal, 36 Pa. St. 460; Win-
Miss. 210; 97 Am. Dec. 456; Hanley Chester v. Beardin, 10 Humph. 247; 51
V. Doroghue, 59 Md. 239; 43 Am. Rep. Am. Dec. 702; Crank v. Flowers, 4
554; Wright v. Andrews, 130 Mass. Heisk. 631; Kitchens v. Hutchins, 44
149; Knapp v. Abell, 10 Allen, 485; Ga. 620; Gray v. Stuart, 33 Gratt.
Bufifum V. Ramsdell, 55 Me. 252; 92 351; North t>. Mudge, 13 Iowa, 498; 81
Am. Dec. 589; Hulme v. Jones, 6 Am. Dec. 411.
Tex. 242; 55 Am. Dec. 774. ^ State v. Galloway, 5 Cold. 326; 98
2 Ash V. McCabe, 21 Ohio St. 181; Am. Dec. 404.
Douglass V. Massie, 16 Ohio, 271; 47 ''Ex parte Summers, 5 Ired. 149;
Am. Dec. 375; Newburgv. Munshower, Burdett v. Abbot, 14 East, 1; Stock-
29 Ohio St. 617; 23 Am. Rep. 769; St. dale v. Han.sard, 9 Ad. & E. 1; Sherifif
John V. Holmes, 20 Wend. 609; 32 of Middlesex's Case, 11 Ad. & E.
Am. Dec. 603; Mercer v. James, 6 Neb. 273.
406; Bailey ?;. McGinness, 57 Mo. 362; * Easton v. State, .S9 Ala. 551; 87
Cheek v. Pugh, 19 Ark. 574; Valen- Am. Dec. 49; State v. Woodfin, 5 Ired.
tine V. Cooley, Meigs, 618; 33 Am. 199; 42 Am. Dec. 161; Lord Mayor's
Dec. 166; Lenox v. Clark, 52 Mo. 115; Case, 3 Wils. 188, 204.
g 137 VOID JUDGMExXTS. 256
is for contempt, he is entitled to liis release on habeas cor-
pus.^ In California, the statute "regulating contempts
and their punishment provides that when the alleged
contempt is not committed in the presence of the court
an affidavit of the facts constituting the contempt must be
presented. If there be no affidavit presented, there is
nothing to set the power of the court in motion, and if
the affidavit as presented be one which upon its face
fails to state the substantive facts which, in point of law,
do or might constitute a contempt on the part of the
accused, the same result must follow; for there is no dis-
tinction in such a case between the utter absence of an
affidavit and the presentation of one which is defective in
substance in stating the facts constituting the alleged
contempt." Therefore an order of a court punishing a
man for contempt not committed in the presence of the
court, unless it is based upon an affidavit sufficient in
substance, is void.=^ Judgments entered punishing per-
sons for contempt of court are subject to review in superior
courts upon jurisdictional grounds. The}^ are sometimes
brought up on appeal,^ sometimes on certiorari,'^ and are
frequently, in effect, reviewed on writs of habeas corpus; "
and the action of the court is sometimes arrested by a
writ of prohibition.^ Nevertheless, all courts, so far as we
are aware, disclaim the power to review sentences for con-
tempt imposed by other courts for any error committed in
imposing them, unless such appeal has been expressly
given by statute.^ A judgment punishing for a contempt
of court is generally a finality from which no appeal or
1 Ex parte Adams, 25 Miss. 883; 59 nolly, 65 Cal. 28; In Matter of Vance,
Am. Dec. 234. 88 Cal. 262. „ ^ , „.
2 Batchelder v. Moore, 42 Cal. * Batchelder v. Moore, 42 Cal. 41o.
415. 6 Ex parte Rowe, 7 Cal. 181; Ex
3 People V. O'Neil, 47 Cal. 109; parte Cohen, 6 Cal. 318.
Heurstal v. Muir, 64 Cal. 450; Neel v. « People v. Wright, 27 Cal. 151;
State, 9 Ark. 259; 50 Am. Dec. 218. Heurstal v. Muir, 64 Cal. 4o0.
But the California decisions, permit- ' Appeals were allowed m Stuart v.
ting appeals from sentences imposing People, 3 Scam. 395; McCredie v.
punishment for contempt of court. Senior, 4 Paige, 378; Shannon v. State,
have been overruled: Tyler v. Con- 18 Wis. 604.
257 VOID JUDGMENTS. §§ 138, 139
writ of error lies;' nor can release from imprisonment
thereunder be obtained by writ of habeas corpus upon the
ground of error of law or of fact,^ though both under this
writ and upon certiorari relief may be had upon the ground
of want of jurisdiction in the court imposing the sentence,
and perhaps, where the facts are disclosed by the record,
upon the ground that they did not constitute a contempt
and were not punishable as such.*
§ 138. Sundays and Holidays. — "Sunday is dies non
juridicus; and by the common law all judicial proceed-
ings which take place on that day are void." ^ If, how-
ever, a court is authorized to receive the verdict of a jury
on Sundaj'-, and is required by law, "upon a verdict, to
immediately render judgment accordingly," it must, if a
verdict is received on Sunday, give judgment thereon on
the same day.' Holidays, other than Sundays, are not
non-judicial days, unless expressly made so by statute,
and judgments rendered thereon are valid.^
§ 1 39. Judgment without Authority of Court. — Where
plaintiff, in open court, offered to let defendant take judg-
1 State V. Galloway, 5 Cold. 326; 98 » State v. Towle, 42 IST. H. 540;
Am. Dec. 404; State v. Towle, 42 Perry's Case, 30 Wis. 268; Ex parte
N. H. 450; State v. Woodfia, 5 Ired. Perkins, 18 Cal. 60; Ex parte Sum-
199; 42 Am. Dec. 162; Peoples. Kelly, mers, 5 Ired. 149: Batclielder v.
24 N. Y. 74; Easton v. State, 39 Ala. Moore, 42 Cal. 412; Piper v. Pearson,
551; 87 Am. Dec. 49; Casey v. State, 2 Gray, 120; 61 Am. Dec. 438; Dun-
25 Tex. 38; Williamson's Case, 26 Pa. bam v. State, 6 Iowa, 245.
St. 9; 67 Am. Dec. 374; Clark v. Peo- * Chapman v. State, 5 Blackf. Ill;
pie, Breese, 340; 12 Am. Dec. 177, and Blood v. Bates, 31 Vt. 147; Swaun v.
note; Shaltuck v. Sate, 51 Miss. 50; Broome, 3 Burr. 1595; Pearce v. At-
24 Am. Rep. 624; State I). Thurmond, wood, 13 Mass. 324; Arthur v.
37 Tex. 340; Pattou v. Harris, 15 B. Mosby, 2 Bibb, 589; Story v. Elliott,
Mon. 607; Robb v. McDonald, 29 8 Cow. 27; 18 Am. Dec. 423; Davis v,
Iowa, 330; 4 Am. Rep. 211; Vilas v. Fish, 1 G. Greene, 406; 48 Am. Dec.
Burton, 27 Vt. 56; Cossart v. State, 14 387; Allen v. Godfrey, 44 N. Y.
Ark. 538; Sanchez v. Newman, 70 Cal. 433.
210; In Matter of Vance, 88 Cal. 262. * Thompson v. Church, 13 Neb. 287;
2 State V. Galloway, 5 Cold. 326; 98 Weame v. Smith, 32 Wis. 412.
Am. Dec. 404; Williamson's Case, 26 * Spalding v. Bernhard, 76 Wis.
Pa. St. 9; 67 Am. Dec. 374; Ex parte 268; 20 Am. St. Rep. 75; Bear v.
Adams, 25 Miss. 883; 59 Am. Dec. 234; Youngman, 19 Mo. App. 41; Glenn v.
Peojde w. Cassels, 5 Hill. ]64;Burnham Eddy, 51 N. J. L. 255; 14 Am. St
V. Morrisey, 14 Gray, 226; 74 Am. Dec. Rep. 684; Hamer v. Sears, 81 Ga. 288;
676; Ex parte Maulsby, 13 Md. 621; Prister v. Stone, 84 Ala. 432; Slater©.
In re Cooper, 32 Vt. 253; Matter of Schack, 31 Miuu. 269.
Morton, 10 Mich. 208.
JUDG. I. — 17
§§ 140, 141 VOID JUDGMENTS. 258
ment for costs, and tendered his confession to that effect,
which the defendant refused to accept and the court de-
clined to enter, the clerk, at request of plaintiff's attorney,
entered the confession in the minutes of the court: Held,
that this entr}', being without consent, and in face of the
decision of the court, was a nullity.^ In a very recent
case the force of an apparent appointment of an adminis-
trator was permitted to be destroyed by proof that the
surrogate in fact never acted upon the application and
knew nothing of it, the appointment having been written
by the clerk upon a blank previously signed by the sur-
rogate.^ But in another case a decree entered without
being legally settled, and in violation of the express direc-
tions which the clerk's minutes showed were given by the
court in relation to the provisions to be inserted, no
motion being made to correct or set it aside, was regarded
as the valid decree of the court.^
§ 140. Deceased Defendant. — If jurisdiction be ob-
tained over the defendant in his lifetime, a judgment ren-
dered against him subsequently to his death is not void.*
§ 141. A Judgment against a Party not Named in the
complaint, nor in any other part of the record, is void^
where it does not appear that he was a party intended to
be sued by one of the names inserted in the complaint,
or that he was served with process. It will not be pre-
sumed that one who does not appear to have been a party
had his day in court.^ The effect of a judgment against one
incorrectly named in the record, or designated therein by
a fictitious name, will be considered in another section.®
' Barefield v- Bryan, 8 Ga. 463. contra opinion, see Carter v. Carriger,
* Roderigas t>. East River S. I., 76 3 Yerg. 411; 24 Am. Dee. .585; also
N. Y. 316; 32 Am. Rep. 309. Morse v. Toppan, 3 Gray, 411, where
* Cushman i;. Sliepard, 4 Barb. 113. it is said t!">at judgment "must be
* (.'oIUqs v. Mitchell, 5 Fla. 3ii4; against one capable of contractmc^, for
Loring V. Folger, 7 Gray, 505; Cole- it is a debt." For further consi'lera-
man v. McAnulty, 16 Mo. 173; 57 Am. tion of this subject, see section 15.3.
Dec. 229; Yaple v. Titus, 41 Pa. St. ' Ford v. Doyle, 37 Cal. 346j Mose-
203; Day«. Hamburg, 1 Browne (Pa.), ley v. Cocke, 7 Leigh, 225.
75;Gregory2).Hayue3, 21Cal. 443. For ^ Posi, sec. 164.
259 VOID JUDGMENTS. § 143
§142. Jurisdiction Continues till Judgment. — Juris-
diction over a party, being obtained, continues until
judgment; and he must therefore take notice of all the
proceedings until that time. After judgment he is not
regarded as always present and under control of the court.
An order made after judgment setting aside a sale, no
notice being given to the adverse party, will not avail the
party who procured it.* Various motions may be made
and proceedings taken after final judgment, either to cor-
rect it by amendment, to vacate it for some error or irreg-
ularity, to avoid it by writ or error or appeal, or to control
process issued for its enforcement. Of these proceedings,
unless they necessarily result from a mere inspection of
the record, the parties are entitled to notice; but such
notice may generally be given to their attorneys, who,
notwithstanding the entry of judgment, are regarded as
still representing them for the purpose of receiving no-
tices of motions.
§ 143. Jurisdiction for Certain Purposes only. — Some-
times a court may have jurisdiction over the defendant
for certain purposes only. Thus by a statute of the state
of Ohio, jurisdiction was given the court of common
pleas over absent defendants on publication of notice, "in
all cases properly cognizable by courts of equity, where
either the title to or boundaries of land may come in
question, or where a suit in chancery becomes necessary
to obtain the rescission of a contract for the conveyance of
land, or to compel the specific execution of such contract."
Acting under this statute, an absent defendant was pro-
ceeded against, by publication of notice, to compel the
specific performance of a contract, and to obtain judgment
for a sum of money claimed by the plaintiff under such
contract. The court gave a decree for the performance,
and also for the sum of money, and autliorized a levy to
be made to satisfy the decree. The action of the court
* Wright V. Leclaire, 3 Iowa, 221.
§ 144 VOID JUDGMENTS. 260
in awarding the sum of money was attempted to be justi-
fied on the ground that a court having jurisdiction for
one purpose might exercise it for the complete settlement
of the matters in controversy, but such action was declared
void for want of jurisdiction over the defendant for the
purpose of rendering a personal judgment against him
for a sum of money. ^ In the same state, proceedings were
instituted to foreclose a mortgage. Service of summons
was made by publication. A personal judgment was
taken against the defendant. This judgment was declared
to be absolutely void, because the statute did not author-
ize any other judgment than one for the sale of the prem-
ises to satisfy the debt secured by the mortgage.^
§ 144. Disqualification of the Judge. — It occasionally
happens that while a court has jurisdiction over the sub-
ject-matter in controversy, and the parties to the action,
the judge of the court is disqualified from acting by rea-
son of his having an interest in the suit, or his being re-
lated to some of the parties, or his being within some of
the disqualifications recognized by the common or by the
statute law. "It is a maxim of every country that no man
should be judge in his own cause. The learned wisdom
of enlightened nations, and the unlettered ideas of ruder
societies, are in full accordance upon this point, and wher-
ever tribunals of justice have existed, all men have agreed
that a judge shall never have the power to decide where
he is himself a party. In England it has always been
held that, however comprehensive may be the terms by
which jurisdiction is conferred upon a judge, the power to
decide his own cause is always a tacit exception to the
authority of his office. Such I conceive to be the law of
this state."' These principles extend not only to cases in
which the judge is a party upon the record, but also to
^ Boswell V. Dickerson, 4 McLean, * Wash. Ins. Co. v. Price, 1 Hopk.
262. Ch. 1.
« Wood». Stanberry, 21 Ohio St. 142.
261 VOID JUDGMENTS. § 145
other cases in which he has an interest, however minute,
as where one of the parties is a corporation of which the
judge is one of the stockholders.^
§ 145. At Common Law. — While it is well settled by
the common law that no judge ought to act where, from
interest or from any other cause, he is supposed to be
partial to one of the suitors, yet his action in such a case
is regarded as an error or irregularity not affecting his
jurisdiction, and to be corrected by a vacation or reversal
of his judgment, except in the case of those inferior
tribunals from which no appeal or writ of error lies.^ "If
the facts are known to the party recusing, he is bound to
make his objection before issue joined, and before the
trial is commenced, otherwise he will be deemed to have
waived the objections, in cases where a statute does not
make the proceedings void. Except in cases where a
statute forbids it, the parties by a joint application to the
judge, suggesting the ground of recusation, expressly
waiving all objections on that account, and requesting
him to proceed with the trial or hearing, signed by them,
or their attorneys, may give the judge full power to pro-
ceed as if no objection existed. This is denominated in
civil and Scotch law prorogated jurisdiction; and a tacit
prorogation is inferred against a plaintiff who brings his
cause before a judge who is known to him to be dis-
qualified to try it; and against a defendant, who, knowing
the existence of just grounds of recusation, appears, and
without objecting offers defenses in the cause, either
dilatory or peremptory." ^
» Place V. Butternuts Mfg. Co., 28 v. Wriirht, 51 N. H. 609; Trawick v.
Barb. 50.3; Gregory r. C. C. &C. R. R, Trawick, 67 Ala. 271; Fowler v.
Co., 4 Ohio St. 675; Wash. Ins. Co. v. Brooks, 64 N. H. 423; 10 Am. St. Rep.
Price, 1 Hopk. Ch. I. 425; Rogers v. Feli<er, 77 Ga. 46; Beal
^ DimfS V. Grand Junction Canal v. SinqnetieUl, 73 Ga. 48.
Co., 47 Jur. 73; 16 Eng. L. & Eq. 63; » Moses v. Julian, 45 N. 11. 52; 84
HeydenfeMt v. Townw, 27 Ala. 423; Am. Dec. 114; Shropshire v. State, 12
GorriU V. Whittier, 3 N. H. 268: Mc- Ark. 160; Ellsworth «. Moore, 5 Iowa,
Millan V. Michols, 62 Ga. 36; Rhea's 486; Baldwin v. Calkius, 10 Weud.
Succession, 31 La. Ann. 323; Stearns 167.
§ 146 VOID JUDGMENTS. 262
§ 146. statutory Prohibitions. — In most of the states,
statutes have been passed which, in direct terms, prohibit
judges from acting in certain specified cases. Thus in
Massachusetts, it was provided that when a judge of pro-
bate was interested in an estate, the same should be set-
tled in another county; and in Alabama, the statute
enacted that "no judge of probate shall act in any proceed-
ing or take jurisdiction of any matter wherein he is inter-
ested." In both of these states it has been decided that
the action of any judge in any matter where he is inter-
ested is coram non judice and void.^ A statute in New
York directed that "no judge of any court shall act as
such in any cause to which he is a party, or in which he
is interested, or in which he would be disqualified from
being a juror by reason of consanguinity or affinity to
either of the parties." This was held to divest the judge
of jurisdiction in the extreme sense, so that the consent
of the parties could not give him any authority in the
case. "The party who desired it might be permitted to
take the hazard of a biased decision if he alone were to
suffer for his folly; but the state cannot endure the
scandal and reproach which would be visited upon its
judiciary in consequence. Although the party consent,
he will invariably murmur if he do not gain his cause;
and the very man who induced the judge to act when he
should have foreborne will be the first to arraign his de-
cision as biased and unjust. If we needed an illustration
of this, the attempt which the counsel for the moving
party in this case assumed toward the court, the strain of
argument he addressed to it, and the impression it was
calculated to make upon an audience are enough to show
that, whatever a party may consent to do, the state cannot
afford to yield up its judiciary to such attack and criticism
as will inevitably follow upon their decisions made in dis-
' Cottle, Appellant, 5 Pick. 483; Dec. 248; Gav v. Minot, 3 Cush. 352;
Coffin V. Cottle, 9 Pick. 287; Sigour- State v. Castleberry, 23 Ala. 85.
ney v. Sibley, 21 Pick. 101; 32 Am.
263 VOID JUDGMENTS. § 146
regard of the prohibitions of the statute under considera-
tion."^ This language shows in a clear and forcible
manner the evils resulting from the practice of permitting
any judge to act under any circumstances in a matter
wherein his judgment is likely to be attributed to im-
proper motives. Nevertheless, it is stipulated, in many of
the statutes upon this subject, that he may act by consent
of the parties interested. But the general effect of the
statutory prohibitions in the several states is undoubtedly
to change the rule of the common law so far as to render
those acts of a judge, involving the exercise of judicial
discretion, in a case wherein he is disqualified from act-
ing, not voidable merely, but void.^ The language of the
statutory prohibition to which this effect is attributed is,
generally, that the judge in the eases mentioned therein
" shall not sit," or "shall not act," or "shall not preside,"
or "shall not have any voice," or "cannot sit."^ In
some of the states the statute permits a judge, otherwise
disqualified, to act with the consent of the parties, and
where such statutes are in force a party who does not ob-
ject to the judge until after judgment is pronounced is
deemed to have consented to his acting.* But a judge
» Oakley v. Aspinwall, .3 N. Y. 547. their existence. It is a serious thing
* Horton V. Howard, 79 Mich. 642; to annul the judgments of the courts,
19 Am. St. Rep. 19S; Chicago & A. and it ought not to be done where the
R. R. Co. V. Summers, 113 lud. 10; 3 consent of the parties alone is requisite
Am. St. Rep. .616; Newcome v. Light, to their validity, and its entry on the
58 Tex. 141; 44 Am. Rep. 604; Reams record is the only admissible evidence
V. Kearns, 5 Cold. 217; Converse v. that it was given": Hines w. Hussey,
McArthur, 17 Barb. 410; Schoon- 45 Ala. 51.3. Act of probate judge in
maker v. Clearwater, 41 Barb. 200; Massachusetts in appointing wife's
Chambers?;. Clearwater, 1 Keyes, 310; brother administrator of estate of
Estate of White, 37 Cal. 190; Cham- which her father was creditor, being a
bers V. Hodges, 23 Tex. 104; People v. case in which the judge was disquali-
De la Guerra, 24 Cal. 73; Ochus v. fied, was held void: Hall v. Thayer,
Sheldon, 11 Fla. 138. . Where the 105 Mass. 219; 7 Am. Rep. 513.
statute prohibits the judge from act- ^ See cases in preceding citation, and
ing in certain cases, unless by consent Buckingham v. Davis, 9 Md. 3-.'4;
of the parties entered of record, the Wigand v. Dejonge, 8 Abb. N. C. 260;
supreme court of Alabama in a recent Price v. Bowers, 8 Baxt. 353; New-
case said: "We think that justice will come v. Likdit, 58 Tex. 141; 44 Am.
be best subserved by ruling that the Rep. 604; Hilton v. Mill<»r, 5 Lea, ,395;
disabilities mentioned render the pro- Horton ?'. Howard, 79 Mich. 642; 19
ceedings of the court voidable only, Am. St. Rep. 198; Frevert v. Swift, 19
and not void. These disqualifications Nev. 363.
may be unknown, or so obscure as to * Wroe v. Greer, 2 Swan, 172;
require a judicial decision to determine Crozier v. Goodwin, 1 Lea, 125.
§ 147 VOID JUDGMENTS. 264
disqualified from trj'ing a cause may make such orders as
"are merely formal, or as are necessary for the continu-
ance of the cause to a future term at which a qualified
judge may be present."^ On this ground it has been de-
cided that a judge who is assignee may, as such assignee,
confess judgment against himself in the capacity of
assignee, in his own court; and that if any judge is sued
in his own court, there is no objection to his entering
judgment against himself upon his own confession, as
such entry does not require any judicial investigation
or determination.^ Statutory prohibitions must give
way to the necessities of justice, and to the paramount
right of litigants to have justice administered. Hence
though a judge is interested in a cause, or otherwise dis-
qualified, yet if there is no other judge competent to try
it, he may proceed to hear and determine it, if his refusal
to do so must result in a total or substantial denial of
justice.^
§ 147. Where Two out of Three Judges were disquali-
fied from acting, by reason of having been attorneys in
the case, and the parties stipulated for trial before a sin-
gle judge, the judgment pronounced by such judge, the
others sitting pro forma, in order to constitute a court*
was held to be valid.'* The correctness of this decision is,
how^ever, questionable, the general rule being that if a
judge is disqualified he shall not sit; and that a court in
which he with other judges participates is not properly
constituted, and its judgments ought not to stand.'
^ Buckinsham v. Davis, 9 Md. 324; if otherwise the cause cannot be tried:
Heydenfeldt v. Towns, 27 Ala. 423; Bassett w. Governor, 11 Ga. 207; Com-
Moses V. Julian, 45 N. H. 52; 84 Am. monwealth v. Brown, 147 Mass. 585;
Dec. 1 14; Estate of White, 37 Cal. 190. 9 Am. St. Rep. 736.
2 Thornton w. Lane, 11 Ga. 520. * Walker v. Rogan, 1 Wis. 597;
3 Matter of Ryers, 72 N. Y. 1; 28 Queen v. Justices of London, 18 Q. B.
Am. Kep. 88; Heydenfelt v. Towns, 421.
27 A1a. 423; Commonwealth v. Ryan, ^ Oakley v. Aspinwall, 3 N. Y. 547;
5 Muss. 92; Pierce v. Atwood, 13 Gorrill w. Whittier, 3 N. H. 2G8: Hes-
Mdss. 340; Thellnson ?'. Rendlesham, keth v. Braddock, 8 Burr. 1847; Queen
6 H. L. Cas. 429. The same prin- v. Justices of Hertfordshire, 6 Q. B-
ciple permits disqualified jurors to act, 753.
265 VOID JUDGMENTS. § 148
§ 148. Judge de Facto. — One who supposes himself to
he invested with an office, and who, not heing a mere
usurper, acts in good faith as a judge, may constitute a
court de facto. An objection to his authority or commission
must be made before the trial, or it will be disregarded.'
Where the constitution of a state required a judge to be
thirty years of age, it was decided that if the appointing
power selected some person as a judge who was less than
thirty years old, his acts were valid until he was removed
from office.^ The authority of a judge de facto cannot be
called in question collaterally. His title to the office can
be considered and determined only in some proceeding
instituted for that purpose.* Hence the judgment of a de
facto court or judge must be respected as valid in all col-
lateral proceedings, though the official term of the person
acting as judge had not yet begun,^ or had terminated,^ or
the statute authorizing him to act or providing the mode
of his appointment is unconstitutional,® or he is acting
under an appointment by officers having no power to
make such appointment,'' or as the officer of a sovereign
whose authority over the territory has ceased.^ Where
special judges may be appointed to act in place of the
regularly elected and qualified judge, if a judgment ap-
pears to have been rendered by a special judge it cannot
be collaterally assailed, unless the record affirmatively dis-
closes his want of authority.'
1 Case V. state, 5 Ind. 1; State v. ' Gilliani v. Reddick, 4 Ired. 368;
Anone, 2 Nott & McC. 27; State Carli v. Rheuer, 27 Minn. 292; Cromer
V. Ailing, 12 Ohio, 16; Masterson v. v. Boinest, 27 S. C. 436; Sheehan's
Matthews, 60 Ala. 260. See Hildreth's Case, 122 Mass. 445; 23 Am. Rep. 374;
Heirs v. Mclntyre's Devisee, 1 J. J. Hamlin v. Kassafer, 15 Ov. 456; 3 Am.
Marsh. 206; 19 Am. Dec. 61, and note, St. Rep. 176.
at page 66, on officers de facto. ® State v. Carroll, 38 Conn. 449; 9
=* Blackburn v. State, 3 Head, 690. Am. Rep. 409; Burt v. Winona, 31
8 Pepin V. Lachenmeyer, 45 N. Y. Minn. 472; Masterson v. Matthews, 60
27; State v. Murdock, 86 Ind. 124; Ala. 260; Brown z;. O'Connell, .36 Conn.
Wilcox V. Smith, 5 Wend. 231; 21 432; 4 Am. Rep. 89; Frazer t;. Freelon,
Am. Dec. 213; Woodside v. Wagg, 71 53 Cal. 644.
Me. 207; Keyes v. United States, 109 ' Malletb v. G. & S. M. Co., 1 Nev.
U. S. .336; J..hnson v. McGinly, 76 Me. 188; 90 Am. Dec. 484.
432; Campbell ?\ Commonwealth, 96 ^ Keene v. McUonough, 8 Pet.
Pa. St. 344; Baker v. Wambaugh, 99 308.
Ind. 312. "Littleton v. Smith, 119 Ind. 230;
« McCrawi;. Williams, 33 Gratt. 510. Schiuugger v. State, 113 Ind. 295,
I 148 a VOID JUDGMENTS. 266
§ 148 a. Judgment Fraudulently Altered, — The clerk
of a court, at the instance of a judgment creditor,
altered a judgment by default from four thousand four
hundred to four thousand five hundred dollars. This
judgment, having subsequently been collaterally drawn
in question, was held to be void, in an opinion from which
we present the following extract: "We admit that we have
been unable to find any reported authority precisely ap-
plicable to this case; but we are clearly of the opinion
that the doctrine uniformly held, which renders void a
note, bond, or bill which has been altered in a material
part by the party in whose interest the alteration has
been made must apply with equal, if not greater, force to
judgments in courts of record. In most of the states the
act of altering a public record, we think, would not only
be held to render void any interest the party making the
fraudulent alteration might have in the record, but it
would be an indictable offense. We do not hesitate, then,
to say that the judgment was void from and after the al-
teration." ^
' Hardy v. Broaddus, 35 Tex. 668.
267 OF THE PERSONS AFFECTED BY JUDGMENT. § 149
CHAPTER IX.
OF THE PERSONS AFFECTED BY JUDGMENT.
Part I. — OF THE PARTIES.
§ 149. All persons competent to be parties to judgment.
§ 150. Married women.
§ 151. Infants.
§ 152. Lunatics.
§ 153. Deceased persons.
§ 154. Judgment binding only on the parties to it.
§ 155. General expressions confined to parties before the court.
§ 156. Parties must be in same capacity.
§ 157. Parties bound, though not named in the record, if numerous.
§ 158. Must be adversary parties.
§ 159. Must be mutually bound.
§ 160. When second suit does not include all the parties to the first suit.
§ 161. When second suit includes other parties.
Part II. — OF PRIVIES.
§ 162. Privity.
§ 163. Administrators or executors, and heirs or devisees.
§ 163 a. Administrators or executors, statutes modifying relation of, to heirs.
§ 164. Principals and agents.
§ 165. Assignees and assignors.
§ 166. Bailors and bailees.
§ 167. Garnishees.
§ 168. Heirs and ancestors.
§ 169. Lessors and lessees.
§ 170. Successors and predecessors in office.
§ 171. Tenants in ejectment,
§ 172. Remaindermen.
§ 173. Trustees and cestuis que trust.
Part III. — OF PERSONS BOUND, THOUGH NEITHER PARTIES
NOR PRIVIES.
§ 174. Persons bound, who are neither parties nor privies.
§ 175. Evidence to show who are the real parties in interest.
§ 176. Parties who are bound by judgment against another without notice.
§ 177. Corporations and stockholders.
§ 178. Counties and municipal corporations, and their tax-payers and citizens.
§ 179. Masters and servants.
§ 180. Principals and sureties.
§ 181. Of the notice required to be given a party to whom a litigant may r&»
sort for indemnity.
§ 182. Attachment proceedings.
§ 149 OF THE PERSONS AFFECTED BY JUDGMENT. 268
§ 183. Bailees and bailors.
§ 184. Officers and their indemnitors.
§ 185. Tenant and landlord.
§ 186. Vendee and vendor.
§ 187. Warrantee and warrantor.
§ 188. Parties who cannot be called on to conduct suit.
§ 189. Persons not parties to suit not bound by reason of participating therein.
§ 190. Distributee of common fund.
Paet I. — OF THE PARTIES.
§ 149. Who may be Parties. — The power and author-
ity of our courts extend over every class of persons and
every species of property situate within the territorial
limits in which those courts are authorized to act, and
subject to the same sovereignty which organized the courts
and invested them with judicial functions. Every sub-
ject is therefore liable to be made a party litigant, and to
be bound by the result of the litigation; and those who
are not subjects may, if they choose, appear and submit
to the jurisdiction of a court, and after so doing, its judg-
ment is as binding upon them as upon residents.* If a
citizen or resident is privileged from the service of pro-
cess at the time it is served upon him, the court cannot
take notice of such privilege. He must appear and as-
sert it by some motion or other proceeding; and failing
to do so, and even if he did so and the court overruled
his plea, its judgment against him is valid.'' The convic-
tion of a person for crime, and his sentence to imprison-
ment for life, are often spoken of as resulting in his civil
death, and the inference is drawn that he can no longer
do any act or be proceeded against in the courts. This,
we think, is a mistaken view. While his conviction and
sentence suspend many of his civil rights, they do not
seem to destroy his obligations, nor to vest his estate in
bis heirs; and this being so, it must follow that those hav-
ing obligations against him must be permitted to enforce
1 Theriotv. Bayard, 37 La. Ann. 689. Gyers v. Irwin, 4 Dall. 107; MoPher-
2 Preutis ?\ Commonwealth, 5 Rand, sou v. Nesmitli, 3 Gratt. 241; Thora-
697; 16 Am. Dnc. 782; Peters v. ton v. American W. M. Co., 83 Ga.
League, 13 Md. 58; 71 Am. Dec. 622; 2SS; 20 Am. St. Rep. 320.
269 OF THE PERSONS AFFECTED BY JUDGMENT. § 150
them in the courts. To hold otherwise would be to pun-
ish them for his crime.' In Kansas, when one is impris-
oned for a term less than life, a trustee may be appointed
to take charge of and manage his estate, who may prose-
cute and defend all actions commenced by or against
him, and the courts of that state have declared that though
an action has been begun while the defendant w^as not a
convict, yet on his subsequent conviction and imprison-
ment he became civilly dead, and that a judgment based
on a service of process on him in prison was void.^ In
Virginia, under similar circumstances, the judgment is
valid. ^
§150, Married Women. — Those disabilities arising
from infancy, from coverture, or from mental infirmities
which render parties incapable of being bound by their
contracts do not have the effect of exempting any person
from the control of the courts. Reasoning from the
hypothesis that a judgment is a contract, a few of the
courts have held that parties exempt from the force of
their agreements could not be bound by a judgment.
Thus it was said in one case: "The fact that defendant
was a married woman when the judgment was rendered
against her would alone be a good plea to this action.
A judgment is in the nature of a contract; it is a specialty,
and creates a debt, and to have that effect, it must be
taken against one capable of contracting a debt,"* The
case just cited sustains the doctrine that a married woman
may, when sued upon a claim arising during coverture,
disregard the process of the court, and assert against any
judgment rendered thereon the defense of coverture
1 Avery v. Everett, 110 N. Y. 317; 587. In Wood v. Warrl, 8 Cent. L. J.
6 Am. St. Rep. 308, and note; Bowles 188, in the circuit court of the United
V. Haberman, 95 N. Y. 246. States for the southern district of Ohio,
2 liice Co. V. Lawrence, 29 Kan, it was ailjudged that a judgment
J5S. against one wlio was a shive, and who,
* Neale v. Utz, 75 Va. 480. therefore, in the state where such
* Morse u Toppan, 3 Gray, 411;l)ut judgment was entered, had no capa-
the rule in this state has been modified city to sue or defend, could not con-
by statute: Larrabee v. Colby, 99 elude such person in any subsequent
Mass. 55i); Goodman v. Hill, 125 Mass. judicial proceeding.
g 150 OF THE PERSONS AFFECTED BY JUDGMENT. 270
which was available to her as before the judgment. A
judgment agafnst a feme covert upon a note, made during
her coverture, was also deemed a nullity in Maryland.
The principle that a party cannot impeach a judgment
on any ground which might have been pleaded as a de-
fense, it was thought had no application to such a case,
because the defendant was not competent to employ an
attorney to present her plea.^ The decision thus made in
Maryland, though it no longer correctly expresses the law
of that state,'^ has been approved in Missouri, and the rea-
sons for such approval were expressed in the following
form: "It is very clear, to my mind, that the respondent
was not competent to employ an attorney, or make a de-
fense in her own name. She was sued in a legal proceed-
ing upon a personal contract altogether void at law; and
shall the entry of an unauthorized judgment against her
by default for non-appearance be allowed to prejudice
her? The principle that a party cannot impeach a judg-
ment in a collateral proceeding does not apply to a case
where the defendant is a feme covert, and not sui juris. As
the respondent labored under a total disability, and could
neither contract nor be sued at law, I think the judgment
of the law commissioner's court was void."' The spirit*
of the decisions in Pennsylvania, Mississippi, Louisiana,
Kentucky, and West Virginia is, no doubt, in accord with
that manifested in Missouri. In the first-named state, a
wife is liable upon certain contracts made in reference to
the improvement of her separate estate. Upon these con-
tracts she may be sued, and a valid judgment may be
rendered against her. But " every judgment against her
which does not show upon its face her liability is a void
> Griffith V. Clarke, 18 Md. 457. Parham, 52 Mi'ss. 921; White v. Bird,
* Sluipp V. Hoffman, 72 Md. 359; 20 20 La. Ann. i.81; Parsons v. Spencer,
Am. St. Rep. 47l); Ahern v. Fink, 18 83 Ky. 305, and on subsequent aripeal.
Mil. 457; Lowekanip v. Koecbluig, 64 13 S. W. Rep. 72 (Ky.) ; Wells v.
Md. 95. Norton, 28 La. Ann. 300; Magruder©.
* Higsins V. Peltzer, 49 Mo. 152; Buck, 56 Miss. 3)4; Hecker v. Haak,
Will V. Simmons, 66 Mo. 617. 88 Pa. St. 238; Gould v. McFalL 111
* White V. Foote L. Co , 29 W. Va. Pa. St. 66.
385; 6 Am. St. Rep. 650; Mallett v.
271 OP THE PERSONS AFFECTED BY JUDGMENT. § 150
judgment."^ This is the rule generally adopted in the
states wherein common-law judgments against married
women are ordinarily void. If circumstances exist mak-
ing such judgment proper, they must be disclosed by the
record,^ unless recovered before a justice of the peace,
when in some of the states the well-known imperfections
of justices' records have induced the courts to relax the
rule requiring the record to show the exceptional facts
justifying a recovery against a married woman.^ If an
unmarried woman is sued, her subsequent marriage does
not abate the action, nor prevent the recovery of a valid
judgment against her therein.'*
Notwithstanding the decisions to which we have re-
ferred, the preponderance of authority is in favor of the
rule that a judgment against a married woman is not void;
and that when erroneous because based upon a contract
which she was not competent to make, or from any other
reason, it is still binding upon her until set aside upon
appeal or by some other appropriate method. "The acts
of femes covert in pais may be, and frequently are, void;
yet this does not impair the conclusive force of judgments
to which they are parties; and if they be not reversed on
error or appeal, their effects cannot be gainsaid when
they are enforced by ultimate process, or when they are
brought to bear on their rights in any future controversy.
And a judgment against husband and wife may be satis-
fied out of the property of either, or out of the common
property."^ "There would be no safety in purchasing at
' Swayne v. Lyon, 67 Pa. St. 439; » Howard v. North, 5 Tex. 290; 51
Caldwell V. Walters, 18 Pa. St. 79; 55 Am. Dee. 7(59; Baxter ?>. Dear, 24 Tex,
Am. Dec. 592; Dorrance v. Scott, 3 17; 76 Am. Dec, 88; Siialdinn; v.
Whart. 309; 31 Am. Dec. 509; Van Watlien, 7 Bush, 659; Guthrie v.
Dyke v. Wells, 103 Pa. St. 49; Hart- Howard, 32 Iowa, 54; Wolf v. Van
maa v. Oghorn, 54 Pa, St. 120; 93 Metre, 23 Iowa, 397; Glover v. Moore,
Am. Dec. 079. 60 Ga. 189; Masliburn v. Gouge, 61
i* McKinney v. Brown, 130 Pa. Sfc, Ga. 512; McCullough v. Dasliiell, 85
365; Gary v. Dixon, 51 Miss. 593. Va. 37; Giiatterton v. Young, 2 Tenn.
»TaCT"ertw. Muse, 60 Miss. 870. Ch. 768; Howfll v. Hale, 5 Lea, 405;
♦King V. Jones, 2 Ld. R;iym. 1525; Wri.L'ht v. Wright, 97 Ind. 44-4; Mc-
Doe V. Butcher, 3 Maule & S. 557; Daniel v. Carver, 40 Ind. 250; Lieb v.
Phillips w. Stewart, 27 Ga. 402; Roose- Lichteustein. 121 Ind. 483; Vatdburg
velt V. Dale, 2 Cow. 581; Parker v. v. Black, 3 Mont. 459; Keith ». Keith,
Steed, 1 La. 206. 26 Kan, 26; Vick v. Pope, 81 N. C. 22;
§ 150 OF THE PERSONS AFFECTED BY JUDGMENT. 272
judicial sales under judgments rendered after due service
of process on female defendants, if the title of the pur-
chaser could be defeated by proof in a collateral action
that the defendant in the judgment was a married woman
at the time of the institution of the suit, or that she was
incapable in law of contracting the debt for which the
judgment was rendered."^ Where a mortgage was made
by a woman, in her maiden name, five days after her
marriage, and scire facias was thereafter regularly prose-
cuted against her on the mortgage to judgment, and a
sale was had in pursuance thereof, it was held that the
judgment could not, in an action of ejectment, be im-
peached by proof of her coverture.^ Judgments against
femes covert cannot be set aside or enjoined in equity,
without establishing such facts as would entitle the appli-
cant to relief independent of the fact of coverture, with
the exceptions of judgments shown to have been obtained
through the fraud of the husband, in combination with
another person. It is not enough that a married woman
prove facts sufficient to have avoided the judgment in the
first instance. She must allege and establish that she
was deprived of a full defense by the contrivance of her
adversary. The inaction of her husband will not sustain
the charge of connivance.^ Ignorance of her legal rights,
on account of which a feme covert failed to make her
defense at law, will not entitle her to relief in equity.* lu
Pennsylvania, the bond of a married woman, though hei
husband join in it, is void. A judgment entered on such
bond by warrant of attorney is void; and so is the judg-
Nicholson v. Cox, 83 N. C. 44; 35 N. J. L. 456; 32 Am. Rep. 243; Pat-
Am. Rep. 556; Winter v. City Couu- rick v. Littell, 36 Ohio St. 79; .38 Am,
cil, 79 Ala. 481. Some of the decisions Rep. 552; Rogers w. Weil, 12 Wis. 664;
■were doubtless influenced by statutes Lewis v. Gunn, 63 Ga. 542; Cashmaa
permittino married women to sue and f. Henry, 75 N. Y. 103; 31 Am. Rep.
be sued: ^Huff v. Wright, 39 Ga. 41; 437; Farris v. Hayes, 9 Or. 81.
Van Metre v. Wolf, 27 Iowa, 341; ' Gambette ?;. Brock, 41 Cal. 83.
Larrabee ?'. Colby, 99 Mass. 559: Good- * Hartman v. Ogborn, 54 Pa. St.
now V. Hill, 125 Mass. 587; Dhvis w. 120; 93 Am. Dec. 679.
First Nat. Bank, 5 Neb. 242; 25 Am. ^ Green v. Branton, 1 Dev. Eq. 500.
Rep. 484; Wilson v. Herbert, 41 * Van Metre v. Wolf, 27 Iowa, 341.
273 OF THE PERSONS AFFECTED BY JUDGMENT. § 151
ment in scire facias to revive such judgment, and a sale
thereunder passes no title/
§ 151. Infants. — In Illinois, a decree of a court of
general jurisdiction, where the record shows that notice
was served on an infant defendant in person, instead of
on his guardian as required by statute, and no guardian
ad litem was appointed, is void.'^ This is, however, an
almost isolated exception to the current of authorities.
In Kentucky, by the provisions of the Civil Code, no
judgment is to be rendered against an infant until after
defense by a guardian. Yet a judgment pronounced after
constructive service on an infant, without the appointment
of any guardian, was held to be erroneous, but binding
until reversed.^ The general tendency is to regard the
plea of infancy as a personal plea w'hich may be waived.'*
And w^hether such plea is interposed or not, a judgment
or decree against an infant, properly before the court, is
as obligatory upon him as though he were an adult, ex-
cept in cases where he is allowed time, after coming of
age, to show cause against the judgment or decree." If an
absolute decree is made against an infant, he is as much
bound as a person of full age, and will not be permitted
to dispute the decree, except upon the same grounds
which would be available if he were an adult.^ Though
the statute requires the appointment of a guardian ad litem
to represent the interests of minors wdio have no general
guardian, it is well settled that wdiere process has been
» Dorrance v. Scott, 3 Whart. 309; 2 Schoales & L. 575; Porter v. Robin-
31 Am. Dec. 509; Caldwell w. Walters, son, 3 A. K. Marsh. 254; 13 Am. Dec.
18 Pa. St. 79; 55 Am. Dec. 592; Graham 153; Wills v. Spraggin, 3 Gratt. 5C7;
V. Long, 65 Pa. St. 383. Smith v. McDonald, 42 Cal. 484.
2 Whitney v. Porter, 23 111. 445. « Joyce v. McAvoy, 31 Cal. 273; 89
' Simmons v. McKay, 5 Bush, 25. Am. Dec. 172; English v. Savage, 5
* Blake v. Douglass, 27 Ind. 416. Or. 518; Brown v. Lawson, 51 Cal." 615;
* Waring's Heirs v. Reynolds, 3 B. Wdhite v. Wilhite, 124 Ind. 226; Law-
Mon. 59; Marshall v, Fisher, 1 Jones, son v, Moorman, 85 Va. 8S0; Suniuer
111; Pond V. Doneghy, 18 B. Mon. v. Sessoms, 94 N. C. .371; Burgess v.
558; Smith v. Ferguson, 3 Met. (Ky.) Kirby, 94 N. C. 575; Walkcnhurst v.
424; Ralston v. Lahee, 8 Iowa, 23; Lewis, 24 Kan. 420; Sites c. Eldrcdge,
Beeler v. Bullitt, 3 A. K. Marsh. 280; 45 N. J. Eq. 632; 14 Am. St. Rep.
13 Am. Dec. 101; Bennett v. Hamill, 769.
JUDG. I. — 18
§ 151 OF THE PERSONS AFFECTED BY JUDGMENT. 274
served upon a minor the failure to appoint a guardian
ad litem for him is a mere irregularity not affecting the
validity of the judgment/ The fact that defendant is a
minor does not, however, ordinarily dispense with the
necessity of obtaining jurisdiction over his person by
the service of process in substantial compliance with the
statute. The general rule is, that neither a minor nor his
guardian can waive such service, unless authorized to do
so by some statute.^ In some of the states it seems that
when the proceedings are in chancery, or in courts hav-
ing jurisdiction of the estates of deceased persons, the
courts regard themselves as possessing general jurisdiction
over all infants, or as proceeding in rem, and therefore
authorized to proceed, when infants are parties defend-
ant or otherwise interested in the action or proceeding,
without any service of process upon them, to appoint
guardians ad litem for them, and thereafter to dispose of
the cause and enter a final order or decree binding upon
them.^ Generally, however, service of process upon a
minor must precede the appointment of a guardian ad
litem for him; and though such guardian is appointed, and
appears and represents the interests of an infant defend-
ant, his appointment and all subsequent proceedings, in-
cluding the final judgment, are void as against an infant
not served with process.* In California, if a minor de-
fendant has a general guardian, the latter may enter his
1 Millard v. Marmon, 116 111. 649; ^ Sheldon's Lessee v. Newton, 3
Eisenmeno-er v. Murphy, 42 Minn. 84; Ohio St. 494; Heroman v. Louisiana
18 Am. St° Rep. 493; Peak v. Shasted, Inst., 34 La. Ann. 805; Robb v. Irwin,
21 111. 137; 74 Am. Dec. 83; Powell v. 15 Ohio, 689; Preston v. Dunn, 25 Ala.
Gott, 13 Mo. 458; 53 Am. Dec. 153; 507; McAnear v. Epperson, 54 Tex.
Parker v. Starr, 21 Neb. 686; Porter v. 220; 38 Am. Rep. 625.
Robinson, 3 A. K. Marsh. 253; 13 Am. « Galpin v. Page, 18 Wall. 350;
Dec. 153; O'Hara v. McConnell, 93 Kremer v. Haynie, 67 Tex. 450;
U. S. 150; Barber v. Graves, 18 Vt. Chambers u. Jones, 72111. 275; Moore
290; Montgomery v. Carlton, 56 Tex. v. Starks. 1 Ohio St. 369; Good v. Nor-
561; Boyd v. Roane, 49 Ark. 397. ley, 28 Iowa, 188; Roy v. Rowe, 90
2 Genobles v. V\^est, 23 S. C. 154; Ind. 54; Insurance Co. v. Bangs, 103
Young V. Young, 91 N. C. 359; Win- U. S. 435; McCloskey v. Sweeney, 66
Eton V. McLendon, 43 Miss. 254; Abdil Cal. 53; IngersoU v. Mangram, 84
V. Abdil, 26 Ind. 287; Fiuley v. Robert- N. Y. 622; Young v. Young, 91 N. C.
son, 17 S. C. 435; Kansas City v. 359; Coleman u Coleman, 3 Dana, 398;
Campbell, 62 Mo. 585; Cox v. Story, 28 Am. Dec. 86; Allsmiller ». Freutche-
80 Ky, 64. nicht, 86 Ky. 198.
275 OF THE PERSONS AFFECTED BY JUDGMENT. § 153
appearance without any service of process, and a judg-
ment based thereon is valid.^
§152. Lunatics. — While an occasional difference of
opinion manifests itself in regard to the propriety and
possibility of binding femes covert and infants by judicial
proceedings in which they were not represented by some
competent authority, no such difference has been made
apparent in relation to a more unfortunate and more
defenseless class of persons; but by a concurrence of judi-
cial authority, lunatics are held to be within the jurisdic-
tion of the courts.^ Judgments against them, it is said,
are neither void nor voidable. They cannot be reversed
for error on account of defendant's lunacy; the proper
remedy in favor of a lunatic being to apply to chancery
to restrain proceedings, and to compel plaintiff to go there
for justice.' In a suit against a lunatic, the judgment is
properly entered against him, and not against his guar-
dian. A lunatic has capacity to appear in court by attor-
ney. The legal title to his estate remains in him, and
does not pass to his guardian. A judgment, to be effect-
ive, cannot therefore be against any other person than
the lunatic*
§153. Deceased Parties. — The decisions respecting
the effect of judgments for or against persons who were
not living at the time of their rendition are conflicting
and unreasonable. Some of them apparently affirm that
a judgment so rendered is void under all circumstances,'
^ Smith V. McDonald, 42 Cal. 484; Robinson, 33 Me. 114; 54 Am. Dec.
Gronfier v. Puymirol, 19 Cal. 629. 614; Woods v. Brown, 93 Ind. 1G4; 47
2 Lamprey v. Nudd, 9 Fost. 299; Am. Rep. 369.
Wood V. Bayard, 63 Pa. St. 320; Foster ^ gtej-nberg i>. Schoolcraft, 2 Barb.
V. Jones, 23 Ga. 168; Sacramento Sav- 153; Robertson w. Lain, 19 Wend. 650;
ings Bank v. Spencer, 53 Cal. 737; Clark v. Dunham, 4 Denio, 262.
Stigers v. Brent, 50 Md. 214; 33 Am. * Walker v. Clay, 21 Ala. 797.
Rep. 317; 10 Cent. L. J. 473; Johnson * Nolan v. Cameron, 9 Lea, 234; Ge-
V. Pomeroy, 31 Ohio St. 247; Crow rault v. Anderson, Walk. (Miss.) 30; 12
V. Meyersieck, 85 Mo. 411; Boyer v. Am. Dec. 521; Wert v. Jordan, 62 Me.
Berryman, 123 Ind. 451; Dunn v. 484; Lee v. Gardner, 26 Miss. 521;
Elliott, 60 Tex. 337; Brittain v. Mull, Parker v. Home, 38 Miss. 215; Tarle-
99 N. C. 483; Allison v. Taylor, 6 ton v. Cox, 45 Mi.ss. 430; Young v.
Dajia, 87; 32 Am. Dec. 68; King v. Pickens, 45 Miss. 553; New Orleans &
§ 153 OF THE PERSONS AFFECTED BY JUDGMENT. 27S
and others that it is valid under all circumstances, be-
cause its rendition implies that the parties for and against
whom it was given were then living, and that to show
that either was then dead is to dispute the verity of the
record, and therefore not permissible.* We apprehend
that neither position is correct. That there should, at
some time during its progress, be living parties to both
sides of an action we think indispensable; and that no
sort of jurisdiction can be obtained against one who was
dead when suit was commenced against him as a defend-
ant, or in his name as plaintiff; and that no judicial rec-
ord can be made which will estop those claiming under
him from showing that he died before the action was
begun; and that a judgment for or against him must
necessarily be void.'^ Probably if the plaintiff is merely
one in whose name an action is prosecuted for the benefit
of another, and the defendant, knowing this, does not
plead the fact of plaintiff's death, but suffers judgment,
he cannot avoid it afterwards on account of such death.'
On the other hand, if an action is begun by and against
living parties, over whom the court obtains jurisdiction,
and some of them subsequently die, it is not thereby de-
prived of its jurisdiction; and while it ought not to pro-
ceed to judgment without making the representatives or
successors in interest of the deceased party parties to the
action, yet if it does so proceed its action is irregular
merely, and its judgment is not void.*
C. R. R. Co, V. Bosworth, 8 La. Ann. 270; Murray v. Weigle, 118 Pa. St.
80; Norton v. Jamison, 23 La. Ann. 159.
102; McCloskey v. Wingfield, 29 La. ^ Bollinger v. Chouteau, 20 Mo. 89;
Ann. 141; Edwards v. Whited, 29 La. Williams v. Hudson, 93 Mo. 524; Cros-
Ann. 647; Carter v. Carriger's Adm'r, ley v. Button, 98 Mo. 196; Loring v.
3 Yerg. 411; 24 Am. Dec. 585; Ewald Folger, 7 Gray, 505; Graves v. Ewart,
V. Corbett, 32 Cal. 493; iSIcCreery v. 99 Mo. 1.
Everding, 44 Cal. 286; but these Cali- ^ Powell v. Washington, 15 Ala. 803.
fornia cases are overruled: Phelan v. * Knott v. Taylor, 99 N. C. 511; 6
Tyler, 64 Cal. 80. Judgment against Am. St. Rep. 547; Jennings 2;. Simpson,
an extinct corporation is void: Sturges 12 Neb. 558; Evans v. Spurgin, 6Gratt.
V. Vanderbilt, 73 N. Y. 384; Clay v. 107; 52 Am. Dec. 105; Phelan v. Tyler,
Buchanan, 63 Iowa, 188. 64 Cal. 80; Wallace v. Center, 67 Cal.
1 Carr v. Townsend, 63 Pa. St. 202; 133; Harrison v. McMurray, 71 Tex.
Taylor v. Snow, 47 Tex. 462; 26 Am. 122; Gilman v. Donovan, 53 Iowa, 362;
Rep. 311j Warder v. Tainter, 4 Watts, Fleming v. Seligson, 57 Tex. 524; Gid-
"277 OF THE PERSONS AFFECTED BY JUDGMENT. § 154
§ 154. Judgments Generally Bind None but the Parties
thereto. — "Res inter alios acta alteri nocere non debet."
" A transaction between two parties ought not to operate
to the disadvantage of a third." ^ The application of tliis
maxim to the law of judgments requires that no person
shall be affected by any judicial investigation to which he
was not a party, unless his relation to some of the parties
was such as to make him responsible for the final result
of the litigation. It is a general rule that an adjudication
takes effect only between the parties to the judgment, and
that it gives no rights to or against third parties.'^ Though
the above maxim is more generally quoted than the
maxim, " Res inter alios acta, aliis nee prodest, nee nocet" —
*' A transaction between other parties neither benefits nor
injures those not interested," — yet this latter maxim is
far more applicable to judgments, and to every kind of
estoppel, than the former, because it expresses the truth
that no person can bind another by any adjudication, who
was not himself exposed to the peril of being bound in a
like manner had the judgment resulted the other way.
Whether a judgment is relied upon as an estoppel, an
adjudication of the validity or invalidity of a claim or
writing, the foreclosure of a lien, or as a muniment of
title, it is inadmissible,^ except as against persons who
diners V. Steele, 28 Tex. 733; 91 Am. 535; Doe v. Dennison, 8 U. C. Q. B.
Dec! 336; King v. Burdett, 28 W. Va. 610; Clubine v. McMullen, 11 U. C.
601; 57 Am. Rep. 687; Levasey w. Q. B. 250; Macky w. Coates, 70 Pa. St.
Antram, 24 Ohio St. 96; Yaple u. Titus, 350; Samuel v. Agnew, 80 111. 553;
31 Pa. St. 195; 80 Am. Dec. 604; Pace v. Coolidge, 121 Mass. 393; 23
Mitchell V. Schoonover, 16 Or. 211; 8 Am. Rep. 279; Hill v. Stevenson, 63
Am. St. Rep. 282; Claflin v. Dunne, Me. 364; 18 Am. Rep. 231; John
129 111. 24; 16 Am. St. Rep. 263; r.Northcutt, 49 Tex. 444; Bradley v.
Spalding v. Wathen, 7 Bush, 659; Rodelsperger, 17 S. C. 9; Harvey v.
Coleman v. McAnulty, 16 Mo. 173; State, 94 Ind. 159; Schuster v. Rader,
57 Am. Dec. 229; Camden v. Robert- 13 Col. 330; Kramer v. Matthews, 68
son, 2 Scam. 508; Stoetzell v. Fuller- Ind. 172; McCoy v. McCoy, 29 \V. Va,
ton, 44 111. 108; Case v. Ribelin, 1 J. J. 794.
Marsh. 30; Hayes v. Shaw, 20 Minn. " Gooclnow v. Plumbe, 64 Iowa, 672;
405; Reid v. Holmes, 127 Mass. 326. Townsend's Succession, 36 La. Ann.
1 Broom's Legal Maxims, 858. 447; Bethlehem v. Watertown, 51
* Pothier on Obligations, pt. 4, c. 3, Conn. 490; McUon;dd v. Matney, 82
sec. 3, art. 5; Society etc. v. Hartland, Mo. 358; Scates v. King, 110 111. 456;
2 Paine, 536; Chase v. Swain, 9 Cal. Montgomery Co. v. Severson, 64 Iowa,
136; Peters v. Spitzfaden, 24 La. Ann. 326; Montgomery v. Road, 34 Kan.
lllj Mcintosh V. Jarvis, 8 U. C. Q. B. 122; Pratt v. Jones, 64 Tox. 694;
§ 154 OF THE PEESONS AFFECTED BY JUDGMENT. 278
were parties to the suit, or in privity with such parties, or
in such a position that they were the real parties in inter-
est in a litigation conducted for their benefit in the name
of another under such circumstances as to make them
answerable for the result of the litigation, by virtue of
principles to be hereinafter stated. Thus a judgment
against a husband, in a suit to which his wife is not a
party, to settle and establish the boundary lines of -lands
which in fact belong to her, cannot affect her, though
the judgment purports to be against both.* A mortgagee
of a husband is not prejudiced by a judgment in an action
brought against the husband by his wife subsequent to
the execution of the mortgage to obtain a decree adjudg-
ing the husband to hold the lands in trust for the wife.^
The foreclosure of a mechanic's lien against a husband
cannot divest the separate estate of his wife.^ An action
to determine the ownership of a promissory note is in-
operative as against a claimant thereof not a party to such
action.* Creditors of a husband are not bound by the
result of a litigation between him and his wife to which
they were not parties.® A foreclosure and sale do not
affect the right of pre-existing judgment creditors not
parties thereto.^ A decree establishing a lien on a rail-
road is not binding on the bond-holders when neither
they nor their trustees were parties to the suit.^ One not
a party to an action is not bound by a judgment entered
therein, though he attempted to enjoin its prosecution,*
or offered to become a party, but was denied that privi-
Strauss v. Ayres, 87 Mo. 348; Hel- ' Durst v. Amyx, 13 S. W. Rep.
phrey v. Redick, 21 Neb. 80; Empire 1087 (Ky.).
V. Darlington, 101 U. S. 87; Hyatt v. ^ Boutwell v. Steiner, 84 Ala. 307; 5
McBurney, 18 S. C. 199; Hale v. Fiuch, Am. St. Rep. 375.
104 U. S. 261; Flanders v. Seeley, 105 ^ Franklin Sav. Bank v. Taylor, 131
U. S. 718; Glaze v. Watson, 55 Tex. III. 376.
563; Melhop v. Seaton, 77 Iowa, 153; * Proctor v. Cole, 120 Ind. 102.
Chase v. Kaynor, 78 Iowa, 449; Lips- * Old Folks' Society v. Millard, 86
comb V. Postell, 38 Miss. 476; 77 Tenn. 657.
Am. Dec. 651; Cameron v. Cameron, * Whitney v. Huntington, 37 Minn.
15 Wis. 1; 82 Am. Dec. 652; Brush 197.
V. Fowler, 36 lU. 53; 85 Am. Dec. ' Hassall v. Wilcox, 130 U. S. 493.
382. 8 Gage v. McGregor, 61 N. H. 47.
279 OF THE PERSONS AFFECTED BY JUDGMENT. § 154
lege.^ The fact that a person was a party to an action in
its earlier stages does not bind him by the judgment, un-
less he Avas also a party when it was rendered. If he, by
permission of the court, withdrew from the action, or dis-
missed it either by consent of the court, or without such
consent when he had a right to act in its absence, then
the power of the court over him terminates, and a judg-
ment subsequently entered cannot affect his interests.^
If in a proceeding supplementary to execution a bank,
through its officers, is summoned before a referee and ex-
amined, and thereupon an order of court is made requir-
ing the bank to pay to the judgment creditor moneys
deposited with it in the name of the judgment debtor's
wife, and payment is made accordingly, such judgment
and payment cannot affect the wife's right to recover her
deposit from the bank, though she was also called before
the referee and examined as a witness in the supplemental
proceedings.^
The persons who are directly parties to a judgment
can generally be ascertained by an inspection of the rec-
ord; but this is not always the case. It may happen that
the name of some of the parties is incorrectly stated.
The weight of authority is, that if the writ is served on
the party, by a wrong name, intended to be sued, and he
fails to appear and plead the misnomer in abatement,
and suffers judgment to be obtained, he is concluded, and
in all future litigation may be connected with the suit or
judgment by proper averments; and when such aver-
ments are made and proved, the party intended to be
' Coleman V. Hunt, 77 Wis. 263. 1218; Guinard v. Heysinger, 15 111.
2 Owens V. Alexander, 78 N. C. 1; 288; Walsh v. Kirkpatrick, 30 Cal.
Ryan v. Heenan, 75 Iowa, 589; Ochel- 202; 89 Am. Dec. 85; Hoffield ;-. Board
tree v. Hill, 77 Iowa, 721. of Education, 33 Kan. 044; Parry v.
^Schrauth v. Dry Dock S. B., 86 Woodson, 33 Mo. 347; 84Am. Dec. 51;
N. Y. 390. Fitzgerald v. Salentine, 10 Met. 43G;
* National Bank w, Jaggers, 31 Md. Waldrop v. Leonard, 22 S. C. 18;
38; 100 Am. Dec. 53; Ins. Co. v. Bloomfield R. R. Co. v. Burress, 82
French, 18 How. 409; Smith v. Bow- Ind. 83; Peterson v. Little, 74 Iowa,
ker, 1 Mass. 76; Oakley u Giles, 3 223; Robertson i;. Winchester, 85 Tenn,
East, 168; Smith v. Patten, 6 Tannt, 171.
115; Crawford?;. Satchwell, 2 Strange,
§ 154 OF THE PERSONS AFFECTED BY JUDGMENT. 280
named in the judgment is affected as though he were
proj)erly named therein.' So if persons are sued and
judgment is entered against them by tlie name of "Childs,
Gould, & Co.," it cannot be treated as void on the ground
that the name used was not one known to the law.^ In
an action to which there were four defendants, the names
of but three appeared in the margin of the entry upon
the record, which recited the verdict of the jury and the
judgment of the court. This was held to be a valid judg-
ment against all who were properly and technically parties
defendant in the suit, on the ground that this entry was
to be construed by referring to the process, pleadings,
and proceedings in the action.^ The identity of names
in the record of a former suit with those in a present suit
prima facie establishes identity of parties; but if the rec-
ord fails to demonstrate the identity, it may be shown by
evidence aliunde} An action ma}'' be commenced and
process issued and served against a defendant by a ficti-
tious name, when his name is unknown to plaintiff.
"When the true name of a party so sued and served be-
comes known, the complaint should be amended by in-
serting it. The fact that such amendment is not made
does not, however, render void a judgment against him,
where he has appeared in the action.' In Georgia, a
mortgage may be foreclosed without making the grantee
of the mortgagor a party to the suit;^ but the judges
seem to be divided in opinion as to whether such foreclos-
ure is, under all circumstances, conclusive against such
grantee of all the matters established by the decree.'
Very singularly, it has been supposed that if a mortgagor
conveys the mortgaged property a suit to foreclose can be
prosecuted against him, without making his grantee a
' Barry v. Carothers, 6 Rich. 331. Tyrrell v. Baldwin, 67 Cal. 1 ; Johns-
■■' Bennett v. Child, 19 Miss. 362; 88 ton v. S. F. S. U., 75 Cal. 154; Curtis
Am. Dec. 692. v. Herrick, 14 Cal. 117; 73 Am. Dec.
3 Wilson V. Collins, 11 Humph. 189. 632.
* Garwood v. Garwood, 29 Cal. 514; ^ Knowles v. Lawton, 18 Ga. 476; 58
Thompson v. Manrow, 1 Cal. 428. • Am. Dec. 290.
* Campbell v. Adams, 50 Cal. 203; » Guerin v. Danforth, 45 Ga. 493.
281 OF THE PERSONS AFFECTED BY JUDGMENT. § 155
party, and a judgment obtained, under which the latter's
title and equity of redemption can be cut off.^ But there
is no principle in support of this supposition; and the
authorities are now nearly, if not quite, unanimous in
asserting that when the mortgagor's grantees are not
parties the judgment cannot affect their title.^ As against
strangers to the suit, a decree of divorce is not evidence
of the marriage of the parties to it.^
§ 155. General Expressions. — In all cases where the
expression in the judgment is general, it will be confined
to the parties served with process.* Thus where there
are two defendants, one of whom is served with process
and pleads, and the judgment entry recites that the parties
came by their attorneys, it will be intended that no one
came but he who had been summoned and had pleaded.*
In Vermont, a record similar to this was difierently con-
strued.^ In a later case in that state, the record showed
service of process on two out of four defendants. The
judgment recital was, "that defendants came by their at-'
torney." This entry, it was held, did not show an appear-
ance as to more than the two defendants served. As to
the former case, it was said to be supportable only upon
the assumption that in an action where there were but
two defendants the use of the plural term "parties " was
inconsistent with the theory that any less than two per-
sons appeared.'' In Colorado, a judgment against the de-
fendants, one only being served with process, was treated
as being against both, and was therefore reversed.^ If,
» Street t>. Bell, 16 Iowa, 68; 85 Am. * Chester v. Miller, 13 Cal. 561;
Dec. 504. Malaney v. Hughes, 50 N. J. L. 546;
2 Berlack v. Halle, 22 Fla. 236; 1 Edwards v. Toouier, 14 Smedes & M.
Am. St. Rep. 185; Goodenow r. Ewer, 76; Miller v. Ewing, 8 Smedes & M.
16 Cal. 471; 76 Am. Dec. 540; Boggs 421. This rule cannot apply when
V. Hargrave, 16 Cal, 559; 76 Am. Dec. each of the defendants is named in
561; San Francisco v- Lawton, 18 Cal. the judgment: Ownings v. Binford, 80
465; 79 Am. Dec. 187; Childs v. Childs, Ala. 421.
10 Ohio St. .339; 75 Am. Dec. 512; ° Puckett w. Pope, 3 Ala. 552.
Terrill v. Allison, 21 Wall. 292; Scates « lilood v. Crandall, 28 Vt. 396.
V. King, 110 111. 456. ' Hubbard v. Dubois, 37 Vt. 94; 86
3 Gourand v. Gourand, 3 Redf. Am. Dec. 690.
262. 8 Langley v. Gull, 1 Col. 71.
§ 156 OF THE TERSONS AFFECTED BY JUDGMENT. 282
during the pendency of an action, a 7iolle prosequi is en-
tered as to some of tlie defendants, a general judgment
subsequently taken against the '^defendants" will be con-
strued to include only those as to whom no nolle prosequi
was entered/
§ 156. In Same Capacity. — Every person may, at dif-
ferent times, or at the same time, occupy different rela-
tions, act in different capacities, and represent separate
and perhaps antagonistic interests. It is a rule of both
the civiP and the common law^ that a party acting in one
right can neither be benefited nor injured by a judgment
for or against him, when acting in some other right. As
familiar illustrations of this rule, it is said that a judg-
ment against one as tutor ^ will not prevent his recovering
the same demand in his own right; that "a woman is not
estopped after coverture by an admission on record of
herself and her husband during coverture; and an heir
claiming as heir of his mother is not estopped by an es-
toppel upon him as the heir of his father."^ A plaintiff
suing as administrator of his wife is not affected by a
judgment against himself in her lifetime, in an action
to which she was not a party.^ A decree against one as
administrator on a bill to compel the delivery of slaves
claimed as a gift from the intestate will not conclude his
rights as a creditor on a bill by him against the former
plaintiffs to set aside the gift conveyance for fraud.' Nor
is a decree against the validity of an entry, in a suit
between M. and A., any bar to a subsequent action of R,,
by A., his guardian and next friend, against M., involving
the validity of the same entry.® The foreclosure of a
' Boyd V. Bayaham, 5 Humph. 386; Rathbone v. Hooney, 58 N. Y. 463;
42 Am. Dec. 438. McBurnie v. Seaton, 111 Ind. 56; Mc-
2 Pothier on Obligations, pt. 4, c. 3, Nutt v. Frogdon, 29 W. Va. 469.
sec. 3, art. 4. * Pothier on Obligations, pt. 4, c. 3,
^ 2 Smith's Lead. Cas. 589; Brooking sec. 3, art. 4.
V. Dearmond, 27 Ga. 58; Robinson's * 2 Phillipps on Evidence, 11, 12.
Case, 5 Rep. 32 b; Benz v. Hines, 3 ^ Blakey v. Newby, 6 Munf. 64.
Kan. 397; 89 Am. Dec. 594; Com. Dig., ^ Jones v. Blake, 2 Hill, 629.
tit. Estoppel, C; Lander v. Arno, 65 ^ Marshall v. Rough, 2 Bibb, 628.
Me. 26; Erwin v. Garner, 108 Ind. 488;
283 OF THE PERSONS AFFECTED BY JUDGMENT. § 156
mortgage by an action to which a widow is made a party
in her character of executrix and devisee does not affect
her claim for dower in the mortgaged premises;' neither
does a foreclosure against herself and other heirs of the
mortgagee (she not having joined in the mortgage), no
reference being made in the petition to her right to
dower.'^ In Missouri, a widow is not estopped from
claiming lands in her own right by the fact that dower
had been allotted to her in the same land,^ nor by the fact
that she was made a party to a suit for partition of the
lands and for the assignment of her dower therein, which
suit was prosecuted to judgment, and a decree entered
therein assigning her dower and ordering the land to be
sold.* These decisions, however, seem to be based upon
the idea that a widow can always be relieved from a
judgment made against her when she was ignorant of her
true rights, rather than upon the theory that her claims
in the different proceedings were by different rights and
in different capacities. A suit by the president of the
orphans' court, for the use of the assignee of the husband,
for the amount of the share of the wife is no bar to a re-
covery in the name of the same officer for the use of the
wife and her husband as her trustee.^ A judgment
against plaintiff, suing as the assignor of a non-negotiable
promissory note, without the privity of the assignee, after
the assignment was made, and notice thereof given the
debtor, is no bar to an action by the same assignor, for
the use of his assignee, especially if there is reason to be-
lieve that the former action was prosecuted in fraud of
the rights of the assignee.* The following are instances
of judgments against a party in one capacity not binding
on him in another: A father suing as administrator of his
minor son to recover for injuries sustained by such son
1 Lewis w. Smith, 11 Barb. 152; » Thompson w. Renoe, 12 Mo. 157.
Frost V. Koon, 30 N. Y, 428. * Crenshaw v. Creek, 52 Mo. 101.
2 I^Ioomey v. Maas, 22 Iowa, 380; 92 " Eshelmaa v. Shuman, 13 Pa. St.
Am. Dec. 395. See Benjamin v. El- 5G1.
miraR. R. Co., 49 Barb. 441, which « x)a,waon w. Coles, 16 Johns. 51.
contains expressions coTitra.
§ 156 OF THE PERSONS AFFECTED BY JUDGMENT. 284
is not affected by a judgment previously recovered by the
father for his damages resulting from the same injuries;*
a judgment against one as an administrator in one state
cannot affect him in another;^ judgment against a minor
daughter in an action brought by her father as her next
friend, for her seduction, is no bar to subsequent action by
the father in his own right to recover for the same seduc-
tion;' sheriff suing by virtue of a levy under a writ in
favor of A is not bound by a judgment recovered when he
was suing under a levy in favor of B;'* an action against
parties as heirs does not affect them as tenants;^ nor can
an action against one personally affect the interest of a
minor of whom he was guardian.®
Sometimes one of the parties is before the court in two
or more capacities, and the judgment binds him in both.
Thus if one is brought before the court as the trustee of
certain bond-holders, and, as such, a decree is entered
against him, he cannot relitigate the same matter on
the ground that he was himself a holder of some of the
bonds. If he was such holder, he is bound by the for-
mer decree, because as trustee in the former suit " he was
representing himself." ' Where a party against whom a
judgment is offered in evidence was plaintiff in the former
action, and there set forth the right in which he sued,
there can be no difficulty in determining w^iether or not
he is barred by such judgment, as there can be no doubt,
if the cause of action by which he seeks to recover in the
second suit is different from that which he alleged in the
first, that the former judgment is inadmissible in the pres-
ent action. Where a party has rights or claims property
in two or more capacities, and is made a defendant in
some action or proceeding, the pleading against him
should show that he is made defendant in each capacity,*
and failing to do so, the judgment will often bind him in
J Bradley «. Andrews, 51 Vt. 525. « Salter ». 'Salter, 80 Ga. 178; 12
« Coates V. Mackey, 56 Md. 416. Am. St. Rep. 249.
* Bartlett v. Kochel, 88 Ind. 425; " Corcoron v. Chesapeake Canal Co.,
McBurnie v. Seaton, 111 Ind. 56. 94 U. S. 741.
* Stoops V. Woods, 45 Cal. 4.S9. ^ INIauigault v. Holmes, 1 Bail. Eq.
' Barrett v. Choen, 119 Ind. 56. 283.
285 OF THE PERSONS AFFECTED BY JUDGMENT. § 156
one capacity only, though he might have been bound in
both by appropriate pleadings. Thus one who is a party,
in his capacity as heir, to a proceeding by an administra-
tor for the sale of lands is not precluded from afterwards
enforcing a lien held by him as vendor.* If one is made
a defendant in an official capacity, the judgment will not
bind him personally, and if made a defendant personally,
it will not bind him officially. Hence a judgment fore-
closing a mortgage in an action against an executrix can-
not prevent her from showing that she has a homestead
in the property not subject to the mortgage, though in the
former action she pleaded the homestead in her capacity
of executrix;^ and a judgment in an action against one, in
which the capacity in which he is sued is not shown, does
not affect title held by him as assignee in insolvency.* If
a woman is a party to an attachment proceeding, and by a
general bill all the attachment suits are brought into
chancery and a particular lot directed to be sold, and no
issue respecting the title to it is made up, she is not es-
topped from showing that the lot belonged to her, and not
to the defendant in attachment.* If a married woman
executes a mortgage in which her husband does not join,
and he is made a party in a suit to foreclose it, in which
judgment of foreclosure is subsequently rendered, it will
not estop him from asserting that the property mortgaged
did not belong to his wife as her separate estate, but, on
the contrary, was community property.^ But where an
executor, being interested also as a creditor and surety of
his testator, filed a bill in equity, praying that certain
lands claimed under a deed of gift from the testator be
subjected to the payment of his debts, and also praying
for directions as to the execution of his trust, it was held
that the decree disposing of such bill bound the executor
in all the capacities in which he was interested.*
J Lord V Wilcox, 99 Ind. 491. ■• Lorance v. Piatt, 67 Miss. 183,
2 Stockton B.&L.Ass'n v. Clialmera, * McComb v. Spangler, 71 Cal.
75 Cal. 832; 7 Am. St. Rep. 173. 418.
3 Landou v. Towushend, 112 N. Y. * Jenkins v. Nolan, 79 Ga, 295.
93; 8 Am. St. Kep. 712.
§ 157 OP THE PERSONS AFFECTED BY JUDGMENT. 286
§ 157. Numerous Parties. — The general rule that no
person can be treated as a party to a judgment who was
not also a party to the action is subject to some excep-
tions. If a suit is brought by A, for himself and others
not named, alleging that they are a large number of per-
sons interested under a deed with himself as purchasers
for a valuable consideration, and that they are so numer-
ous that it is impracticable to bring them all before the
court, the decree subsequently rendered in the suit can
be used for the benefit of any of the unnamed parties.^
An insolvent partnership made an assignment of its effects
for the benefit of creditors. One of these creditors brought
an action in his own behalf and that of others who should
come in and claim the benefit thereof, against the as-
signees for an accounting and distribution of the funds
in their hands. In this action a referee was appointed,
with power to take and state the account of the assignees,
and to report the amount due such creditors as should
come in under the order and seek the benefit of the ac-
tion. Notice to the creditors was given by a publication
made by authority of the court, and requesting them to
come in and exhibit their demands. In pursuance of
such notice, creditors came in and exhibited their de-
mands, an account was taken with the assignees, the ref-
eree's report was confirmed by the court, and the funds
in the hands of the assignees were distributed accordingly.
These proceedings were said to "have been sanctioned as
indispensable to the distribution of trust funds and the
settlement of trust estates in courts of equity"; and the
decree of distribution was held to be binding upon all
the creditors of the assignors, whether they knew of the
proceedings or not, "just as if they had been parties to it,
and their claim had been denied and defeated, unless
they can assail or attack it for fraud, and claim its abso-
lute nullity as to them on that account."^ A trust com-
1 Hurlbutt V. Butenop, 27 Cal. 50; » Kerr?». Blodgett, 48 N. Y. 66. See
Carpenter v. Canal Co., 35 Ohio St. also Thompsou v. Brown, 4 Johns. Ch.
307. 619; Wilder v. Keeler, 3 Paige, 164;
287 OF THE PERSONS AFFECTED BY JUDGMENT. § 157
pany having been proceeded against as an insolvent
corporation, at the instance of a public oflficer, a receiver
was appointed, who was ordered to take possession of the
property of the company and administer it according to
the law, subject to the further order and direction of the
court. He took possession of the property and began to
administer it, and for the purpose of obtaining the direc-
tion of the court in respect to such administration, he
presented a petition alleging that all the creditors of the
company had been ordered to present and prove their
claims; that the larger number of them had complied with
the order; that he had reason to believe that the rest of
them would do so; that some of the creditors claimed
preference, while others did not, and insisted that no
preference be allowed; and he prayed for an order pre-
scribing in what manner payment and distribution should
be made of the funds realized by him as such receiver.
Notice of the hearing of his petition was given to all per-
sons interested, by the publication of the petition and the
order of notice for three successive weeks in a newspaper,
and service of such petition was also accepted by the
chairman of the depositors' committee. At the hearing,
counsel appeared and represented the general creditors,
and other counsel for the creditors who claimed a prefer-
ence, and a decree M^as entered that all the depositors who
had proved or should thereafter prove their claims should
stand upon terms of perfect equality. Some of the de-
positors who claimed a preference appealed from this
decree, but the judgment was affirmed by the appellate
court. Afterwards, other depositors appeared and claimed
a preference notwithstanding the former decree, and in-
sisted that they were not bound by it, because not parties
thereto and not represented in any of the proceedings at
or preceding the entry of such decree. The court, in
23 Am. Dec. 781; Egberts v. Wood, 3 L'Amourcux, 11 Barb. Slfi; Dewey ».
Paige, 518; 24 Am. Dec. 230; Brooks St. Albaus T. Co., CO Vt. 1; (5 Am, St.
V. Gibbous, 4 Paige, 374; McKenzie v. Rep. 84.
§ 157 OF THE PERSONS AFFECTED BY JUDGMENT. 283
affirming the binding obligation of the decree as against
all the depositors, whether represented or not, said: "Al-
though the general rule in equity is, that all persons hav-
ing an interest in the subject-matter in litigation should
be before the court, to the end that complete justice may
be done and future litigation prevented, yet there is of
necessity an exception to this rule when a failure of jus-
tice would ensue from its enforcement. It is said that
the want of parties does not affect the jurisdiction, but
addresses itself to the policy of the court; that the rule
was made by the court for the promotion of justice, and
may be modified by it for the same purpose, and is always
more or less a matter of discretion, depending on conve-
nience: Stimson v. Lewis, 36 Vt. 91. Cases in w^hich the
parties in interest are so numerous as to make it imprac-
ticable or greatly inconvenient and expensive to bring
them all before the court form an exception to the rule.
And this exception applies to defendants as well as to
plaintiffs. Take the case of a voluntary association of
many persons. It is sufficient in a suit against them that
such a number be made defendants as will fairly repre-
sent the interests of all standing in like character and
responsibility.'" While it is a general rule that cestuis
que trust must be made parties, to bar their equitable in-
terests, it is well settled that they need not be, if very
numerous.^ Where real estate was vested in trustees, for
the use of two hundred and fifty subscribers, it was held
to be unnecessary to make others than the trustees par-
ties to the foreclosure of a mortgage.' A similar decision
was made, where the trustee for the holder of three hun-
dred and twenty railroad bonds w^as sued for the purpose
of foreclosing a prior mortgage.* But it seems to be cer-
tain that the courts dislike to proceed in the absence of
1 Dewey v. St. Albans T, Co., 60 * Vaa Vechten r. Terry, 2 Johns.
Vt. 1; 6 Am. St. Rep. 84. Ch. 197.
2 Shawv. R. R. Co., 5 Gray, 170; W^il- * Board of S. v. M. P. R. R. Co., 24
link V. Canal Co., 4 N. J. Eq. 377; N. J. Wis. 127.
Frauklinite Co. v. Ames, 1 Beas. 507.
"289 OP THE PERSONS AFFECTED BY JUDGMENT. § 158
any of the parties in interest, and that they will only fail
to order all parties to be brought before them in extreme
cases, where the difficulty of proceeding would otherwise
be very great.^
§ 158. Adversary Parties. — Parties to a judgment are
not bound by it, in a subsequent controversy between each
other, unless they were adversary parties in the original
action.^ If A recovers judgment against B and C upon a
contract, which judgment is paid b}^ B, the liability of C
to B, in a subsequent action for contribution, is still an
open question, because as to it no issue was made or tried
in the former suit.^ As between the several defendants
therein, a joint judgment establishes nothing but their
joint liability to the plaintiff. Which of the defendants
should pay the entire debt, or what proportion each should
pay, in case each is partly liable, is still unadjudicated;*
but a judgment against two joint debtors prevents either,
in a suit with the other, from denying the existence and
obligation of the debt, though he may still prove, by any
competent evidence in his power, that the whole burden
of the obligation should be borne by the other.® One of
several plaintiffs is not prevented, by a judgment, from
showing, when called upon by his co-plaintiffs to contrib-
ute his proportion of the expenses incurred, that he had
no knowledge of the institution of the suit.* It is the
constant practice of courts of equity to decree between
co-defendants upon proper proofs, and under pleadings
between plaintiffs and defendants, which bring the re-
spective claims and rights of such co-defendants between
themselves under judicial cognizance. But the language
of a decree in chancery must be construed in reference to
1 Doorly V. Higgina, 9 Hare, 32. « Biiffington v. Cook, 35 Ala. 312; 73
2 McMahan v. Geiger, 73 Mo. 145; Am. Dec. 491; McCrory v. Parks, 18
39 Am. Rep. 489; Dent v. King, 1 Ga. Ohio St. 1.
200; 44 Am. Dec. 638; Harvey v. Os- * Adm'r of Cox v. Hill, 3 Oliio, 412;
born, 55 Ind. 535; Montgomery v. Duncan v. Holcnmb, 2(j Ind. 378.
Road, 34 Kan. 122; Walters v. Wood, * Lloyd v. Barr, 11 Pa. St. 41.
61 Iowa, 290; Pdce v. Cutler, 17 Wis. * Wilson v. Mower, 6 Maaa. 407.
351; 84 Am. Dec. 747.
JUDQ. I. — 19
§ 158 OF THE PERSONS AFFECTED BY JUDGMENT. 21K)
the issue which is put forward by the prayer for relief
and other pleadings, and which these show it was meant to
decide. Hence though the language of the decree be very
broad and emphatic, — enough so, perhaps, when taken
in the abstract merely, to include the decision of ques-
tions between co-defendants,— yet where the j^leadings,
including the prayer for relief, are not framed in such
a way as to bring their rights before the court, or are
framed with a view to litigate the rights of defendant and
plaintiff between each other only, such general language
will be held to apply between plaintiff and defendant only, i
and not between co-defendants.^ A decree on a bill in
equity, filed by the executor of a will, against the residuary
legatees, to determine their distributive shares, fixing the
amount of the advancement to a legatee and the amount
of his distributive share, is conclusive evidence of such
amount in a suit for partition of real estate devised to the
legatees by the same will.^ In cases like this it is evident
that the several persons joined as defendants are adver-
sary parties. The only issues framed in the case are in
respect to their relative claims under the same instrument.
The plaintiff, though nominally a party, is indifferent to
the result. As the entire contest must be made by de-
fendants against each other, their position is such as to
make the decree conclusive upon them whenever the same
questions shall again be involved. Wherever the rules of
practice permit defendants to make issues among them-
selves, and to have such issues determined and relief
granted thereupon, they become adversary parties upon
interposing pleadings setting forth their conflicting inter-
ests and calling for the granting of appropriate relief; and
a judgment or decree determining such interests and
granting or denying such relief is as conclusive upon
1 Graham v. R. R. Co., 3 Wall. 704; defendants, not there in issue, is to
Gardner v. Raisbeck, 28 N. J. Eq. 71. that extent void: Jones v. Vert, 121
And a decree in a foreclosure suit, lud. 140; 16 Am. !St. Rep. 379.
purporting to settle the righta of co- » Torrey v. Pond, 102 Mass. 355.
291 OF THE PERSONS AFFECTED BY JUDGMENT. § 159
them as if they had been plaintiff and defendant instead
of co-defendants/
§ 159. Parties must be Mutually Bound. — No party is,
as a general rule, bound in a subsequent proceeding by a
judgment, unless the adverse party now seeking to secure
the benefit of the former adjudication would have been
prejudiced by it if it had been determined the other way.^
" The operation of estoppels must be mutual. Both the
litigants must be alike concluded, or the proceedings can-
not be set up as conclusive upon either." ^ " It is essential
to an estoppel that it be mutual, so that the same parties
or privies may both be bound and take advantage of it."*
*' Nobody can take benefit by a verdict, that had not been
prejudiced by it had it gone contrary."^ A verdict and
judgment in favor of a trespasser is not conclusive evi-
dence in favor of a co-trespasser, in an action by the
same plaintiff.^ A judgment against the indorser is not
evidence for him in an action against the maker.^ A
judgment against the tenant, in a writ of entry brought
by an heir, at the expense of the co-heirs, to try title, can-
not be taken advantage of by another of the heirs, in a
suit against the tenants for mesne profits.^ A party to a
divorce suit, in which the bill was dismissed, cannot use
the decree of dismissal, or any of the findings of the court
1 Harmon v. Auditor. 123 111. 122; 5 » 1 Greenl. Ev., sec. 524; Manigaiilt
Am St. Rep. 502; Devin w. Ottumwa, v. Deas, 1 Bail. Eq. 28:^; Burgess v.
53 Iowa 461; Leavitt v. Wolcott, 95 Lane, 3 Greenl. 165; Griswold i;. JUck-
N Y 212- Goldschmidt v. County of son, 2 Edw. Ch. 461; Simpson v. Pear-
Nobles, 37 Minn. 49; Parkhurst v. son, 31 Ind. 1; 99 Am Dec. 5,7;
Berdell, 110 N. Y. 386; 6 Am. St. Rep. Huntington «• Jewett 25 Iowa 249;
3g^ 95 Am. Dec. 788; Bradford v. Bradford,
^'Redmond v. Coffin, 2 Dev. Eq. 443; 5 Conn. 127; Edwards iMNIcCurdy, 13
Wood V. Davis, 7 Crancli, 271; Simp- 111. 49G; Hams r. Plant & Ui., 21 Ala.
son V. Jones, 2 Sneed, 36; Bell v. W.l- 639; Wright r. Hazen 24 Vt 143.
son 52 Ark. 173; Nowack v. Knigiit, * Petrie v. Nuttall, 11 Ex. 569.
44 Minn 241; Densmore w. Tomer, 14 * Gilbert on Evidence, 28; cited m
N^b. 392; Lord V.Locke, 62 N. H. 566; Wenman v. MacKeuzie, 5 El. & B.
Henry V.' Woods, 77 Mo. 277; Cotl.rea 447. ,„ t>- , Ar^n
V Olmsted, 57 Conn. 329; Geekie v. '' Sprague v. Oakes, 19 Pick. 455.
Kirl>y C Co., 106 U. S. 379; Burdick ' Fenn v. Dr.gdale, 31 Mo. 580;
V Norwich, 49 Conn. 225; Shulze's Brooklyn v. Bank of Republic, 11
Appeal 1 Pa. St. 251; 44 Am. Dec. Cent. L. J. 3.30.
12u- Furgeson v. Jouea, 17 Or. 204. * Allen v. Carter, 8 Pick. 175.
§ 159 OF THE PERSONS AFFECTED BY JUDGMENT. 292
or jury, in a controversy between himself and a third
party, for the purpose of establishing any of the facts
asserted by such decree or finding. Thus if, in an appli-
cation by a husband for divorce, on the ground of
adultery, the jury find the allegations of plaintiff to be
true, and also find that he has been guilty of a similar
offense, and his bill is on that account dismissed, he
cannot, on being sued for necessaries furnished his wife,
defend himself by the finding of the jury in respect to her
adultery.' Neither is the dismissal of a bill of a wife for
divorce, on the ground of extreme cruelty, conclusive evi-
dence, in an action by a third person against the husband
for necessaries, that the wife left him without sufficient
justification.^ A judgment in favor of one creditor, declar-
ing a conveyance void as against creditors, is not evidence
in a suit by another creditor, for he would not have been
concluded if the first suit had terminated differently.* A
conviction upon an indictment is not usually admissible
as evidence in any civil action, because the parties in the
civil suit are not generally parties to, nor mutually bound
by, the criminal prosecution. But if a bond is given to
the state that a party will abstain from committing some
unlawful act, a subsequent indictment of the principal,
and his conviction thereunder, are, in a civil suit by the
state on the bond, conclusive evidence against the princi-
pal and prima facie evidence against the surety.^
Notwithstanding the self-evident justice and propriety
of the rule that estoppels must be mutual, and that no man
shall bind another by an adjudication which he is himself
at liberty to disregard, instances are not rare where the rule
has been denied or overlooked by courts and judges whose
decisions are entitled to great respect. Lord Kenyon ad-
mitted the record of a former action, in which the defend-
ants in the suit before him were adversary parties, but
'Needbamv. Brenner, 12 Jur.,N.S., » Winston v. Starke, 12 Gratt
434; 14 Week. Rep. 694. 317.
* Burlen v. Shaunon, 3 Gray, 387. * Webbs v. State, 4 Cold. 199.
293 OF THE PEESOXS AFFECTED BY JUDGMENT. § 159
with whicli the plaintiff was in no wa}^ connected, for the
purpose of proving that the defendants were partners.
His lordship justified his ruling, on the ground that one
of the defendants, who had denied the partnership in both
actions, had a full opportunity to sustain his denial in the
former action, by every means of proof which he could
now employ.* In a case in New York, one of two heirs or
devisees having brought an action against an executor,
and obtained a decree establishing the interests of both,
the court held that though the other heir or devisee
might, if he thought proper, set up claims at variance
with the decree, yet if he elected to claim the benefit of it,
all its adjudications of rights and all its settlement of
principles were conclusive in his favor against the execu-
tor.^ Recently, it has been held, in Maine, that a written
verdict of a jury finding a person to be the original prom-
isor of a note instead of the indorser, as he claimed to be,
is conclusive against him in a litigation with any other
party to the note.^ In the circuit court of the United
States a decision was made to the effect that a defendant
who, after making his defense, is compelled by the court
to pay a sum of money to plaintiff, belonging to another,
will be protected from a suit by the riglitful owner,* be-
cause, — 1. The equities are equal, it being no greater a
hardship for one man to lose his property, than for an-
other to pay a debt twice; 2. That the lis pendens of the
former suit, being notice to the whole world, the rightful
owner was negligent in not making his title known; 3.
The right of the true owner to recover his property re-
mains unchanged, but the person of whom he should
recover it is he into whose possession it has passed by
direction of a competent judicial tribunal, and from whom
a recovery could be had, as in the cases of Le Chevalier v.
Lynch, Doug. 170, and Phillips v. Hunter, 2 H. Black. 402.
1 Whately v. Menheim, 2 E«p. 608. » Stiirtevant v. Randall, 53 Me. 149.
2 O'Brien v. Heeuey, 2 Edw. t'h. * Mayer v. Foulkrod, 4 Waah. 0. C.
246. 503.
§ 160 OF THE PERSONS AFFECTED BY JUDGMENT. 294
A husband and wife having, in an action between them,
litigated the right to moneys which she had drawn from
a bank, the judgment in her favor was held to be conclu-
sive evidence against the husband in favor of the bank, in
an action brought by him against it to recover the same
moneys.' The fact that a party relying upon a judgment
as a conclusive adjudication in his favor was not named
in the record of the former action is not conclusive against
him.
There are various circumstances, as we shall hereafter
show, in which a party not named in an action may be
bound by the judgment therein; and as a general rule,
where he would have been bound had the decision been
against his interests, he is entitled to the benefit of the
judgment if it results in his favor. But it has been held
that before he can invoke the protection of this rule he
must show that he participated in the former action for
the defense of his own interests, and with the knowledge
of the adverse litigant therein.^
§ 160. Suit not Including All Former Parties. — A
diversity of opinion exists in reference to the effect of a
judgment or decree, in a subsequent action, in which
some, but not all, of the adversary parties to such judg-
ment or decree are litigants. Parke, B., in the course of
the argument before him in Christy v. Tancred, 9 Mees. &
W. 438, said: " There is no authority that a judgment
against A and B jointly is evidence in an action against
A alone, because it may have proceeded on an admission
of B, which might or might not be evidence against A,
according to circumstances." On the other hand, it is
stated, with the utmost confidence, that a judgment in the
case of A \. B and C will be allowed to be set up as an
estoppel in a suit between A and B, and that this furnishes
an exception to the general rule that the judgment must
' Glaze V. Citizens' N. B., 116 lad. ■■« Cannon R. Mfg. Ass'n v. Rosters,
492. 42 Miun. 123j 18 Am. St. Rep. 497.
295 OF THE PERSONS AFFECTED BY JUDGMENT. §101
have been between the same parties.' This exception
seems to be consistent with the general rule. It violates
none of the principles usually applied to estoppels; but^
on the contrary, is supported by those principles and the
considerations of public policy on which they are based.
The former adjudication ought not to be any less conclu-
sive on the adverse parties, A and B, because other persons
shared with them the advantages and disadvantages of
the former suit. The matter could have been as efficiently
litigated as though A and B were the sole parties in inter-
est; and the opportunity for the settlement of their con-
troversy having been so given, there is no reason why
it should be reopened.
§161. Between Additional Parties. — A difference of
opinion is also manifest in relation to the effect of a judg-
ment in a subsequent action in which other persons as
well as the parties to the judgment are litigants. Accord-
ing to the opinion given in 2 Smith's Leading Cases, 683,
"a judgment against a co-contractor, co-obligor, or co-
partner will not be evidence, where another is joined."
This seems, in most cases, to be perfectly reasonable;
otherwise the party now joined will either be benefited
by a decision which could not have prejudiced him if it
had gone the other way, or bound by an adjudication
wdiich he had no opportunity to resist. If, however, in the
second action there are additional nominal parties having
no interests to be affected by it, their presence will not
prevent the former judgment from operating as an estop-
pel.'^ It has been held that a judgment in favor of A is
admissible evidence in a subsequent controversy involving
the same questions, and in which A and B are phiintiffs,
though B, then being disinterested, was a witness at the
' Lawrence v. Hunt, 10 Wend. 80; 243; Larum v. Wiliner, ?<^ Iowa, 244;
25 Am. Dee. 539; Ehle v. Bingham, 7 Russell v. Farqiiliar, .55 Tex. 355;
Barb. 404; Dovvs v. McMicliael, 6 Wilson v. Buell, 1 17 Ind. 315.
Paige, 139; Thompson v. Roberts, 24 ^ H;,„na w. Read, 102 111. 59G; 40
How. 233; Davenport v. Barm'tt, 51 Am. Rep. COS.
lud. 329; Girardiu v. Dean, 49 Tex,
§ 162 OF THE PERSONS AFFECTED BY JUDGMENT. 296
former trial.' If an action is brought against a portion of
several joint promisors, and they, waiving the non-joinder
of the others, proceed to trial, and recover on the merits,
the judgment is admissible in favor of the defendants in
a future action against all the promisors on the same
promise.'^ In this instance it happens that persons not
bound by a former suit are entitled to avail themselves of
its benefits, because their liability cannot, against their
objection, continue after that of their co-contractors has
ceased, and because the defendants in the former suit
must either be deprived of the fruits of their litigation, or
those fruits must also be given to persons who were not
parties to the suit. Besides, if the plaintiff established
his cause of action against the joint promisors sued, he
could not, under the operation of the law of merger, re-
cover against any other of the promisors. To deny the
effect of the judgment as an estoppel in a future action
against all the promisors would place him in a better
position than if the judgment had been in his favor. For
the reason that a joint debt cannot be severed, it may
happen that a party is not prejudiced by a judgment by
which he would otherwise be bound. Thus where, in an
action against A, a town, being summoned as trustee,
answered that it owed A and B, and judgment was there-
upon entered up against it for the amount, it was held
this judgment cannot defeat a subsequent action by A and
B for the same amount.*
Part II. — OF PRIVIES.
§162. Privies. — ''Where one claims in privity with
another, whether by blood, estate, or law, he is in the
same situation with such person as to any judgment for
or against him; for judgments bind privies as well as par-
ties."* "The term 'privity' denotes mutual or successive
' Blakemore v. Canal Co., 2 Cromp. ^ Hawes v. WaUham, 18 Pick. 451.
M. & R. 133. ♦ Woo.ls V. Montevallo C. & T. Co.,
» French v. Neal, 24 Pick. 55. 84 Ala. 500; 5 Am. St. Rep. 393.
297 OF THE PERSONS AFFECTED BY JUDGMENT. § 162
relationship to the same rights of property."^ This rela-
tionship is produced either by operation of law, by descent,
or by voluntary or involuntary transfers from one person
to another. Hence privies have, from an early period in
the history of the common law, been classified as, —
Privies in law, as lords by escheat, tenant by curtesy,
tenant in dower, executor or administrator, the incumbent
of a benefice, and all others that come in by act of the
law;
Privies in blood, as heirs and coparceners;
Privies in estate, as where there is a mutual or succes-
sive relationship to rights of property not occasioned by
descent nor by act of law.^
Neither this nor any other classification of privies is
of any considerable importance in considering the opera-
tion of judgments. All privies are in effect, if not in
name, privies in estate. They are bound because they
have succeeded to some estate or interest which was
bound in the hands of its former owner; and the extent
of the estoppel, so far as the privy is concerned, is limited
to controversies aff'ecting this estate or interest. The
manner in which the estate was lawfully accj^uired neither
limits nor extends the operation of the estoppel created
by a former adjudication, and is therefore immaterial.
It is well understood, though not usually stated in express
terms in works upon the subject, that no one is privy to
.a judgment whose succession to the rights of property
thereby afi"ected occurred previously to the institution of
the suit. A tenant in possession prior to the commence-
ment of an action of ejectment cannot therefore be law-
fully dispossessed by the judgment, unless made a party
to the suit.^ The assignee of a note is not aff'ected by
1 Greenl. Ev., sec. 189. A privy is wliich he includes executors and ad-
one holding under a party litiuant and niinistrators.
deriving title subsequent to the com- =" Sampson v. Ohleyer, 22 Cal. 200;
mencementof the suit: Hunt r. Haven, Ex parte Reynolds, 1 Caines, 500;
52 N. H. 162. Goerges i. Hufschtnidt, 44 Mo. 17!);
~*2 Co. Lit. 352b; 2PhillippsonEvi. Garrison r. Savignac, 25 Mo. 47; 69
dence, 13, 14. Mr. Greenle;if adds the Am. Dec. 448.
class privies by represeutatioa, in
§ 1G2 OF THE PERSONS. AFFECTED BY JUDGMENT. 298
any litigation in reference to it beginning after the as-
signment.' No grantee can be bound by any judgment
in an action commenced against bis grantor subsequent
to the grant; otherwise a man having no interest in prop-
erty could defeat the estate of the true owner.^ Nor will
the fact that a grantee's conveyance is not recorded bind
him by a judgment against his grantor, in an action
commenced after the execution of the grant, unless the
statute expressly gives the judgment that effect.^ The
foreclosure of a mortgage, or of an}'' other lien, is wholly
inoperative upon the rights of any person not a party to
the suit, whether such person is a grantee,* judgment
creditor,^ attachment creditor,^ or other lien-holder/ A
judgment of freedom in favor of a woman does not estab-
lish the status of her children previously born. The right
of property in the children, if vested in some person at
their birth, could not be divested by any proceeding to
which he was not a party .^ It is essential to privity, as
the term is here used, that one person should have suc-
ceeded to an estate or interest formerly held by another.
He who has so succeeded is in privity with him from
whom he succeeded, and all the estate or interest which
he has acquired is bound by judgment recovered against
his predecessor while he held such estate or interest.^ On
tlie other hand, except to the extent which one person
has succeeded to an estate or interest formerly held by
another, there can be no privity between them, no matter
' Powers V. Heath's Adni'r, !20 Mo. '' Smith v. Claimants, 4 Nev. 254; 97
319. Am. Dec. 531.
^ Wiiislow V. Grindal, 2 Greenl. 64; ^ Blooilgnod v. Grasey, 31 Ala. 575;
Marshall v. Groom, 60 Ala. 121; Cook Davis v. Wood, 7 Orauch, 271.
V. Parham, 63 Ala. 456; Hume v. ' Webster w. Maim, 56 Tex. 119; 42
Franzen, 73 Iowa, 25; Coles v. Allen, Am. Rep. 688; Soward v. Coppage, 9
64 Ala., 98; Bartero v. Real E. S. B., S. W. Rep 389 (Sup. Ct. Ky.); Stout-
10 Mo. App. 76. more v. Clark, 70 Mo. 471; Adams Co.
* Vose V. Morton, 4 Cush. 27; 50 v. Graves, 75 Iowa, 642; Hair t;. Wood,
Am. Dec. 750; Wiudom v. Schuppel, 58 Tex. 77; Winston v. Westfeklt,
39 Minn. 36. 22 Ala. 760; 58 Am. Dec. 278; Lips-
* Brush V. Fowler, 36 111. 58; 85 Am. comb v. Postell, 38 Miss. 476; 77 Am.
Dec. 382. Dec. 651; Shattuck v. Bascom, 105
* Brainard w. Cooper, 10 N. Y. 356. N. Y. 39; Pray v. Hegemau, 98 N. Y.
® Lyon V. Santord, 5 Conn. 514. 351.
299 OF THE PERSONS AFFECTfilp BY JUDGMENT. § 163
what were or are their relations to each other or to the
same piece of property. Therefore while a mortgagee is
in privity with a mortgagor as to all that happened before
the execution of the mortgage, he is not in privity with
respect to anything happening afterwards.^ The fact that
parties are jointly liable, or are joint owners of property,
or are otherwise associated in business, does not place
them in j)rivity with each other, except in so far as one
may have succeeded to the interest of the other. Hence
there is no privity between the maker, indorser, and ac-
ceptor of a note,^- nor between the surviving member of a
partnership and the heirs of a deceased partner.' Kin-
ship, whether by affinity or consanguinity, does not create
privity, except where it results in the descent of an estate
from one to another. Therefore there is no privity be-
tween husband and wdfe, or parent and child, or other
relatives, when neither of them has succeeded to an estate
or interest in property formerly held bv the other.
§ ]63. Administrators and Executors. — A judgment
against an administrator is binding on the creditors and
legatees of the estate.* If in an action by an administra-
tor against the widow for property claimed as assets of the
estate she recover, the judgment in her favor is, in the
absence of fraud, conclusive on the creditors.^ A decree
against an executor is binding on an administrator de
bonis non,^ according to some of the authorities; but the
'preponderance of the decisions on the subject is to the
effect that there is no privity between an executor or ad-
ministrator and an administrator de bonis non, and that
1 Cook V. Parham, 63 Ala. 456; Redmond v. Coffin, 2 Dev. Eq. 437;
Shattuck V. Bascom, 105 N. Y. 39. Hooper v. Hooper, 32 W. Va. 526;
2 Jordan V. Ford, 7 Ark. 416; Crabb Bell v. Bell, 25 S. C. 14i); Stone v.
V. Larkin, 9 Bush, 154; Wells ?-. Coyle, Wood, 16 111. 177; Castdlaw v. Guil-
20 La. Ann. 396; Feiin v. Diigdale, 31 martin, 54 Ga. 299; but a judgment in
Mo. 580; Leslie v. Bonte, 22 N. E. an action between the adniinistrator
Eep. 594 (111.). and heirs does not bind the legatees
^ Trustees v. Laurence, 11 Paige, 80; not parties: Valsaiu r. Cloutier, 3 La.
Stur^es I'. Beach, 1 Conn. 507; Moore's 170; 22 Am. Dec. 179; Shepnian v.
Appeals, 34 Pa. St. 411; Buckingham Rollin.s, 98 N. Y. 311.
V. Lu<llum, 37 N. J. Ef]. 137. M'ickens?\ Yarborongh. .30 Ala. 408.
* Mouldiug V. Gosse'tt, 15 S. C. 565; * Mauigault v. JJeas, 1 Bail. Eq. 283.
§ 163 OF THE PERSONSft-AFFECTED BY JUDGMENT. 800
a judgment against one is not evidence against the other/
and that the recovery of judgment by an- administrator is,
after his death, no bar to an action by his successor." If
letters of administration are granted in different states to
different persons, there is no privity between such admin-
istrators. A judgment obtained against one will furnish
no cause of action against the other to affect assets in the
hands of the latter.^ And the converse of this proposition
is true; for a judgment obtained by one of the administra-
tors cannot be asserted as a cause of action by the other.*
Where there is a will, and an executor thereof, or an
administrator with the will annexed, in another jurisdic-
tion, there is said to be privity between them. " Between
executors of the same decedent in different jurisdictions
there is a privity derived from or through the will of the
testator, and a judgment or decree against either is evi-
dence against the other, and may be enforced against
each, and is sufficient to ground a suit or action against
either executor. An administrator with the will annexed
is, in legal- contemplation, executor of the will, and a de-
cree against a domiciliary executor binds every executor
of the same will in every jurisdiction."^ The authority
cited in support of the language just quoted does not,
however, support it, except to the extent of affirming that
there is a privity between different executors of the same
decedent, not existing between his diff'erent administra-
tors. " Notwithstanding the privity that there is between
executors to a testator, we do not think that a judgment
obtained against one of several executors would be conclu-
sive as to the demand against another executor, qualified
1 Thomas v. 8tearns, 33 Ala. 137; 'McLean v. Meek, IS How. 16; Stacy
Rogers v Grannis, 20 Ala. 247; Weii- v. Thrasher, 6 How. 44; Brodie v.
rick V. McMiinlo, 5 Rand. 51; Graves Bickley, 2 Rawle, 431; Ela v. Edwards,
V. Flowers, 51 Ala. 402; 23 Am. Rep. 13 Allen, 4S; 90 Am. Dec. 174; Merrill
555; Martin v. Ellerbe, 70 Ala. .3-26; ?\ N. E. Ins. Co., 103 Mass. 245; 4 Am.
Alsop V. Aiather, 8 Conn. 5S4; 21 Am. Rep. 548; Jones v. Jones, 15 Tex. 463;
Dec. 70.3. 65 Am. Dec. 174.
^ Note 259 to Phillipps on Evidence, * Story on Conflict of Laws, sec. 522;
by C, H , & E. ; Grout v. Chamberlain, Rosenthal v. Renick, 44 111. 207.
4 Mass. 611; Allen v. Irwin, 1 Serg. & R. " Garland v. Garland, 84 Va. 189.
649; Barnehurst v. Yelverton, Yelv. 83.
801 OF THE PERSONS AFFECTED BY JUDGMENT. § 163
in a different state from that in which the judgment was
rendered. But such a judgment may be admissible in
evidence against an executor in another jurisdiction, for
the purpose of showing that the demand had been carried
into judgment in another jurisdiction against one of the
testator's executors, and that the others were precluded
from pleading prescription or the statute of limitations
upon the original cause of action." ^ Between the real
and personal representatives of a deceased person there is
no privity. Hence a judgment against an administrator
or executor is never conclusive against the heirs or devi-
sees,^ and a judgment for or against an heir or devisee
has no effect upon an administrator or executor.^ A de-
cree against an executor is not binding on the heir, "be-
cause he is not a party to the suit, cannot offer testimony,
adduce evidence in opposition to the claim, nor appeal
from the judgment." * The allowance of a claim against
an estate by the administrator and the probate judge has
the same effect as a judgment. But as the heirs are not
bound by a judgment against the administrator, they are
at liberty to dispute any claim so allowed, because the
allowance has no higher effect than a judgment. If the
allowed claims are made the basis on which to obtain an
order to sell the real estate, the heirs are not precluded
from contesting them as freely as though they had ac-
quired none of the properties of a judgment; for as to the
heirs, they are not yet res judicata.^ When a judgment or
quasi judgment has been recovered against an adminis-
' Hill V. Tucker, 13 How. 467. good v. Manhattan Co., 3 Cow. 612;
» 2 McCoy V. Nichols, 4 How. (Miss.) 15 Am. Dec. 304; Teas:ae v. Corbett,
31; Cowen, Hill, ami Edwards's note 57 Ala. 529; Starke v. Wilson, 65 Ala.
259 to Phillipps on Evidence; Vernon 576; Sharp v. Freeman, 45 N. Y. 802,
V. Valk, 2 Hill Eq. 257; Collinsoii v. Swiggart v. Harber, 4 Scam. 364; 39
Owens, 6 Gill & J. 4; Robertson v. Am. Dec. 418.
Wright, 17 Gratt. 5.34; Early v. Gar- ^ Dorr v. Stockdale, 19 Iowa, 269;
land, 13 Gratt. 1; Hudgin v. Hiidgin, Douglass i'. McCarer, 80 Ind. 91.
6 Gratt. .320; 52 Am. Dec. 124; Birely'a * Garnett v. Macon, 6 Call, 308.
ExVa V. Staley, 5 Gill & J. 432; 25 ^ Beckett v. Selover, 7 Cal. 215; 68
Am. Dec. 303; Hardaway v. Drum- Am. Dec. 237; Estate of Hidden, 23
mond, 27 Ga. 221; 73 Am. Dec. 730; Cal. 362; Stone v. Wood, 16 111.
Ford V. Heuaessey, 70 Mo. 580; Os- 177.
§ 163 OF THE PERSONS AFFECTED BY JUDGMENT. 302
trator or executor, and proceedings are taken to compel
its payment by the sale of real estate, the majority of the
authorities seem to treat it as prima facie evidence of the
claim, and to require the heir to assume the burden of
showing it to be unjust,^ while the minority insist that
it is not admissible against the heirs, and that those hold-
ing such judgment must establish their demand as though
no prior recovery or allowance thereof had been had.^ If
the heir is also executor or administrator, he represents
in his two capacities the interests of one and the same
person, and has full opportunity, in a suit against liim-
self as the personal representative, to protect his rights
as successor to the realty. There is no reason why one so
situated should have the right to be twice heard upon
the same controversy; and a judgment against him as
administrator, establishing a claim against the estate,
should conclude him as heir.* The courts of West Vir-
ginia, however, regard the circumstance that the admin-
istrator is also tlie heir as accidental and immaterial, and
deny that a judgment against him as administrator is
evidence against him as heir.'* Where a judgment against
an administrator is not binding upon the heir, it cannot
deprive him, when his interests are sought to be reached,
of the benefit of the plea of the statute of limitations.^
One who suffers an administrator, who has no authority,
to sue and to recover judgment for a debt due the estate,
and then pays the judgment, cannot thereby defeat an
action brought by an administrator having the right to
sue.^ A written agreement to convey lands is a covenant
real. If broken in the lifetime of the covenantee, it passes
•
» Steele v. Liniberger, 59 Pa. St. 308; McKay v. McKay, 3.3 W. Va. 724;
Staples V. Staples, 85 Va. 76, by stat- Boar<l v. Callahan, :i3 VV. Va. 209.
ute of February 19, 1884; Sergeant's =* Boykiu r. Cook, 6] Ala. 473;
Heirs v. Ewing, 36 Pa. St. 156; Stone Stewart v. Montgomery, 23 Pa. St.
V. Wood, 16 111. 177; Rosenthal v. 410.
Renick, 41 111. 202: Garther v. Welch, * Merchants' Bank v. Good, 21 W.
3 Gill & J. 259; Nichols v. Bay, 32 Va. 455.
N. H. 133; 64 Am. Dec. 358. ^ Saddler v. Kennedy, 26 W. Va.
^ Daingertield v. Smith, 83 Va. 81; 636; James v. Commercial Bank, 7S
Brewes v. Lawson, 76 Va. 36; Mer- Ky. 413.
chants' Bank v. Good, 21 W. Va. 455; * Pond v. Makepeace, 2 Met. 114.
303 OF THE PERSONS AFFECTED BY JUDGMENT. § 163 a
to his personal representatives after his death, though he
had commenced, an action for its specific execution. Tlie
revival of the suit by the heirs, and their obtaining a de-
cree in it for the performance of the agreement, in no wise
affects the administrator. He may afterward recover
damages for the breach of the contract to convey. In
such a case there might be a decree in favor of the heirs
for specific execution, saving the rights of the creditors;
but the personal representative is an indispensable party,
whose rights cannot be affected if he is omitted.^ As
there is no privity between the personal representative
and the heir, the latter cannot have the advantage of an
adjudication in favor of the former. Hence a perpetual
injunction obtained by an executor to prevent R. from
prosecuting any action for the recovery of the arrears of
an annuity against such executor or other representative
of the testator does not prohibit R. from prosecuting such
action against the heirs.^ Of course there is no privity
between an executor and administrator, and one claiming
to have acquired title from the decedent in his lifetime.
Therefore a judgment in an action against an administra-
tor, requiring him to include certain property in his in-
ventory of the effects of his intestate, cannot estop persons
who claim that such property was given to them by the
decedent from maintaining their claim.^
§ 163 a. Relation between Administrator and Heirs
Modified by Statute. — Section 1581 of the Code of Civil
Procedure of California declares that the executor or ad-
ministrator must take into his possession all the estate of
the decedent, real and personal. Section 1582 of the s:une
code states that " actions for the recovery of any property,
real or personal, or for the possession thereof, and all
actions founded upon contracts, may be maintained by or
against executors and administrators, in all cases in which
1 Combs V. Tarlton's Adm'r, 2 Dana, ' Hill v. Stevenson, G3 Me. 3C4; 18
454. Am. ilep. 231.
' Dale V. Kosovelt, 1 Paige, 35.
§ 1G3 a OF THE PERSONS AFFECTED BY JUDGMENT. 804
the same might have been maintained by or against their
respective testators or intestates." An action of ejectment
having been brought by an administrator, and judgment
having been rendered therein, the question arose as to the
effect, under these statutory provisions, of this judgment
upon the heirs of the deceased. The court held the judg-
ment to be binding, for the following reasons: " The prin-
ciple of law upon wdiich the estoppel rests has reference
to the fact that in the former action the hostile titles
were directly opposed before the court rendering the
former judgment, and that the superiority of the one over
the other was ascertained and fixed by that judgment.
That an administrator appearing in an action involving
the interests of the estate represents as well the heirs as
the creditors of the deceased, is well settled. But he rep-
resents not only the interest of heirs and creditors, but
also the title wdiich the deceased had at the time of his
death. When, therefore, in an action of ejectment, an
administrator, seeking to recover the real estate of his in-
testate, alleges upon the record the seisin of that intestate,
he thereby tenders an issue directly upon the title to the
premises; if issue be joined by the defendant upon this
point, and judgment be rendered, it is necessarily an ad-
judication that the title of the intestate was or was not
superior to the title set up by the defendant in the action."
After proceeding further, to show that the issues in the
action by the administrator are the same as the issues in
any action subsequently brought**by the heir relying upon
title derived from his ancestor, the court concludes that
"if upon an action brought by the administrator against
a defendant in possession of real property, upon the alle-
gation of seisin in the deceased at the time of his death,
it be adjudged that the intestate w^as not seised, or that
the defendant had the better title, the legal consequence
follows that the administrator, the heirs and creditors, and
all persons subsequently asserting title as having vested
in themselves by reason of the death of the intestate, are
305 OF THE PERSONS AFFECTED BY JUDGMENT. § 164
alike estopped to deny the superiority of the title of the
defendant adjudicated in the former action."^ Where
the statute gives administrators rights not possessed hy
them at the common law, and in effect makes them the
representatives of the estates of their intestates, and au-
thorizes them to prosecute and defend actions, the courts
have generally given to the judgments in such actions the
same effect as if the heirs and all other parties in interest
were nominal parties thereto,^ and have therefore held
that decrees foreclosing mortgages, to which only the ad-
ministrator of the mortgagor was a party, divested the
heirs of their estate.^ In Ohio and North Carolina, judg-
ments against administrators are, in proceedings to require
the sale of real estate to pay debts, conclusive against the
heirs, in the absence of fraud or collusion.*
§ 164. Principal and Agent. — Agents and principals
do not, as such, have any mutual or successive relation-
ship to rights of property. They are not in privity with
each other." If the principal is ever bound by a judgment
against his agent, it is in those cases in which he author-
ized the institution of the suit, of which we shall treat in
the latter part of this chapter. An action by and in the
name of an agent, for trespass for taking coin from his
possession and converting it, in which the jury found
that the property belonged to the principal, and therefore
gave the plaintiff nominal damages, is no bar to an action
by and in the name of the principal, unless it can be
shown that the former suit was brought under his direc-
tion and for his benefit.^ A note, transferred by delivery,
was by the transferee placed in the hands of an agent,
1 Cunninghams. Ashley, 45 Cal. 485; 105 N. C. 222; Speer v. James, 94 N. C
Meeks v. Vassaiilt, 3 Saw. 206; De la 417.
Ossa V. Oxarat, 58 Cal. 101. * Hayes v. Bickelhoupt, 24 Fed. Rep.
* Conolly V. ConoUy, 26 Minn. 806. If an agent procures a judgment
350. in favor of his principal by fraud, the
' Bayly v. Mueke, 65 Cal. 349; Mer- latter, thoutrh personally innocent, can-
ritt V. Baffin, 24 Fla. 320. not retain the fruits thereof: Webster
* Faran v. Robinson, 17 Ohio St. 242; v. Diamond, 36 Ark. 5.32.
93 Am. Dec. 617; Proctor v. Troctor, * Pico f. Webster, 12 Cal. 140.
JUDG. I. — 20
§ 165 OP THE PERSONS AFFECTED BY JUDGMENT. 306
with orders to demand payment, and if necessary, to
place it in the hands of an attorney for collection by suit.
Payment not being made upon demand, the note was
given to an attorney. He, on account of his ignorance of
its ownership, sued in the name of the agent, and the
suit was successfully defended on a plea of set-off against
the plaintiff. The true owner, having no notice of this
action, was permitted to afterward recover in his own
name.^
§ 165. Assignees and Alienees. — A person who pur-
chases property, real or personal, is entitled to the benefits
and subjected to the disadvantages which, by the opera-
tion of final adjudications, had attached to the property
in the hands of its former owner. A mortgagee, having
commenced an action for the possession of the mortgaged
premises, was opposed by the mortgagor's setting up the
defense of usury. Failing in this defense, the mortgagor
conveyed to a third person, who brought a writ of entry
against the mortgagee, and sought to support his action
by proof of the same usury which had been presented as
a defense in a former suit. Whereupon it was held that
the former judgment was an estoppel running with the
land, and preventing the grantee of the mortgagor from
prevailing in any action brought on the title acquired by
his conveyance.^ A verdict and judgment against a feme
sole will be binding on her future husband, so far as he
represents her person or succeeds to her estate.''' On the
other hand, the grantee of real estate, though a witness
on the trial of the former cause, may assert the judgment
in favor of his grantor in reference to the real estate, as
an estoppel.* And a judgment against a claimant, upon
1 Lawrence v. Ware, 37 Ala. 553. Warfield v. Davis, 14 B. Mon. 40; Mc-
There may be instances of actions Kinzie v. Railroad, 28 Md. 16.
against agents for the possession of '^ Adams v. Barnes, 17 Mass. 365.
the property of their principals, in ^ Hawkins v. Lambert, 18 B. Moru
which the latter may be bound by the 99.
judgment by being given notice of the * 2 Phillipps on Evidence, 15, 16.
action and an opportunity to defend:
307 OF THE PERSONS AFFECTED BY JUDGMENT. § 167
the trial of the right of personal property levied under
execution, is conclusive evidence against such claimant
in a subsequent controversy between him and the pur-
chaser at the execution sale.^ If a judgment is rendered
against the assignee of a note, who afterwards retransfers
it to the original payee, the latter is bound by the judg-
ment;^ but if one is the payee of two notes made by the
same maker, and arising out of the same transaction, and
transfers one of them, and his assignee commences action
thereon and is defeated, the judgment cannot afifect an
action by the payee on the other note.*
§166. Bailors and Bailees. —The bailor and bailee
both have such an interest in the property as authorizes
either to maintain an action for its injury or conversion.
A judgment against a bailor, in an action in reference to
the property, is a bar to any subsequent suit or defense
by the bailee.* A recovery and satisfaction by either is a
bar to any subsequent suit by the other; but a recovery
and satisfaction in an action commenced by the bailee is
said to be no defense to an antecedent action in the name
of the bailor.^ A bailee delivering goods to a third per-
son, believing him to be the owner, may avail himself, in
any action by the bailor, as an estoppel, of a judgment
against the bailor, in an action wherein he sought to re-
cover the same goods from the person to whom the bailee
had delivered them.®
§ 167. Garnishees. — " Where one is by garnishment
involuntarily made a party to a suit in which he has no
personal interest, he is fully protected by the proceedings
in law, provided he acts in obedience to the orders of the
court in the surrender and payment of the property
1 Shirley v. Fearne, 33 Miss. 653; 69 Rep. 1042; Green r. Clarke, 12 N. Y.
Am. Dec. 375. 343.
' Leslie v. Bonte, 130 111. 498; Sow- * Steamboat v. McCraw, 31 Ala.
ard V. Coppage, 9 S. VV. Rep. 389 659.
(Ky.). « Burton r. Wilkinson, 18 Vt. 186;
» Gerrish v. Bragg, 55 Vt. 329. 46 Am. Dec. 145; Bates v. Stanton, 1
* Hughes V. Pipe Lines, 23 N. E. Duer, 79.
§ 167 OF THE PERSONS AFFECTED BY JUDGMENT. 308
attached." ' But a judgment against a garnishee is never
conclusive against the principal that the amount for
which the garnishee has been made liable is the full
amount due from him; otherwise a garnishee, by confess-
ing part of the debt, could avoid payment of the residue.
He will in no case be protected by the judgment beyond
the amount it required him to pay;^ and this is the rule
applied to judgments against a trustee.^ But a judgment
for or against a garnishee, in an attachment issued in
favor of one creditor, is not binding on any other attach-
ing creditor. Between the two creditors there is no
privity.* After a suit is begun, and a person is sum-
moned as the trustee of the defendant, the plaintiff has
the right to litigate the question of the trustee's indebted-
ness, unless some litigation has been previously pending
in reference thereto. Therefore a judgment in favor of
the trustee, in an action between him and the defendant,
is not evidence against plaintiff to prove that the party
summoned as trustee was not indebted to the defendant
when summoned, except the judgment be the result of a
suit pending before the service of the trustee process.® If
the garnishee denies his liability to the defendant, the
plaintiff is entitled to offer in evidence a judgment recov-
ered by the defendant against the garnishee, and the lat-
ter is estopped thereby from maintaining that he is not
indebted in the amount of the judgment so recovered
against him.® If the debt garnished has been assigned,
the judgment against the garnishee will protect him if he
had no notice of the assignment;^ but if he receives notice
of the assignment, even after he has filed his answer, it is
'Herman on Estoppel, sec. 119; ^Groves v. Brown, 11 Mass. 334;
Canady v. Detrick, S3 Ind. 485; Ladd Brown v. Dudley, 33 N. H. 511.
V. Jacobs, 64 Me. 347; Morgan v. * Wheeler v. Aldrich, 13 Gray, 51;
Neville, 74 Pa. St. 52; Adams v. Filer, Straus v. Ayres, 87 Mo. 348; King v.
7 VS^'is. 306; 73 Am. Dec. 410; Warner Faber, 51 Pa. St. 387; Adams v. Filer,
■y.Conant, 24 Vt. 351; 58 Am. Dec. 178. 7 Wis. 30G; 73 Am. Dec. 410; Bread-
2 Puffer V. Graves, 26 N. H. 256; ing v. Siegworth, 29 Pa. St. 396; Tarns
Drew V. Towle, 27 N. H. 412; 59 Am. v. Bullitt, 35 Pa. St. 308.
Dec. 380; Carpenter v. McClure, 37 * Webster v. Adams, 58 Me. 317.
Vt. 127; Barton v. Allbright, 29 Ind. « Fuller v. Foote, 56 Conn. 341.
489; Tarns v. Bullitlj, 35 Pa. St. 308. ' King v. Vance, 46 Ind. 246.
309 OF THE PERSONS AFFECTED BY JUDGMENT. § 1G9
his fluty to disclose it, and failing to do so, he will not be
protected by the judgment.' The assignee, on his part,
may be notified to appear and maintain his claims, and
if from his neglect to do so judgment is entered against
the garnishee, the assignee is estopped by it from enfor-
cing his assignment.*
§ 168. Ancestors and Heirs and Devisees. — An heir or
devisee is in privity with his ancestor or testator. There-
fore a verdict for or against the ancestor or testator is
evidence for or against an heir or devisee in controver-
sies in relation to property descended from the ancestor
to the heir.' No such privity exists between heirs and
devisees. A decree against the former, establishing that
a conveyance of certain lands was made by the ancestor,
has no effect upon the rights of the latter.*
§169. Lessor and Lessee. — The lessee and his as-
signees are in privity with the lessor and his successors
in interest; and therefore a judgment for or against the
former, before the making of the lease, is evidence for or
against the latter.® Where an action of ejectment was
maintained by the assignee of the lessor against the as-
signee of the lessee, for non-payment of rent, under a
lease containing a covenant for re-entry, the judgment
was held to be a bar to any recovery in any action by a
party claiming under the purchaser at a foreclosure sale,
under a mortgage executed by the assignee of the lessee,
subsequent to the execution of the lease, but prior to the
commencement of the ejectment suit, the decree of fore-
closure being entered after the suit in ejectment was
brought, but before it terminated.^ If a lessee brings an
action, in respect to the lands leased, without the direc-
tion or authority of the lessor, the latter is not bound by
1 Lewis V. Uunlop, 57 Miss. 130; 891; Ladd v. Durkin, 54 Cal. 395;
Seward v. Hefflin, 20 Vt. 144; Larrabee Lock v. Norborno, ,3 Mod. 142.
V. Knight, 69 Me. 320. * Cowart v. WiUianis, 34 Ga. 167.
» Rothschild z). Burton, 57 Mich. 540. * Hessel v. Johnson, 124 Pa. St. 233.
• Sharkey v. Blankston, 30 La. Ann. * Bennett v. Couchuiau, 48 Barb. 73.
§ 170 OF THE PERSONS AFFECTED BY JUDGMENT. 810
the result of the suit, and therefore cannot bind another
by it/ A landlord is not, in general, affected by any
litigation against or in favor of his tenant in respect to
the demised premises;^ but if the issue is such as involves
the lessor's title, and he assumes the defense or the prose-
cution of the suit, the judgment operates upon his title as
though he were named as a party to the action.^ In some
cases the law has been held otherwise. In South Caro-
lina, a landlord is not bound by a judgment against his
tenant, though the tenant set up the landlord's title, and
the landlord was present in court at the trial, assisting the
tenant, and though it is made to appear that his efforts
were in no way impeded by the tenant, and full opportu-
nity was given the landlord to examine and cross-examine
the witnesses, because if he had been a defendant it might
have caused some change in the jury, or in the admissi-
bility of evidence, or have in some manner affected the
result.* In another case, a judgment against a tenant,
after a defense conducted by the landlord, was held admis-
sible, but not conclusive, against the latter.^ "Upon the
ground that the lessor of plaintiff and the tenant are sub-
stantially real parties to an ejectment, a judgment in
ejectment is admissible evidence in an action for mesne
profits, and this, whether the action be brought by the
nominal j^laintiff or by the lessor of this plaintiff, and
whether the judgment be upon verdict or by default."^
§ 170, Officers. — Successor and predecessor, in rela-
tion to offices, are considered to be in privity with each
other, like heir and ancestor. A judgment for or against
the incumbent, concerning the rights and privileges of
his office, is therefore admissible as evidence for or against
his successors.^ A judgment in any controversy affecting
^ Wenman v. Mackenzie, 5 El. & B. * Samuel v. Dinkins, 12 Rich. 172;
447. 75 Am. Dec. 729.
2 Chant V. Reynolds, 49 Cal. 213; * Chirac v. Reinecker, 2 Pet. 617.
Bartlett v. B. G. L. Co., 122 Mass. 209. « 2 Phillipps on Evidence, 10.
2 Valentine v. Mahoney, 37 Cal. 389; ' Bounker v. Atkyns, Skin. 15; Snell
Sevey v. Chick, 13 Me. 141; Tyrrell v. v. Campbell, 24 Fed. Rep. 8S0.
Baldwin 67 Cal. 1. See post, sec. 185.
311 OP THE PERSONS AFFECTED BY JUDGMENT. § 171
the rights of any person to hold an office is conclusive
upon the rights of any other person claiming through or
under him whose rights have been adjudicated.' But
whenever the title to an office may be drawn in question
by different persons acting in different rights, a judgment
against one is not admissible against the other. Judg-
ment in favor of a defendant, upon an information in the
nature of a quo warranto, filed by the prosecuting attorney
of a county upon the relation of an individual, is no bar
to a subsequent information of a similar nature, filed by
the attorney-general in the exercise of a discretion given
him by statute.^ There are cases indicating that the rela-
tion between an officer and his deputy is such that a judg-
ment in favor of the latter is conclusive in favor of the
former;^ but this is not necessarily so. An officer, when
answerable for the act of his deputy, may take upon him-
self the defense of an action, and become the real, or one
of the real, parties thereto. When he does this, he is
bound by the judgment, we apprehend, because he has in
fact had control of the litigation, and an opportunity to
make his defense. But if he has not assumed the defense
and identified himself with the action, a judgment recov-
ered therein against the deputy cannot conclude the
officer.*"
§171. Tenants in Ejectment. — The action of eject-
ment being purely a possessory action, a number of
persons are considered as in privity with the defendant
therein, to the extent that they must yield up the posses-
sion to a prevailing plaintiff, though their title to the
property in question remains unadjudicated, and is sus-
ceptible of being successfully asserted against the now
successful party in some subsequent controversy. When
considering the force of a judgment in ejectment, privies
1 King V. Grimes, Bull. N. P. ' King v. Chase, 15 N. H. 9; 41 Am.
231 Dec. ()75.
" ^ State V. Cinn. Gas Co., 18 Ohio St. * Morgan v. Chester, 4 Conn. 387;
262. Goekie v. Kiiby, 100 U. S. 379.
§ 171 a OF THE PERSONS AFFECTED BY JUDGMENT. 312
"are those who entered under, or acquired an interest in
the premises from or through, or entered without, title by
collusion with defendants subsequent to the commen-
cing of the action." ^ A landlord who receives possession
from his tenants pending the suit, and all persons enter-
ing under defendants, or as trespassers pendente lite, are
subject to be dispossessed under the judgment.'^ If a
writ of restitution in such cases did not authorize the re-
moval of all persons not in possession at the institution
of the suit, a series of transfers of occupancy from one
person to another would forever preclude the plaintiff
from obtaining the use of his property. In the execution
of this writ, it is to be presumed that all the parties found
in possession are there as trespassers, or as lessees or pur-
chasers from the defendant pendente lite? The statute of
California provides that "an action for the recovery of
real property against a person in possession cannot be
prejudiced by any alienation made by such person, either
before or after the commencement of the action." *
§ 171 a. Co-owners. — A co-owner, by whatever species
of co-tenancy he may hold, is not bound by a judgment
rendered against his companion in interest.® Discussing
whether one of several co-heirs could be prejudiced by
proceedings against the others, the supreme court of the
1 Satterlee v. Bliss, 36 Cal. 489; Hanson v. Armstrong, 22 111. 442;
Wattson V. Dowling, 26 Cal. 124. Jones v. Chiles, 2 Dana, 25; Howard
"The defendant and all the members v. Kennedy, 4 Ala. 592; 39 Am. Dec.
of his family, together with his ser- 807; Smith v. Traube's Heirs, 1 Mo-
vants, employees, and his tenants at Lean, 87; Wallen v. HufF, 3 Sneed, 82;
will or at sufferance, may be removed 65 Am. Dec. 49; Jackson v. Tuttle, 9
from the premises in executinsf a Cow. 233.
writ of possession ": Freeman on Exe- ^ Long v. Morton, 2 A. K. Marsh,
cations, sec. 475. Tlie wife of defend- 39.
ant is presumed to be in possession * Code Civ. Proc, sec. 747.
under him, and must generally be dis- * Stokes v. Morrow, 54 Ga. 597;
possessed under a writ against him: Bass v. Sevier, 58 Tex 567. But after
Freeman on Executions, sec. 475; one co-tenant has suffered judgment
Johnson v. Fullerton, 44 Pa. St. 496; against himself in an action for an in-
Fiske w. Chamberlain, 103 Mass. 495; jury to a chattel, he and his co-tenants
Huerstal v. Muir, 63 Cal. 450; Gray u cannot maintain a joint action for the
Nunan, 63 Cal. 220; Saunders v. Web- same injury: Brizendine v. Frankfort
ber, 39 Cal. 287. B. Co., 2 B. Mon. 32; 36 Am. Dec.
» Sampson v. Ohleyer, 22 Cal. 200; 587.
313 OF THE PERSONS AFFECTED BY JUDGMENT. § 171 a
state of Georgia said: " Each of these grandchildren was
entitled, in his own right, to his share of his ancestor's
estate, and to contest any conflicting claim. They do not
claim through one another. The interest of each was
separate and independent. Therefore a judgment against
a part did not prevent the rest from being heard." ^ A
part owner is so free from having any interest in the re-
sult of a litigation against his co-tenant, that he is not
disqualified from being a witness at the trial.'^ A judg-
ment in favor of the defendant, and against one or more
of the several tenants in common, in an action of eject-
ment cannot prejudice any of the co-tenants not parties
to that suit. A, B, and C, being owners of the undivided
three fourths of the title to a tract of land, were sued in
an action of trespass for excavating a part of the land;
the title was put in issue, and from some cause judgment
was entered against them. Thereafter D, the owner of
the remaining fourth, sued the plaintiff in the former
action for the possession of the same premises, and estab-
lished his title. Whereupon the defendant in the second
suit insisted that as "A, B, and C were estopped from
maintaining any further action by operation of the judg-
ment against them, D could not recover to any greater
extent than if the defendant possessed the title of A, B^
and C. But the court held that as D," by virtue of his
ownership of an undivided interest, was, as against a tres-
passer, entitled to recover the whole tract, his rights in
that respect could not be changed by a proceeding to which
he was not a party; that notwithstanding the former
judgment, the title of the defendant continued to be as it
was prior thereto, — that of a trespasser; and finally, that
there was no legal impediment to D's recovering the entire
tract, as he could have done before the judgment against
his co-tenants.^ Upon the principle hereinbefore men-
1 Walker v. Ferryman, 23 Ga. R. 195; Hammett v. Blount, 1 Swan,
314. 38.-).
=* Bennett v. Hethington, 16 Serg. & * Williams v. Sutton, 43 Cal. 71.
§ 172 OF THE PERSONS AFFECTED BY JUDGMENT. 314
tidied, that estoppels must be mutual, it should follow
that as a judgment against one co-tenant cannot bind the
others, a judgment in his favor cannot be urged by them
as an estoppel. This result has not been uniformly con-
ceded. It has been held that a recovery by one co-tenant
for a nuisance to the joint possession was conclusive, in a
subsequent action in favor of all the co-tenants, that the
wrong complained of existed and constituted a nuisance
at the commencement of the former action.^ As against
a trespasser, each co-owner has a right to the exclusive
possession of the common property, and a judgment in
favor of one co-tenant may, by enabling him to recover
possession of the entire tract, operate to the advantage of
his co-tenants, by stopping the running of the statute of
limitations in favor of an adverse holder; but the latter is
not estopped by the recovery from contesting the title of
the co-tenants who were not parties to the former action.^
§172. Remaindermen, and Persons not in Esse. — If
several remainders are limited by the same deed, this
creates a privity between the person in remainder and
all those who may come after him; and a verdict and
judgment for or against the former may be given in evi-
dence for or against any of the latter.^ Between a tenant
for life and a reversioner no privity exists, and a judgment
against the former does not bind the latter.* "If there
are ever so many contingent limitations of a trust, it is an
established rule that it is sufficient to bring the trustees
before the court, together with him in whom the first
remainder of inheritance is vested; and all that may come
after will be bound by the decree, though not in esse, un-
less there be fraud and collusion between the trustees and
' Fell V. Bennett, 110 Pa. St. 181. * Adams v. Butts, 9 Conn. 79; Allen
=• Walker v. Read, 59 Tex. 187; Read v. De Groot, 9 Mo. 159; 14 Am. St.
V. Allen, 56 Tex. 182. Rep. 626; Phillipps on Evidence, 14,
' Rushworth v, Pembroke, Hardr. 15; Freer v. Stolenbur, 2 Abb. App.
472; Doe v. Tyler, 6 Bing. 390; Pyke 189; Bartlett v. B. G. L. Co., 122 Mass.
V. Crouch, 1 Ld. Raym. 730; Johnson 209.
V. Jacob, 11 Bush, 646.
315 OF THE PERSONS AFFECTED BY JUDGMENT. § 172
the first person in whom the remainder of inheritance is
vested."^ S. P. C. conveyed lands to three trustees, to
hold in trust, — 1. To himself for life; 2. Remainder to
the heirs of his b-ody; 3. Remainder to R. C. for life;
4. Remainder to the heirs of R. C.'s body; 5. Remainder
in fee to the children of S. C, In an action against the
trustees, this deed was set aside. S. P. C. and R. C. after-
ward dying., the children of S. C. commenced suit to
obtain their remainder in fee. But it was held that the
decree setting aside the deed was binding on them; that
the contingent remainders depended on the legal fee and
the equitable estate in S. P. C. intermediate, and was liable
to be destroyed by anything which defeated those estates.^
According to the views entertained and expressed by Lord
Redesdale, "it is sufficient to bring before the court the
first tenant in tail in being, and if there be no tenant in
tail in being, the first person entitled to the inheritance,
and if no such person, then the tenant for life. It has
been repeatedly determined that if there be tenant for
life, remainder to his first son in tail, remainder over,
and he is brought before the court before he has issue,
the contingent remaindermen are barred." * But in Mary-
land, where one sixth of certain property was devised to
the testator's daughter " during her life, and after her de-
cease, to her raale children on her body lawfully begotten
or to be begotten, a bill in equity was filed against this
daughter and her two sons, by other part owners of the
land, alleging that a partition could not be advantageously
made, and praying for a sale of the land and the distribu-
tion of the proceeds. A decree was subsequently entered
in accordance with this prayer, and was succeeded by the
sale of the property thereunder. After the death of the
daughter, her five sons commenced an action of ejectment
to recover possession of one sixth of the land. Three of
1 Hopkins v. Hopkins, 1 Atk. 590; ^ Campbell v. Watson, 8 Ohio,
Goeljelu Iffia, 111 N. Y. 170; Clyburn 498.
V. Reynolds, 31 S. C. 91; Mayer v. ^ Giffard v. Hort, 1 Schoales & L.
Hover, 81 Ga. 308. 407.
§ 173 OF THE PERSONS AFFECTED BY JUDGMENT. 816
the sons had been born since the rendition of the decree
under which the sale had been made, and it was con-
tended that as they were not in esse they could not be
bound by the decree. The court held that their interest
could not be destroyed by their mother as life tenant,
nor by their living brothers; "that their rights under the
will were indestructible by any act of the parties having
interests prior to or in common with them," and there-
fore that they were not prejudiced by the decree of sale
and the proceedings had in pursuance thereof.^ The
difference between the conclusions reached by the court
in Maryland, and those announced by Lord Redesdale is
this: that in Maryland some person must be brought
before the court having an estate of inheritance, and who
is on that account entitled to represent both his own
interests and the interests of all who may claim after his
death; while, according to Lord Redesdale, if there be no
person in existence possessing an estate of inheritance,
then the tenant for life may be brought before the court
and treated as the representative of persons who may, by
their subsequent birth, acquire interests in the estate.
The views of Lord Redesdale are sustained by a majority
of the reported adjudications on this subject.^
§ 173. Trustees and Cestuis que Trust. — In many in-
stances trustees and their cestuis que trust are regarded as
being so independent that proceedings against one have no
effect upon the other, and both are essential to a complete
determination of any action in reference to the trust es-
tate.^ This rule, however, yields to convenience and neces-
' Downin v. Sprecher, 35 Md. 478. » Collins v. Loflftus, 10 Leigh, 5; 34
2 Faiilker V. Davis, 18 Gratt. 684; 98 Am. Dec. 719; Spragne v. Tyson, 44
Am. Dec. 698; Baylor's Lessee w. Dejar- Ala. 338; Caldwell v. Taggart, 4 Pet.
nette, 13Gratt. 152;Gaskell?;. Gaskell, 190; White v. Haynes, 33 Ind. 540;
6 Sim. 643; Miller v. Foster, 76 Tex. Adams v. St. Leger, 1 Ball & B. 184;
479; Miller v.T. & P. R'y, 132 U.S. 662; demons v. Elder, 9 Iowa, 273; Prewitt
Freeman V. Freeman, 9 Heisk. 301; 2 v. Land, 36 Miss. 494; Blake v. All-
South. L. Rev. 168; Mead v. Mitchell, man, 5 Jones Eq. 407; Reed v. Reed,
17 N. Y. 210; 72 Am. Dec. 455; Cock- 16 N. J. Eq. 248; Martin v. Reed, 30
burn V. Thompson, 16 Ves. 32; Cheese- Ind. 218.
man v. Thorne, 16 Edw, Ch. 629.
817 OF THE PERSONS AFFECTED BY JUDGMENT. § 173
sity. Where it is impossible or extremely inconveuient
to bring all the cestuis que trust before the court, either as
plaintiffs or as defendants, on account of their number,
the court will allow in the case of plaintiffs a few of the
cestuis que trust to bring an action, and in the case of de-
fendants, if the trustees are parties defendant, the pres-
ence of the cestuis que trust may be altogether dispensed
with. What number of cestuis que trust will be regarded as
so great-as to obviate the necessity of bringing all of them
into court is undetermined. In Harrison v. Steivardson,
2 Hare, 533, twenty-one cestuis que trust were required to
be joined; but in other cases, involving circumstances of
unusual difficulty, when the number was but little greater,
a part were authorized to represent all.^ No doubt there
are many instances in which a trustee is authorized to
represent his cestuis que trust, and in which the judgment
is conclusive on the latter, in the absence of fraud or
collusion. Thus where A conveyed certain mortgaged
premises to B, in trust, for A's wife, and the mortgagee
instituted suit against B to foreclose, who, answering, ad-
mitted the facts to be as stated in the complaint, and
consented to such decree as might be right, it was held
that B was empowered by the nature of his trust to repre-
sent the interests of his cestuis que trust to this extent, and
that in the absence of any evidence of injury to her or
her estate, she ought not to be allowed to reverse nor to
impeach the decree.'^ When a creditor makes an assign-
ment for the benefit of his creditors, the assignee acquires
the legal, and the creditors the equitable, estate. A judg-
ment against the assignee, in relation to property em-
braced in the assignment, is conclusive, unless it can be
avoided for fraud or collusion.' It has been said that the
cestuis que trust of a mortgagee are not necessary parties to
1 Perry on Trusts, sees. 873, 885, Egmont, 4 Sim. 574; Bainbridge v.
and cases cited in sec. 157 in this work. Burton, 2 Beav. 539; Richardson v.
A part of the beneficiaries cannot rep- Larpent, 2 Younge & C. 507.
resent and bind the others unless their '■' Johnson v. Robertson, 31 Md. 476.
interests are homogeneous: Newton v. ' Field v. Flanders, 40 111. -I/O.
§ 173 OF THE PERSONS AFFECTED BY JUDGMENT. 318
a foreclosure suit, whether such suit is to enforce the
mortgage or to make it subordinate to some other lien,
and that "a final decree settling the rights of all parties
may be made without bringing such cestuis que trust before
the court." ' A common form of security is the convey-
ance of property to trustees, to hold in trust for the pur-
pose of securing the payment of bonds, coupons, and other
evidences of indebtedness. In such cases the trustees
represent the bond-holders, and proceedings by or against
the trustees, conducted in good faith, bind the holders of
the bonds or other indebtedness.^ If a judgment is re-
covered in the name of A, the law will protect any equi-
table interest of another person for whose benefit the
judgment was intended, and who was the equitable owner
of the chose in action on which it was recovered, though
the record does not disclose that fact. A garnishee of the
nominal plaintiff cannot enforce payment of the judgment
to himself.' It is not intended that the fact of the legal
and equitable title being in different persons shall author-
ize the same issues to be twice bona fide litigated. A suit
by A for the use of B, or as A's trustee, is binding on B,
No man can be permitted, after adjudicating a matter by
his trustee, to disregard that adjudication.'* The equita-
ble owner of a chose in action is bound to the same extent
as if he were a party to the record.^ The head of a family
may be regarded as a quasi trustee, in whom the law has
reposed the duty of representing and protecting both his
own interests and the interests of his family, and a judg-
ment against him may therefore bind them, in respect to
interests represented by him in good faith. Hence if a
judgment in foreclosure or in ejectment is entered against
1 N. J. F. Co. V. Ames, 12 N. J. Eq. U. S. 605; Richter v. Jerome, 123 U. S.
507; Van Vechten v. Terry, 2 Johns. 233; Glide v. Dwyer, S3 Cal. 477.
Ch. 197; Johnson v. Robertson, 31 Md. ^ Hodson v. McConnel, 12 111. 170.
476; Willink v. Canal Co., 4 N. J. Eq. * Peterson v. Lathrop, 34 Pa. St. 223;
377. Calhoun v. Dunning, 4 Dall. 120.
'^ Beals V. Illinois M. & T. R'y Co., * Rogers v. Haines, 3 Greenl. 362;
133 U. S. 290; Kerrison v. Stewart, 93 Curtis v. Cisna's Adm'r, 1 Ohio, 432;
U. S. 155; Shaw v. Railroad Co., 100 Boynton v. Willard, 10 Pick. 166.
319 OF THE PEKSONS AFFECTED BY JUDGMENT. § 174
a husband, it is conclusive on the wife claiming title on
the ground that the property was the community prop-
erty of herself and her husband/ and in some of the states
is conclusive on her and other members of the family
claiming the same lands as a homestead.^
Part III. — OF PERSONS BOUND, THOUGH NEITHER PARTIES
NOR PRIVIES.
§ 174. " Neither the benefit of judgments on the one
side, nor the obligations on the other, are limited exclu-
sively to parties and their privies."^ Or in other words,
there is a numerous and important class of persons who,
being neither parties upon the record nor acquirers of
interests from those parties after the commencement of
the suit, are nevertheless bound by the judgment. Prom-
inent among these are persons on whose behalf and under
whose direction the suit is prosecuted or defended in the
name of some other person.'* As is illustrated by the case
of trustee and cestui que trust, the real party in interest
cannot escape the result of a suit conducted by him in the
name of another.^ The fact that an action is prosecuted
in the " names of nominal parties cannot divest the case
of its real character, but the issues made by the real
parties, and the actual interests involved, must determine
what persons are precluded from again agitating the
question, and who are estopped by the previous decis-
ion."* Whenever one has an interest in the prosecution
or defense of an action, and he, in the advancement or
protection of such interest, openly takes substantial con-
trol of such prosecution or defense, the judgment, when
1 Thompsons. Jones, 77 Tex. 626. Wilmington S. M. Co., 18 111. App.
»Barfield v. Jefferson, 84 Ga. 609; 17; Palmer u. Hayes, 112 Ind. 289.
Hightower v. Beall, 66 Ga. 102. * Elliott v. Hayden, 104 Mass. 180;
^ Valentine v. Mahoney, 37 Cal. Jackson v. Griswold, 4 Hdl, 522; 2
389. Phillipps on Evidence, 10; Train v.
* Stoddard v. Thompson, 31 Iowa, Gold, 5 Pick. 3S0.
80; Conger v. Chilcote, 42 Iowa, 18; * Tate's Ex'rs i;. Hunter, 3 Strob. Eq.
Estelle V. Peacock, 48 Mich. 469; Gill 1.36; Conger v. Chilcote, 42 Iowa, 18;
V. U. S., 7 Ct. of CI. 522; FoUansbee Wood v. Ensel, 63 Mo. 193; Cole v.
V. Walker, 74 Pa. St. 306; Beunitt v. Favorite, 69 111. 457.
§ 174 OF THE PERSONS AFFECTED BY JUDGMENT. 320
recovered therein, is conclusive for and against him to
the same extent as if he were the nominal as well as the
real party to the action.^ If an original insurer carries
on in good faith, and for the protection of and with the
consent or acquiescence of a reinsurer, a contest respect-
ing a loss, the latter is bound by the judgment. ** The
reassured and reinsurer stand in the precise relation of
all other parties, where there is a liability over, and the
result of one litigation binds or concludes both. There is
but one matter in issue which is alike common to both,
and that is, whether a loss has occurred and a debt has
accrued to the original insured.^ One who would not
otherwise have been bound by a judgment does not make
himself a party thereto so as to be bound by it, merely by
prosecuting a fruitless appeal therefrom.^
In many cases parties may be required to participate in
an action or to accept the judgment therein as conclusive
of their rights. It may be that the decision will fix the
liability of a party to another person, as where a receiver
has employed an attorne}^ and the amount to be paid is
to be fixed by an order of the court. When the order is
made, it settles the amount of compensation to be paid the
attorney, and he cannot maintain an action against the
receiver for an amount in excess of that allowed.* If one
of the parties has the right to call upon a third person to
indemnify him for losses resulting from an action, as
where one is sued for the possession of land which an-
other has conveyed to him with covenants for title or
peaceable possession, the person who is thus liable may
be notified of the action and required to defend it. Upon
receiving such notice and an opportunity to defend the
action, he becomes a party thereto, whether he elects to
1 Linton v. Harris, 78 Ga. 265; Das- 76 N. Y. 247; Landis v. Hamilton, 77
kam V. UUmau, 74 Wis. 474; McNamee Mo. 554.
V. Moreland, '26 Iowa, 96; Burns v. '^ Strong t;. Phoenix Ins. Co., 62 Mo.
Garvin, 118 Ind. 320; Montgomery v. 289; 21 Am. Rep. 417.
Vickery, 110 Ind. 211; Foust v. Hun- s Majors v. Cowell, 51 Oal. 478.
tin^ton, 11.3 Ind. 139; Marsh v. Smith, * Walsh v. Raymond, 58 Conn. 251;
73 Iowa, 295; Verplauck v. Van Buren, 18 Am. St. Rep. 264.
321 OF THE PERSONS AFFECTED BY JUDGMENT. § 176
defend or not, so that if the party to whom he is answer-
able is defeated, and then brings an action for indemnity,
the person so notified cannot deny that the recovery was
riglitfuL^ Therefore if partners are sued, and one of
them, being without the state, is not served with process,
the others may notify him of the pendency of the action,
and if he refuses to participate in the defense the judg-
ment is conclusive against him in a suit by the others for
contribution.'^ Where one seeks the benefit of an estop-
pel by judgment on the ground that he was the real party
in interest in an action, he must show that he conducted
the action or defense openly, to the knowledge of the ad-
verse party and for the protection of his own interests.^
§ 175. Evidence to Show Who were the Real Parties.
— For the purpose of showing that parties not named in
the record were the real parties in interest, and conducted
the suit in the name of others, wdio w^ere only nominal
parties, parol evidence may always be offered, and when
the showing is made, the real parties are concluded by the
judgment.*
§ 176. Parties Bound without Notice. — In many in-
stances, the relation of the nominal parties to the suit to
other persons is such that the latter are conclusively
bound by a judgment against the former, in the absence
of fraud or collusion, although they are not notified of the
pendency of the suit, and are not called upon to conduct
its prosecution or defense. In respect to the question,
Who are those parties whose interests are thus inseparably
associated? the decisions are often inconsistent; but un-
doubtedly the general principle sanctioned by a vast
1 Littleton v. Ricliardson, 34 N. H. « Smith v. Ayrault, 71 Mich. 475.
177; G6 Am. Dec. 759; State v. Coste, * Cannon River M. Ass n v. Rogers,
S6 Mo. 4:^7; 88 Am. Dec. 148; Davis v. 42 Minn. 128; 18 Am. St. Rep. 497;
Smith. 79 Me. 351; Drennan v. Bunn, Lecroix v. Lyons, 33 Fed. Rep. 437.
124 111. 175; 7 Am. St. Rep. 3.54; « Tarletoti ?.. Jolinson, 25 Ala. 300;
Pritehard v. Farrar, 116 Mass. 243; 60 Am. Dec. 515; Shirley r. Fearne, 33
Commercial Ass. Co. v. Am. Cent. Ins. Mi^^s. 653; ()9 Am. Dec. 376; Palmer v.
Co., 68 Cal. 430. Hayes, 112 lad. 289.
Judo. I.— 21
§ 177 OF THE PERSONS AFFECTED BY JUDGMENT. 322'
preponderance of authority is, that every person wlio has
made an unqualified agreement to become responsible for
the result of a litigation, or upon whom such a responsi-
bility is cast by operation of law in the absence of any
agreement, is conclusively bound by the judgment. This
rule will become manifest from an examination of the
adjudged cases.^ "Wherever this identity of interest is
found to exist, all alike are concluded. Thus if one cove-
nants for the results or consequences of a suit between
others, as if he covenants that a certain mortgage as-
signed by him shall produce a specific sum, he thereby
connects himself in privity with the proceedings, and
the record of the judgment in that suit will be conclusive
against him. In the case at bar, the appellant, having
bound himself that defendants in the attachment suit
would cause the slaves levied upon and replevied to be
forthcoming to abide the order of the court, has connected
himself in privity -with, the proceedings, and made the
judgment conclusive against him."*
§ 177. Corporation and Stockholder. — Under statutes
imposing personal liabilities upon the stockholders for
the debts of a corporation, great contrariety of opinion
has been exhibited in relation to the effect of a judgment
against the latter as evidence of debt against the former.
In the first case decided upon this subject in New York,
the court of errors, reversing the judgment of Chancellor
Kent, held that the stockholders were chargeable, on the
ground that the trustees, as agents of the stockholders,
had contracted the debt evidenced by the judgment, and
that the latter could impeach the indebtedness upon no
ground, except fraud or error in liquidation; that the
judgment must be regarded "as a solemn admission of
indebtedness; but it is not binding as res judicata upon
•Therefore sureties on a bond on 'Collins r. Mitchell, 5 Fla. 371;
apY»eal are concluded by a judgment Rapelye ?;. Prince, 4 Hill, 119; 40 Am.
ot affirmance: Oakley v. Van Noppeu, Lee. 2lJ7; Greeul. Ev., sec. 523.
100 N. C. 287.
S23 OF THE PERSONS AFFECTED BY JUDGMENT. § 177
the stockholders, if it was procured lay fraud or is founded
in error.* Subsequently, in the same state, it was said,
in reference to a judgment recovered upon a note, that
"as against the company the judgment is conclusive evi-
dence that the note was valid, and although the defendant
was not directly a party, yet, as a stockholder, he was not
altogether a stranger to the judgment," and that the judg-
ment constituted a. prima facie evidence against the stock-
holder.^ But the doctrine of these cases was considered
as shaken by the opinion of Cowen, J., in Moss v. McCul-
lough, 5 Hill, 131, and as late as 1860 a majority of the
court of appeals in the same state "refused to commit
themselves to the doctrine that a judgment against the
corporation is even prima facie evidence against a stock-
holder," while, in the opinion of the minority, "a judg-
ment against a corporate body is one of the highest
evidences of indebtedness known to the law; it is a solemn
admission by record that the corporation owes the sum
claimed in the suit," and that "a judgment by confession,
in the absence of any pretense of fraud or collusion, is
just as conclusive upon a corporation as one rendered
after litigation, and a judgment by default is only an-
other mode of declaring by a record estoppel that the
corporate body has no just defense, and can say nothing
in bar of the claim preferred against it."' In a suit
against a stockholder, it seems to be necessary to establish
the organization and existence of the corporation, and a
judgment against the corporation is not conclusive evi-
dence of those facts in such suit.* But the existence and
organization being proved, there seems, at the present
time, to be no doubt that a judgment against a corpora-
tion is conclusive evidence of debt against its stockhold-
* Slee V. Bloom, 20 Johns. 609. the corporation to collect unpaid sub-
* Moss V. Oakley, 2 Hill, 205; Moss scriptions of stock, the judL-nient
V. McCullough, 7 Barb. 279. against the corporation is conclusive
* Belmont v. Coleman, 21 N. Y. 96; evidence of the existence and amount
McMahon v. Macy, 51 N. Y. 155. of its indebtedness to the plaintiff;
But if an action is i»rought by a cred- Stephens v. Fox, 83 N. Y. .S13.
iter to be subrogated to the rights of * Hudson v. Carman, 41 Me. 81.
§ 178 OF THE PERSONS AFFECTED BY JUDGMENT. 824
ers, to be avoided only on proof of fraud, collusion, or
mistake, and not upon original grounds;' and, generally,
"a stockholder is so far an integral part of the corpora-
tion that in the view of the law he is privy to the pro-
ceedings touching the body of which he is a member,"^
and is therefore bound by a judgment against a corpora-
tion requiring it to levy and collect unpaid assessments
on his stock therein.^
§ 178. County or Municipal Corporation, and its Tax-
payers and Citizens. — The position of a county or muni-
cipal corporation towards its citizens and tax-payers is,
upon principle, analogous to that of a trustee towards his
cestuis que trust, when they are numerous and the manage-
ment and control of their interests are by the terms of
the trust committed to his care. A judgment against a
county or its legal representatives in a matter of general
interest to all its citizens is binding upon the latter,
though they are not parties to the suit. A judgment for
a sum of money against a county imposes an obligation
upon its citizens which they are compelled to discharge.
Every tax-payer is a real, though not a nominal, party to
such judgment. If, for the purpose of providing for its
payment, the officers of the county levy and endeavor to
collect a tax, none of the citizens can, by instituting pro-
ceedings to prevent the levy or enforcement of the tax,
dispute the validity of the judgment, nor relitigate any
of the questions which were or which could have been
litigated in the original action against the county.* If
» Conklin v. Furman, 8 Abb. Pr., » Hawkins v. Glenn, 131 U. S. 319;
N. S., 161; 57 Barb. 484, 504; Miller Hamilton v. Glenn, 85 Va. 901; How-
V. White, 8 Abb. Pr., N. S., 46; Milli- ard v. Glenn, 85 Ga. 238; 21 Am. St.
ken V. Whitehouse, 49 Me. 527; Bank Rep. 156; Glenn v. Leggett, 135 U. S.
of Australasia v. Nias, 4 Eng. L. & Eq. 533. If, however, a corporation has
252; Came v. Brigham, 39 Me. 35; gone into liquidation, a judgment in
Gaskill ». Dudley, 6 Met. 546; 39 Am. an action subsequently commenced
Dec. 750; Wilson v. Pittsburgh etc. against it is not conclusive upon its
Co., 43 Pa. St. 424; Johnson i;. Somer- stockholders: Schrader v. Mauufac-
ville D. Co., 15 Gray, 216; Hawes v. turers' Nat. Bank, 133 U. S. 67.
Anglo-Saxon P. Co., 101 Mass. 216; * Clark v. Wolf, 29 Iowa, 197; 63
Donworth v. Coolhaugh, 5 Iowa, 300. Am. Dec. 627; Stite v. Rainey. 74 Mo.
2 Hawkins v. Glean, 131 U. S. 229; Harmon v. Auditor, 123 111. 122;
329. 5 Am, St. Key. 502.
325 OF THE PERSONS AFFECTED BY JUDGMENT. § 178
in an action against the officers of a county a tax is deter-
mined to be valid, a tax-payer of the county cannot after-
wards maintain suit to enjoin the collection of such tax.^
An action having been brought by certain tax-payers of
a town to enjoin the issue of bonds, a judgment against
them was held to be conclusive upon all other tax-payers.^
A judgment against county commissioners, directing that
a writ of mandate issue requiring them to assemble and
call an election on the question of a change of the county
site, is conclusive on all citizens of the county, because
the commissioners are representatives of the county in
the matter of their duties under the statute; and though
they failed to avail themselves of any legal defense to the
writ, the people of the county are concluded by the judg-
ment,^
The great majority of the decisions relating to the
privity between a municipality and its tax-payers and
citizens have resulted from attempts to resist the enforce-
ment of bonds issued or taxes levied by it, after judgment
had been rendered to which it was a party, in favor of
such bonds or taxes; but no reason is perceived why the
same principle does not apply to other litigated questions.
Thus a municipality may claim that certain real estate
has been dedicated to public uses, — for instance, that it is
a public square or street, — and as. a representative of its
citizens and tax-payers may litigate that question with
one who claims that it is j)rivate property, and not sub-
ject to anj public use whatsoever. The question when
once litigated and decided in an action to which the
municipality is a proper party should be regarded as for-
ever set at rest, unless some additional title should be ac-
quired by one of the litigants after the commencement of
the action. Either this must be true, or each citizen, and
perhaps each citizen of each generation of citizens, must
' Lvman v. Faris, 53 Iowa, 49S. » Sauls v. Freeman, 24 Fla. 209; 12
2 Har.non ?;. An<litor, 1-23 111. 122; Am. St. Rep. 190.
5 Am. St. Rep. 502.
§ 178 OF THE PERSONS AFFECTED BY JUDGMENT. 326
be at liberty to commence an action and litigate the ques-
tion for himself, either in his own name or in that of the
municipality, or of the people of the state, or in some
other mode adapted to the litigation of the question. A
case determined by the court of appeals of Virginia is
sometimes cited as in opposition to the views we have
expressed,^ but an examination of that case will show
that it did not present the question here under consider-
ation. In the first place, the preceding action had been
ejectment against the city to recover possession of the
property, and the court was of the opinion that the ex-
istence of the easement claimed by the city could not
have cons'.ituted any defense to that action, and there-
fore that the recovery by the plaintiff did not tend to
negative the existence of the easement claimed by the
city. In the second place, whatever was said upon the
subject was a dictum, because the court, in the case before
it, proceeded no further than to inquire whether the plain-
tiff had been acting in good faith in the claim made by
him to the lands included in his former action, and which
the city claimed to be a public street. That the question
of the right to the easement was not considered to be in-
volved in the first action is manifest from the following
language of the court: " It is to be regretted that in a
matter where the public convenience is so much involved
that the right to the easement itself had not been pre-
sented either by an action of trespass against the city
authorities for removing the obstruction, or some pro-
ceeding to abate the alleged nuisance, so that the. right
might have been settled by a court of record having com-
petent authority."
Where, however, the action is such as to put in issue
the right of a city in property claimed by it as a public
street or square, as where the action is brought against it
to determine conflicting claims of title, there appears to
be no doubt tliat a judginent against it is conclusive, in
•Warwick v. Mayo, 15 Gratt. 528.
327 OF THE PERSONS AFFECTED BY JUDGMENT. § 178
all subsequent actions to wliicli it is a party, that the prop-
erty claimed by it is not such public street or square.*
In Louisiana, where a claimant brought an action against
a municipality to determine whether land had been dedi-
cated to public use, and recovered a judgment, it was held
that this judgment was conclusive in a later litigation,
wherein another citizen sought to maintain the existence
of the dedication, contrary to the former decision, the
court saying: "The municipal authorities represent not
only the corporators but the public."^
After a judgment has been entered against a munici-
pality, determining adversely to it a claim made by it
as the representative of its citizens, a similar claim may
be made by a proceeding instituted in the name of the
state as the representative of the general public, and
then the question arises whether the identity of the
parties is such that the judgment, when the public was
represented by the municipality, is a bar to an action
in which the public is represented by the state. It is
clear that the issues in the two controversies may be
the same; it Is equally clear that the nominal parties
in the two suits are different, and that in neither suit
was the nominal the real party in interest. In both,
the real party is the public, in whose behalf the dedica-
tion of the property is claimed, and as the real parties are
the same, the judgment in the first action should be con-
clusive in the second.^ In South Carolina, suit was brought
by certain tax-payers against the commissioners of the
county to obtain an injunction to prevent their issuing
bonds, and resulted in a decree denying the injunction
and affirming the right to issue the bonds, and they were
thereupon issued and sold to bona fide purchasers. There-
after an action was brought in the name of the state upon
the relation of citizens and tax-payers of the same county
^ San Francisco v. Hollaflay, 76 Cal. ' Xiques v. Bnjac, 7 La. Ann. 515.
18; City and County of Sau Fraucisco * People v. iloliaday, tjup. Ct. Cal.,
V. Itsell, 79 Cal. 57. Feb. It>y2.
§ 178 OF THE PERSONS AFFECTED BY JUDGMENT. 328
to have the same bonds declared null and void and issued
without authority of law. The judgment in the suit was
held to be a bar to the second action, because the state had
no substantial interest in the action in which its name
was used, and the two actions were for the benefit of the
same class of persons, and that "it is not reasonable to
suppose that the state, in lending its name to individuals
for the protection of their rights, intended to subvert the
principles governing controversies of the class to which
this belongs." ^ On the other hand, in Kansas, where an
elector of the county, in a proceeding commenced by him,
procured a writ of mandamus to issue compelling the
county clerk to remove his office to a town claimed to be
the county seat, it was held that this was not conclusive
against a proceeding in mandamus subsequently instituted
by the attorney-general in the name of state, "to compel
obedience to the law of the state, commanding coiinty
officers to keep their offices at the county seat." Dispos-
ing of this question, the court said: "This plea of res
adjudicata is fairly in the case, and must be determined.
A majority of the court hold that the judgment and pro-
ceedings in the Hammond case do not conclude the rela-
tor in this case, and that the judgment as pleaded and
set forth is no bar to this action; that while there may
be some identity of cause of action, the state can interfere
in matters of this kind, in the interest of peace and good
order, and to command obedience to its laws, and that
for this purpose it cannot be concluded by suits brought
by private persons to protect or enforce private rights.
In the case of Garner v. State, upon the Relation of Moon,
28 Kan. 790, it was said: 'While the statute permits any
elector who considers himself aggrieved by the result of
any election held for removing, establishing, or relocating
the county seat of a county to contest by an action in the
district court such election, yet if different actions are
brought, and different judgments are rendered, it is possible
» State V. Chester and Lenoir R. R. Co., 13 S. C. 290.
329 OF THE PERSONS AFFECTED BY JUDGMENT. § 179
that the attorney-general or county attorney, in the interest
of the public, might, in a proper action instituted for that
purpose, have all these different judgments reviewed and
superseded by a general adjudication as to which town,
city, or place is the legal county seat of a county, and thus
bring all the county officers, with their books, papers, and
records, to such town, city, or place, as the county seat.'"'
Though its officer is a nominal party to a suit and the
municipality is not joined with him, a judgment is con-
clusive for or against it if it was the real party in inter-
est, and, as such, prosecuted and defended the action.^
It is only to the extent that a county or municipal corpo-
ration represents persons that a judgment against it is
binding upon them. It does not represent its citizens
and tax-payers in respect to their private property, but only
in matters of general interest, and therefore a judgment
against or in favor of a municipality, concerning a single
lot or other matter in which one of its citizens has a pri-
vate interest, cannot bind him.^ So though a county or
city represents its citizens and tax-payers respecting mat-
ters of general interest, it is not the representative of
other citizens of the state interested in the same general
question. Hence a judgment against it cannot conclude
other counties or municipalities in a subsequent action,
though the issues involved are the same.*
§ 179. Master and Servant. — A suit was commenced
against a master for a trespass committed by his servant,
under his order and direction. After a trial upon the
merits, ending in a judgment for the defendant, it was
held that the plaintiff was thereby precluded from main-
taining an action against the servant for the same tres-
pass.® Where a servant was sued for trespass in taking
» state r. Stock, 38 Kan. 154. * Emery v. Fowler, 39 Me. 32G; Gli
"Millikanjj.Li Fayette, 118111(1.323; Am. Dec. 627; Kitchens. Caiiiphell,
Faust V. liaumfjartner, 113 Iiid. 139. 3 Wei. 304; Kiniiersley v. Orpe, Doug.
* Rork ?'. Smith, .55 Wis. 67. 517; Alexander v. Taylor, 4 Denio,
* St. Paul & S. C. R. K. Co. v. Rob- 302.
insou, 41 Miun. 394.
§ 180 OF THE PERSONS AFFECTED BY JUDGMENT. 330
property, and the master defended the suit, and justified
his servant in tlie taking, it was decided that the judg-
ment was conclusive on the master, because it was his
duty to indemnify the servant in acting as his agent, and
that he was bound to appear and defend, and that a judg-
ment in his servant's favor was conclusive as a defense to
an action by the same plaintiff against the master for the
same trespass.*
§ 180. Principal and Surety. — The law in relation to
the effect of a judgment against a principal, for the pur-
pose of charging the surety, is differently understood and
applied in the different states. And in the same state
distinctions are made between different classes of sureties.
It seems to be generally conceded, however, that wherever
a surety has contracted in reference to the conduct of
one of the parties in some suit or proceeding in the courts,
he is concluded by the judgment.^ Thus a judgment
against a defendant is conclusive upon his bail, if free
from fraud or collusion; and they cannot show that it is
for too great a sum, nor that it was obtained on account
of the default or negligence of the principal.* The sure-
ties upon an injunction bond " assume such a connection
with that suit that they are concluded by a judgment in
it in a suit at law upon the bond, so far as the same
issues are involved.* The same rule applies against
sureties who have become parties to a bond for the rede-
livery of property replevied, or to dissolve an attachment,
or to release attached property. Upon the entry of a
judgment in plaintiff's favor, their liability is absolute.^
1 Castle V. Noyes, 14 N. Y. 329. Cal. 295; Way v. Lewis, 115 Mass. 26;
2 Harvey v. Head, 68 Gd. 247; Rid- Keane v. Fisher, 10 La. Ann. 261;
d\ev. Baker. 13 Cal. 295; Rapelye v. Binsse i^.Wood, .37 N. Y. 526. See also
Prince, 4 Hill, 121; 40 Am. Dec. 267; Stoops v. Wittier, 1 Mo. App. 420.
Binsset;. Wood, 37 N. Y. 526; Bently * Towle v. Towle, 46 N. H. 432;
V. Dorcas, 11 Ohio St. .398; Braiden v. Church v. Barker, 18 N. Y. 463.
Mercer, 44 Ohio St. 339; Murdock v. » Jaynes v. Piatt, 47 Ohio St. 262;
Brooks, 38 Cal. 601; Jones v. Dolls, 3 Boyd v. Huffaker, 40 Kan. 634; Cutter
La. Ann. 588; Tracy v. Maloney, 105 v. Evans, 115 Mass. 27; Tappaa v.
Mass. 90; Pasewalk v. BoUman, 45 N. Goodsell, 122 Mass. 176; Collins v.
W. Rep. 780 (Neb.). Mitchell. 5 Fla. 364; Craig v. Herring,
^ Parkhnrst v. Sumner, 23 Vt. 538; 80 Ga. 709; Thomson v. JossIib, 12 S. C.
66 Am. Dea 94; Riddle v. Baker, 13 580.
331 OF THE PERSONS AFFECTED BY JUDGMENT. § ISO
Sureties upon the bond of an executor or an adminis-
trator also occupy a position in which their responsibil-
ity may be fixed in suits to which they are not parties,
and in which they are not tendered an opportunity to de-
fend, or by the orders of the court by which they were
appointed settling their accounts and determining the
extent of their liability/ " If a judgment has been recov-
ered against an administrator, and an action thereon be
commenced against the surety on his bond to the ordi-
nary, such judgment is conclusive, unless the surety can
show that it was obtained through fraud or collusion
between the creditor and the administrator."^ The only
questions open to the sureties in a suit on such a bond,
after judgment against their principal, are in reference to
the making of the bond and its legal sufficiency.^ " When
judgment has been recovered in a court of competent
jurisdiction against an administrator, showing that he
has received funds belonging to an estate, and has failed
to pay over the same, a breach of his administration bond
is established. By this judgment the administrator is
bound, and the sureties are concluded to the same extent
which their principal is concluded."*
But as to administrators and executors, the rule that
their sureties are concluded by settlements of their ac-
counts or by judgments against them fixing their liabil-
ity is not in force in many of the states. In these states
the effect of such settlements is, as against the sureties,
unless they were parties to or participants in the prior
action or proceeding, prima facie only.' In all the states
* Slagle V. Entrekin, 44 Ohio St. « ggy^ ^ Calrlwell, 4 Rich. 117;
637; Casoni v. Jerome, 58 K Y. 315; State v. Coste, 36 Mo. 437; 88 Am'
Ralston w. Wood, 15 111. 159; 58 Am. Dec. 148.
Dec. 604; White v. Weatherbee, 126 * Watts v. Gayle, 20 Ala. 817; Wil-
Mass. 450; State v. Holt, 27 Mo. 340; ley v. Paulk, 6 Conn. 74.
72 Am. Dec. 273; Irwin v. Backus, 2-5 * Stovall v. Banks, 10 Wall. .583;
Cal. 214; 85 Am. Dec. 125; MeCallaw. Jones v. Ritter's Adin'r, 56 Ala. 270.
Patterson, 18 B. Mon. 201; Martin v. * Lipscomb ?,'. Postell, 38 Miss. 476-
Tally, 72 Ala. 23; Housh v. People, 66 77 Am. Dec. 651; Seat v. Cannon, 1
111. 178; Heard?;. Lodge, 20 Pick. 53; lfumj)h. 471; Binnett v. Graiiain, '7I
32 Am. Dec. 197; Thurlough v. Ken- (ia. 211; Norton v. Wallace, 1 Rich,
dall, 62 Me. 166. 507; Hobsou v. Yancey, 2 Gratt. 73.
§ 180 OF THE PERSONS AFFECTED BY JUDGMENT. 332
sureties may avoid a judgment against their principal by-
showing that it was procured, by fraud and collusion.'
The sureties of guardians occupy a position analogous to
that of the sureties of administrators; and there is the
same diversity of judicial opinion respecting the effect
upon them of a decree settling the accounts or a judgment
determining the liability of their principal, the majority
of the cases holding them bound by such settlements and
judgments, in the absence of fraud or collusion.^ In the
case of administrators, executors, and guardians, the
duties imposed on them by law generally include their
accounting to the court having jurisdiction of the estates
committed to their care, and there obtaining a settlement
of their accounts. The rendering true accounts and hav-
ing them settled is a part of the duties for the perform-
ance of which the sureties have become bound, and there
is therefore more reason to hold them bound by judicial
determinations of the liability of their principals than
there is any other class of sureties, excepting only those
who have expressly made themselves answerable for the
payment of judgments, or for other results of litigation.
When we come to consider sureties on other OiSicial bonds,
we shall still find a diversity of opinion; but the cases
holding judgments against a principal not to be conclu-
sive against his sureties are relatively more numerous,'
though probably still in the minority.*
1 Annett v. Terry, 35 N. Y. 256; Crawford v. Wood, 7 Ga. 445; Graves
Dawes V. Shed, 15 Mass. 6; 8 Am. Dec. v. Bulkley, 25 Kan. 249; 37 Am. Rep.
80; Robinson i>. Hodge, 117 Mass. 222; 249; Fay v. Edn.istou, 25 Kan. 4H9;
Irwin V. Backus, 25 Cal. 214; 85 Am. Mullen v. Scott, 9 La. Ann. 173; State
Dec. 125. V. Carson, 1 1 S. C. 392; Cox v. Thomas,
^ Brodrib v. Brodrib, 56 Cal. 563; 9 Gratt. 323; Aikins v. Baily, 9 Yerg.
Hailey v. Bovd, 64 Ala. 399; Common- 111.
wealth V. Rhoads, 37 Pa. St. 60; ^ That judgmentis conclusive against
Siiepard v. Pelihles, 38 Wis. 373; Mc-" sureties: Evans v. Commonwealth, 8
Cleary v. Menke, 109 111. 294; Braiden Watts, 39S; 34 Am. Dec. 477; Dane v.
V. Mercer, 44 Ohio St. 339; McWil- Gilmore, 51 Me. 544; Tute v. James,
liams V. Kalback, 55 Iowa, 110. 50 Vt. rJ4; Dennie ?'. Smith, 129 Mass.
Contra, State v. Hull, 53 Miss. 626; 143; McM cken v. Commonwealth, 58
Moore V. Alexander, 96 N. C. 34. Pa. St. 213; Masser v. Strickland, 17
^ That judgment against a sheriff or Serg. & R. 354; 17 Am. Dec. 668.
constable is prima facie evidence The following, while they declare the
against his sureties, but not conclusive: judgment to he prima J'acie only, ap-
333 OF THE PERSONS AFFECTED BY JUDGMENT. § 180
The rule is sometimes made to depend on the question
whether the bond is joint or several in its nature. Thus
it is said that a judgment obtained against a constable
for wrongful attachment is, in the absence of a fraud or
collusion, conclusive evidence in an action against him
and his sureties, both as to damages and to costs, if his
bond is joint, because the principal is liable and his
bondsmen must be jointly liable with him/
A bond was given by a deputy sheriff to his principal,
conditioned that the deputy should "well and faithfully,
in all things, perform and execute the duties of deputy
sheriff without fraud, deceit, or oppression." The sheriff,
being sued for an act of the deputy, gave notice to the
latter, but not to his sureties. Judgment being rendered
against the sheriff, he offered it as evidence in an action
by him against the sureties, whereupon it was decided
that " the terms of the condition of this bond do not bring
it within the class of cases in which an indemnitor is con-
cluded by the result of a suit against the person whom he
has undertaken to indemnify, upon the ground that such
is the fair interpretation of the terms of the contract.
This condition is only that he will do his duty as deputy
sheriff. In the class of cases alluded to, the contract of
indemnity is held to stipulate for the result of a litigation
to which the indemnitor is not a party, and to make his
liability to depend merely upon that result. There is
therefore no reason why this case, in which the language
of the condition admits of no similar construction, should
be taken out of the general rule which declares the effect
of judgments as to strangers, that they conclusively prove
rem ipsam, and nothing else."^ In a subsequent case ia
parently limit the defense of the sure- 69 Am. Dec. 619; reversing and over-
ties to fraud and collusion: Charles v. ruling the opinion in the same case re-
Hoskins, 14 Iowa, 471; 83 Am. Dec. ported in 18 Barbour, 9. The same case
378; People?;. Mersereau, 74 Mich, was again decided on appeal in .35 New
687; Lowell v. Parker, 10 Met. 301); 43 York, 120. "Although there is a con-
Am. Dec. 436; State v. Colerick, 3 fiicb of authority on the subject, it
Ohio, 487. seems to be the better opinion tliat,
' Tracy V. Goodwin, 5 Allen, 409. except in cas(>s»wlicre, upon the fair
'Thomas v. HubbcU, 15 N. Y. 405; conatructiou of the contract, the surety
§ 180 OF THE PERSONS AFFECTED BY JUDGMENT. 384
the same state, a deputy had given a joint bond, with
sureties, to the effect that the obligors " should well and
sufficiently indemnify and keep harmless 'the principal*
from and of all manner of costs, charges, damages, and
expenses which he might incur or be put to by reason of
any act or acts, omission or omissions, of the deputy in or
about the execution of his office of deputy sheriff," In
an action against the sheriff, he notified the deputy, who
appeared and managed the defense. No notice was given
the sureties. The sureties sought to avoid the effect of
ilte judgment as evidence against them. But the condi-
tion of this bond was considered as materially different
from that in the case of Thomas v. Huhhell, and great
stress was laid upon the fact that the bond was joint.
" The defendants being jointly bound to indemnify the
plaintiff, they were in privity of contract with each other,
and are to be regarded and treated, quoad the contract,
and the rights and liabilities connected with and grow-
ing out of it, as one person. In such a case, notice to
one is notice to all, on the same principle as where two or
more persons are shown to be jointly bound by a contract,
the acts and admissions of either are binding upon all the
others to the same extent as upon the one doing the acts
or making the admissions. It was no part of plaintiff's
agreement with the sureties on the bond that they should
have notice of suits brought against him for the miscon-
duct of his deputy, and their liability as indemnitors was
not made to depend on such notice. The law indeed
required notice to the deputy, in order that he might
defend and discharge himself from the misconduct im-
puted to him, and for the purpose of rendering the judg-
ment against the sheriff conclusive, if one should be
may be held to have iinrlertaken to be surety, of the fact of its recovery only,
responsible for the result of a suit, or aud not of any fact which it was ne-
when he is made privy to the suit by cessary to find in order to recover such
notice, and the opportunity being judgmpnt": Brandt on Suretysliip, sec.
given him to defend it, a judgment 524; De Grieflf u Wilson, 30 1^. J. Eq.
against the principal alone is, as a 435.
general rule, evidence against the
S35 OF THE PEKSONS AFFECTED BY JUDGMENT. § 180
obtained. The notice was properly given to the deputy,
whose conduct only was called in question, and who is
presumed to know the facts and circumstances far better
than the sureties or the sheriff. If, in addition to giving
notice to the deputy, notice had been given to the sureties
also, it would have been little more than an idle and use-
less ceremon}', as it is to be presumed that all they would
or could have done would have been to refer the matter
to their principal, the deputy, and cast the burden of the
defense, as the sheriff has done. By a fair and reasonable
interpretation of the conditions of the bond, the parties
contemplated that actions might be brought against the
sheriff for the acts or omission of his deputy, and the
covenant of indemnity iu the condition was inserted to
provide for such contingencies."*
In respect to sureties upon bonds and contracts other
than those already noticed, the contrariety of opinion
concerning the effect upon them of a judgment against
their principal is very marked and irreconcilable. The
most extreme ground taken against such a judgment w'as
that assumed in a couple of cases in New York, where it
was held that a surety, though notified of a suit against
his principal, and though assisting in conducting it, was
not bound by the judgment, unless admitted to defend in
the name of the principal, because he could not have
appeared nor have managed the suit, except by the con-
sent of his principal, nor could he take an appeal.^ In a
number of cases a judgment or decree against the princi-
pal was considered as constituting not even prima facie
evidence against the surety.' These cases are, however,
opposed by more numerous cases, which unite in declar-
ing i\\Q prima facie effect of such a judgment as evidence
^ Fay r. Ames, 44 Barb. .^27. See ' Lartiprue v. Baldwin, 5 Mart. (La.)
also Westervelt u Smith, 2 Duer. 449: 193; Beall v. Beck. 3 Har. & McH.
Chamberlain v. Godfrey, 36 Vt. 380; 242; McKellar v. Bowell, 4 Hawks,
84 Am. Dec. 690. 34; Morris v. I-ucas, 8 Blackf. 9; King
' Jackson v. Griswold, 4 Hill, 522; v. Norman, 4 Com. B. 884.
Dougks V. Howiaud, 24 Weud. 35.
§ 181 OF THE PERSONS AFFECTED BY JUDGMENT. 336
against a surety,' but differ somewhat as to the means by
which this prima facie evidence may be rebutted. In
Georgia, the surety "may rebut this evidence; and he
may not only look into the judgment or decree against
his principal, but he may inquire into its justness, ah
origine. He may set up and prove any defense he could
have proved in the original suit, if he had been a party
to it."^ In Ohio, the surety may impeach the judgment
for collusion or for mistake. But until so impeached it
is sufficient to entitle plaintiff to recover the amount for
which it was rendered.* In one of the circuit courts of
the United States, the rule is laid down that the surety
may show fraud or collusion, or that the debt has been
paid, or that there was a clerical mistake in entering
judgment/ A bond was given to the state to the effect
that the principal w^ould not keep a disorderly house. In
an action against the surety upon the bond, it was held
that the conviction of the principal, in a criminal prose-
cution for keeping a disorderly house, was prima facie
evidence against the surety.^
A judgment against a surety, obtained without fraud or
collusion, in an action of which the principal or any co-
surety had notice, is conclusive in favor of the surety in
an action against the principal or the co-surety for con-
tribution.® If a judgment rendered against a principal
and a surety upon their bond is paid by the latter, the
former cannot, in a suit to recover from him the amount
thus paid, show want of consideration in the bond."
§ 181. Notice to Indemnitors. — In many cases it hap-
pens that if, by reason of the finding of certain facts, one
' Munfordv. Overseers, 2 Rand. 313; Stalworth. 37 Ala. 402; Spencer v.
Jacobs V. Hill, 2 Leigh, 393; Baker v. Dearth, 43 Vt. 98.
Preston, 1 Gilmer, 235; Respiiblica v. '^ Bryant v. Owen, 1 Ga. 355; Brad-
Davis, 3 Yeates, 128; 2 Am. Dec. 366; well v. Spencer, 6 Ga. 578.
Lucas V. Curry, 2 Bail. 403; Brandt oa ^ state v. Colerick, 3 Ohio, 487.
Suretyship, sec. 525; Macready v. * Berger v. Williams, 4 McLeaa
Schenck, 41 La. Aim. 4"6; Haddock 577.
V. Perham, 70 Ga. 572; Curry v. Mack, » \Yehhs v. State, 4 Cold. 199.
90 111. C06; Fletcher v. Jackson, 23 « Love v. Gibson, 2 Fla. 51IS.
Vt. 581; 56 Am. Dec. 98; Preslar v. ' Pitts v. Fugate, 41 Mo. 405.
337 OF THE PERSONS AFFECTED BY JUDGMENT. § 181
of the parties to the suit is in any respect damaged, he,
in turn, has the right to recover back the amount of dam-
ages from some other person, not a party to the present
litigation. The person thus exposed to a loss which some
one has, in effect, covenanted against, may make his cove-
nantor a party to the present suit, and may thus avoid
the peril and inconvenience of being required to estab-
lish against his covenantor, in a subsequent controversy,
the facts which may be established by the plaintiff in the
present suit.^ In order to become thus bound, the cove-
nantor must be tendered "a full, fair, and previous oppor-
tunity to meet the controversy," and it is not sufficient
that he happened to be present in court, and may have
cross-examined the witnesses.^ It seems, upon the prin-
ciple that no one shall be condemn ed or made answer-
able without an opportunity to defend, that in order to
bind one by a judgment to which he is not a party, he
should be allowed all the means of defense open to him
had he been made a party; and that a nominal party
wishing to bind by a judgment one not a party to the ac-
tion must not only notify him of its pendency, but give
him to understand that he is desired to defend it, and
will be allowed such control as may be essential to his
defense.' In Michigan, one who wishes to bind a warrantor
of the title to real estate by a judgment must give him
written notice;* but elsewhere oral notices, if not other-
wise objectionable, are sufficient.^ No particular form of
words is required. The party must certainly have notice
of the pendency of the action, and this notice must be
given at such a time as will permit of his having a fair
opportunity of making a defense." It is not certain that
' Konitzky v. Meyer, 49 N. Y. 471; mingst>. Harrison, 57 Miss. 275;Daven-
Tofld V. Chicago, 18 111. App. 565. port v. Miiir, 3 J. J. Marsh. 310; 20
2 Turpin v. Thomas, 2 Hen. & M. Am. Dec. 143.
139; 3 Am. Dec. 615. « Williams v. Burg, 9 Lea, 455;
* Eaton V. Lyman. 26 Wis. 61; Save- Somersi;. Schmidt, 24 Wis. 421; 1 Am.
land V. Green, 36 Wis. 612; Ax ford u. Rep. 191; Hersey v. Long, 30 Minn.
Graham, 57 Mich. 422. 114; Boyd v. Whitfield, 19 Aric. 447;
* Mason v. Kellogg, 38 Mich. 132. Davis v. Wilbourne, 1 Hill (S. C.) 27;
<> Ferrea v. Chabot, G3 Cal. 564; 26 Am. Dec. 154.
Miner v. Clark, 15 Wend. 425; Cum-
JUDG. L — 22
§ 181 OF THE PERSONS AFFECTED BY JUDGMENT. 838
he must be requested to assume the defense, some of the
decisions declaring this not to be essential.^ In general,
the fact that the covenantor appeared and conducted or
participated in the defense is of itself sufficient proof that
he had due notice of the action, and a full and fair oppor-
tunity to contest it on the merits.* But in the absence of
such appearance, the question arises whether he was given
such notice of the suit as made him responsible for its
termination. The necessity of proof of such a notice can-
not be avoided by showing that the warrantor sought to
be bound, was a witness,* or knew and talked of the ac-
tion, said he had an agreement which would defeat it, and
was informed of the time and place of the trial.* "If a
party to a suit has the right to resort to another upon his
failure in the action, whether upon covenants of warranty
or on the ground that he is indemnified by such third
j>arty, then it is clearly his duty to give full notice to his
covenantor or indemnitor of the pendency of the suit
what it is he requires him to do in the suit, and the con-
sequences which may follow if he neglects to defend.
Mere knowledge of the existence of such action is entirely
insufficient to bind the party by the judgment. Unless he
is notified to furnish testimony, or to defend the action
or to aid in it, he may well suppose the party to be in
need of no, assistance, and he may well rely upon that
supposition; for if the party desires his aid, it is his duty
to give him a full notice a reasonable time before the
trial of the action, to enable him to prepare for it.^ In
an action against a town or city for a defect in one of its
highways, caused by A, the judgment against the city, if
A be notified of the suit, is conclusive in a subsequent
suit against him by the city, in relation to the existence
of the defect, the amount of injury to the individual, and
^ Cnmmingg v. Harrison, 57 Miss. ' Lebanon v. Mead, 64 N. H. 8,
275; Heiser v. Hatch, 86 N. Y. 614. * Paul v. Witman, 3 Watts & S.
2 Harding v. Larkin, 41 111. 413; 409.
Mackey v. Fisher, 36 Minn. 347; Davis ^ Sampson v. Ohleyer, 22 Cal. 200;
V. Smith, 79 Me. 351. Peabody v. Phelps, 9 Cal. 213.
339 OF THE PERSONS AFFECTED BY JUDGMENT. § 181
the fact of the exercise of due cautiou by the party in-
jured.^ Some recent decisions in courts of very high
authority, enforcing the rights of a city to recover back
from a property holder a sum which it has been com-
pelled to pay, on account of his act or negligence, for
personal injuries occasioned by a defect in its highways,
either establish an exception to the usual rule in regard
to notices to defend, or else dispense with several essen-
tials of such notices, as the law was formerly understood.
In Massachusetts, it is suflBcient to bind the property
holder by the judgment against the city, if he had notice
of the pendency of the suit, and of the fact that the city
intended to hold him responsible, and had an opportunity
to furnish evidence, though he did not take upon himself
the defense of the suit, and was not requested to do so.^
Cases in the supreme court of the United States go much
further in the same direction. In the first of these cases
it is maintained that a property owner who knows of a
suit pending against the city for damages in front of his
lot is, in an action against him by the city, bound by
the judgment against the city; and upon such judgment
being produced, can only show in his defense that the
damages were caused or contributed to by the city her-
self. It is not necessary that any notice be served in-
forming him that the city will hold him responsible.^ In
a later case involving similar issues, the court said: "Ex-
press notice is not required; nor was it necessary for the
ofiicers of the corporation to have notified him that they
would look to him for indemnity. The conclusive effect
of a judgment respecting the same cause of action, and
between the same parties, rests upon the just and expe-
• Littleton v. Richardson, 34 N. H. Ga. 774; City of Portland v. Richard-
179; 66 Am. Dec. 759; Veazie v. Rail- son, 54 Me. 46; 89 Am. Dee. 729.
road, 49 Me. 119; Melford V. Holbrook, ^ Bostop v. Worthington, 10 Gray,
9 Allen, 17; 85 Am. Dec. 735; Village 496; Inhabitants v. Holbrook, 9 Allen,
of Port Jervis v. First Nat. Bank, 96 17.
N. Y. 550; District of Columbia v. Bait. » City of Chicago v. Robbins, 2 Black-
& P. R. R. Co., 1 Mackey, 314; Western 418.
and Atlantic R. R. Co. v. Atlanta, 74
§ 184 OP THE PERSONS AFFECTED BY JUDGMENT. 340
dient axiom that it is for the interest of the community
that a limit should be opposed to the continuance of liti-
gation ; that the same cause of action should not be brought
twice to a final determination. Parties include all who
are directly interested in the subject-matter, and who have
the right to make defense, control the proceedings, exam-
ine and cross-examine witnesses, and to appeal from the
judgment. Persons not having those rights, substan-
tially, are regarded as strangers to the cause; but all who
are directly interested in the suit and have knowledge of
its pendency, and who refuse or neglect to aj)pear and
avail themselves of these rights, are equally concluded by
the proceedings." ^
§ 182. Attachment Proceedings. — If property is at-
tached, and the defendants in the attachment or the
general assignees put in their claim to the property, and
are heard in full in reference to such claim, they become
parties to the proceeding, and bound by the judgment.^
Any creditor who defends an attachment on the ground
that the debt attached is due to him is precluded, if he
fails in his defense, from contesting the validity of the
attachment as against the plaintiff or as against the
garnishee.^
§ 183. Bailee or Bailor. — If in an action against the
bailee for the property the bailor employed counsel and
managed the case, and put his title in issue as a defense
for the bailee, the judgment is conclusive on all the title
of the bailor at the time of its rendition.*
§ 184. Officers and their Indemnitors. — A party who
indemnifies an attaching officer, and who, when suit is
brought, appears and has complete control of its defense,
is bound by the judgment as an estoppel in a subsequent
^ Robbias v. City of Chicago, 4 Wall. Richardson v. Watson, 23 Mo. 34;
658. Tarleton v. Johnson, 25 Ala. 300; 60
^ Moore v. Spackman, 12 Serg. & R. Am. Dec. 515.
287. * Tarleton v. Johnson, 25 Ala. 300;
'Coatea v. Roberts, 4 Rawle, 104; 60 Am. Dec. 515.
341 OF THE PERSONS AFFECTED BY JUDGMENT. § 185
litigation, to the same extent as if he were a party to the
record.^ He is equally bound where, though not partici-
pating in the conduct of the suit, he was given due notice
of the action, and was tendered an opportunity to assist
in its defense,^ If no notice of the suit is given, and no
opportunity is allowed him to make a defense, a judg-
ment is but prima facie evidence against an indemnitor.'
" Covenants to indemnify against the consequences of a
suit are of two classes: 1. Where the covenantor ex-
pressly makes his liability depend on the event of a liti-
gation to wdiich he is not a party, and stipulates to abide
the result; and 2. Where the covenant is one of general
indemnity merely, against claims or suits. In cases of the
first class, the judgment is conclusive evidence against the
indemnitor, although he was not a party and had no
notice; for its recovery is the event against which he
covenanted.^ In those of the second class, the judgment
is prima facie evidence only against the indemnitor, and
he may be let in to show that the principal had a good
defense to the claim.^ In each of the classes of cases
above mentioned, the indemnitor is, of course, understood
as saving the right, which the law gives in every case
where the suit is between third persons, of contesting the
proceeding on tl;e ground of collusion, for the purpose of
charging him,"® and also of showing that the judgment
resulted from illegal or unauthorized acts of the olficer
subsequent to the writ under which the indemnity was
given, or of his misconduct in the service of other writs.^
§ 185. Tenant and Landlord. — When a judgment has
been entered against a tenant for the possession of lands
' Murray v. Lovejoy, 2 Cliff. 191; v. Prince, 4 Hill, 119; 40 Am. Dec.
Lovejoy V. Murray, 3 Wall. 1. 267; Aberdeen v. Blackniar, 6 Hill,
2 Miller r. Rhoades, 20 Ohio St. 494. 324; Taylor v. Barnes, 69 N. Y. 430;
'Stewart v. Thomas, 45 Mo. 44; Coinstock z;. Drohan, 15 N. Y. Sup. Ot.
Robinson v. Baskins, 53 Ark. 330. 373.
* Patton V. Caldwell, 1 Dall. 419. « Brid-^Qport Ins. Co. v. Wilson, 34
" Duffield V. Scott, 3 Term Rep. 374; N. Y. L'SO.
Smith V. Compton, 3 Barn. & Adol. ' Boyuton v. Morrill, 111 Mass. 4.
407; Lee v. Clark, 1 Hill, 66; Rapelye
§ 185 OF THE PERSONS AFFECTED BY JUDGMENT. 342
held by bim, it may be offered in evidence against bis
landlord, eitber in a controversy between bim and tbe
tenant, or between the landlord and tbe plaintiff in tbe
former action, or his successor in interest. If tbe landlord
did not participate in tbe defense, and was not notified of
tbe pendency of tbe previous action, tbe judgment therein
is not admissible against bim for any purpose, except to
show tbe fact of its recovery and that the defendant
therein has ceased to hold as his tenant.^ If in an
action between tbe landlord and bis tenant the latter
relies upon a judgment rendered against himself for the
possession of property, he must show that his landlord
had notice of tbe action and a fair opportunity to defend
it, otherwise the tenant's attornment to the plaintiff in
such judgment cannot be justified;^ while, on the other
hand, if a tenant has notified his landlord of the action,
and given bim an opportunity to defend it, the latter
cannot, in opposition to the judgment against tbe tenant,
insist that his eviction was not by title paramount.^ If
the landlord actually takes upon himself tbe defense of an
action brought against bis tenant, and conducts the litiga-
tion to the end, he would seem, upon principle, to be
bound by tbe final result. We have not, however, discov-
ered any decision necessarily affirming that even under
such circumstances the landlord is bound by the judg-
ment against bis tenant; and perhaps it is fairly infer-
able from the decisions upon the subject that it is only
when tbe landlord is formally made a party defendant
that he becomes a party, as between himself and the plain-
tiff, so as to be estopped by a judgment in favor of the
latter.*
» Cbant V. Reynolds, 49 Cal. 213; 168; Chambers v. Lapsley, 7 Pa. St.
Striddle v. Saroni, 21 Wis. 175; Bradt 24.
V. Church, 110 N. Y. 537; Read v. * Ryerss v. Ripley, 25 Wend. 432;
Allen, 58 Tex. 380; Oets;en v. Ross, 47 Samiiel v. Dinkins, 12 Rich. 172; 75
111. 142; 95 Am. Dec. 468; Powers v. Am. Dec. 729; Bolls w. Smith, 5 Sneed,
Schoeltens, 79 Mich. 299. 105; Stout v. Tall, 71 Tex. 438; Orth-
2 Douglas V. Fulda, 45 Cal. 592. wein v. Thomas, 127 111. 554; 11 Am,
^ Wheelock v. Warschauer, 34 Cal. St. Rep. 159; Smith v. Gayle, 58 Ala.
265; McCreery v. Everdiug, 54 Cal. 600; Kent v. Lasley, 48 Wis. 257.
343 OF THE PERSONS AFFECTED BY JUDGMENT. § 186
§ 186. Vendee and Vendor. — A vendee is in privity
with his vendor, and bound by judgments against him
and entitled to the benefits of judgments in his favor
rendered previously to the sale of the property.' But a
vendee is not in privitji^ with his vendor as to proceedings
instituted after the transfer,^ though such transfer was
not recorded.^ So where a transfer is involuntary, as
where it is made by virtue of an execution, judicial, or
trustee's sale, it takes effect by relation as of the date of
the lien or trust deed under which the sale was made, and
cannot be affected by any judgment against the latter in
an action commenced after such date.* A purchaser, or
any subsequent vendee, upon being sued for the property,
in trover or replevin, or in any action involving the title,
may give notice of the pendency and nature of the suit,
to the original vendor, and require him to defend or to
assist in defending the same, and after such notice the
vendor, whether he defends or not, cannot question the
finding of title involved in the judgment.^ But the judg-
ment is conclusive against the vendor, though not noti-
fied of the suit, if he appears as a witness and testifies
that he had no title at the date of his sale.^ In all other
cases, no judgment whereby a third party has recovered
property from a vendee can be given in evidence to
show want of title in the vendor, unless he was notified of
the suit.^ If a sheriff levies upon property and is sued by
a claimant thereof, and in such suit the claimant is de-
feated, such judgment is conclusive against the claimant
in a controversy between him and a person who derives
title to the property through a sale made under such levy.*
*
^ Derr W.Wilson, 84 Ky. 14; Strayer 3 Am. Dec. 222; Jennings v. Sheldon,
V. Johnson, 110 Pa. St. 21; Rio Grande 44 Mich. 92.
etc. E.. R. Co. V. Ortiz, 75 Tex. 602; " Barney v. Dewey, 13 Johns. 224; 8
Peterson v. Weissbein, 80 Cal. 38. Am. Dec. 372.
'^ Chase v. Kaynor, 78 Iowa, 449. ' Stephens v. Jack, 3 Yerg. 403; 24
' Vose V. Morton, 4 Cu.sh. 27; 50 Am. Dec. 513; Jacobs. Pierce. 2 Rawle,
Am. Dec. 750. 204; Axford v. Graham, 57 Mich. 422;
* Cooper V. Corbin, 105 111. 224. Salle v. Light's Ex'rs, 4 Ala. 700; 39
* Thurston r. Spratt, 52 Me. 202; Am. Dec. 317; Buchanan w. Kauffiiian,
Gist V. Davis, 2 Hill Eq. 335; 29 Am. 65 Tex. 235; Fallon v. Murray, 16 Mo.
Dec. 89; Bunder v. Frombc^rg, 4 Dnll. 168.
436; Hamilton v. Cutts, 4 Mass. 349; « Prentiss v. Holbrook, 2 Mich. 372,
§ 187 OF THE PERSONS AFFECTED BY JUDGMENT. 344
In South Carolina, after a very elaborate consideration of
the question, it was determined that the right of a vendee
to give notice to his vendor, and thus conclude him by
the judgment, was limited to questions of title, and could
not be extended to a case in which the quality of goods
sold, and not the title thereto, was the question at issue/
§ 187. Warrantee and Warrantor. — As the sale of per-
sonal property always involves a warranty of title, the
rules and proceedings there applicable in fixing the lia-
bility of the vendor to his vendee, upon recovery of the
property by some claimant, are also applicable to a vendor
of real estate with a covenant of warranty of title, when
he is sought to be made liable to his vendee, claiming to
have been evicted under title paramount. Any judgment
by which the warrantee is dispossessed, or his title ad-
judged invalid, if after proper notice to his warrantor,
"is plenary evidence against the warrantor in a suit on
the warranty,"^ whether rendered in an action commenced
against the covenantee, or by him commenced against
another,^ except that the warrantor may show that the
prevailing party claimed title under the covenantee, or
recovered on account of something occurring after the
date of the covenant.^ A warrantor sought to escape
from the result of a judgment on the ground that the
warrantee had been called as a witness by plaintiff at the
trial. The court said: "There are authorities to the point
that the record of a verdict and judgment cannot be used
» Smith V. Moore, 7 S. C. 209; 24 474; Marsh v. Smith, 73 Iowa, 295;
Am. Rep. 47. Carpenter t;. Pier, 30 Vt. 81; 73 Am.
2 Hamiiton v. Cutts, 4 Mass. 349; 3 Dec. 23S; Lord v. Cannon, 75 Ga. 300;
Am. Dec. 2-22; Knapp v. Marlboro, 34 Williamson w. Williamson, 71 Me. 442;
Vt. 235; Chamberlain v. Preble, 11 Belden v. Seymour, 8 Conn. 304; 21
Allen, 370; Littleton v. Richanlson, Am. Dec. 661.
34 N. H. 187; 66 Am. Dec. 759; Allen * Brown v. Taylor, 16 Vt. 631; 37
V Rountree, 1 Speers. 80; Brewster Am. Dec. 618; Andrews v. Denuison,
V. Countryman, 12 Wend. 446; Smith 16 N. H. 469; 43 Am. Dec. 565.
V. Moore, 7 S. C. 209; 24 Am. Rep. Contra, Ferrell v. Alder, 8 Humph.
479; Ivesw. Niles, 5 Watts, 323; Park 44.
V. Bates, 12 "Vt. 381; 36 Am. Dec. 347; * Davenport v. Muir, 3 J. J. Marsh.
Booker v. Bell, 3 Bibb, 173; 6 Am. 310; 20 Am. Dec. 143; Chicago etc.
Dec. 641; Daskam v. UUman, 74 Wis. R'y Co. v. Northern P. L., 70 111. 217.
345 OF THE PERSONS AFFECTED BY JUDGMENT. § 188
in favor of one who, by his evidence, has contributed to
their recovery. But this court is of opinion that this
exception to the general rule defining the parties by whom
evidence may be used would introduce an inconvenient
collateral inquiry, and that no practical evil will result
from maintaining the general rule unimpaired, and that it
is important that the rules of evidence should be broad and
well defined.^ If a person guarantees anything, whether
real or personal, to be of a specified quality or character,
he may be brought in privity with an action, to which his
guarantee is a party, involving the character or quality
of the thing guaranteed. Thus a party selling a note,
guaranteeing it to be valid, may be required to prosecute
an action, in which a defense has been tendered, involv-
ing the validity of the note. If he neglects to do so, and
the defense is successfully made, he may not, in a suit
between himself and his vendee, show that the note was
valid.^ If the warrantor did not participate in the de-
fense of the action and had no notice of its pendency,
there are cases which imply that the judgment is never-
theless prima facie evidence against him, and imposes on
him the burden of establishing his title.^ The question
has not been carefully considered. We think, however,
that a judgment recovered under such circumstances,
while it is admissible to show the eviction of the cove-
nantee, does not relieve him of the burden of proving that
guch eviction was by title paramount.*
§ 188. Parties not Obliged to Conduct Suit. — It seems
that there are cases where, although a party to a suit may
have the right to recover over against another, yet he is
not permitted to make such other person a party to the
litigation. A, having left a note with a bank, afterward
1 Griffin v. Reynolds, 17 How. 609. Walton v. Carr, 67 Ind. 164; Knapp
a Carpenter v. Pier, 30 Vt. 81; 73 v. Marlboro, 31 Vt. 674; Everling v.
Am. Dec. 288. Holcomb, 74 Iowa, 722; Booker v.
sCollingwoodv.Irwin, SWatts, 306; Bell, 3 Bibb, 173; 6 Am. Dec. 641;
Tamu Shaw, 10 Ind. 469. King v. Kerr, 5 Ohio, 154; 22 Am.
♦ Eycrson v. Chapman, 66 Me. 557; Dec. 777.
§ 189 OF THE PERSONS AFFECTED BY JUDGMENT.
346
sued it for neglecting to give notice to the indorsers.
This hank, claiming that the negligence was attributahle
to its cashier, notified him of the suit, and that he would
he held responsible. He was offered the defense, but
declined to undertake it. A recovered judgment. After
this the bank sued its cashier for negligence. The judg-
ment against the bank was treated as admissible evidence
to show the fact and the amount of the recovery which
had been had against plaintiffs, but not for any other
purpose, because " this is not a case where recovery over
had been given by law or provided by contract between
the parties," and because the question whether the negli-
gence was chargeable to the cashier, neither was nor
could be litigated in the former suit.^ A third party can-
not be called upon to defend an action, where his showing
himself not to be liable will not necessarily result in a
judgment in favor of the party asking him to defend.
Therefore where one sells personal property as called for
by a bill of lading issued by a common carrier, and is
then sued by his vendee on the ground of a deficiency
in the quantity of such property, he cannot bind the car-
rier by the judgment by notifying it of the action and re-
questing it to defend, because no defense which it could
possibly make could relieve him from the obligation of
compensating his vendee for the deficiency in the goods
sold.^
§ 189. Not Bound by Assisting in the Suit. — Unless a
person is one of the real or nominal parties to the suit,
or is so identified in interest with some of such parties
that he is obliged to participate in the conduct of the pro-
ceedings if requested, he cannot be bound by the judg-
ment. The fact that he managed the cause as agent ^ or
attorney, or interested himself in it, and aided the prosecu-
> Bank of Owego v. Babcock, 5 Hill, « Thrasher v. Haines, 2 N. H. 443;
152. Breedlove v. Turner, 9 Mart. (La.)
2 Garrison v. Babbage Trans. Co., 94 353, 375.
Mo. 130.
847 OF THE PERSONS AFFECTED BY JUDGMENT. § 190
tiou or defense with or without any employment for either
party, will not preclude him from impeaching the judg-
ment.* Neither will his being present at the trial as a
witness, though interested in the subject-matter of the
controversy, bind him by the result.^ Thus where A
sued a sheriff for a horse levied upon as the property of
B, and recovered judgment, B being present and testify-
ing at the trial, it was held, in a subsequent suit by B
against A for the same horse, that "it is of no conse-
quence, prima facie, that the plaintiff was a witness for
the defendant in the action brought by this defendant.
He had no right, as a witness, to examine or cross-
examine other witnesses, or to call other witnesses who
might have better knowledge of the facts than himself.
A mere witness has no control over a case whatever, and
has no right, to appeal. The plaintiff here was under no
obligation, legal or moral, to defend for the sheriff, and he
had no right to defend or to interfere."^ Even an agree-
ment between several persons, by which each was to be
bound by a verdict, and to have the right to cross-examine
the witnesses, was regarded as insufficient to make the
judgment binding on any of the parties who would not
have been bound by it in the absence of such agreement.^
§ 190. Distributees of Common Fund. — " The prin-
ciple is well settled in respect to proceedings in chancery
for the distribution of a common fund among the several
parties in interest therein, either on application of the
trustee of the fund, or of the administrator, legatee, or
next of kin, or on the application of any party in interest,
that an absent party who had no notice of the proceed-
ings, and not guilty of willful laches or unreasonable
neglect, will not be concluded by the decree of distribu-
»Allinw. Hall, 1 A. K. Marsh. 525; 518; Hale v. Finch, 104 U. S. 261;
Brady v. Brady, 71 Ga. 71; Cannon Stryker w. Goodnow, 123 U. S. 527.
R. A. V. Rogers, 42 Minn. 12.3; 18 Am. •'■' Blackwood v. Brown, 32 Mich. 104.
St. Rep. 497; Goodnow v. Litchfield, » Yorks v. Steele, 50 Barh. 397.
63 Iowa, 275; Wilkie v. Howe, 27 Kao. « Patton v. Caldwell, 1 Dall. 419.
§ 190 OF THE PERSONS AFFECTED BY JUDGMENT. 848
tion from the assertion of his right by bill or petition
against the trustee, executor, or administrator; or, in case
they have distributed the fund in pursuance of an order
of the court, against the distributees." '
1 Williams v. Gibbes, 17 How. 239; Matter of Howard, 9 Wall. 175.
349 PERSONS BOUND BY LIS PENDENS. § 191
CHAPTER X.
PERSONS BOUND BY LIS PENDENS.
§191. Heasons for law of.
§ 192. Law of, applies to suits at law and in equity.
§ 193. Transfers pendente lite cannot piejiidice suit.
§ 194. Property bound by.
§ 195. Commencement of.
§ 196. Suit must affect specific property.
§ 197. Property must be pointed out by the pleadings.
§ 198. Is notice of all material facts in the pleadings.
§ 199. Amendments of pleadings.
§ 200. No lis pendens between co-plaintiffs or co-defendanta.
§ 201. Affects none but pendente lite alienees and encumbrancers.
§ 202. Diligence in prosecution.
§ 203. Revivor.
§ 204. Dismissal without prejudice.
§ 206. Writs of error and bills of review.
§ 206. Termination of Us pendens.
§ 207. Lis pendens, with the property in court.
g 208. Involuntary transfers.
§ 209. Vendee of a vendee.
§ 210. Confined to state where property is situate.
§ 211. Attorney's lien.
§ 212. Statutes.
§ 213. Ejectment in California.
§ 214. Notice may be filed before the complaint.
§ 191. Reasons for Law of Lis Pendens. — Besides the
parties named in a judgment or decree, many others are
brought within its influence, and made to respect its com-
mands and to abide by its settlements. Prominent among
these parties are all those persons who have brought
themselves within the principles involved in the law of
Us pendens. The rules applied to third persons becoming
interested in the subject-matter in litigation by acquiring
the title of one of the parties to the controversy 'pendente
lite have been explained and justified upon the assump-
tion that those rules were based upon notice, actual or
constructive. It has been said "that all people are sup-
§ 391 PERSONS BOUND BY LIS PENDENS. 350
posed to be attentive to what passes in courts of justice,"^
and that, from being attentive, they must be informed of
the various matters in process of litigation in those courts.
But the more reasonable view is, that the law of lis pen-
dens is not based upon presumptions of notice, but upon
a public policy imperatively demanded by a necessity
which can be met and overcome in no other manner.'^
**It is a careless use of language which has led judges to
speak of it [lis pevidens] as notice because it happens
to have, in some instances, a similar effect with notice." '
"The justice of the court would be wholly evaded by
aliening the lands after subpoBua served, and the suitor
subject to great delay, expense, and inconvenience, with-
out any certainty of at last securing his interest."* In fact,
the doctrine of lis pendens as understood and enforced at
common law does not seem to have required even such
constructive notice as would in all cases put a man of
ordinary sagacity on his guard, or as would have enabled
him to ascertain whether the property in which he de-
sired to acquire an interest was involved in litigation.
The commencement of lis pendens dated from the service
of the subi^oena, though it was not returnable until the
next term. No lis pendens existed until the bill was filed,
yet the filing being made, the lis pendens, by relation, was
considered as in force from the service of the subpoena.
Under such a system, it might frequently happen that a
man would be bound by a suit whose object he could only
conjecture, no means of information being accessible.
That every man should be presumed to be present in the
courts and attentive to their proceedings, is a most un-
natural presumption, — a fiction not merely im.2:)robable,
but impossible, since by no human power can- one man
* Worsley v. Earl of Scarborongh, 3 97 Pa. St. 153; Houston v. Timmer-
Atk. 392; Green v. White, 7 Blackf. man, 17 Or. 499; 11 Am. St. Rep. 848.
242. » Watson v. Wilson, 2 Dana, 406; 26
'^ Newman v. Chapman, 2 Rand. 98; Am. Dec. 459.
14 Am. Dec. 766; Bellamy v. Sabine, * Ludlow's Heirs v. Kidd's Ex r, 3
1 De Gex & J. 566; Dovey's Appeal, Ohio, 541.
351 PEKSONS BOUND BY LIS PENDENS. § 191 ■
be at all limes in attendance upon the several tribunals
of his country in which claims to specific property are
determined. But the necessity of the rules of lis pendens
is so apparent and so unavoidable that the early exist-
ence and continued application of these rules were indis-
pensable to a wise public policy. If during the pendency
of any action at law or in equity the claim to ihe prop-
erty in controversy could be transferred from the parties
to the suit so as to pass to a third party, unafi'ected either
by the prior proceedings or the subsequent result of the
litigation, then all transactions in our courts of justice
would, as against men of ordinary forethought, prove
mere idle ceremonies. A series of alienations protracted
into the boundless future w^ould forever preclude the pre-
vailing party from obtaining that to which he had vindi-
cated his claim.
The necessity of lis pendens and the perils which it was
designed to avert w^ere thus forcibly stated by Chancellor
Kent in a case which is regarded as a pioneer in the
United States on the subject on which it treats, and which
enjoys the distinction of being quoted and approved in
every part of our country: "The counsel for the defend-
ants have made loud complaints of the injustice of the
rule, but the complaint was not properly addressed to me;
for if it is a well-settled rule, I am bound to apply it, and
it is not in my power to dispense with it. I have no
doubt the rule will sometimes operate with hardship upon
a purchaser without actual notice; but this seems to be
one of the cases in which private mischief must yield to
general convenience, and most probably the necessity of
such a hard application of the rule will not arise in one
out of a thousand instances. On the other hand, we may
be assured the rule would not have existed, and have been
supported for centuries, if it had not been founded in
great public utility. Without it, as has been observed in
some of the cases, a man, upon the service of a subpcena,
might alienate his lands, and prevent the justice of the
I 192 PERSONS BOUND BY LIS PENDENS. 352
court. Its decrees might be wholly evaded. In this very
case the trustee had been charged with a gross breach of
his trust, and had been enjoined by the jDrocess of the
court, six months before the sale in question, from any
further sales. If his subsequent sales are to be held valid,
what temptation is held out to waste the trust property,
and destroy all the hopes and interests of the cestui que
trust! A suit in chancery is, in such cases, necessarily
tedious and expensive, and years may elapse, as in this
case, before the suit can be brought to a final conclusion.
If the property is to remain all this time subject to his
disposition in spite of the efforts of the court to prevent
it, the rights of that helpless portion of the community
whose property is most freq'uently held in trust will be
put in extreme jeopardy. To bring home to every pur-
chaser the charge of actual notice of the suit must from
the very nature of the case* be in a great degree imprac-
ticable."'
§ 192. Is a Rule both at Law and in Equity. — In the
case of King v. Bill, 28 Conn. 593, the statement is made
that lis pendens is a purely equitable rule, recognizable
only in equity. This case is, however, chiefly, if not ex-
clusively, remarkable for the clearness and precision with
which it misstates the law of lis pendens. It has no force
as an authority, being overruled by the case of Newton v.
Birge, 35 Conn. 250. According to the opinion of Lord
Justice Turner, " that this doctrine belongs to a court of
» Murray v. Ballon, 1 Johns. Ch. 566, tin v. Stikes, 1 Cas. Ch. 150: Culpep-
decided in 1815. To show that lis per v. Austin, 2 Ch. Cas. 115; Garth
pendens was then old and well estab- v. Ward, 2 Atk. 174; Preston v. Tub-
lished in our law, the chancellor bin, 1 Vern. 286; Sorrell v. Carpenter,
quoted the ordinance of Lord Bacon, 2 P. Wins. 482; Anonymous, 1 Vern.
that "no decree bindeth any that 318; Finch i7. Kewnham, 2 Vern. 216;
cometh in bona fide, by conveyance Walker v. Sinalwood, Amb. 676;
from the defendant, before the bill Bishop of Winchester w. Paine, 11 Ves.
exhibited, and is made no party, 194. For a very similar view of lui
neither by bill nor order; but where pendens, see Bellamy v. Sabine, 1 De
he comes m peHcZe«)!e ffie, and while the Gex & J. 566, decided in 1857; also
suit is in full prosecution, and without Haughwout v. Murphy, 22 N. J. Eq.
any color of allowance or privity of 544; Metcalfe v. Pulvortoft, 2 Ves. &
the court, there regularly the decree B. 205.
bindeth "; and cited the cases of Mar-
353 PERSONS BOUND BY LIS PENDENS. § 193
law, no less than to courts of equity, appears from a pas-
sage in 2 Institutes, 375, where Lord Coke, referring to an
alienation by a mesne lord pending a writ, says that the
alienee could not take advantage of a particular statute of
Westminster, because he came to the mesnalty pendente
brevi, and in judgment of law the mesne as to the plaintiff
remains seised of the mesnalty, for pendente lite nihil inno-
vetur." ^ In truth, this doctrine seems to prevail with re-
spect to judicial proceedings of every character, and is
therefore applicable to proceedings to condemn lands,^ to
contest the validity of wills,^ to seize and administer the
estates of bankrupts,* and to foreclose all kinds of liens.^
In many of the states statutes have been passed in which
the doctrine of lis pendens is regulated and limited. These
statutes are believed not to apply to actions in the federal
courts of the state, unless adopted by the rules of those
courts, and particularly not to apply to suits in equity in
those courts, unless so adopted.^
§ 193. Transfers Pendente Lite cannot Prejudice Suit.
— It is now a universally recognized rule of law that no
alienation or transfer of the subject-matter of the contro-
versy, made wdiile the suit is being prosecuted with due
diligence, need be noticed by the parties to the action.
Such alienation, though valid between the parties thereto,
is void as against the judgment or decree finally rendered
in the suit.^
I Bellamy v. Sabine, 1 De Gex & J. 12 Ark. 411; Shotwell v. Lawson, 30
584- Secombe v. Steele, 20 How. 94. Miss. 27; 64 Am. Dec. 145; Walden v.
^'Plunimer v. Wausaw B. Co., 49 BocUey's Heirs, 9 How. 34; Copeii-
Wis. 449; Roach v. Riverside W. Co., heaver v. Huffaker, 6 B. ^Nlon. IS;
74 Cal. 263. Jackson v. Warren. 32 111. 331; Looniis
3 Mcllwrath v. Hollander, 73 Mo. v. Riley, 24 111. 307; Inloe's Lessee v.
105: 39 Am. Rep. 484. Harvey, 11 Md. 519; Sharp v. Lumley,
* KimberliuK v. Hartley, 1 McCrary, 34 Cal. 611; Barelli v. Delassus, 16 La.
13g Ann. 280; Calderwood v. Tcvis, 23
"Wagner v. Smith, 13 Lea, 560; Cal. 335; Horn v. Jones, 28 Cal. 194;
Wilson V. Wright, 72 Ga. 848. Montgomery v. Byers, 21 Cal. 107;
« Majors v. CowcU, 51 Cal. 481. Boulden v. Lanahan, 29 Md. 200;
^ Moons V. Crowder, 72 Ala. 79; Hurlbutt v. Butenop, 27 Cal. 50;
Norton V. Birge, 35 Conn. 250; Truitt v. Truitt, 38 Ind. 16; Common-
Bayer V. Cockerill, 3 Kan. 282; Lee v. wealth v. r)ietren1)ach, 3 Grant Cas.
SaUnas, 15 Tex. 495; Meuxt). Anthony, 368; Hughes v. Whitaker, 4 Heisk.
JuDG. I.— 2a
§ 193
PERSONS BOUND BY LIS PENDENS.
354
Lis pendens is often spoken of as operating as construct-
ive notice of the suit, and of the material allegations of
the pleadings therein;^ but its real effect is much greater
than that of mere notice. It has the effect to bring the
subject-matter of the litigation within the control of the
court, and to render the parties powerless to place it be-
yond the power of the final judgment. If any one ac-
quires any interest pendente lite, no notice need be taken
of him or his acquisition. He need not be made a formal
party in any way. Nevertheless, the judgment, when
rendered, must be given the same effect as if he had not
acquired his interest, or as if he had been a party before
the court from the commencement of the proceeding.
His interests are absolutely concluded by the final deter-
mination of the suit;^ and this is true, whether the trans-
fer to him is voluntary, or -he has undertaken to secure,
pendente lite, an attachment or execution lien, or to acquire
399; Walker v. Douglas, 89 111. 425;
Snowman v. Harford, 62 Me. 434; Til-
ton V. Cofield, 93 U. S. 163; Jackson
V. Andrews, 7 Wend. 152; 22 Am. Dec.
574; Smith v. Crocker, 65 Ga. 461;
Whitney v. Higgins, 10 Cal. 547; 70
Am. Dec. 748; Le Roy v. Eogers, 30
Cal. 229; 89 Am. Dec. 88. The rule is
as applicable to encumbrancers as to
purchasers: Youngman v. ElmiraR. R.
Co., 65 Pa. St. 278; Masson v. Saloy,
12 La. Ann. 776; and affects pur-
chasers at sheriff's sale to the same
extent as if the alienation was volun-
tary: Fash V. Ravesies, 32 Ala. 451;
Steele v. Taylor, 1 Minn. 274; Hall v.
.Jack, 32 Md. 253; Hersey v. Turbett,
27 Pa. St. 418; Cooley v. Bray ton, 16
Iowa, 10; Hart v. Marshall, 4 Minn.
294; Crooker v. Crooker, 57 Me. 395;
Berry v. Whitaker, 58 Me. 422. In
McPherson v. Housel, 13 N. J. Eq.
299, it was decided that the vendee of
the defendant in a forelosure suit
takes the property subject to all costs
which may be made in the case, in-
cluding those occasioned by an appeal
prosecuted by the defendant subse-
quently to his conveyance.
' Tredway v. MbDonald, 51 Iowa,
663; Meyer v. PorLis, 45 Ark. 420;
Union T. Co. v. Southern In. Nav. Co.,
130 U. S. 565; Randall v. Duff, 79 Cal.
115; Jackson v. Dickinson, 15 Johns.
309; 8 Am. Dec. 236; Woodfolk v.
Blount, 2 Hayw. (Tenn.) 147; 9 Am.
Dec. 736.
2 Union T. Co. v. Southern In. Nav.
Co., 130 U. S. 565; Kellar v. Stanley,
86 Ky. 240; Jones v. McNarrin, 68
Me. 334; 28 Am. Rep. 66; Snowden v.
Craig, 26 Iowa, 156; 96 Am. Dec. 125;
Evans v. Welborne, 74 Tex. 530; 15
Am. St. Rep. 858; Stevenson ii. Ed-
wards, 98 Mo. 622; Roach v. Riverside
W. Co., 74 Cal. 263; Shelton v. John-
son, 4 Sneed, 672; 70 Am. Dec. 265;
Pickett V. Ferguson, 45 Ark. 177; 55
Am. Rep. 545; Jackson v. Andrews,
7 Wend. 152; 22 Am. Dec. 574; Mel-
len V. Moliue M. L W., 131 U. S. 352;
Powell V. Williams, 14 Ala. 476; 48
Am. Dec. 105; Gould v. Heudrickson,
96 111. 599; Galbreath v. Estes, 38 Ark.
599; Welton v. Cook, 61 Cal. 481; Ed-
wards v. Norton, 55 Tex. 405; Ray v.
Roe, 2 Blackf. 258; 18 Am. Dec. iofl;
Murray v. Blatchford, 1 Wend. 583;
19 Am. Dec. 537; Briscoe v. BouauLdi,
1 Tex. 326; 46 Am. Dec. 108; Fortes
V. Hill, 30 Tex. 529; 98 Am. Dec.
48L
355
PERSONS BOUND BY LIS PENDENS,
§194
title by an execution or judicial sale.^ Jurisdiction over
the subject-matter is always essential. In its absence, no
effect can be given to proceedings though they purport to
be judicial, for in law they are extrajudicial. Hence if
the petition or complaint does not disclose a subject-mat-
ter within the jurisdiction of the court, "the proceedings
cannot operate as a lis pendens, even from the date of the
service of process."^
§ 194. Property Bound by. — Courts have occasionally
exhibited a reluctance in applying the doctrines of It's pen-
dens to any property other than real estate. And it has
been said that at least no movable personal property, to
■which possession constitutes the chief evidence of title, is
bound by the suit, in the hands of a bona fide purchaser
without notice; but "it may be conceded that at this day
lis pendens applies wuth equal force to controversies in re-
gard to personal property." * Choses in action, including
' Thorns V. Southard, 2 'Dana, 475;
26 Am. Dec. 467; Rider v. Kelso, 53
Iowa, 367; Kimberling v. Hartley, 1
McCrary, 136; Northern Bank v.
Deckebach, 83 Ky. 154.
•-' Jones V. Lusk, 2 Met. (Ky.) 356;
Benton v. Shafer, 47 Ohio, 129; Pear-
son V. Keedy, 6 B. Mon. 128; 43 Am.
Dec. 160.
s Swantzr. Pillow, 50 Ark. 300; 7 Am.
St. Rep. 98; Carr r. Lewis Coal Co., 15
Mo. App. 551; McCutchen v. Miller, 31
Miss. 65;Tabbi'. Williams, 4 Jones Eq.
352; Murray?;. Ballon, 1 Johns. Ch. 56ti.
For application to negotiable notes past
due, see Kellogg v. Fanclier, 23 Wis. 21 ;
99 Am. Dec. 96; to purchase of a patent
pending litigation, to have it declared
void: Tyler v. Hyde, 2 Blatchf. 308; to
suit to subject bank stock to a certain
trust: Leitch v. Wells, 48 Barb. 6:>7;
to creditor's bill to reach furniture:
Scudder v. Van Amburgh, 4 Edw. Ch.
29; to railroad bonds in Pennsyb ania,
where such bonds, contrary to the de-
cisions in other states, are held non-ne-
gotiable: Diamond v.Lawrence County,
37 Pa. St. 353; 78 Am. Dec. 429. See,
however. Chase v.Searles, 45N. H. 511,
where the application of lis pendens to
personalty seema to be doubted in
general, and to be altogether denied
as to personal property sought to be
made available to the satisfaction of a
judgment by means of a creditor's
bill. The case of Leitch v. Wells, re-
ferred to in this note, has been reversed
upon appeal. Three of the commis-
sioners of appeals by whom the case
was decided wrote separate opinions,
each assigning somewhat diflereut
grounds from those urged by his
brethren for the reversal. Upon the
question whether the property in con-
troversy was of such a nature that it
could be bound by lis pendens. Com-
missioner Earl wrote as follows: "Since
the decision of McNeil v. Tenth Na-
tional Bank, 46 N. Y. 325, 7 Am. Rep.
341, certificates of stock with blank
assignments and powers of attorney
attached must be nearly as negotiable
as commercial paper. The doctrine of
constructive lis pendens has never yet
been applied to such property. This
doctrine must have its limitations. It
could not be applied to ordinary com-
mercial paper, nor to bills of lading,
nor to government or corporate bonds
payable to bearer. Indeed, I do not
find that it has ever been applied, and
I do not think it ought to be applied,
§ 195 PERSONS BOUND BY LIS PENDENS. 356
negotiable paper past due, are subject to the doctrine of
lis pendens;' in fact, the only property not so subject is
negotiable paper not past due.^ When such paper is the
subject of the suit, the court ought to require it to be
brought into court, or so placed that the defendant can-
not commit a fraud upon the law by making the judg-
ment unavailable.^ Every consideration of necessity and
of public policy which demands and justifies the law of
lis pendens as applied to real estate also demands and justi-
fies the application of the same law to personal property.
In fact, the ease with which personalty could be transferred
to parties having no notice of the litigation is much greater
than in the case of real estate. The probability of the
defendant's entirely defeating the object of the suit by a
transfer of the property pendente lite is rather greater in
the case of personal than of real estate, and the necessity
of some law prohibiting such transfer, to the prejudice of
the prevailing party, is therefore greater in the former
case than in the latter. But the necessity of preserving
the negotiable character of negotiable paper not due, so
as to require no inquiry beyond inspection of the paper
itself in relation to its ownership, has properly been con-
sidered paramount to the necessity of avoiding transfers
pendente lite, and that class of paper, therefore, is the only
property not liable to be affected by the doctrine of lis
pendens.
5 §195. Commencement. — Lis pendens began, by the
common law, at the teste of the writ,'' and in chancery on
the service of the subpoena, and not before,^ and the de-
to any of the ordinary articles of com- merman, 68 Pa. St. 72; 8 Am. Rep. 157;
merce Public policy does not require Kellogi? v. Faiicher, 23 Wis. 21; 99
that it should be tlius applied. On Am. Dec. 96; Mayberry v. Morris, 62
the contrary, its application to such Ala. 1.32. ^, • „- t^ t
property would work great mischief, ^ Stone w. Elliott, 11 Ohio, 2o2; Keif-
and lead to great embarrassments ": fer v. Ehlcr, 18 Pa. St. 388.
Leitch V. Wells, 48 N. Y. 613. ^ Newman v. Chapman, 2 Rand. 93;
1 Diamond v. Lawrence County, 37 14 Am. Dec. 766.
Pa St 353; 78 Am. Dec. 429. * Wickliffe v. Breckinridge, 1 Bush,
2 Winston V. Westfeldt, 22 Ala. 760; 443; Miller v. Sherry, 2 Wall. 2.37;
58 Am. Dec. 278; Mims v. West. 38 Waring v. Waring, 7 Abb. Pr. 472;
Ga. 18; 95 Am. Dec. 379; Day v. Ziiu- Goodwin v. McGehee, 15 Ala. 232.
357 PERSONS BOUND BY LIS PENDENS. § 195
fendant had no power to give it eflfect at an earlier day
by the acceptance of the service of the subpoena as of a
date prior to that of its actual service,^ It is also neces-
sary that the bill be filed, but upon such filing the lis
pendens begins from the service of the subpoena.^ In Wis-
consin, under the code, a summons and complaint in a
proceeding to obtain an injunction may be served before
either is filed in court. Property intended to be affected
by such a proceeding, having been transferred bona fide
without notice, after service on the defendant, but before
filing the papers in court, it was held that the doctrine
of lis pendens ought not to be applied, where there was no
record of the suit, although the process had been served;
that while there is no hardship in requiring purchasers
to examine the records of the county, there is a manifest
hardship in requiring them to take notice of that which
no examination, however patient and industrious, could
reveal, and that no case exists, under the code, enforcing
lis pendens before papers are filed, and none ought to
exist.^
The doctrine that upon the filing of a bill or com-
plaint the Us pendens takes eifect at an anterior date cor-
responding with the date of the service of the subpoena
lias been most emphatically repudiated. This doctrine is
based upon an anonymous case decided in 1685, and re-
AUen V. Mandaville, 26 Miss. 397; ^ Miller v. Kershaw, 1 Bail. Eq 479;
Butler r. Tomlinson, 38 Barb. 641; Ed- 23 Am. Dec. 183. The fact that a
•wanls V. Banksmith, 35 Ga. 213; Her- copy of the bill was read tooue defend-
rington v. Herrington, 27 Mo. 5(iO; ant by another cannot put in operatioa
Lyle V. Bradford, 7 T. B. Mon. 115; the law of lis pendens before the sub-
Haughwout V. Mnrphy, 22 N. J. Eq. poena is served: Williamson v. Wil-
545; Powell v. Wright, 7 Beav, 444; liams, 11 Lea, 355.
Jackson v. Dickenson, 15 Johns. 309; '■' Anonj'mous, 1 Vern. 318; Sugdea
8 Am. Dec. 236; Campbell's Case, 2 on Vendors, 1045.
Bland, 209; 20 Am. Dec. 360; Murray ^ Kellogg v. Fancher, 23 Wis. 21; 99
V. Blatchford, 1 Wend. 583; 19 Am. Am. Dec. 96. And an order to file a
Dec. 537; Scott e. ^McMillan, 1 Litt. complaint 7)unc pro tunc as of the day
302; 13 Am. Dec. 239; Majors v. Co- when the notice of action was filed
well, 51 Cal. 478; Stone v. Tyree, 30 will not make the ^wj)e?K/e«.s operative
W. Va. 687; Staples v. White, 88 against a purchaser after the filint; of
Tenn. 30; Union T. Co. v. Southern the notice, and before the filing oi the
In. N. Co., 1.30 U. S. 565; Sanders v. complaint: Weeks v. Tomes, IP Hun,
McDonald, 63 Md. 503; Grant v. Ben- 349.
nett, 96 111. 513.
§ 195 PERSONS BOUND BY LIS PENDENS. 858
ported in 1 Vernon, 318. This case, it is claimed, has never
been affirmed or approved in any manner, in the ahnost
two centuries of time intervening since its decision. But
on the other hand it may also be claimed to have stood
during that long period of time without being, until very
recently, made the subject of judicial dissent. The follow-
ing are the views of Mr. Commissioner Earl, expressed in
the case of Leitch v. Wells, and sanctioned by the judg-
ment entered in that case by the commission of appeals
of the state of New York: " Suits in equity may now be
commenced by the service of the summons alone; but it
w^ould be quite monstrous to hold that the suit shall be
deemed pending from the time of such service, so as to
be 'constructive notice' to all the people of the state of
its pendency. No record is kept of the issuing of the
summons, and it is not required to be filed. It may be
issued b}'' any one of several thousand lawyers in the
state, or by any one of several hundred thousand persons
in the state competent to be plaintiffs in a suit, and it
might not be possible for a stranger to the suit, by any
degree of deligence, to learn that it had been issued or
served; and if he did perchance learn of it, it would give
him no notice whatever of the subject-matter of the liti-
gation. If, therefore, the mere service of a summons
should be lis pendens, so as to bind strangers, it would in-
troduce great uncertainty and embarrassment into trans-
actions in reference to personal property, provided the
rule of lis pendens were extended as broadly as claimed
for the plaintiffs in this case. I therefore hold that there
is no lis pendens, so as to give constructive notice to
strangers, until a summons had been served, and a com-
plaint, distinctly stating the subject of the litigation, and
specifying the claim made, has been filed in the proper
clerk's office. The rule as thus stated is sufficiently hard
and unreasonable." ^ Similar views prevail in Wiscon-
' Leitch V. Wells, 48 N. Y. 611. In the earlier case of Hayden v. Bucklin,
this case it seems to be assumed that 9 Paige, 513, was inconsistent with
359 PERSONS BOUND BY LIS PENDENS. § 196
sill' and Kansas; and in the latter state though the com-
plaint is presented for filing and indorsed as filed, yet if
it is withdrawn from the clerk's office so that it cannot be
seen and examined there, the operation of the law of lis
pendens is thereby suspended.*^
The constructive service of process, when authorized by
law, is equivalent to its personal service. Whenever the
service may be made by publication, the lis pendens is
complete upon the actual publication of the notice for
defendant to appear;^ but it seems that there is- no lis
pendens until the order for publication is fully executed. ■*
Where a defective subpoena was served, and afterwards
the service was set aside, and the subpoena amended so as
to bear date the day the service was set aside, it was held
that lis pendens did not begin until service of the amended
subpoena.'
§ 196. Specific Property must be Affected. — To deter-
mine whether an action or proceeding will put in opera-
tion the doctrine of lis pendens, one must inquire whether
its object is to aff'ect specific property or not. If the relief
sought includes the recovery of possession, or the enforce-
ment of a lien, or the cancellation or creation of a muni-
ment of title, or any other judicial action affecting the
title, possession, or right of possession of specific property,
real or personal, then there is or may be a lis pendens
sufficient to bind all subsequent purchasers or encum-
brancers.^ If, on the other hand, no specific property is
to be affected by the judgment, there is no lis pendens.
the decision reported in 1 Vernon. But 461; Hayden v. Bucklin, 9 Paige,
Chancellor Walworth instead of doubt- 511.
ing the case in 1 Vernon, cited it, and * Clevinger v. Hill, 4 Bibb, 408; Car-
also similar case of Moor v. Welsh ter v. Mills, 30 Mo. 432; Cassidy v.
Copper Co., 1 Eq. Cas. Abr. 89, with Kluge, 73 Tex. 154.
apparent approbation. ^ Allen v. Case, 13 Wis. 621.
1 Sherman v. Bemis, 58 Wis. 343; ^ jj,osenheim v. Harstock, 90 Mo. .357;
pawson V. Mead, 71 Wis. 295. Chaffe v. Patterson, 61 Miss. 28; Hous-
^ Wilkinson v. Elliott, 43 Kan. 590; ton v. Timmerman, 17 Or. 499; 11
19 Am. St. Rep. 158. Am. St. Rep. 848; O'Brien v. Putney,
* Chaudron v. Magee. 8 Ala. .570; 55 Iowa. 292; Spencer v. Credle, 102
Bonnet's Lessee v. Williams, 5 Ohio, N. C. 68.
§ 197 PERSONS BOUND BY LIS PENDENS. 360
Hence if the object of the action is merely to recover a
money judgment, there can be no lis pendens,^ though the
cause of action may arise out of property specified in the
petition or complaint, as where the suit is to recover
the value of such property or compensation for injuries
thereto.'^
A suit for divorce and for alimony and the division
of common or other property may or may not operate
as a lis 'pendens. If the complaint does not designate
particular property, and seek to subject it to the satisfac-
tion of the wife's claims, or to have it set aside as hers
or for her use, she is not entitled to the benefit of the
rules of lis pendens, because her suit does not apply to
any specified part of the husband's estate, real or per-
sonal.^ The judgment which may be obtained may, from
the docketing thereof, constitute a lien on certain prop-
erty; but in this as well as in all other respects it no
more constitutes a lis pendens, or a claim to particular
estate, than a suit upon a promissory note or any other
sufficient cause of action. It is not sufficient that the
judgment, unless otherwise paid, will be satisfied out of
the sale of certain real estate, unless its sale is directed
by the judgment as part of the relief sought by the com-
plaint. If, on the other hand, the pleadings in a suit for
divorce describe specific property in respect to which relief
is sought, either by making it chargeable with the payment
of alimony, or setting it apart for the use of or as the
property of one of the parties, or of partitioning or divid-
ing it between them, the doctrines of lis pendens apply.*
§ 197. Property must be Pointed out. — It is further
essential to the existence of lis pendens that the particular
1 St. Joseph Mfg. Co. v. Daggett, S4 7 Md. 537; 61 Am. Dec. 375; Scott v,
111. 556; Raw. Eoe, 2 Blackfr 258; 18 Rogers, 77 Iowa. 483.
Am. Dec. 159; White v. Perry, 14 *^Vi^ilkinsou v. Elliott, 43 Kan. 590;
W. Va. 66. 19 Am. St. Rep. 158; Powell v. Camp-
2 Gardner v. Peekham, 13 R. I. 102. bell, 20 Nev. 232; 19 Am. St. Rep. 350;
3 Brightman v. Brightman. 1 R. I. Daniel v. Hodges, 87 N. C. 95; Toler-
112; Hamlin v. Bevans, 7 Ohio, 161; ton v. Williard, 30 Ohio St. 579; Sapp
28 Am. Dec. 625; Feigley v. Peigley, v. Wightman, 103 111. 150.
861 PERSONS BOUND BY LIS PENDENS. § 197
properly involved in the suit "be so pointed out by the
proceedings as to warn the whole world that they inter-
meddle at their peril."* Therefore a suit against a cor-
poration to forfeit its charter," or against its directors to
compel them to perform their duties,^ in which no prop-
erty is described, does not affect 'pendente lite purchasers.
Where a suit was, among other things, to restrain a trus-
tee from "selling any more of the trust negroes," it was
held not to affect the purchaser of a negress, because "there
was nothing calling attention to her in the bill as tlie
identical property in litigation.* Hence a general bill for
an account of real or of real and personal estate does not
create such a lis pendens as will affect a purchaser, but the
rule is otherwise when it is sought to charge a particular
estate with a particular trust.* In a leading case it was
said that a bill "must be so definite in the description
that any one reading it can learn thereby what property
is intended to be made the subject of litigation."® But as
it is also stated in the same opinion that it was evident
that the pleader in the original case did not have in his
mind the property sought to be affected by lis pendens,
the language of the court is probably to be construed as
applicable only to those cases in which there is nothing
to put a purchaser upon inquiry, and not to the cases
where the pleadings, tliough sufficient to put a purchaser
on his guard, do not in themselves contain a particular
designation of the property in controversy. In a case
where, by the decision of Chancellor Kent, a purchaser
was held to be bound, the property described in the bill
was "divers lands in Crosby's manor," held in trust for
the plaintiff by the defendant. Winter. The chancellor
said: "It is true, there might have been 'divers' lands in
'Crosby's manor' held in trust by Winter, and yet the
1 Russell V. Kirkbride, 62 Tex. 455. Jones v. McNarrin, 68 Me. 334; 28
^ Havemeyer v. Superior Court, 84 Am. Rep. 60.
Cal. 327; 18 Am. St. Rep. 192. '' Su^r.leii on Vendors, 1045.
3 Paine v. Root, 121 111. 77. « Miller v. Slierrv, 2 Wall. 237; Low
*■ Lewis V. Mew, 1 Strob. Eq. 180; v. Pratt, 53 111. 43S.
§ 198 PERSONS BOUND BY LIS PENDENS. 362
lots sold to defendant have been held by him in his own
absolute right. But though this was a possible it was
an improbable fact; and if ever a bill contained sufficient
matter to put a party upon inquiry, the bill in 1809 an-
swered that purpose. The doctrine of lis pendens is indis-
pensable to right and justice, in the cases and under the
limitations in which it has been applied; and according
to the observations of Lord Chancellor Manners we must
not suffer the rule to be frittered away by exceptions.
Was it too much to have required of a purchaser charged
with notice of all the facts in the bill to have called upon
Winter to discover the source of his title? The general
rule is, that what is sufficient to put the party upon in-
quiry is good notice in equity. The least inquiry even
of Winter himself would have satisfied the purchaser
that the lots he purchased were parcel of the trust lands
mentioned in the bilL"* From this decision, which
seems to be sustained by reason, it would follow that the
description in the bill need not, in itself, be so specific as
to necessarily and beyond all possibility include a given
tract of land; but that it is ample, for the purpose of
invoking the rule of lis pendens, if the land in all prob-
ability comes within the description, and if prospective
purchasers, upon reading the bill, are advised by it that
the land with which they propose to meddle may be, and
probably is, a parcel of the lands in litigation.
§ 198. "Lis Pendens is Notice of Every Fact Con-
tained in the Pleadings which is pertinent to the trial of
the matter put in issue by them; and, in a chancery case,
of the contents of exhibits to the bill which are produced
and proved.'"^ Constructive notice of matters not in
issue, and not pertinent to any issue, and which there-
fore cannot be determined in the action or proceeding,
cannot be given by mentioning them in any pleading or
1 Green v. Stayter, 4 Johns. Ch. 39. 743; Moore v. Hershey, 90 Pa. St.
* Center v. P. & M. Bank, 22 Ala. 196.
363 PERSONS BOUND BY LIS PENDENS. § 199
other paper.* So an action to determine the title to a
mortgage cannot affect parties who purchased the land
subject to such mortgage.^
Lis pendens does not affect any property not necessarily
bound by the suit. Thus if money is secured upon an
estate, no litigation about that money, but not about the
estate, can affect a purchaser of the estate.' Lis pendens
is notice of all facts apparent on the face of the pleadings,
and of those other facts of which the facts so stated, ne-
cessarily put the purchaser on inquiry;* but it is not
notice of every " equity which by possibility can arise out
of the matters in question in the suit."^
§ 199. Amendments. — It is further necessary, in order
to conclude a purchaser by virtue of a judgment, that
by the record in the case at the time of the purchase the
parties to the suit and the nature of the claim made to the
property should be so stated that no subsequent amend-
ment will be necessary. If any amendment is made, lis
pendens as to the matters and parties involved in the
amendment dates from the time it is made. The amend-
ing of a bill to show a new equity creates a new lis pen-
dens. Thus where property was sought to be subjected
to the payment of plaintift^'s demands upon one ground,
and that ground becoming untenable, the bill was
amended to show another equity, upon which plaintiff
prevailed in the suit, a purchaser preceding the amend-
ment was held not to be bound by the decree.® The de-
cisions in Ohio have established an exception to this rule.
A bill w^as filed to subject lands to the payment of a judg-
ment, W'hich was subsequently reversed and a new trial
I Page V. Waring, 76 N. Y. 463; ^ Shalcross v. Dixon, 7 L. J. Ch.,
Weiler v. Dreyfus, 26 Fed. Rep. S'24. N. S., 180.
* Green v. Rick, 121 Pa. St. 130; 6 « Stone v. Connelly, 1 Met. (Ky.)
Am. St. Rep. 760. 652; 71 Am. Dec. 499; Jones v. Lusk,
^ Worsley v. Earl of Scarborough, 3 2 Met. (Ky. ) 356; Clarkson v. Morgan,
Atk. 392. 6 B, Moil. 441; Wortham v. Boyd, 66
« Jones V. McXarrin, 68 Me. 3.34; 28 Tex. 401 ; Holland v. Citizens' S. B.,
Am. Rep. 66; Lockvvnod v. Bates, 1 19 Atl. Rep. 654 (R, I.).
Del. Cli. 435; 12 Am. Dec. 121.
§ 199 PERSONS BOUND BY LIS PENDENS. 364
ordered. Upon the new trial the plaintiff again recov-
ered. He then filed his supplemental bill, showing the
new judgment, aud asking that the same lands be sub-
jected to its payment. A question afterward arising
whether the lands were bound by lis pendens prior to the
filing of the supplemental bill, the court said: "It is as-
sumed that when the rig'ht to recover in the bill in
equity was taken away by the reversal of the judgment,
the suit ceased to be pending, so far as to bind the prop-
erty. We are not satisfied that this position is a sound
one. No such distinction is to be found in the books.
But the doctrine seems plain that by the institution of a
suit the subject of litigation is placed beyond the powers
of the parties to it; that whilst the suit continues in
court, it holds the property to respond to the final judg-
ment or decree. The supplemental bill was ingrafted
into the original bill and becomes identified with it. The
whole was a lis pendens, effectually preventing an inter-
mediate alienation." ^
The introduction of new parties is, as to those parties
and their grantees, a new lis pendens, to which, under a
statute requiring the filing of a notice, a new notice is
indispensable.^ If a bill of review sets up matter not in
issue in the original suit, then all parties coming in after
the original suit are not bound by the bill of review un-
less made parties to it.^ There can be no doubt that the
alienee of the plaintiff is as much bound by the judgment
as the alienee of the defendant.* But it does not seem to
be essential to the binding of the plaintiff's vendee that
at the time of the transfer the defendant should have
disclosed his defense or his claim to affirmative relief.^
1 Stoddard v. Myers, 8 Ohio, 203; " Curtis v. Hitchcock, 10 Paige, 399;
affirmed in Gibbon v. Dougherty, 10 Marclibanks v. Banks. 44 Ark. 48.
Ohio St. 365, on the ground that the ^ Debell v. Foxworthy's Heirs, 9 B.
substantial object of the suit was at all Mon. 228.
times the same; and that reversal of * Bellamy v. Sabine, 1 He Gex & J.
the judgment for an irregularity was 580.
neither an extinguishment nor a re- * Hall L. C. V. Gustin, 54 Mich,
lease of plaintiif 's rights. 624.
365 PEESONS BOUND BY LIS PENDENS. § 200
Thus a mortgagor, having a power authorizing him to sell
the premises to pay his debt, commenced a suit to fore-
close, to which he made A and B, junior mortgagees,
parties, and subsequently sold the lands under his power
of sale to C. After such sale, A and B filed their cross-
bill. Upon these facts it was decided that the institution
of the suit created a lis pendens against the plaintiff, and
gave the junior mortgagees the right to litigate their
claims against him connected with the mortgage; that
this right could not be divested by means of any subse-
quent sale or transfer made to a third party; and that
plaintiff could not lull A and B into security by tendering
them an opportunity of controverting his claims, and
then, by having recourse to his power of sale, avoid their
equities.
§ 200. Co-plaintiffs and Co-defendants. — The doctrine
of lis pendens, not being founded upon any of the peculiar
tenets of a court of equity as to implied or constructive
notice, but being a doctrine common to the courts, both
of law and of equity, and resting *' upon this foundation,
that it would plainly be impossible that any action or
suit could be brought to a successful termination if alien-
ation pendente lite were permitted to prevail," should
not be carried any further than is necessary to answer the
purposes which called it into being. The doctrine of lis
pendens must therefore be restrained within its proper
sphere, and not so enlarged as to produce results not at
all essential to the carrying the judgment or decree into
complete effect. Thus if in an action by one plaintiff
against two or more defendants it appears from the plead-
ings that one of the defendants has certain equities
against the others, but those equities do not in any way
affect the present litigation between plaintiff and the de-
fendants, and the rights of the defendants between each
other are not sought to be determined, no Us pendens can
be crealed beyond the purposes of the suit, and an alienee
§ 201 PERSONS BOUND BY LIS PENDENS. 366
of one of the defendants is not charged with implied
notice of the equities between the co-defendants/ It
would seem to be perfectly clear, in the absence of all
authority upon the subject, that there could be no lis pen-
dens between co-plaintiffs or co-defendants in any action
not designed to settle the rights of such plaintiffs or de-
fendants between each other, no matter how many facts,
not material to the present controversy, happened to find
their way into the record. If, however, upon proper
pleadings, one of the defendants is shown to have certain
rights, as against the others, affecting specific property, and
entitling him to relief with respect to such property in
the present action, a purchaser, after such pleadings have
been filed, and notice of the defendant's claim for relief
registered, is bound as a purchaser pendente lite?
§ 201. Affects only Pendente Lite Intermeddlers. —
The lis pendens "is only constructive notice of the pen-
dency of the suit as against persons who have acquired
some title to or interest in the property involved in the
litigation " under the parties to the suit, "or some of them,
pendente lite."^ It can, in no circumstances, operate upon
parties whose rights were acquired anterior to the com-
mencement of the suit.* Persons purchasing or other-
wise acquiring interests in the property prior to the
commencement of the suit are not regarded as having
any notice of it, or as taking a right or title which can be
prejudiced by the judgment therein.®
A very serious question is, whether this rule is appli-
cable to persons who have acquired a title or lien by virtue
» Bellamy v. Sabine, 1 De Gex & J. West, 17 N. Y. 125; Houston v. Tim-
566. merman, 17 Or. 499; 11 Am. St. Rep.
^ Tyler v. Thomas, 25 Beav. 47. 848; Banks v. Thompson, 75 Ala. 531;
* Stuyvesant v. Hall, 2 Barb. Ch. Coles v. Allen, 64 Ala. 93; Newcomb
151. V. Nelson, 54 Iowa, 824.
* Hunt V. Haven, 12 Am. Law Reg. • * Arnold v. Smith, 80 Ind. 417;
592; 52 N. H. 162; Haughwout v. Rodgers v. Dibiell, 6 Lea, 69; Bradley
Murpliy, 22 N. J. Eq. 545; Ensworth v. Luce, 99 111. 234; Hopkins v. Mc-
i'. Lambert, 4 Johns. Ch. 605; People r. Laren, 4 Cow. 677; Curtis v. Hitch-
Connelly, 8 Abb. Pr. 128; Chapman v. cock, 10 Paige, 399.
867 PERSONS BOUND BY LIS PENDENS. § 201
of a conveyance or mortgage Tvhich lias not been filed for
record, and of which the person invoking the aid of the
law of lis pendens had no notice, actual nor constructive.
The question is sometimes controlled by statutes, as where
suits for partition, to foreclose liens, and the like, are
commenced and conducted under enactments declaring
that persons whose interests do not appear of record need
not be made parties, or that when a notice of the pen-
dency of an action is filed tlie judgment shall bind
persons whose conveyances are not tlien recorded.^
Generally, the statutes authorizing the registration of writ-
ings afiecting the title to real property do not make them
void while unregistered, but merely protect from their
operation innocent purchasers or encumbrancers from the
parties thereto, or some of them. If a suit results in the
sale of property so that some one becomes an innocent
purchaser thereunder, he is doubtless protected from un-
recorded waitings of which he has no actual or construct-
ive notice;^ but unless and until some one becomes such
a purchaser, one whose title or lien antedates the suit, but
is not of record, is not bound by the Us pendens. Hence
if a suit is brought by A against B to quiet title to prop-
erty, or to recover possession thereof, after B has conveyed
to C, the latter cannot be bound by the judgment, when
he is not a party to the action, because neither A nor any
of his grantees can be regarded as purchasers or encum-
brancers under either B or C, w^ho are the parties to the
unrecorded conveyance.'
If the owner of land has entered into a contract for its
sale, whereby the purchaser has become vested with an
equity entitling him to a conveyance, he is not regarded
* Collingwood v. Brown, 106 N. C. Vose v. Morton, 4 Cush. 27; 50 Am.
362; Lament v. Cheshire, 65 N. Y. Dec. 750; Hall v. Nelson, 2;} Barb. 8S.
30. Contra, Norton v. Bircfe, 35 Conn. 250;
^ Post, sec. 366; Freeman on Execu- Smith v. Hodsoii, 78 Me. ISO; but this
tions, sec. 336; Sprague v. White, 73 case was decided under a statute de-
Iowa, 670. daring an unrecorded deed to be void,
' Smith V. Williams, 44 Mich. 240; except as against the grantor and his
Hammond v. Paxton, 58 Mich. 393; heirs and devisees.
§ 201 PERSONS BOUND BY LIS PENDENS. 368
£is a purchaser pendente lite as to any suits subsequently
commenced, and a conveyance made to him, though during
the pendency of such a suit, is not subject to the judgment
therein.^ One in possession prior to a suit cannot be
divested of such possession under a judgment against his
grantor, Tliis rule aj)plies where the possession is held
under an executory contract as well as under a completed
purchase and ■payment.'^ Parties having an interest in
lands by contract of purchase with the legal holders of
military land-warrants, having paid the purchase-money,
and being in possession, are necessary parties to a suit,
instituted by the legal holders of the same, to compel an
assignment of such w^arrants and all interest acquired
under them by entry, location, and survey. If not made
parties, they are not prevented by the doctrine of lis 'pen-
dens from proceeding, during the pendency of such suit,
to clothe their junior equity wdth the legal title by pro-
curing patents from the United States.^ In a case decided
in New York in 1833, the defendants had made contracts
to purchase, under which they had entered into posses-
sion of the lands, and held and improved the same for
several years. Suit was then commenced against their
vendor, during the pendency of which they, without an}^
actual notice, completed their payments and procured
conveyances. They were sought to be bound by the de-
cree rendered against their grantor; but it was decided
that the reasons on which the doctrine of lis pendens were
founded were inapplicable to the case; that it was unrea-
sonable to compel the humble tenant in possession of
the land to examine the files of the courts every time he
wished to pay an installment of the purchase-raone}',
while no hardship could be occasioned by requiring
plaintiff to make parties to his suit all persons in the open
possession of the lands to be affected thereby.*
» Franklin Sav. B. v. Taylor, 131 111. » Gibler v. Trimble, 14 Ohio, 323.
376; Walker v. GoUlsmith, 14 Or. 125; * Parks v. Jackson, 11 Wend. 442;
Rooney v. Michael, 84 Ala. 585. 25 Am. Dec. 656.
* Clarkson v. Morgan, 6 B. Mon. 441.
369 PERSONS BOUND BY LIS PENDENS. § 202
As the operation of the law of lis pendens cannot extend
to persons acquiring title under either of the parties an-
terior to the commencement of the suit, it is, if possible,
still less applicable to persons whose title does not appear
to be in any way connected with the parties to the suit.
Therefore whoever purchases property from one whose
title is paramount to that of the parties to the suit, or
which, if not paramount, is not connected with it or them,
by anything contained in the proceedings in the suit or
elsewhere affecting him with notice, cannot be prejudiced
by their suit.^
§ 202. Diligence. — The doctrine of lis pendens, though.
upheld as a necessity, is, as against a bona fide purchaser
without notice, considered as a hard rule, and not to be
favored.^' On the one hand, it is said that " courts gladly
avail themselves of any defect in the pleadings or proofs
of the plaintiflf to prevent its operation upon such a pur-
chaser";^ while, on the other hand, it is held that the
benefit of lis pendens can only be lost by unusual and un-
reasonable delay, and not by ordinary negligence.* There
can be no doubt, however, that to aflfect purchasers there
must be a close and continuous prosecution of the suit;
the exercise of a reasonable diligence, unaccompanied with
"any gross slips or irregularities by which injury could
accrue to the rights of third parties."* What constitutes
unreasonable want of diligence, or undue delay, must be
decided under the particular circumstances of each case.
No general rules upon the subject have come under our
» Allen V. Morris, 34 N. J. L. 159; Clarksoa ''•Morgan 6 B. Mon. 441;
Stuyvesant v. Hone, 1 Sand. Ch. 419; Watson v. Wilson, 2 Dana 406; 26
Shaw r. Barksdale, 25 S. C. 204; Tra- Am. Dec. 459; Myrick t;. Selden, 36
vis V. Topeka S. Co., 42 Kan. 625; Barb. 22; Edrneston r,. Lyde, 1 Pa.ge,
fireenw Rick 121 Pa. St. 130; 6 Am. 637; 19 Am. Dec. 454; Trimble v.
St Re;: ?60 ' Boothby. 14 Ohio, 109; 45 Am. Dec.
2 Hayden v. Bncklin, 9 Paige, 511; 526; Hayes v. Nourse 114 N. Y. 595;
Sorrell t;. Carpenter, 2 P. Wms. 483. 11 Am. St, Rep. 700; Durand v. Lord
'LuaW V. Kid.l, 3 Ohio. 541. 115 111. 610; Wallace v. Marquett, 88
«Gossom V. Donaldson, 18 B. Mon. Ky. 130. And the proseciitio.i of the
230- 68 Am Dec 7'^3 suit must not be collusive: Kippetoe ?\
6 Preston *i>. Tubbm, 1 Vern. 236; Dwyer, 65 Tex. 703; 22 Am. Rep. 370.
JllDQ. T.— 24
§§ 203, 204 PERSONS BOUND BY LIS PENDENS. 870
observation; and perhaps none can be framed which
would be of any particular service. In Kentucky, suit
was commenced to foreclose a mechanic's lien, and be-
came ready for judgment by reason of the defendant's
filing an admission of the allegations of the complaint.
Three years later, no decree being entered, the defendant
mortgaged the same premises to a party having no knowl-
edge of the lien or suit. The delay was deemed sufficient
to relieve the purchaser from the operation of lis pendens.*'
§ 203. New Suit, and Revivor. — If a suit were not
prosecuted with effect, — as if, at law, it were discontinued,
or the plaintiff suffered nonsuit; or if, in chancery, the suit
were dismissed for want of prosecution, or for any other
cause not on the merits; or if, at law or in chancery, any
suit abated, — although in all such cases a new action could
be brought, — it could not affect a purchaser during the
pendency of the first suit.^ In case of abatement, how-
ever, the suit might be continued in chancery by revivor,
or at law in real actions abated by death of a party, by
journies accounts, and the purchaser still bound by the
judgment or decree.' But in all cases there must be no
laches in reviving the suit; for a failure to revive in a
reasonable time results in a suspension of the lis pendens.*
In Kentucky, "a reasonable time" is one year.^ A rea-
sonable excuse for the delay complained of is always
available to keep up the lis pendens.'^
§ 204. Dismissal. — During the pendency of an action
in equity for a specific performance, A purchased the
subject-matter in controversy. The bill was subsequently
dismissed without prejudice, with leave to proceed de novo.
1 Ebrmau v. Kendrick, 1 Met. (Ky.) * Trimble v. Boothby, 14 Ohio, 109;
14G- Mann v. Roberts, 11 Lea, 355. 45 Am. Deo. 526; Shiveley r. Jones, 6
••'Newman?;. Chapman, 2 Rami. 98; B. Mon. 274; Watson v. Wilson, 2
14 Am. Dec. 766; Watson v. Wilson, Dana, 406; 26 Am. Dec. 459.
2 Dana, 408; 26 Am. Dec. 459: Her- = Hull v. Deatly's Adm r, 7 Bush,
rington v. Herrington, 27 Mo. 560. 687. .„ , . , , -r. i
3 Newman v. Chapman, 2 Raiul. 98; « Wickliffe v. Breckenndge, 1 Bush,
14 Am. Dec. 766; Watson r. Wdson, 443.
2 Daua, 408; 26 Am. Dec 459.
371 PERSONS BOUND BY LIS PENDENS. § 205
To the subsequent proceeding A was made a party, but
contended that his purchase was without notice of the
plaintiff's rights. It was decided that the effect of the
former suit as a lis pendens was not impaired by the dis-
missal of the bill with leave to proceed de novo; that by
the immediate filing of his bill de novo the plaintiff had
been constant and continuous in his prosecution; and
that it might well be doubted whether A would not have
been affected by lis pendens, if his purchase had taken
place after the dismissal of the first bill, and before the
filing of the second.^ But in another case the doctrine
that a purchaser pending a bill dismissed without preju-
dice is bound by the subsequent bill is expressly denied.^
§ 205. Writ of Error and Bill of Review. — According
to some of the authorities, a purchaser after final decree,
and before writ of error or bill of review is prosecuted, is
a pendente lite purchaser. Hence a party purchasing
land from a person who had obtained a conveyance of
the land from a commissioner appointed by the court for
that purpose is liable to have his title divested, if the de-
cree should be set aside by bill of review filed after the
purchase;' and this, although the defendants were infants,
and allowed a number of years to file their bill of review.*
But in relation to writs of error, the position has been
taken that ** until service of citation a writ of error is
not to be considered as pending so as to affect strangers
as lis pendens. It is contended that a writ of error is but
the continuance of the original suit, and, like a bill of
revivor or an appeal, reinstates the suit, and refers all
things and parties to its first commencement. We do not
concede that such, in all cases, would be the consequence
of a bill of review or of an appeal. But in this case we
1 Ferrier v. Buzick, 6 Iowa, 258; Earle v. Crouch, 3 Met. (Ky.) 450;
Bishop of Winchesters. Paiue, 11 Ves. Gore v. Stackpoole, 1 Dow, 31; Clark's
Jr. 200. Heirs v. Farrow, 10 B. Mon. 44G; 52
2 Clarkson v. Morgan, 6 B. Mon. Airi. Dec. 552.
441. ^ Luillr.w's Heirs v. Kid.l's Ex'r, 3
^ Debell V. Foxworthy, 9 B. Mon. Oliio, 541; Bishop of WiucheaLer i;.
228; Claiey v. Marshali, 4 Daua, 95; Beaver, 3 Vea. Jr. 314.
§ 206 PERSONS BOUND BY LIS PENDENS. 372
think the analogy does not hold good. In the obvious
nature and character of the proceeding, a writ of error is
a new and original suit. Original process issues in it,
and must be served, to bring the adverse party into court.
The relative character of the parties is changed, new
pleadings are made up, and a final judgment upon it,
though it may operate on another cause, is, nevertheless,
a termination of the new suit or process in error." As
the result of these views, it was determined tliat when
lands had been awarded to A by the decree in a chancery
suit, and he had been placed in possession thereof, his
subsequent conveyance of the lauds passed a title not
liable to be divested by a writ of error, unless the pro-
ceedings upon such writ were commenced and citation
served on the defendant in error prior to his conveyance.^
Where a right of appeal is given, it seems essential to the
efficient exercise of the right that purchasers should be
regarded as acquiring their interests subject to the con-
tingency of diminution or loss by the subsequent reversal
of the judgment, and therefore that they must be held to
be purchasers pendente lite, if their purchase was made
at any time after the commencement of the suit and the
decision on appeaL^
§ 206. Termination of Lis Pendens. — "There is no such
doctrine in this court that a decree made here shall be an
implied notice to a purchaser after the cause is ended,
but it is the pendency of the suit that creates the notice;
for as it is a transaction in a sovereign court of justice, it
is supposed that all people are attentive to what passes
there, and it is to prevent a greater mischief that would
arise by people's purchasing a right under litigation, and
then in contest; but where it is only a decree to account,
and not such a one as puts a conclusion to the matters in
1 Tavlor v. Boyd, 3 Ohio, 337; 17 = Smith v. Britteiiham, 109 111. 540;
Am. Dec. 603; Ludlow v. Kidd, 3 Real E. S. L v. Collonious, 65 Mo.
Ohio, 541; McCormick v. McClure, 6 290; Carr v. Cates, 96 Mo. 271; Dun-
Blackf. 466; 39 Am. Dec. 441; Wool- niugton v. Elston, 101 lad. 373.
dridge v. Boyd, 13 Lea, 151.
873 PERSONS BOUND BY LIS PENDENS. § 206
question, that is still such a suit as does affect people with
notice of what is doing.'" The language here used, if
true at all, must be so to a limited extent only; for if the
effect of the rules of lis pendens terminates with the entry
of judgment, then they will doubtless be evaded in all
cases by transfers made thereafter. Of what advantage is
it to declare that transfers made during the pendency of
an action shall not prevail as against the judgment, but
that transfers made immediately afterwards shall not be
affected by it? If a judgment is rendered for the sale or
possession of property, or for any other relief involving
its title, certainly it is not true that a subsequent pur-
chaser is free to disregard it, or at liberty to hold posses-
sion of the property and relitigate the issues determined
by the judgment.^ It may be that after judgment the lis
pendens does not operate as constructive notice for pur-
poses disconnected with the suit,'' or that where a judgment
is by statute given the effect of a conveyance that it must,
like other conveyances, be recorded, to charge subsequent
purchasers with notice of it as a conveyance. By virtue
of a statute of Indiana, when a decree for the conveyance
of land is not complied with, it shall, notwithstanding, be
deemed and taken to have the same force in all courts of
law and equity, as if the conveyance had been made.
Pending a suit for specific performance, the defendant
conveyed the property in controversy to W. Afterwards,
a decree was entered and a conveyance was made. This
conveyance was recorded among the records of the court,
but not among the records of the county. Subsequently
W. conveyed to J. It was decided that J. obtained the
title, because the decree was not notice, and the records
of the county did not disclose any defect in W.'s title;
that the case could not be distinguished from that of judg-
ment and sale at law, where a purchaser under execution
1 Worsley v. Earl of Scarborough, 3 « McCauley v. Rogers, 104 111. 578;
Atk. 3'J2; Harvey?'. Montague, 1 Vern. Biddle v. Toialinsoa, 115 Pa. St.
122;'Sugaen on Vendors, 1047; Ludlow 2'J'X
V. Kidd; 3 Ohio, 541. » Coe v. Mauseau, b2 W is. 81.
§§ 207,208 PERSONS BOUND BY LIS PENDENS. 374
who does not put his deed on record stands, in respect to
the registration laws, as if he had purchased from the de-
fendant.^ But a purchaser from a mortgagor, after a
decree of foreclosure, is liable to be removed from posses-
sion under a writ of assistance. " It cannot be objected
that the case is no longer lis pendens after decree and
sale, and a conveyance executed, because the court of
chancery is not functus officio until the decree is executed
by delivery of possession."^
§ 207. Where Realty is in Possession of the Court. —
In case real estate is taken into possession by a court,
through the appointment of a receiver, or by sequestra-
tion, it is not to be intermeddled with, without leave of
the court. Any person having a paramount claim, by
judgment or mortgage, should appear in court and ob-
tain leave to proceed. The court will direct a master to
inquire into the circumstances or as to the priority of the
lien, and will take care that the fund realized from the
land is applied accordingly. A party having a prior
legal encumbrance, and having no notice of the proceed-
ing in equity, may, no doubt, still hold such encumbrance
after the land is sold at equity, and might, after the land
had been removed from the possession of the court of
chancery, pursue his legal remedy; but if, while the land
is in custody of equity, he takes out execution and sells,
the purchaser will take no title as against the chancery
sale.'
§ 208. Involuntary Transfers. — A distinction no doubt
exists as to the effect of voluntary transfers pendente lite,
and those compulsory transfers made by operation of law,
in which, as in involuntary proceedings in bankruptcy,
the property of a party is transferred to an assignee for
the benefit of creditors. Such assignee is not bound to
know what suits are pending to aflPect the property of the
^ Rosser v. Bingham, 17 Ind. 542. ^ Wiswall v. Sampson, 14 How.
* Jackson v. Warren, 32 111. 331. 52.
875 PERSONS BOUND BY LIS PENDENS. § 209
assignor; and it has been held that he will not, in any
event, be bound by any proceeding pending against his
assignor at the time of the transfer, unless he is made a
party thereto.* But where the proceeding is voluntary, it
is instituted rather for the benefit of the applicant, than
for the protection of his creditors. A transfer in such a
case forms no exception to the rule of ordinary transfers
pendente lite. The assignee is bound by the judgment,
whether he is made a party or not.^ But a purchaser at
an execution sale is considered as a voluntary purchaser.
He acquires no title superior to that possessed by the
judgment defendant at the moment of the creation of the
judgment lien. If when such lien attached the title for
the defendant had already been tied up by the pendency
of some other suit, the purchaser at the execution sale
can acquire nothing which is not also subject to the haz-
ard of such other suit. Such purchaser is bound by the
result of pending litigation, and there is therefore no
necessity of making him a party thereto.^
§ 209. Vendee of Vendee. — An early case in Virginia
is understood as restricting the doctrine of lis pendens to
purchases and conveyances from the parties to the suit^
and as having no force against a person who obtains a
transfer pendente lite from some person who, though not
himself a party to the suit, obtained his title pendente lite
from one who was such a party.* This case, so far as our
observation extends, has never been affirmed; but the
cases necessarily in direct conflict with it do not seem to
be numerous.^ The general expression that lis pendens
only affects purchasers from parties to the suit pendente
lite is of frequent occurrence in the reports. Upon ex-
amination of the cases in which such expressions are
employed, they will generally, if not invariably, be found
' Sedswick v. Cleveland, 7 Paige, » Steele r. Taylor, 1 Minn. 278;
ngo Hart V. iMarshall, 4 Minn. 2%.
^Cleveland v. Boerum, 24 N. Y. ^ F'encl. v. Loyal Co 5 Leiplj 627.
gjo * Norton v. Birge, 6o Couu. 2yU.
§§ 210, 211 PERSONS BOUND BY LIS PENDENS. 876
to be intended as statements of the rule applicable to
transfers made prior to the institution of any suit, or to
transfers pendente lite of titles existing independent of that
in litigation. It would be very strange that if, after the
general application of the doctrine of lis pendens had been
upheld for ages as absolutely indispensable to the admin-
istration of justice, a limitation should be imposed neces-
sarily subversive of the whole doctrine. If two or more
pendente lite transfers are to be allowed to thwart the pur-
poses of a suit, then the principles of necessity and of
public policy, of which so much has been said, are to be
reo-arded as decidedly more important than the interests
of a pendente lite purchaser, but decidedly less important
than the interests of his vendee. If the final judgment
in any action in reference to specific property may be
nullified by two transfers, instead of by one, the difficulty
of the extra transfer is not likely to furnish any consid-
erable protection to the judgment.
§210. Confined to the State. — AAQien slaves which
were subject to a suit in Tennessee were taken into Ken-
tucky and sold, the courts of the latter state held the
purchasers bound by the judgment in Tennessee.^ Not-
withstanding the opportunity to evade the force of a judg-
ment by removing the subject-matter of litigation to
another state and there disposing of it to innocent pur-
chasers, resulting from deciding that the operation of lis
pendens is limited by state lines, yet we apprehend that
this limitation must be regarded as established, and that
purchasers of property situate in one state cannot be
bound by judicial proceedings against it in another, of
which they had no notice.'^
§ 211. Lien of Attorneys. — Where by law the attor-
neys in a cause have a lien upon property involved in
» Fletcher r. Ferrel, 9 Dana, 372; 35 70 Am. Dec. 265; Carr v. Lewis Coal
Am. Dec. 143. Co., 96 Mo. 149; 9 Am. St. Rep.
" Sheltoa v. Johnson, 4 Sueed, 683; 328.
377 PERSONS BOUND BY LIS PENDENS. § 212
litigation for their fees, the lis pendens is a general notice
of such lien, and the client cannot, by a pendente lite
transfer, defeat the claim/
§ 212. Statute Requirements. — The hardship to bona
fide purchasers of real estate without notice arising from
the law of lis pendens has been greatly ameliorated in
England, and in many, if not in all, of the United States
by statutes requiring the filing of notices of the pendency
of actions affecting real property. Thus in England, by
statute 2 Victoria, chapter 1157, it was enacted that no lis
pendens shall bind a purchaser or mortgagee without ex-
press notice, until a memorandum or minute thereof, con-
taining the name and the usual or last known place of
abode, and the title, trade, or profession of the person
whose estate is intended to be affected thereby, and the
court of equity, and the title of the cause or information,
and the day when the bill or information was filed, shall be
left with the senior master of the court of common pleas,
who shall forthwith enter the same particulars in a book,
in alphabetical order, by the name of the person whose
estate is to be aff'ected. In the United States, the notice is
not generally required to state all of the particulars speci-
fied in the English statutes, our law-makers being satisfied
with a notice showing the nature of the suit, the parties
thereto, the court W'here pending, and the property to be
affected thereby, and the filing of such notice in an office
in the county where the real estate is situate and where
the records aff'ecting it are kept, and the indexing of the
notice, alphabetically, according to the names of the
parties to the suit. If no notice is filed, pendente lite pur-
chasers are wholly unaffected by the judgment,^ unless
they have actual knowledge of the suit, in which event
they are not protected by the statute.^
' Hunt V. McClanahan, 1 Heisk. ardson v. White, 18 Cal. 102; Ault v.
503; McCain v. Portis, 42 Ark. Gassaway, 18 Cal. 205; Abadle r. Lo-
402. l>ero, :^6 "Cal. 390; Leitch v. Wells, 48
» Benton v. Shafer, 47 Ohio St. 117; Barb. 637.
Decamp v. Cariiahan, 2li W. Va. S'.V.); " Sampson v. Olileyer, 22 Cal. 200;
Easley v. Barksdale, 75 Va. 274; llich- Abadie v. Lobero, 3l> Cal. 390; Baker
§ 213 PERSONS BOUND BY LIS PENDENS. 378
The statutes requiring the filing of a notice of the pen-
dency of the action, to charge subsequent purchasers or
encumbrancers therewith, are generally and perhaps uni-
versally confined in the operation to real estate, and doubt-
less leave the law with respect to personal propert}- as
though such statutes had not been enacted. The rules
respecting the interpretation and recording of notices of
the pendency of suits are similar to those relating to other
instruments affecting the title to real property. Each
notice will be considered as a whole, and inaccuracies or
mistakes in one part are immaterial, if from the writing,
as a whole, no doubt remains of its signification.^ Where
a litigant has done all the statute requires him to do, he
does not lose the benefit of his notice by the failure of the
proper officer to index it, or to properly enter it in the
records.'^ State statutes requiring the filing of notices of
the pendency of actions are not retroactive, nor do they
apply to proceedings in the national courts.^
§ 213. In Ejectment. — Section 27 of the Practice Act
formerly in force in California required the filing of no-
tice of the pendency of actions affecting the title to real
estate. This section, it was held, did not apply to actions
of ejectment, nor to any actions affecting the possession
only. In such actions the title is not affected, but re-
mains after judgment as it was before. Therefore the
pendente lite vendee of either of the parties was held to be
bound by the judgment rendered against his grantor,
though no notice of the pendency of the action was filed.*
In New York, where a judgment in ejectment has no fur-
ther or higher effect than in California, a different, and
it seems to us more rational, conclusion was reached.
The supreme court in that state, in disposing of the ques-
tion, said: "The effect given by this statute to the judg-
V. Pierson, 5 Mich. 456; Wisconsin C. - Helm v. Ellis, 49 Mich. 241; Hav-
R. R. Co. V. Wisconsin River L. Co., erley i'. Alcott, 57 Iowa, 171.
71 Wis. 94; Wise v. Griffith, 78 Cal. ^ Wilson v. Hefflin, 81 Ind. 35.
152; Whiteside v. Haselton, 110 U. S. ♦ Long v. Neville, 29 Cal. 1.31. The
296. statute has since l)cen changed, and
^ Watson V. Wilcox, 39 Wis. 643; Us pendens may now be tiled in eject-
20 Am. Kep. 63. meut suits.
379 PERSONS BOUND BY LIS PENDENS. § 214
ment recovered in an action of ejectment clearly rendered
that action one which affected the title of the property in
controversy in it; for it bound that title, not only as to
the parties to the action, but also as to all who derived
title under them from the time of the commencement of
the action. To that extent the judgment, while it re-
mained in force, conclusively settled the rights of the
parties, and those claiming under them, to the property
in controversy. No judgment concerning the riglits of
parties to real property could have any greater effect than
that upon the title of those affected by it. The action
was one, for that reason, in which a notice of its pendency
should have been filed, in order to secure this statutory
result against subsequent purchasers and encumbrancers
not otherwise having notice of the pendency of the suit
or the recovery of the judgment."^ But this decision was
reversed by the court of appeals, on the ground that it is
difficult to see how in an action of ejectment a notice of
lis pendens can be necessary to bind even purchasers
pendente lite by the judgment.'^ Proceedings to condemn
land are of the class requiring notice of lis pendens to be
filed, to affect pendente lite purchasers without notice.^
§ 214. Filing Lis Pendens before Complaint. — Unless
the statute, in effect, requires notice of the pendency of an
action to be filed after it is begun, it will probably be
effective though filed several days before the suit was
commenced. The object is to give notice, and a lis pen-
dens so filed gives as much notice as one filed simulta-
neously with the complaint.*
' Sheridan v. Andrews, 3 Lans. 129. which the notice of action was filed,
» Sheridan v. Andrews, 49 N. Y. could not operate to cut off the rights
482. of a purchaser acquired subsequent to
* Bensley v. Mountain Lake Water filing the notice, but before the actual
Co., 13 Cal. 300; 73 Am. Dec. 575. filing of the complaint. The statute
♦ Ilouehton V. Mariner, 7 Wis. 244; ia force in Wisconsin now requires no-
but in New Jersey a lis pendens filed tices of actions to be filed at tlie time
before the bill has been characterized of filing the complaint, or afterwards;
as a fraud and a nullity: Walker v. but if the suit is to foreclose a mort-
Hill's Executors, 22 N. J. Eq. 525; and gase the notice must be filed twenty
in Weeks v. Tomes, 16 Hun, 349, it days before juds^tnent: See Sanborn
was held that an order to file a com- and Berryiiian's Wis. Stats., sec. 3187;
plaint nunc pro tunc as of the day on Olson v. Paul, 56 Wis. 30.
§ 215 MERGER, OR FORMER RECOVERY. 380
CHAPTER XL
MERGER, OR FORMER RECOVERY.
§ 215. General principles.
§ 216. Includes all causes of action.
§ 217. Judgment as a new debt.
§ 218. Depends on valid judgment.
§ 219. Judgments of no extraterritorial effect.
§ 220. Foreign judgments.
§ 221. In sister states.
§ 222. Examples of merger.
§ 223, Exceptions.
§ 224. Merger pendente lite.
% 225. Criminal prosecutions and convictions.
§ 225 a. Principal and agent.
§ 226. Principal and surety.
§ 227. Co-plaintiffs and co-defendants.
§ 227 a. Suits on bills and notes.
§228. Warrantor and grantee — Garnishee and principal — Corporation and
stockholder.
§ 229. Collateral securities.
§ 230. Foreclosure of security.
§ 231. Joint obligors.
§ 232. Partners.
§ 233. Joint-debtor acts.
§ 2:M. Exceptions to law of co-obligors.
§ 235. Joint and several obligors.
§ 235 a. Recovery in a different right or capacity,
§ 236. Tort-feasors.
§ 237. Whether recovery vests title,
§ 2.38. Indivisible demands ex contractu,
§ 239. Actions on account.
§ 240. Only one action on one contract.
§ 241. Only one action on one tort.
§ 242. In cases for injury by nuisances.
§ 243. Several torts.
§ 244, Exception to general law of merger.
§ 245. Proceedings in insolvency.
§ 215. General Principles. — The entry of a judgment
or decree establishes in the most conclusive manner and
reduces to the most authentic form that which had
hitherto been unsettled, and which had, in all proba-
bility, depended for its settlement upon destructible and
381 MERGER, OR FORMER RECOVERY. § 215
uncertain evidence. The cause of action thus established
and permanently attested is said to merge into the judg-
ment establishing it, upon the same principle that a sim-
ple contract merges into a specialty. Courts, in order to
give a proper and just effect to a judgment, sometimes
look behind, to see upon what it was founded, just as they
would, in construing a statute, seek to ascertain the occa-
sion and purpose of its enactment. The cause of action,
though it may be examined to aid in interpreting the
judgment, can never again become the basis of a suit be-
tween the same parties. It has lost its vitality; it has
expended its force and effect. All its power to sustain
rights and enforce liabilities has terminated in the judg-
ment or decree.^ It " is drowned in the judgment,"^ and
must henceforth be regarded as functus officio.
The well-established principle of law that no further
action can be prosecuted between the same parties upon
a matter already ripened into judgment is supported by
a variety of reasons. Its operation is in many respects
beneficial. Its existence has been variously accounted
for, according to the purposes subserved and the reasons
involved in the vast number of cases in which it has been
recognized. The early decisions place the rule upon the
sole ground that an inferior remedy has been changed to
one superior. Thus it was said if a man brought debt
upon a bond and had judgment in a court of record, the
contract by specialty, being of a more base nature, Avas
changed into a thing of record, and no further suit could
be brought to vex the defendant; but if plaintiff had his
judgment in a court not of record, he might bring an-
' Wayman v. Cochrane, 35 111. 15'2; 74 Mo. 477; Grant v. Burgwyn, 88
Hogg V. Charlton, 25 Pa. St. 200; N. C. 95; Mol.ile Bank v. Mobile etc.
Baker V. Baker, 28 N. J. L. 13; 75 Am. It. R. Co., 69 Ala. 30.'); Thomason »-.
Dec. 243; Barnes v. Gibhs, 31 N. J. L. Odurn, 31 Ala. 168; 68 Am. Dec. 159.
317; 86 Am. Dec. 210; Pike v. Mc- Merger also results from a decree for
Donald, .32 Me. 418; 54 Am. Dec. 597; the payment of moneys due on a bond:
Bank of N. A. v. Wheeler, 28 Conn. Mutual F. I. Co. v. Newton, 50 N. J. L.
433; 73 Am. Dec. 683; North v. Mudge, 571 .
13 Iowa, 496; 81 Am. Dec. 441; Cook- -' Biddleson v. Whitel, 1 W. Black,
sey V. Kansas City etc. R. R. Co., 507.
§ 215 MERGER, OR FORMER RECOVERY. 382
other action, because his bond had not been changed into
a matter of higher nature.^ In later cases, in addition to
the mere assertion that the judgment is of a higher nature
than the cause of action, the allowance of a new suit is
shown to be a superfluous and vexatious encouragement
to litigation, injurious to the defendant, and of no benefit
to the plaintiff.^ The doctrine of merger is also frequently
supported on the ground that the cause of action has be-
come a thing adjudicated and precisely determined and
ascertained, and therefore, upon principles of public
policy, not to be again made the subject of judicial in-
quiry. But, in our judgment, the bar occasioned by a
former recovery has been gradually strengthened and ex-
tended, until it has become independent of the reasons
generally assigned in its support. We doubt whether, in
a majority of the United States, two suits could be prose-
cuted to judgment on the same cause of action, against
the objection of the defendant, irrespective of the question
whether the first judgment was of a higher or lower na-
ture than the cause of action. If, for instance, an action
were brought in a justice's court upon a judgment of the
district court for a sum less than three hundred dollars,
and prosecuted with effect, the judgment recovered would
be of a lower nature than the one sued upon; it would be
no more a thing adjudicated than the cause of action was,
and yet the plaintiff would probably not be at liberty to
bring similar actions ad libitura. The new judgment,
though inferior as an instrument of evidence to the old
one, and not attended by the same liberal jurisdictional
presumptions, ought, nevertheless, to entirely supplant the
old one, because it is the most recent judicial determina-
tion of the rights of the parties, and because the plaintiff
has voluntarily elected to abandon his former judgment to
secure one which, though in an inferior court, is conclu-
sive in favor of the continuance and amount of his claim.
> Vin. Abr.: citing 6 Eep. 44 b, '■'Smith v. Nicolls, 5 Bing. N. C.
45 a, b. 208; 7 Dovvl. 282.
3S3 MERGER, OR FORMER RECOVERY. § 216
§ 216. Includes All Causes of Action. —The weight of
authority in the United States shows that whatever may
be a cause of action will, if recovered upon, merge into
the judgment or decree.* A contract by specialty merges
into a judgment, in the same manner as a simple contract.^
A judgment is extinguished when, being used as a cause
of action, it grows into another judgment.^ It may even
be merged by a statutory judgment. Thus if the law
provides for the execution of a forthcoming or delivery
bond, which, when forfeited, shall have the force and
effect of a judgment on which execution may be issued, a
forfeiture of such bond discharges the judgment upon
which it was given."* On the other hand, some American
cases, proceeding upon the theory that no merger can
take place until some higher remedy or evidence is cre-
ated, deny that one judgment can merge into another of
equal degree.^ On this ground a motion to enter satisfac-
tion of a judgment because it had been recovered upon in
another action was denied.^ The effect of this ruling
would be, that the estate of the debtor could be involved
by a multiplicity of record liens, and his chattels seized
under a great number of executions, and himself finan-
cially ruined by the expenses of divers proceedings, all
based upon a single and indivisible demand.
J- Daviea v. New York, 93 N. Y. bama: See Patton v. Hamner, .33 Ala.
259- 307. In Kentucky, a person having
■^ Pitts V. Fugate, 41 Mo. 405; King pleaded guilty to an indictment char-
V. Ho ire, 13 Mees. & VV. 494; Andrews ging him with beinga common gambler,
V. Varrell, 46 N. H. 17; Grant r. Burg- was adjudged "to make his fine to the
wyn, 8S N. C. 95; Murray w. Weigie, commonwealth by the payment of fifty
118 Pa St. 159. dollars." For this fine a cap/as pro
' Chitty V. Glenn, 3 B. Mon. 425; Jine was awarded against hitn, which
Whiting V. Beel)e, 12 ArU. 549; Gould he replevied, with one \V. as his surety.
V. Hayden, 63 Ind. 443; Frazier v. Mc- At the maturity of the replevin bond,
Queen, 20 Ark. 68; Gould v. Hayden, execution issued thereon, and was re-
63 Ind. 443. turned unsatisfied. After tliis, a sec-
* Brown V. Clark, 4 How. 4; Bank ond capias pro fine was issued, but it
of U. S. V. Patton, ;") How. (Miss.) 200; was, on motion, quashed, on the ground
35 Am. Dec. 4-28; Wright v. Ytll, 13 that the original judgment levynig the
Ark. 5 3; 58 Am. Dec. 336; Haniia v. fine had been twnji-d in the replevin
Guy, 'A liush, 91; Cook v. Armstrong, bond: Commonwealth v. Merri<'an 8
25 Miss. 63; Neale v. Jeter, 20 Ark. Bush, 182. " '
98; Black v. Nettle, 25 Ark. 606; Rus- * Weeks v. Pearson, 5 N. H. 324.
sel V. Shute, 25 Ark. 469; Lipscomb w. * Muinford v. Stocker, 1 Cow. 178;
Grace, 26 Ark. 2;S1; 7 Am. Rep. (i()7. Gri.swold r. Hill, 2 Paine, 492; Andrewa
But a difTcreut rule prevails in Ala- v. Smith, 9 Weud. 53.
§ 217 MERGER, OR FORMER RECOVERY. 384
A person often has the privilege of pursuing either of
several forms of action to obtain legal redress for a single
wrong. Whenever he resorts to an}'' action in which it is
competent for the court to award him full compensation
for the wrong of which he complains, and prosecutes such
action to final judgment, the wrong merges in the judg-
ment, and thereafter there can be no further recovery
therefor, neither in the same nor in a different form of
action/ Therefore a recovery in assumpsit on a policy of
insurance bars a subsequent action of covenant on the
same policy,^ and a recovery in an action of covenant bars
an action of case founded on tort, the two causes of action
being the same;^ but a judgment in replevin for the pos-
session of chattels does not, while it remains unsatisfied,
preclude a recovery in trover for their conversion, because
the objects of the two actions are essentially different.*
§ 217. Judgment is a New Debt. — Every judgment is,
for most purposes, to be regarded as a new debt; the
chief, and perhaps the onl}^, exception being in cases where
the technical operation of the doctrine of merger would
produce manifest hardship, and even those cases are by
no means universally excepted. This new debt is not, in
general, affected by the character of the old one. Though
the cause of action may have arisen from a tort, the judg-
ment is not therefore any the less a contract or in the nature
of a contract. The tort merges in the judgment.* Hence
it may be the foundation of an action of debt,^ or of a set-
off, under a statute permitting matters ex contractu to be
set off.^ Neither is it infected by the usurious nature of
the cause of action.^ The assignee of a note sued the
' Brown v. Moran, 42 Me. 44; Ware * Carr v. Beecher, 119 N. Y. 117.
V. Percival, 61 Me. 391; 14 Am. Rep. But the merger does not take place
565; Cutler v. Cox, 2 Blackf. 178; 18 until the judgment is rendered. Hence
Am. Dec. 152. a tort does not become a debt when
2 Marine Insurance Co. v. Young, 1 verdict is returned thereon: Staufferw.
Cranch, 340. Reiuick, 37 Kan. 404.
3 Cutler V. Cox, 2 Blackf. 178; 18 ^ Johnson v. Butler, 2 Iowa, 535.
Am. Dec. 152. ' Taylor v. Root, 4 Keyes, 335.
* Nickerson v. Cal. Stage Co., 10 * Thatcher v. Gammon, 12 Mass.
Gal. 520. 268.
385 MERGER, OR FORMER RECOVERY. § 217
maker, who had an offset to the note, consisting of a judg-
ment against the assignor. This set-oflF the maker did
not present when sued upon the note, and judgment was
therefore rendered against him without taking the set-off
into account. Suit was subsequently brought in another
state upon this last judgment; and in this last action
the defendant sought the benefit of the set-off, which he
had before neglected to assert. The court refused to
entertain the set-off, because " the note and all the equities
existing between the parties were merged in the judg-
ment." ^ A judgment rendered in one state, upon a for-
feited recognizance taken for alleged violation of its penal
laws, can be made the basis of an action in another state,
though objected to on the ground that one state will not
aid in enforcing the penal laws of another.^ The same
rule is applicable to actions upon judgments given for
violations of local police regulations, or for any other local
causes of action.^ In all such cases, no inquiry will be
made in relation to the facts preceding the judgment, to
ascertain whether the original action would have been
enforced by the court now called upon to enforce the
judgment. A debt due to the estate of a deceased person,
if sued upon and recovered by an administrator, is, in
law, the debt of him who recovers it, and in whose name
the judgment is rendered. He holds the legal title, sub-
ject only to his trust as administrator. He may sue
upon the judgment in his own name, without describing
himself as administrator, and may therefore pursue the
judgment defendant, by action on the judgment, in a dif-
ferent state from that in which the letters of administra-
tion were issued;* and there can scarcely be a doubt that
» Ault V. Zehering, 3S Ind. 433. judgment": Holmes v. Guion, 44 Mo.
* Spencer v. Brock way, 1 Ohio, 168.
259- 13 Am. Dec. 615. * Bonafous v. Walker, 2 Term Rep.
3 State of Ind. v. Helmer, 21 Iowa, 126; Biddle v. Wilkius, 1 Pet. 686;
370; Hcaly j;. Root, 11 Pick. 390. A Tallmadge v. Cliappel, 16 Mass. 71;
judgment by consent has been said to Hall r. Harrison, 21 Mo. 227; 64 Am.
have the same effect as any other, be- Dec. 225; Allen v. Lyman, 27 Vt. 20;
cause "the consent was merged in the Nelson v. Bagby, 25 Tex. Supp. 305.
JUDQ. L— 25
§ 218 MERGER, OR FORMER RECOVERY. 886
a judgment rendered in favor of an administrator so
merges the debt that it may be treated as his personal
effects so far as to authorize him to maintain suit thereon
in a foreign country, without there taking out letters of
administration.*
§ 218. Depends on Valid Judgment. — Merger depends
for its existence and continuance upon a valid judgment.
Therefore, if such a mistake is made in the name of the
parties as to render the judgment ineffective, the cause of
action does not merge, and a subsequent suit may be
brought thereon.'^ If, in support of a plea of judgment
recovered, the defendant introduces the proceedings or
record of a court, from which it appears that the plaintifiE
has taken a judgment which is coram non judice, such
judgment will be as unavailing as a defense for the de-
fendant as it would be as a cause of action for the plain-
tiff.' In all such cases it is obvious that the judgment
produced is in fact no final determination of the rights
of the parties, and that no obstacle has intervened to
prevent them from seeking such determination. Though
the judgment was valid at its entry, it may be reversed or
set aside. In such cases the merger ceases.* If plaintiff
recovers judgment against one of several joint obligors,
and it is reversed, he may proceed against all of them in
a new action.^ The mere taking or granting of an appeal
does not so impair the judgment as to destroy its effect as
a merger of the original cause of action.^ If, after the
entry of judgment in his favor, a plaintiff is permitted to
discontinue his action, this nullifies the judgment, and
^ Vanquelin v. Boiiard, 15 Com. B., 159; Readings Rice, 3 J. J. Marsh, 61;
N. S., 341; 33 L. J. Com. P., N. S., 19 Am. Dec. 162.
78; 12 Week. Rep. 128. * Goodrich v. Bodurtha, 6 Gray, 323;
" Wixom V. Stephens, 17 Mich. 518; Fries v. Pennsylvania R. R. Co., 98
97 Am. Dec. 208. Pa. St. 142; Fleming v. Reddick, 5
3 Briscoe v. Stephens, 9 Moore, 413; Gratt. 272; 50 Am. Dec. 119.
Mico V. Morris, 3 Lev. 234; Adney v. ° Maghee v. Collins, 27 Ind. 83.
Vernon, 3 Lev. 243; Yon v. Baldwin, « Cloud v. Wiley, 29 Ark. 80.
76 Ga. 769; Greeu v. Clawson, 5 Del.
387 MERGER, OR FORMER RECOVERY. § 219
destroys its effect as a merger.^ So where a judgment is
valid for some purposes only, as when, being based upon
constructive service of process against a non-resident, its
enforcement is limited to specific property, and it creates
no personal liability against the defendant, it constitutes
no impediment to an action to obtain a judgment enforce-
able against him personally.
§ 219. Judgment of No Extraterritorial Effect. — A
judgment, valid in the jurisdiction where it was rendered,
may have no extraterritorial effect, as where as to some
of the defendants it was based upon service of process
made out of the state, or upon process served upon a co-
defendant. If so, it does not operate as a merger in favor
of any defendant not personally bound by it.^ In the
case of Swift v. Stark, 2 Or. 97, 88 Am. Dec. 463, the
court thought that a judgment rendered under a statute
of one of the states providing for the entry of judgment
against two or more joint debtors upon service of summons
on but one merged the cause of action against the one not
served, though as to him it was admitted to constitute only
& prima facie evidence of indebtedness. But this portion
of the opinion of the court was not necessary to the deter-
mination of the case. It does not seem to be the result
of any careful examination of principles or adjudged
cases, and is unquestionably incorrect.^ In Michigan,
such a judgment creates no personal liability against the
unsummoned defendant. Neither is it a merger of the
cause of action. The conclusion of the court was sus-
tained by the propositions, — 1. That neither the analogies
of the common law nor the reasons on which the rule is
based apply to proceedings under such a statute; 2. That
' Loeb V. Willis, 100 N. Y. 231; Pa. St. 396; Bennett v. Cad well, 70
Smith V. Curtiss, 38 Mich, 393; post, Pa. St. 253; National Bank ?;. Peabody,
gee. 219. 55 Vt. 492; 45 Am. Rep. 632; Stone v.
2 Middlesex Bankw. Butman, 29 Me. Wainwright, 147 Mass. 201.
19; McVicker v. Beedy, 31 Me. 314; * D'Arcy c. Ketchum, 11 How. 105;
I Am. Rep. 660; Rangely v. Webster, Wood v. Watkiuson, 17 Conn. 500; 44
II N. H. 299; Campbell v. Steele, 11 Am. Dec. 562.
220, 221 MERGER, OR FORMER RECOVERY.
388
by commencing an action against all the obligors the
plaintiff evinced an intention to pursue them jointly;
3. That the judgment, though joint in form, was effectual
against but one; 4. That by the statute the unsummoned
defendants could be brought in and made personally lia-
ble aft'er the judgment, while at ''Common law their liabil-
ity would have been extinguished.^
§ 220. Foreign Judgments. — A foreign judgment is
received with different degrees of regard in different states
and among different nations. Wherever it is enforced
as a final adjudication between the parties, it ought also
to be a bar to another suit. In Louisiana, a statute giv-
ing to foreign judgments the same force with those of
the sister states was decided to inhibit any further pro-
ceedings in the original cause of action.^ In England, a
foreign judgment is, in most respects, carried into effect
to the same extent which, under the provisions of our
constitution and the laws of Congress, a judgment ren-
dered in one of these United States would be enforced in
another. But it is, nevertheless, not regarded as a mat-
ter of record, nor as being of a higher nature than the
original cause of action. Hence it does not debar plain-
tiff of the remedy which every subject has of bringing his
action, and he has his option either to resort to his origi-
nal ground of action or to bring assumpsit on the judg-
ment.'
§ 221. In Sister States. — A judgment in any of the
state or federal courts, upon valid personal service, being
regarded as a debt of record, and as entitled to full faith
and credit, is a merger in every part of the United States,
> Bonesteel t). Todd, 9 Mich. 371; 80 H. Black. 402; Lyman v. Brown, 2
Am. Dec. 90. Curt. 559; Bonesteel v. Todd, 9 Mich.
2 Jones V. Jamison, 15 La. Ann. 35. 375; SO Am. Dec. 90; Bank of Austra-
3 Bank of Australasia v. Harding, 9 lasia v. Nias, 16 Q. B. 717; Eastern
Com. B. 661; Robertson v. Struth, 5 T. B. v. Beebe, 53 Vt. 177; 3S Am.
Q. B. 941; Smith v. Nicholls, 5 Bing. Rep. 665; Frazier v. Moore, 11 Tex.
N. C. 208; 7 Dowl. 282; Hallw. Odber, 755; Wood v. Gamble, 11 Cush. 8; 59
11 East, 118; Phillips v. Hunter, 2 Am. Dec. 135.
389 MERGER, OR FORMER RECOVERY. § 221
in the same manner as in the state where it was rendered.'
If actions are simultaneously pending upon the same
cause of action in different states, a judgment in either
will bar the further prosecution of the other.^ This rule
is inflexible, and yields to no circumstance of hardship
or inconvenience. Its application is not averted by the
pendency of an appeal,^ nor by the fact that the defendant
has property in the state where the action is still pending,
but none in the state where judgment has been given.*
A judgment rendered in one state and sued upon in an-
other merges in the judgment recovered thereon in the
latter state.®
We have already stated that a judgment having in other
respects no effect beyond the state where it was rendered
is also beyond that state no merger of the original cause
of action.® But if the judgment is against one having
his domicile in the state where it was rendered, it will, ac-
cording to the weight of the authorities, be given the same
effect elsewhere as would be accorded to it in the juris-
diction where it was created. Hence though it is based
upon constructive service of process, and infected with
irregularities in the proceedings by which it was procured,
and is on that account voidable but not void in the state
where it was entered, still, as it is binding on the parties
until avoided by some appropriate proceeding, it will, in
the absence of such proceeding, be regarded even in other
states as a merger of the original cause of action.'
No judgment is to be given any greater effect elsewhere
1 Barnes v. Gibbs, 31 N. J. L. 317; Vt. 538; Rogers v. Odell, 39 N. H.
86 Am. Dec. 210; Ault ;;. Zehering, 38 452; Whiting v. Burger, 78 Me, 694;
Ind. 429; United States v. Dewey, 6 North Bank v. Brown, 50 Me. 214;
Biss. 501; Napier v. Gidiere, 1 Speers 79 Am. Dec. 609.
Eq. 215; 40 Am. Dec. 613; Baxley v. '^ Bank of N. A. v. Wheeler, 28 Conn.
Linah, 16 Pa. St. 241; 55 Am. Dec. 433; 73 Am. Dec. 683.
494; Bank of N. A. v. Wheeler, 28 * Child v. Powder Works, 45 N. H.
Conn. 433; 73 Am. Dec. 683; Green v. 547.
Starr, 52 V^t. 426; West F. R. R. Co. * Gould v. Hayden, 63 Ind. 443.
V. Thornton, 12 La. Ann. 736; 68 Am. « See sec. 219.
Dec. 778. Contra, Beall v. Taylor, 2 ' Henderson v. Stanrford, 105 Mass.
<Jratt. 532; 44 Am. Dec. 398. 504; 7 Am. Rep. 551.
' McGilvray & Co. v. Avery, 30
§ 222 MERGER, OR FORMER RECOVERY. 390
than it had in the jurisdiction in which it originated.
The consequence of a judgment, in respect to its effect as
a merger of the original demand, being dependent upon
the law of the land, a modification or repeal of the law of
the land will modify or avert the incident of merger.
Thus if a statute, as in Missouri and Maryland, provide
that a joint contract shall be construed as joint and sev-
eral, the merger of such a contract by a recovery thereon
must be treated as though it had arisen out of a joint and
several and not out of a joint contract.*
§ 222. Merger, Instances of. — Merger by judgment
may take place, — 1. When the plaintiff" has recovered upon
an entire cause of action against all the parties liable
thereon; 2. When he has recovered upon a cause of action
to its full amount, but against part only of the persons so
liable; and 3. When he has recovered upon part only of a
cause of action under which he was entitled to recover a
larger amount. In some instances the same person has
given different contracts or obligations really represent-
ing the same liability, and the discharge of one of which
operates as a satisfaction of the other. In such cases, the
right exists to prosecute both contracts or obligations to
judgment, and the mere recovery upon one does not
merge the other.'' Thus if the maker of a promissory
note agrees with the holder to procure an indorser, the
recovery upon this agreement, though the damages are
assessed «,t a sum equal to the amount due on the note,
will not prevent the recovery of judgment upon it for
the same amount.* And generally, where a party is enti-
tled to cumulative remedies, he may prosecute either to
judgment without losing his right to pursue the other,
provided they are not inconsistent. They are inconsis-
tent when the state of facts necessary to support one
remedy cannot co-exist with the facts necessary to sup-
1 Suydam v. Barber, 18 N. Y. 468; ^ Lord v. Bigelow, 124 Mass. 185.
75 Am. Dee. 254; Thomas v. Mohler, ^ Vanuxem v. Burr, 151 Mass. 386;
25 Md. 36. 21 Am. St. Rep. 458.
891 MERGER, OR FORMER RECOVERY. § 222
port the other. Thus though a tort is committed, the
I)erson suffering therefrom is often allowed to waive the
tort and sue in assumpsit, and may therefore recover
either in tort or in assumpsit, but may not recover in both;
for his recovery in assumpsit establishes a contract and
conclusively negatives a wrong, while his recovery in tort
conclusively establishes the wrong and negatives the con-
tract/ A purchaser of property, which has been falsely
warranted to him to be sound, may either sue in tort for
the false representation, or in contract for a breach of the
warranty, but having recovered in tort, he cannot after-
wards recover in contract.^ The law, however, does not
favor a multiplicity of actions, and will generally not au-
thorize a second recovery for the same wrong; and such
recovery can be sustained only when it is clear that the
plaintiff has by contract entitled himself to cumulative
remedies, or they have been unquestionably given him by
statute.^ Hence when the maker of a note to a national
bank in an action thereon availed himself of the state law
against usury, and recovered judgment upon his answer
and cross-petition, he cannot afterwards maintain an ac-
tion under a statute of the United States for additional
recovery upon the same facts under which his former re-
covery was had.* A judgment against a corporation for
the price of goods sold precludes an action against it for
fraud in obtaining credit for the same goods.* A recov-
ery of damages for wrongfully and maliciously suing out
an attachment bars an action on the attachment bond to
recover special damages embraced therein;^ and a recov-
ery in an action of trespass for carrying away plaintiff's
1 Agnew V. McElroy, 10 Smedes & * Norton v. Doherty, 3 Gray, 372;
M. 552; 48 Am. Dec. 772; Floyd v. 63 Am. Dec. 758.
Browne, 1 Rawle, 121; 18 Am. Dec. » Hite v. Long, 6 Rand. 457; 18 Am.
602; Walsh v. Chesapeake C. Co., 59 Dec. 719.
Md, 423; Fields v. Bland, 81 N. Y. * BoUong w. Schuyler N. B., 26 Neb.
239; Cutler v. Cox, 2 Blackf. 178; 18 281; 18 Am. St. Rep. 781.
Am. Dec. 152; Beall v. Pearre, 12 Md. * Caylus v. New York etc. R. R. Co.,
566; Rendell v. School District, 75 Me. 76 N. Y. 609.
358; Ware v. Percival, 61 Me. 393; 14 « Hall v. Forman, 82 Ky. 505.
Am. Rep. 472.
§ 222 MERGER, OR FORMER RECOVERY. 892
wife is a bar to an action on the case for enticing her
away.^ Though a statute declares that when the death of
a person is caused by negligence his heirs or personal
representatives may maintain an action for damages, it
authorizes but one recovery. Hence a judgment in favor
of his personal representatives must include all damages
recoverable by his heirs.^
In the cases cited, the second action was for some wrong
for which a full recovery had been had, the only differ-
ence between the two actions being in their form. The
same rule applies when the second action, whether in the
same or a different form, is for something not recovered
for in the first, but which was an enforceable part of the
cause of action there sued upon and might have been
embraced in the former recovery had it been presented
for consideration in the first action. Hence the following
causes of action have been adjudged to be merged in for-
mer recoveries: For injuries to real estate, there having
been a recovery for use and occupation in an action for
possession;' for injuries done by a city to land in taking
it for public use, there having been a recovery against it
for the taking of such lands;* for injuries committed by
a mortgagee to lands, there having been a suit against
him to redeem the same lands, and for damages, and an
accounting for rents and profits;^ for damages for lands
disposed of by a vendor, there having been a judgment
against him for specific performance as to other portions
of the lands which he had agreed to sell.^ One who has
a set-off or counterclaim, and who sues and recovers judg-
ment thereon, cannot afterwards insist upon it as a pay-
ment to be applied upon a note given by him to the
defendant, because its existence as a cause of action at the
time of recovering upon it is inconsistent with its being
1 Gilchrist v. Bale, 8 Watts, 355; 37 Mian. 314; 12 Am. St. Rep.
34 Am. Dec. 4G9. 673.
» Munro v. Dredging Co., 84 Cal. * Lewis ». Boston, 130 Mass. 339.
515; ]8 Am. St. Rep. 248. * Steen v. Maek, 32 S. C. 286.
* Pierre v. St. Paul etc. R'y Co., ^ Thompson v. Myrick, 24 Mmn. 4.
393 MERGER, OR FORMER RECOVERY. § 223
at the same time a payment on the note.' Where a statute
provided for the presentation and establishing of claims
asainst estates before a court, it was held that a claim so
established merged into the judgment establishing it, and
would no longer draw interest as a claim ;^ nor could any-
further recovery be had upon it in an independent action
by showing that the presentation was for.part only of the
amount due.' If in proceedings to condemn land a
mortgagee is awarded the amount secured by his mort-
gage, the indebtedness is merged in the judgment of
condemnation, and he can maintain no further proceed-
ing to obtain his debt, except upon the award.* A stat-
ute in Ohio provided that a mortgagee might prosecute
a scire facias and obtain a judgment for his debt, with
execution against the mortgaged premises only. After
the mortgagee proceeded under this statute, his debt was
merged, so that he could have no further action upon it.*
§ 223. Exceptions. — In order, however, to create a
merger, the plaintiff must have had an opportunity to re-
cover his entire demand. A plea of judgment recovered
will not be supported, unless it appears that the precise
thing in controversy in the second suit could have been
recovered in the first. Thus if plaintiff, proceeding in a
court of admiralty, obtains a judgment of condemnation
against a vessel for a collision, and has her sold, he is
not precluded from proceeding to recover such further
damages as he may have suffered from the collision, in
excess of the value of the vessel condemned, because he
could not have recovered this excess in the proceeding
against the vessel.* It has also been decided that a
judgment obtained against a steamboat is not a bar, until
satisfied, to an action against the owners upon the same
» Artltman v. Gamble. 88 Ala. 424. « Nelson t;. Crouch, 15 Com. B., N. S..
« Mitchell V. Mayo, 16 111. 8.3. 99; and a judgment agamst a master
* Gibson v. Hale, 57 Tex. 405. for supplies does not bar the mamte-
* Sheperd v. Mayor of N. Y., 13 nance of suit in admiralty to enforce
How. Pr. 286. a lien therefor: The Brothers Apap, 34
» Reedy v. Burgert, 1 Ohio, 157. Fed. Rep. 352.
§ 223 MERGER, OR FORMER RECOVERY. 894
liability, on the ground that the remedy against the boat
is cumulative.' The courts in Michigan refused to apply
the law of merger to a case where, though no legal im-
pediment existed to a full and adequate recovery in the
first suit, such recovery was prevented by the fact that the
defendant, being the agent of the plaintiff, had, until sub-
sequent to the rendition of the first judgment against him,
fraudulently concealed from plaintiff the existence of cer-
tain items of indebtedness, which, had they not been so
concealed, would have been included in the former suit.^
A judgment for a debt does not prevent the plaintiff from
subsequently maintaining an action to bar the defendant's
equity of redemption in the lands on which a mortgage
bad been given to secure the same debt;* and if two dis-
tinct judgments have been entered on the same cause of
action, the merger of one of those judgments in a statu-
tory judgment does not affect the other.* Other cases
may be cited in which exceptions have been recognized,
but on examination they will, we think, be found to be
more correctly regarded as instances in which courts
have, from considerations of hardship, refused to apply
the law of merger, than as proper exceptions to it. Thus
recoveries have been sustained for causes of action or
parts of causes of action not included in the former
actions on account of the mistake or ignorance of the
plaintiff,' but exceptions of this kind are not sustainable.
Neither the mistake of the parties nor of the court can
justify the denial of the effect of a former judgment as a
merger.^ Where four separate actions were brought at
the same time for four monthly installments of rent due
» Toby V. Brown, 11 Ark. 308. * Moran v. Plankington, 64 Mo. 337
'Johnson v. Provincial Ins. Co., 12 Ewing v. McNairy, 20 Ohio St. 315
Mich. 216; 86 Am. Dec. 49. See also Stockton v. Ford, 18 How. 418; Keo
Perrall v. Bradford, 2 Fla. 508; 50 kuk Co. v. Alexander, 21 Iowa, 377
Am. Dec. 293. Wickersham v. Whedon, 33 Mo. 561
' Harris w. Vaughn, 2 Tenn. Ch. 483. Baker v. Baker, 28 N. J. L. 13; 75
* National Bank of Monticello v. Am. Dec. 243; Cooksey v. Kansas
Bryant, 13 Bush, 419. City etc. R. R. Co., 74 Mo. 477;
^ Stevens v. Damon, 29 Vt. 521; Winslow v. Stokes, 3 Jones, 285; 67
Kane v. Morehouse, 46 Conn. 300. Am. Dec. 242.
395 MERGER, OR FORMER RECOVERY. §§ 224, 225
upon a lease, and the defendant made no objection to this
severance of the causes of action until after judgment had
been recovered upon one of them, it was held that he had
waived his right to insist that that judgment merged the
demands sued for in the other actions.* So when actions
were brought under circumstances somewhat similar, and
the court had erroneously determined that a separate
action could be maintained on each installment, though
others were due, the judgment was held to estop the de-
fendant from afterwards insisting that the contract out of
which the rights of action arose was such as to require
the plaintiff to sue for all the installments due thereunder
at the commencement of the suit.^
§ 224. Pendente Lite. — No demand included in the
plaintiff's complaint, or in the defendant's set-off or
counterclaim, can be allowed if at any time before its al-
lowance, but during the pendency of the action, it has been
taken into account in forming a judgment in another
action between the same parties,* whether the action in
which the judgment was entered was commenced before
or after the pending suit.*
§ 225. Criminal Prosecutions and Convictions. — The
doctrine of the earlier authorities was, that all civil rem-
edies in favor of a party injured by a felony were merged
in the higher offense against society and public justice,
or, at least, that such remedies were suspended, and could
not be pursued until after the trial and conviction of the
offender.^ This doctrine is obsolete; and the civil rem-
edy may be pursued either before or after the prosecution
1 Fox V. Althorp, 40 Ohio St. 322. * Schuler v. Israel, 125 U. S. 506;
»Lorillarcl v. Clyde, 122 N. Y. 41; Bank of U. S. v. Merchants' Bank, 7
19 Am. St. Rep. 470. Gill, 415; Estes v. Chicago, 72 Iowa,
» Davis V. Bedsole, 60 Ala. 362; 235.
Andrews v. Varicll. 46 N. H. 17; Mo- * Foster v. Tucker, 3 Greenl. 458;
Gilvray v. Avery, 30 Vt. 538; Bank of 14 Am. Dec. 243, and note; Boston
North America v. Wheeler, 28 Coim. R. R. Co. v. Dana, 1 Gray, 83, 97.
433; 73 Am. Dec. 683.
§ 225 MERGER, OR FORMER RECOVERY, 896
and conviction of the criminal.^ The doctrine also for-
merly prevailed that the conviction of certain felonies
was a bar to any prosecution for any other felony, whether
committed subsequently or antecedently to the conviction.
The result of a conviction for most felonies was, that the
offender became by operation of law " in a state of attain-
der." It was early held that a person thus attainted
might plead the same in bar to a subsequent prosecution
for any other felony, for by his first attaint his posses-
sions were forfeited, his blood corrupted, and he became
dead in law; therefore any further conviction would be
fruitless. This plea was styled the plea of autrefois attaint,
or former attainder.^ The early common-law rule has
been recognized to a very limited extent in this country;'
but is doubtless now obsolete in America,* and abolished
by statute in England."
The conviction of an offense, like the recovery of judg-
ment in a civil action, is a bar to any further prosecution
based on the same cause of complaint. The question
often arises whether the offense of which one is accused
is not a part of an offense of which he has been already
convicted, and if so, whether the whole crime is not
merged in the former conviction, for the same offense
cannot be split into parts and made to sustain two or
more convictions of the same person.^ Thus one who by
the same act passed four forged checks to the teller of a
bank was adjudged to be guilty of but one offense, and
his conviction of uttering one of the checks was held to
1 1 Hilliard on Torts, 59, 60; note to ^ Stats. 7 & 8 Geo. IV., c. 28, sec. 4.
Foster v. Tucker, 3 Greenl. 458, 14 The rule was in active operation in
Am. Dec. 243, and the authorities England at a comparatively recent
there cited; Pettingill v. Kideout, 6 period: Rex v. Birhett, 1 Russ. & R.
N. H. 454; 25 Am. Dec. 473. C, C. 288; Rex v. Jennings, 1 Russ. &
* See note to Crensliaw v. State, 17 R. C. C. 388.
Am. Dec. 791, and the authorities * Rex v. Britton, 1 Moody & R. 297;
there cited. Francisco v. State, 24 N. J. L. 30;
3 Crenshaw v. State, 1 Mart. & Y. Fishery. Comm., 1 Bush, 211; 89 Am.
122- 17 Am. Dec. 788. Dec. 620; Moore v. State, 71 Ala.
♦Hawkins v. State, 1 Port. 475; 27 307; State v. Cameron, 3 Heisk. 78;
Am. Dec. 641 ; States. McCarty, 1 Bay, Holt v. State, 38 Ga. 187.
334; State v. Comm'rs, 2 Murph. 371.
397 MERGER, OR FORMER RECOVERY. § 225
preclude liis subsequent prosecution for uttering tlie
others.* Tiie larceny of several articles at one time, and
by one act, though belonging to different persons, is but
one offense. The state cannot split this offense into
parts, and prosecute it by fractions. A conviction of
any part may be pleaded in bar to a prosecution for any
other part.'' Hence a conviction for having forged bank
bills and counterfeit plates in the defendant's possession,
with the intent to pass or use them, bars a subsequent
prosecution based upon other bank bills or plates in his
possession at the same time.* When the offense charged
necessarily includes a lesser crime, of which the jury may,
under the indictment, find the defendant guilty, his con-
viction of the greater crime bars his further prosecution
for the lesser.* On the other hand, if the defendant has
committed a lesser offense, of which he cannot be con-
victed under the indictment against him, then his con-
viction of the lesser offense cannot be regarded as included
in his conviction of the offense for which he is indicted,
and a second prosecution for the lesser offense is sustain-
able.5
If a defendant is charged with a crime in an indictment
under which he may be convicted of a lesser crime, his
conviction of such lesser crime is tantamount to his
acquittal of the greater, and of course bars any further
prosecution therefor.^ But suppose the conviction of the
1 State V. Egglesht, 41 Iowa, 574; State, 40 Tex. 36; Dunn v. State, 70
20 Am. E.ep. 612. lu'l- 47; State v. Pitts, 57 Mo. 85.
2 State V. Cameron, 40 Vt. 555; Lor- * Mumford v. State, 39 Miss. 558;
ton V. State, 7 Mo. 55; 37 Am. Dec. Moore v. State, 59 Miss. 25; State
179; State v. Nelson, 29 Me. 329; v. Wightman, 26 Mo. 515; Rcgiua v.
People V. Van Kuren, 5 Park. Cr. Smith, 34 U. C. Q. B. 552; iJedien v.
66- State V. Williams, 10 Humph. 101; People, 22 N. Y. 178; State v. Elder,
State V. Morphine, 37 Mo. 373; Jack- 65 Ind. 282; 32 Am. Rep. 69; Dickey
son V. State, 14 Ind. 327. Contra, v. Comm., 17 Pa. St. 126; 55 Am.
Regina v. Brettel, 1 Car. & M. 609; Dec. 542.
State V. Thurston, 2 McMull. 382. « State v. Martin, 30 Wis. 216; 11
* State V. Benham, 7 Conn. 414; Am. Rep. 567; Swinney v. State, 8
People V Van Keutzen, 5 Park. Cr. Snjedes & M. 576; CanipUell v. State,
66; State w. Egglesht, 41 Iowa, 574; 20 9 Yerg. .333; 30 Am. Due. 417; State
Am. Rep. 612; United States d. Miner, v. Hornsby, 8 Rob. (La.) 583; 41 Am.
11 Blatch. 511. Dec. 314; State v. Norvell, 2 Yerg. 24;
* Sanders v. State, 55 Ala. 42; State 24 Am. Dec. 458; People v. Knapp,
V. Staudifer, 5 Port. 523; Thomas v. 26 Mich. 112.
§ 225 MERGER, OR FORMER RECOVERY. 398
lesser offense to be upon an indictment not charging any
higher offense. Here is no acquittal of a higher offense,
and yet it would be unjust either to convict and punish
defendant for an offense which had been at least partially
punished in the sentence imposed for the lesser offense,
which was a part of it, and perhaps equally unjust to per-
mit the defendant to atone for the higher offense by
suffering the punishment appropriate to the lesser. The
courts have leaned to the side of mercy by determining
that if the state prosecutes to conviction and sentence for
a lesser offense it cannot thereafter convict and punish
for a higher crime of which it was a part.^ Thus where
the two prosecutions relate to the same act, a conviction
for an attempt to commit rape bars a prosecution for
rape;'' of assault and battery, a prosecution of assault
and battery with intent to commit murder;^ of assault, a
prosecution for battery;* of petty larceny, a prosecution for
grand larceny;^ of arson, a prosecution for murder, where
the penalty imposed for the two crimes is the same;^ of
burglary, a prosecution for robberyJ An exception to
this rule obtains in the event of the death of an injured
person after the conviction of his assailant of assault and
battery, in which event a prosecution and conviction for
murder or manslaughter may be permitted.'
1 State V. Standifer, 5 Port. 523; Thomas v. State, 40 Tex. 36; Severin
State V. Wister, (52 J\Io. 592; State v. v. People, 37 111. 414; Comm. v. Cur-
Sly, 4 Or. 277; Comm. v. Hawkins, 11 tis. 11 Pick. 134; State v. Warner, 14
Bush, 603; State v. Chaffin, 2 Swan, Ind, 572.
492; Comm. v. Miller, 5 Dana, 320; ^ State v. Shepherd, 7 Conn. 54;
State V. Lewis, 2 Hawks, 98; 1 1 Am. State v. Smith, 43 Vt. 324.
Dec. 741; Roberts v. State, 14 Ga. 8; * Moore w. State, 71 Ala. 307; Regina
58 Am. Dec. 528; People v. Smith, 57 v. Walker, 2 Moody & R. 446.
Barb. 46; Simco v. State, 9 Tex. App. * State v. Chaffin, 2 Swan, 493.
349; State v. Smith, 43 Vt. 324; State ^ State v. Murray, 55 Iowa, 530;
V. Cooper, 13 N. J. L. 371; 25 Am. State v. Gleason, 56 Iowa, 203.
Dec. 490; Wilcox v. State, 6 Lea, 571; * State v. Cooper, 13 N, J. L. 361;
40 Am. Rep. 53; Comm. v. Bright, 78 25 Am. Dec. 496.
Ky. 238; State v. Shepherd, 7 Conn. 54; ' Roberts v. State, 14 Ga. 8; 58 Am,
Moore v. State, 71 Ala. 307; Murphy v. Dec. 528.
Comm., 23 Gratt. 960; State v. Mur- « State v. Littlefield, 70 Me. 452; 35
ray, 55 Iowa, 530; note to Roberts Am. Rep. 335; Comm. v. Evans, 10]
V. State, 14 Ga. 8; 58 Am. Dec. 528. Mass. 25; Regina v. Morris, L. R. 1
Contra, State v. Stewart, 11 Or. 62; 0. C. 90.
399 MERGER, OR FORMER RECOVERY. §§ 225 a, 226
§ 225 a. Principal and Agent may both be severally
liable on the same obligation, or as the result of the same
transaction. Where this is the case, a judgment against
the agent seems to preclude the obligee from proceeding
against the principal. Hence the recovery on a bill of
lading against the master of a ship is a good defense to
an action against the owner on the same bill of lading,
though satisfaction has not been obtained.^ This is be-
cause the suing of the master to judgment is an election
to pursue him, rather than the owner, and makes the lat-
ter subject to a recovery against him by the master, and.
he ought not at the same time to be liable to separate
actions in favor of different persons resting upon the same
cause.
§ 226. Principal and Surety. — In Vermont, a judgment
against a principal and his surety merges not only the
cause of action, but, as between the plaintiff and the de-
fendant, the relation of principal and surety; so that, at
law, the surety cannot avoid the judgment by proving
that since its entry some favor or preference has been
given the principal, sufficient, if given before the judg-
ment, to relieve the surety from further responsibility.'*
But the preponderance of the authorities is decidedly
against the Vermont cases, and in favor of the rule that
the judgment creditor is still bound to give no preference
to the principal debtor, and to do no act by which the lia-
bility of the surety can be increased; and that those acts
which are sufficient to discharge the surety before judg-
ment will entitle him to a release afterward, and will
constitute a complete defense to an action at law on the
judgment.'
* Priestley v. Fernie, 3 Hurl. & C. monwealth v. Miller's Adm'r, 8 Serg.
977; II Jur., N. S., 813; 13 Week. & R. 452; La Farge v. Herter, 11
Rep. 1089. Barb. 159; Commonwealth v. Haas, 16
2 Marshall v. Aiken, 25 Vt. 332; Serg. & R. 252; Baird v. Rice, 1 Call,
Dunham v. Downer, 31 Vt. 249. 18; 1 Am. Dec. 497; Carpenter v.
« Rice V, Morton, 19 Mo. 263; Com- King, 9 Met. 511; 43 Am. Dec. 405.
§§ 227, 227 a merger, or former recovery. 400
§ 227. Co-plaintiffs or Co-defendants. — The merger of
the cause of action has no effect upon the liabilities of the
co-plaintiffs or the co-defendants between each other.*
Those liabilities are not in issue in the case, and therefore
are not affected by the final determination of the action.
In extinguishing a demand, a judgment has no greater
effect than mere payment. It leaves the liability of other
parties to the defendant unaffected. A recovery upon a
note against the maker and indorsers does not so merge
the note as to prevent the indorsers from paying the
judgment, receiving the note, and maintaining action on
it against the maker.'^ So a judgment against co-defend-
ants creates no liability between them, if none before
existed. Thus tort-feasors, where the injury committed is
malum in se, have no right of contribution between each
other. Hence a judgment recovered against them for
such torty and satisfied by one of their number, is wholly
incompetent to establish a claim against the others.^
§ 227 a. Suits on Notes and Bills. — The recovery
upon a promissory note, though a merger of the cause of
action as between the parties to the suit, is not necessarily
a complete merger of all other causes of action which may
arise out of the note. Thus the fact that an indorsee has
recovered judgment against an acceptor does not j^revent
a drawer who has taken up the note from recovering an-
other judgment against the same acceptor.'* So it is no
defense to an action by an indorsee against the maker of
a note that a prior indorsee, while the holder, and before
the plaintiff took it, recovered judgment against defend-
ant and the payee,^ nor to an action against the maker
that there has been a recovery against the indorsers.*
But if judgment is recovered against one of the joint
■ Contra, Kent v. Kent, 82 Va. 205. * McLennan v. McMonies, 23 U. C.
■^ Kelsey v. Bradbury, 21 Barb. 531; Q. B. 115; Tarleton v. Allhusen, 2 Ad.
Corey v. White, 3 Barb. 12. & E. 32.
3 Percy v. Clary, 32 Md. 245. « Brooklyn C. & N. R. R. Co. v.
* Macdouald v. Bovington, 4 Term National Bank, 102 U. S. 14.
Rep. 825.
401 MERGER, OR FORMER RECOVERY. § 228
makers, this is a discharge of all the other makers from
all suits by the same plaintiff and all persons in privity
with him.^ If one indebted upon a single cause of action
upon which he can be subjected to but one judgment
executes in payment thereof several promissory notes, he
thereby creates distinct causes of action susceptible of
being the foundation of as many judgments as there are
notes, and he cannot successfully claim that a judgment
upon one of the notes precludes a subsequent recovery on
others which were due when the first action was brought.^
§ 228. Judgments against Warrantors, Garnishees,
and Stock Companies. — Judgment against the original
warrantor in favor of the last grantee, with satisfaction,
will bar any action by the intermediate grantees.* In
this case it is evident that the demand, which consists of
the contract of warranty and the breach thereof, has
passed to the last grantee, and is drowned in the judg-
ment. Taking judgment against a garnishee does not
merge the demand against the principal. Judgments
may be recovered against both, and proceeded upon until
one is satisfied.* Judgment against a joint-stock company
merges the original liability. Redress against the stock-
holders must, in New York, be procured by an action
against them on the judgment.^ A difi'erent opinion is
stated by the court in Young v. Rosenbaum, 39 Cal. 646.
Rhodes, C. J., there says that the liability of the stock-
holders is not merged, extinguished, nor suspended by a
judgment against the corporation. The remarks of the
court, both in the New York and the California case, so
far as applicable to this subject, are mere dicta, arising
1 Barnett w. Juday, 38 Ind. 86; Hal- 210; Meriam v. Rimdlett, 13 Pick,
lowell V. MacDonell, 8 U. C. C. P. 511; Farmer w. Simpson, G Tex. 303.
2]. Covtrir, Sessions v. Sessions, 1 Fla.
2 Nathans v. Hope, 77 N. Y. 420. 233; 46 Am. Dec. 339; McAllister v.
* Brady v. Spurck, 27 111. 481. Brooks, 22 Me. 80; 38 Am. Dec. 282;
* Price V. Higgins, 1 Litt. 273; Cook Noble v. Merrill, 48 Me. 140; Coburn
V. Field, 3 AlaT'53; 36 Am. Dec. 436; v. Currens, 1 Bush, 242; King v.
Brown v. SomerviUe, 8 Md. 444; Ham- Vance, 46 Ind. 246.
mett V. Morris, 55 Ga. 644; Lowry v. * Witherhead v. Allen, 28 Barb.
Lumberman's Bank, 2 Watts & S. 661.
JUDG. I. — 26
§ 229 MERGEE, OR FORMER RECOVERY. 402
from the consideration of hypothetical facts, and not
of the issues before the court. It is a little remarkable
that the premises assumed by each court were identical,
while the results attained were diametrical. Both judges
assumed that the liability of the stockholder was that of a
principal debtor, and not that of a surety. But one court
treated the case as one in which plaintiff had two distinct
causes of action (one against the corporation and one
against its stockholders), either of which could be prose-
cuted to judgm.ent without affecting the other; while in
the other court the liability was considered like that of a
partnership^ in which a recovery against the firm makes
each partner responsible under the judgment, and releases
him from the original debt.
§229. Collateral Securities. — The prosecution to
judgment of any chose in action, given as collateral
security, in no wise merges or discharges the original
debt. As the debt continued in full force independent of
the security, so it remains unaffected by the judgment,
which is the same security in another and higher form.*
No other cause of action than the one sued upon can
merge in the judgment. Hence the successful prosecution
of an action on the original debt will not impair the right
to proceed upon the security.'' A judgment against an ad-
ministrator does not merge his liability so as to prevent
the prosecution of an action against the sureties on his
bond;* and it is said that a judgment in assumpsit for
money loaned is not a bar to an action on the case for
deceit and false and fraudulent representations, made to
1 Drake v. Mitchell, 3 East, 251; Butler ». Miller, 1 N. Y. 496; Steele ?'.
Watson V. Owens, 1 Rich. Ill; Davis Lord, 28 Hun, 127; Harris v. Alcock,
V. Anable, 2 Hill, 339; Bank of Che- 10 Gill & J. 226; 32 Am. Dec. 158;
nango v. Hyde, 4 Cow. 567; Fairchild Howell v. McCracken, 87 N. C. 399;
V. Holly, 10 Conn. 475; Butler v. Mil- Butterton v. Roope, 3 Lea, 215; 31 Am.
kr, 5 Denio, 159; United States v. Rep, 633; V^^hite v. Smith, 33 Pa. St.
Hoyt, 1 Blatchf. 326; Butterton v. 186; 75 Am. Dec. 589; McCullough v.
Roope, 3 Lea, 215; 31 Am. Rep. 633; Hellman, 8 Or. 191; Burnheimer v.
Day V. Leal, 14 Johns. 404; Chipman Hart, 27 Iowa, 19; 99 Am. Dec.
t). Martin, 13 Johns. 240. 641.
•^ Fisher v. Fisher, 98 Mass. 303; « McLean v. McLean, 90 N. C. 530.
403 MERGER, OR FORMER RECOVERY. § 230
procure the loan, though the value of the former judg-
ment must be considered in mitigation of damages.^
The cases of Benson v. Paine, 9 Abb. Pr. 28, 17 How.
* Pr. 407, Peters v. Sanford, 1 Denio, 224, and Averhill v.
Loucks, 6 Barb. 19, present singular examples of violations
of the unquestioned principle of law that the merger of a
security does not merge the original debt. In the two
cases first named, the plaintiff had taken the note of one
partner to secure a debt due from the firm. In the last-
named case the plaintiff took a bond and Avarrant of at-
torney from one of the partners for a similar purpose.
Judgments having been entered, in the several cases on
the notes and also on the bond, the question arose
whether an action could, be maintained against the re-
spective copartnerships on the original indebtedness. In
each case it was held that the recovery against one part-
ner on the collateral security given by him had merged
the demand against the copartnership. But from the
opinion of the court in each case the conclusion is irre-
sistible that no question was supposed to be involved,
except the effect of the entry of a judgment against a
partner for a partnership debt. In each of the three
cases, however, a judgment upon a collateral security did
in fact bar an action for the original debt; but neither
case is authority to overturn the proposition that the
merging of a mere security never involves the real in-
debtedness. We cannot but wonder that three cases
involving the same question should be determined in the
same state without the attention of either court being
directed to a rule of law so familiar to the profession and
so decisive of the matters under consideration.
§ 230. Foreclosure of Security. — The foreclosing of a
mortgage held as security, in a suit in the name of the
assignor and the assignee, does not change the relation of
the plaintiffs to each other. If the assignee purchase the
» Whittier v. Collins, 15 R. I. 00; 2 Am, St. Rep. 879.
§ 231 MERGER, OR FORMER RECOVERY. 404
mortgaged premises at a sale under the decree, he will
hold them subject to redemption on the same terms as
the mortgage could have been redeemed upon prior to the
suit.' A judgment or decree of foreclosure does not merge
the mortgage debt so as to impair the lien of the mort-
gage;^ nor will a proceeding to charge property with the
j)ayment of a debt or judgment amount to a merger
thereof;^ nor the recovery of judgment for a debt preclude
subsequent proceedings to enforce a mortgage or other
lien given to secure its payment.* Where parties sever-
ally liable on notes secured by a mortgage were all sued
in an action to foreclose it, and judgment taken for such
foreclosure against all, and a personal judgment against
one only, it was held that the others could not be sub-
jected to any further judgment.^
§ 231. Joint Obligors. — Whenever two or more per-
sons are jointly liable, so that if an action is commenced
against any less than the whole number the non-joinder
of the others will sustain a plea in abatement, a judgment
against any of those so jointly bound merges the entire
cause of action. The cause of action being joint, the
plaintiff cannot be allowed to sever it against the objec-
tion of any of the defendants. By taking judgment
against one, he merges the cause of action as to that one,
and puts it out of his power to maintain any further suit,
either against the others severally or against all com-
bined.® A different conclusion was announced by Chief
Justice Marshall in the case of Sheehy v. Mandeville, 6
Cranch, 253. He there held that a judgment against one
1 Hoyt V. Martense, 16 N. Y. 231. dall v. Hamilton, L. R. 4 App. Cas.
2 Manns v. Bank, 73 Ind. 243; 504; United States v. Ames, 100 U. S.
Evansville etc. v. State, 73 Ind. 219; 35; Wilson v. Buell, 117 Ind. 315;
38 Am. Rep. 129. Ferrall v. Bradford, 2 Fla. 508; 50 Am.
3 Roberts v. Rice, 71 Ala. 187. Dec. 293; Jansen v. Grimshaw. 125 111.
* McAlpin V. Burnett, 19 Tex. 500; 4(iS; Lauer v. Bandow, 48 Wis. 638.
Muncie N. B. v. Brown, 112 Ind. 474; And perhaps even the presentation and
Kempker v. Comer, 73 Tex. 196. allowance of a claim against the estate
* Lawrence v. Beecher, 116 Ind. of a deceased joint obligor may merge
312. the liability, and release the surviving
* People V. Harrison, 82 111. 84; Ses- oljligors: Jameson v. Barber, 60 Wis.
sions V. Johnson, 95 U. S. 347; Ken- 630.
405 MERGER, OR FORMER RECOVERY. § 232
of the makers of a joint note did not merge it as to tlie
other maker. Notwithstanding the respect everywhere
entertained for the opinions of this great jurist, this par-
ticular one was rarely assented to in the state courts, was
doubted and criticised in England,- and, after many years,
was directly overruled in the same court in which it was
pronounced.^ The cases in accord with it are few,^ while
those which oppose it are very numerous.^
§232. Partners. — It is well settled that the liability
of partners for a debt due from the firm is such that a
several action cannot be maintained against each partner,
if a plea in abatement is interposed. In case no such
plea is made, and a judgment is obtained against one or
more of the partners, no further suit can be maintained."*
This rule in relation to partnerships yields to no hardship.
Thus when plaintiff procured one member to confess
judgment for the firm, the confessing member was held
to be bound by the judgment, whilst his copartners were
neither bound by the judgment, nor liable to any other
action upon the same liability.^ And a judgment against
the known members of a partnership discharges the secret
or dormant members. The fact that plaintiff was not in-
formed as to all the persons bound does not prevent the
liability from merging in the recovery.^ This rule has
1 Mason v. Eldred, 6 Wall. 231. Harris v. Dunn, 18 U. C. Q. B 352;
2 Treasurers v. Bates, 2 Bail. 362; Robertson v. Smith, 18 Johns. 459; 9
Collins V. Lemasters, 1 Bail. 348; 21 Am. Dec. 227. . -d i -jon
Am Dec. 469, and note; Sneed v. > Nichols v. Burton, 5 Bush 320;
Wiester, 2 A. K. Marsh. 277; Union Candee v. Clark, 2 Mich 2o5; Averi 1
Bank V. Hodges, 11 Rich. 480; Beazley v. Loucks, 6 Barb 19; Mason v. El-
V. Sims, 81 Va. 644. dred, 6 ^N^\\. 231 ; Lydam v Cannon,
3 Ward V. Johnson, 13 Mass. 1^8; 1 Houst. 431 ; Woodworth t>. Spaffords,
Thomas v. Rumsey, 6 Johns. 26; Suy- 2 McLean, 18; Sloo v Lea, 18 Ohio,
dam V. Barber, 18 N. Y. 468; 75 Am. 279; United States v. Irofton, 4 Story,
Dec. 254; Brady v. Reynolds, 13 Cal. 646; Crosby ». Jeroloman, 37 Iiul. 2/b;
31 ; Wann v. McNulty, 2 Gilm. 355; 43 Ex parte Higgins 3 De Gex & .L 33
Am. Dec. 58; Smithi;. Black, 9 Serg. " North v. Mudge, 13 Iowa, 496; 81
& R. 142; 11 Am. Dec. 686; Philson Am. Dec. 441. ., „ , t tvt v.
„. Bamfield, 1 Brev. 20l'; Benson v. ^^ S^ott i,. Colmesnil, 7 J J- Marsh
Paine 17 How. Pr. 407; Henderson v. 416; Smith v. Black 9 Serg & K. 142
Reeves 6 Blackf 101; King v. Hoare, 11 Am. Dec. 686; Moale v. Holhns, 11
2 DoS &!! 382; M;ghee'.. Collins; Gill & J. H; 33 Am. Dec^ 684; Ken-
27 1.1(1. S3; Kingsley v. Davis, 104 dall v. Hamilton, L. R. 4 App. Oas.
Mass. 178; Root v. Dill, 38 Ind. 169; 504.
§ 233 MERGER, OR FORMER RECOVERY. 406
been violated in South Carolina. Where plaintifif sold
goods to A and took his note for the purchase-money, a
judgment recovered upon the note was held not to pre-
vent a further action from being sustained against B, who
had, since the judgment, been discovered to be A's co-
partner.^ This case is, however, entirely unsupported by
authority not likely to be anywhere sustained.
§ 233. Joint-debtor Acts. — In some of the states, pro-
visions have been incorporated into the codes of civil
procedure authorizing a judgment to be rendered in any
action against several persons jointly liable, without ser-
vice on all of the defendants, such judgment to be satis-
fied out of the individual property of the defendant served
and the joint property of all the defendants. It is further
provided, in the states of Michigan and New York, that
" such judgment shall be conclusive evidence of the liabil-
ities of the defendant who was served with process in the
suit, or who appeared therein, but against every other
defendant it shall be evidence only of the extent of the
plaintiff's demand after the liability of such defendant
shall have been established by other evidence." This
clause recognizes the continuance of the liability of a de-
fendant, not served with process, after judgment has been
rendered against him as provided in the statute. Its
effect, therefore, is to prevent the incident of merger from
attaching to the judgment and operating as a release of
any defendant who, though a party to, was not personally
served in the suit. Such defendant may be subsequently
sued, and subjected to a personal judgment.^ Wherever
the statute relating to joint debtors authorizes a judgment
to be entered upon the service of process against part only
of such debtors, and contemplates that those not served
with process shall remain liable, it is evident that a judg-
ment, as to defendants against whom it is not personally
1 Watson V. Owens, 1 Rich. Ill; Bonesteel v. Todd, 9 Mich. 371: SO
Union Bank v. Hodges, 11 Rich. 480. Am. Dec. 90; Mason v. Eldred, 6 Wall.
2 Oakley v. Aspinwall, 4 N. Y. 515; 239.
407 MERGER, OR FORMER RECOVERY. §§ 234, 235
binding, does not merge their liability.^ In some of (he
states statutes have been enacted by which liabilities
otherwise joint have been made joint and several. Where
such is the case, a judgment against one obligor cannot
merge or extinguish the liability of another.^
§ 234. Exceptions. — If, in Indiana, one of the joint
promisors dies, and judgment is afterwards obtained
against the survivor, who is insolvent, the original debt
will furnish a claim liable to be enforced by proceedings
against the estate of the deceased.^ Where a joint prom-
ise is made by parties residing in different states, and
probably in every case in which it is not possible to bring
an action in any court before which all the joint obligors
can be compelled to appear, a recovery against those within
the jurisdiction of the court will not bar a subsequent
action brought against those who were without such juris-
diction.* In both of these cases it is evident that some
modification of the doctrine of merger is indispensable to
secure to plaintiffs the full benefit of their contracts. In
the first case the parties liable could not be joined in one
action. The plaintiff therefore showed no intention of
releasing one party by pursuing the other. In the second
case no judgment could be secured in any court, binding
on both promisors. To give to a judgment against either
the effect of a merger of the cause of action against both
would therefore be to require plaintiff, without any fault
of his, to abandon his remedy against a part of the co-
obligors.
§ 235. Joint and Several Contractors.— A judgment
against any less than the entire number of persons bound
^ Rufty V. Claywell, 93 N. C. 306; 487; Yoho v. McGoyern, 42 Ohio St.
Wooters v. Smith, 56 Tex. 198; Ellis 11; Mermm v. Barker 12 In.l. /_4;
V. Bone, 71 Ga. 466. Eastern T B '^ Bebee, 53 Vt. 1 / ; ; 38
2 Rufty V. Claywell, 93 N. C. 306; Am. Rep. 66o; Olcottr Little, 9 N. H.
Hyman v. Stadler, 63 Miss. 362. ''^50;32 Am Dec 3o/; Wiley ;•. Holmes
MVeyer v. Thornburgh, 15 Ind. 28 Mo. 286; /o Am. ec. 20; Dennett
124; Devol v. Halstead, 16 Iml. „. Chick 2 Greenl. 1 9.^; 1 Am Dec.
287 59; Hand v. >< utter, 56 Me. 339; Browu
*Tibbett8 V. Shapleigh, 60 N. H. v. Birdsall, 29 Barb. 549.
§ 235 a MERGER, OR FORMER RECOVERY. 408
by a several or a joint and several obligation does not re-
lease the residue until satisfied.' An obligation by which
parties bind themselves jointly and severally is usually
construed as imposing a joint or several liability, at the
election of the obligee. Therefore if he recovers against
the obligors jointly, he cannot afterwards recover sever-
ally, and if he recovers sovarally, he cannot afterwards
recover jointly.^ In Pennsylvania, the plaintiff, by insti-
tuting a joint action, is presumed to elect to proceed
jointly, and is bound by such election. If, therefore, he
accepts judgment against less than the entire number
sued, he is not permitted to proceed against the others.*
The more reasonable view is, that the election is not ir-
revocable until after judgment has been rendered.'*
§ 235 a. Recovery in a Different Right or Capacity. —
A person may sue in different capacities to obtain redress
for the same wrongful act. When this is the case, he
should be considered as if he were two distinct persons,
and his recovery or failure to recover in one capacity can-
not affect him when suing in another capacity.^ A re-
covery by partners for an injury to their business by
certain slanderous words does not merge a cause of action
existing in favor of any member of the firm for the injury
done him personally by the same words.^ In this case
the injury to either partner as an individual could not
have been the subject of a recovery in the former action;
and hence it could not be merged in the result of such
action. So if, under a statute, a child is entitled to re-
cover for bodily injuries suffered by it, and its father is
J Harlan v. Berry, 4 G. Greene, 212; S3; Clinton Bank v. Hart, 5 Ohio St.
McReady v. Rogers, 1 Neb. 124; "JS 33; Sessions v. Johnson, 95 U. S. 347.
Am. Dec. 333; Elliott v. Porter, 5 Contra, United States v. Cushman, 2
Dana, 299; Armstrong v. Prewett, 5 Sum. 426.
Mo. 476; 32 Am. Dec. 338; King v. ' Beltzhoover v. Commonwealth, 1
Hoare, 13 Mees. & W. 504; Hix v. Watts, 126; Williams v. McFall, 2
Davis, 68 N. C. 233; Giles v. Canary, Serg. & R. 280.
99 Ind. 116; Day w. Hill, 2 Speers, » Clinton Bank r. Hart, 5 Ohio St. 3.3.
628; 42 Am. Dec. 390. * Skoglund v. Minneapolis S. R'y
^ Ex parte Rowlandson, 3 P. Wms. Co., 45 Minn. 330.
405; United States v. Price, 9 How, 6 pu^y j,_ Qj-ay, 52 Mo. 528.
409 MERGER, OR FORMER RECOVERY. § 235 a
also entitled to maintain an action to recover for the loss
of the services of the child resulting to him from the same
injury, it is clear that a recovery by the child cannot pre-
clude a subsequent recovery by the father;^ nor can the
recovery by the parent, as administrator of the child, pre-
clude his subsequent recovery in an action blought in his
own right,^ nor a recovery in his own right bar his sub-
sequent action as administrator of the child.^ A judg-
ment in favor of a wife, her husband being joined with
her as a nominal party, in an action for personal injuries
suffered by her, cannot prevent his recovering for the
damages suffered by him from the same cause, such as
loss of her labor and companionship, and expenses by him
incurred.'* A judgment in favor of a husband for the
possession of goods to which he is entitled by virtue of his
marital rights, and for damages, cannot preclude an action
by his wife;^ nor an action for an assault by plaintiff bar
a suit by his widow, in the event of his subsequent death,
to recover her damages arising from the same assault.®
If, however, the person in whose favor a former recovery
was was entitled to recover all the damages which could
be recovered for the act or default complained of, then no
further recovery can be had, whether the second action is
brought by a different person or not. Thus after a re-
covery for personal injuries by a person on whom they
were inflicted, his representatives cannot, on his subse-
quent death, maintain an action for the same injuries."
So where a beneficial owner of property had recovered for
injuries thereto while in his possession, it was held that
he could not in another capacity, nor could his trustee,
recover damages for the same injury.^ "A judgment in an
' Wilton V. Middlesex R. R. Co., 125 « Donahue v. Prexler, 82 Ky. 157;
Mass. 130; Bridger v. Asheville & S. 56 Am. Rep. 880.
R. R. Co., 27 S. 0. 456; 13 Am. St. ' Littlcwood v. New York, 89 N. Y.
Rep. 653. 24; 42 Am. Rep. 271.
2 Bradley v. Andrews, 51 Vt. 525. ^ Coltoa v. Ondcrdonk, 69 Cal. 155;
' Karr v. Parks, 44 Cal. 46. 58 Am. Rep. 550; Athorton v. Ather-
*Manni;. City of Rich Hill, 28 Mo. ton, 2 Ba. St. 112; Loeb v. Chicago
App. 497. etc. R. R. Co., 60 Miss. 933.
° Rogers V. Roberts, 53 Md. 519.
§ 236 MERGER, OR FORMER RECOVERY. 410
action of assumpsit brought by a husband and wife, on a
contract by a carrier of passengers to carry the wife safely,
for injuries to the wife while being carried, is a bar to
another action of assumpsit on the same contract, by the
husband alone, to recover for the same injuries. A dif-
ferent rule prevails when the action is in tort against the
carrier for a breach of public duty, except, perhaps, in
states like New Jersey, where by statute the husband may,
in such an action, add claims in his own right to those of
his wife." ^
§ 236. Trespassers. — The liability of persons joining
with one another in the commission of a trespass is joint
and several, and the effect of a judgment recovered against
them in merging the cause of action is, in America,
governed by the rules applicable to judgments upon joint
and several contracts.^ The early English and American
authorities sustained an opposite conclusion.^ In Eng-
land, after some considerable doubt had been manifested
upon this question, the courts decided to follow the early
decisions, instead of concurring in the departure taken by
the American courts. "We entertain," said Willis, J., in
the common pleas, "the highest respect for the American
jurists, and are always ready to receive instruction from
1 Pollard V. R. R. Co., 101 U. S. 20 Iowa, 310; McGehee v. Shafer, 15
223. Tex. 198; Stone v. Dickinson, 5 Allen,
2 Elliott V. Porter, 5 Dana, 299; 75 29; 81 Am. Dec. 727; Atlantic D. Co.
Am. Dec. 689; Blann v. Crocheron, 1^ v. Mayor, 53 N. Y. 64; Guellet). Swan,
Ala. 647; 54 Am. Dec. 203; State v. 19 Johns. 381; 10 Am. Dec. 234;
Boyce, 72 Md. 140; 20 Am. St. Rep. Hawkins t;.Hatton, 1 Nottft McC. 318;
458; Hyde v. Noble, 13 N. H. 494; 9 Am. Dec. 700; Jack v. Hudnall, 25
38 Am. Dec. 508; 2 Hilliard on Torts, Ohio St. 255; 18 Am. Rep. 298; Maple
310, 311; Elliott v. Haj'den, 104 Mass. v. Cincinnatti etc. R. R. Co., 40 Ohio
180; Morgan v. Chester, 4 Conn. 387; St. 313; 48 Am. Rep. 685.
Matthews?;. Menedger, 2 McLean, 145; ^ Lendall v. Pinfold, 1 Leon. 19;
Bloss V. Plymale. 3 W. Va. 403; 100 Chitty's Pleading, 89, citing Cro. Jac.
Am. Dec. 752; Livingston v. Bishop, 74, 2 Bos. & P. 70, 71, and 1 Saund.
1 Johns. 290; 3 Am. Dec. 330; United 207 a; Broome v. Wooton, Cro. Jac.
Society v. Underwood, 21 Am. Rep. 73; Yelv. 67; Warden v. Badey, 4
214; 11 Bush, 265; Knight v. Nelson, Taunt. 88; King v. Hoare, 13 Mees. &
117 Mass. 458; Ayer v. Ashmead, 31 . W. 494. These cases are also sustained
Conn. 447; 83 Am. Dec. 154; Wright by several American decisions: Hunt
V. Lathrop, 2 Ohio, 33; 15 Am. Dec. v. Bates, 7 R. I. 217; 82 Am. Dec.
529; Sheldon v. Kibbe, 3 Conn. 214; 592; Wilkes v. Jackson, 2 Hen. & M.
8 Am. Dec. 176; Turner v. Hitchcock, 355.
411 MERGER, OR FORMER RECOVERY. § 236
their decisions upon questions of general law. But the
question whether a plaintiff is to be allowed to maintain
a second action against one whom he ought to have sued
jointly with another in a former action, is purely one of
procedure, and on such a question we are bound by the
authorities in our own courts."^ This decision of the
common pleas, subsequently coming on to be reviewed in
the exchequer chamber, was aflBrmed, on the ground that
it was sustained by principle as well as by precedent.
Kelly, C. B., in the beginning of his opinion, in consid-
ering the question upon principle, reasoned as follows:
" The defendant, by way of plea, alleges that an action
was brought for the same cause against the other wrong-
doer, and a judgment obtained against her, which remains
in full force; and the question is, whether that affords
any defense to this action. That a judgment and execu-
tion with satisfaction would be a defense is not disputed.
A long series of authorities has so laid down; but it was
doubted whether judgment and execution without satis-
faction was a bar also. It will be right, therefore, to
consider whether this latter is not, upon principle, a good
and valid defense. If it were held not to be a defense,
the effect would, in the first place, be to encourage any
number of vexatious actions whenever there happened to
be several joint wrong-doers. An unprincipled attorney
might be found willing enough to bring an action against
each and every of them, and so accumulate a vast amount
of useless costs, if judgment against one of them did not
operate as a bar to proceedings against the others. The
mischief would not even rest there. Judgment having
been recovered against one or more of the wrong- doers,
and damages assessed, if that judgment afforded no de-
fense, the plaintiff might proceed to trial against another
of them, and the second jury might assess a different
amount of damages. Whi«h amount is the plaintiff to
' Brinsmead v. Harrison, L. R. 7 Com. P. 551. Sec also Sloan v. Creasor, 22
U. C. Q. B. 130.
§ 236 MERGER, OR FORMER RECOVERY. 412
levy? There are other grounds upon which it would be
extremely inconvenient and unjust if a second action
could be maintained. But, independently of the mischief
which would result from holding the law to be as con-
tended for, let us see how the authorities stand. In the
first place, there is no authority whatever — since the
reigns of the Henrys and the Edwards nothing approach-
ing to an authority has been cited — to show that such a
plea as this would not be a good defense. In the absence,
therefore, of authority to the contrary, upon principle, and
upon what I conceive to be binding authority in its favor,
I come to the conclusion that such a plea as this affords
a good defense."*
But, with all due deference to so high an authority, it
strikes us that, while professing to discuss this question
upon ■princiiyle, the chief baron discussed it only with
reference to considerations of hardship and inconve-
nience. The only way in which it can be discussed upon
principle is to demonstrate that the cause of action is
joint, and rvoi joint and several. This the chief baron did
not attempt. If considerations of convenience are to
govern in determining the application of the law of mer-
ger, it might be denied in many instances, where the lia-
bility is clearly joint and several. By way of illustration,
suppose that one of the makers of a joint and several note,
on being sued thereon, interposes a defense, and upon
the trial of the cause the jury allows the defense, in whole
or in part. Another action may then be brought against
the other promisor; he may interpose the same defense,
and support it by the same evidence, and yet the jury
before whom the second action is tried may find a ver-
dict entirely different from that found in the first action.
In such case, the plaintiff would, no doubt, take out exe-
cution on the judgment which happened to be most favor-
able to his interests. Or suppose the note to be made by
1 Brinsmead v. Harrison, L. R. 7 Com. P. 557. See also Sloan v. Creasor, 22
U. C. Q. B. 130.
413 MERGER, OR FORMER RECOVERY. § 236
twenty joint and several promisors. In that event, it is
possible that the payee might find an attorney willing, or
even anxious, to prosecute twenty separate suits, and in
each suit to incur and tax the largest amount of costs
allowable by law. In fact, the inconvenience and injus-
tice of allowing several judgments to be recovered upon
any joint and several liability are as likely to arise in
suits upon promissory notes as in actions to recover for
trespasses and torts committed by two or more persons.
If hardship and inconvenience control the judgment of
the court in the latter class of actions, they ought equally
to control in the former.
A few of the American cases, while admitting that the
successful prosecution of an action against one trespasser
does not affect the cause of action against his co-trespass-
ers, decide that the mere issuing of an execution is a con-
clusive election to consider the defendant as exclusively
responsible.^ But a majority of them^ discountenances
this manifest absurdity. If the mere election to pursue
one trespasser were binding on the plaintiff as a release of
all the co-trespassers, it seems difficult to understand why
that election is not as obvious when the suit has been
prosecuted to final judgment as when the plaintiff takes
the first step towards its enforcement. If, on the other
hand, such election in no way involves the several causes
of action against the other trespassers prior to the issuing
of an execution, it is difficult to perceive why or how that
event necessarily involves them. How vain and delusive
that law must be which declares the right of an injured
party to proceed severally against every person concerned
> Allen V. Wheatley, 3 Blackf. 832; 4; Jones v. McNccal, 2 Bail. 4G6; Love-
Fleming V. McDonald, 50 Ind. 27a; joy v. Murray, 3 Wall. 1; Page ?>. Free-
19 Am. Rep. 711; White v. Phillirick, man, 19 Mo. 421; Floyd v. Browne, 1
5 Greenl. 147; 17 Am. Dec. 214; Smith Rawle, 125; 18 Am. Dec. 002; Knott
V. Singleton, 2 McMull. 184; 39 Am. ■?;. Cunningham, 2 Sneed, 204; Griffie y.
Dec. 122, McCluug, 5 W. Va. 133; Osterhont v.
■^ Murray v. Lovejoy, 2 Cliff. 191; Roberts, 8 Cow. 43; McVey v. Mar-
Sheldon V. Kibbe, 3 Conn. 214; 8 Am. ratt, 80 Iowa, 132; Blann o. (U-ochurou,
Dec. 170; Sanderson v. Caldwell, 2 20 Ala. 320; 54 Am. Dec. 203.
Aiken, 195; Sharp v. Gray, 5 B. Mon.
§ 237 MERGER, OR FORMER RECOVERY. 414
in committing an injury; which sustains him until the
liability of every wrong-doer is severally determined and
evidenced by a final judgment; and which, after thus
"holding the word of promise to his ear, breaks it to his
hope," by forbidding him to attempt the execution of
either judgment, upon penalty of releasing all the others.
Plaintiff can have but one satisfaction for each trespass,
whether he has recovered several judgments or none.
Such satisfaction abates all actions pending, and dis-
charges all judgments obtained, against co-trespassers,^
except as to costs, which, it seems, may be collected upon
each judgment.^ Pursuing trespassers, or any of them
severally, is a conclusive election to consider the trespass
as several, and is a bar to a joint action subsequently in-
stituted.^
§ 237. Vesting Title. — Where, instead of suing for the
mere damages occasioned by an act of trespass or conver-
sion, the plaintiff recovers judgment for the value of the
property injured or converted, it has frequently been held
that the recovery vests the title to the property in the de-
fendant, and that as it would be unjust for the defendant
to acquire title to the property taken or injured, while
others might be made liable to pay the entire value thereof
in a subsequent action, the plaintiff could not be allowed
to proceed against any person concerned in the trespass
or conversion and not included in the first action.* If,
indeed, the mere rendition of a judgment transferred the
1 Mitchell V. Libbey, 33 Me. 74; » Murray v. Lovejoy, 2 Cliff. 191;
Matthews v. Lawrence, 1 Denio, 212; Smith v. Rines, 2 Sum. 348.
43 Am Dec. 665; Smith v. Singleton, * Campbell v. Phelps, 1 Pick. 61; 11
2 McMull 184; 39 Am. Dec. 122; Sav- Am. Dec. 139; Broome v. Wooton,
acre V Stevens, 128 Mass. 254; Luce v. Yelv. 67; Adams v. Broughton, 2
D'exter, 135 Mass. 23; Hawkins r. Hat- Strange, 1078; Floyd u Browne 1
ton 1 Nott & McC. 318; 9 Am. Dec. Rawle, 121; 18 Am. Dec. 602; Woolley
•too' v. Carter, 7 N. J. L. 85; 1 1 Am. Dec.
2 Livingston r. Bishop, 1 Johns. 290; 520; White v. Philbrick. 5 Greenl. 147;
3 Am Dec. 330; Knickerbocker v. 17 Am. Dec. 214; Emery v. Nelson, 9
Colver, 8 Cow. Ill; First N. B. v. Serg. & R. 12; Buckland n Johnson,
Piano Co., 45 Ind. 5; Ayer v. Ash- 15 Com. B. 145; 23 L. J. Com. P. 204.
mead 81 Conn. 447; 83 Am. Dec. 154; This last case has been overruled by
Sodousky v. McGee, 4 J. J. Marsh. Brinsmead v. Harrison, L. R. 6 Com.
267. I'-SSS.
415 MERGER, OR FORMER RECOVERY. § 237
title of the property in such eases to defendant, the plain-
tiff's cause of action would of course cease to be held by
him, and his claim to further proceedings based upon it
could not be supported. But the American courts have
not generally attributed this effect to judgments. The
transfer of title, in their opinion, does not take place until
the judgment is completely satisfied, and the value of the
property as ascertained by the court has been paid to
the plaintiff. Until such payment, therefore, there is no
obstacle to prevent him from seeking redress in the courts
against any one originally liable.^ But when the judg-
ment has been paid, the title to the property is, for most
purposes, vested in the defendant by relation at the date
of the conversion. The plaintiff elects by his proceeding
against the defendant to compel the latter to become a
purchaser of the property and to pay its value at the date
of the conversion. When the plaintiff has succeeded in
compelling this involuntary purchase and payment, the
title thereby acquired by the defendant relates back to the
date of the conversion, because that is the period at which
the plaintiff has chosen to treat the property as purchased
from him by the defendant.^ Therefore if after recover-
ing judgment for the conversion of certain chattels, the
plaintiff retakes the same chattels into his possession, and
subsequently to such retaking he enforces the collection of
the judgment, such collection vests the property in the
defendant as of the date of the original conversion, and
entitles him to recover against the plaintiff for the re-
taking.* But the relation of title back to the period of
the conversion will not be permitted to take effect to the
1 Osterhout v. Roberts, 8 Cow. 43; joy v. Murray, 3 Wall. 1; Elliott
Sp'vev V. Morris, 18 Ala. 254; 52 Am. v. Hayden, 104 Mass. 180; Smith v.
Dec 2"24; Smith i;. Alexander, 4 Sneed, Smith, 50 N. H. 219; McReady v.
4S'2; Sanderson v. Caldwell, 2 Aiken, Rogers, 1 Neb. 124; 93 Am. Dec. 3;i3;
203; Jones v. McNeil, 2 Bail. 4(56; St. Louis etc. R'y Co. v. McKmsey,
Mort'an v. Chester, 4 Conn. 387; Mat- 78 Tex. 298; 22 Am. St. Rep. 54.
thew's V. Mened^'er, 2 McLean, 145; ^ Hepburn v. Sewell, 5 Har. & J.
Hyde v. Noble, 13 N. H. 501; McGee 211; 9 Am. Dec. 512
V. Overby, 12 Ark. 164; Sharp v. Gray, =* Smith v. Smith, 51 N. H. 571; 50
6 B. Mon. 4; Hepburn v. Sewell, 5 N. H. 219.
Har. & J. 212; 9 Am. Dec. 512; Love-
§ 238 MERGEK, OK. FORMER RECOVERY. 416
prejudice of innocent third persons so as to make tlieni
liable as trespassers.^
§ 238. Divisible and Indivisible Causes of Action. —
That a single or entire demand cannot be split so as to
constitute the basis of more than one suit, and that the
recovery upon any part of such demand merges the whole,
is not disputed,'^ although the plaintiff may have assigned
some portion thereof to a third person.^ It is equally cer-
tain that one person may, at the same time, hold several
distinct causes of action against another, and may main-
tain an action on any of such causes, without prejudicing
his right to proceed upon any of the others.* Thus a
recovery of damages for the wrongful dismissal of the
plaintiff from defendant's employment does not bar a
subsequent action for wages earned during such employ-
ment;" nor a recovery for money deposited with defend-
ant in an action for wages due to him.® A recovery for
money lent does not bar an action for fraudulent repre-
sentations made to procure the loan;^ a judgment in favor
of an interpleader in an attachment suit does not affect
his cause of action against an ofiicer for a wrongful seiz-
ure;^ a recovery in assumpsit on a written contract relat-
ing to the sale of sheep does not bar a subsequent action
of trover for their value.®
Great difficulty has been experienced in determining
what constitutes an entire or single demand; and many
irreconcilable adjudications have been made upon the
subject. It may be laid down as a general rule that each
separate agreement or transaction will give rise to one
^ Bacon v. Kimmel, 14 Mich. 201. * Robbins v. Harrison, 31 Ala. 160;
2 Staples V. Goodrich, 21 Barb. 317; Rex v. Sheriff, 1 Barn. & Adol. 672;
Waterbury v. Graham, 4 Sand. 215; Wittick v. Traum, 27 Ala. 563; 62 Am.
Warren v. Comings, 6 Gush. 103; Smith Dec. 778.
V. Jones, 15 Johns. 229; Marsh v. Pier, ° Perry v. Dickerson, 85 N. Y. 345;
4 Rawle, 273; 26 Am. Dec. 131 ; Crosby 35 Am. Rep. 663.
V. Jeroloman, 37 Ind. 277; Dutton v. * Byrnes v. Byrnes, 102 N. Y. 4.
Shaw, 35 Mich. 431; Guernsey v. Car- ' Whittier v. Collins, 15 R. I. 90; 2
ver, 8 Wend. 492; 21 Am. Dec. 60; Am. St. Rep. 879.
Turner v. Plowden, 5 Gill & J. 52; 23 « Clark v. Brott, 71 Mo. 473.
Am. Dec. 596. ' Gates v. Goreham, 5 Vt. 317; 26
3 lugrahain v. Hall, 11 Serg. & R. 78. Am. Dec. 303.
417 MERGEE, OR FORMER RECOVERY. § 239
entire and independent cause of action, and to hut one.
Thus if several parcels of merchandise be sold at one
time, the transaction will constitute but one demand/ A
note payable in one year, with interest payable semi-annu-
ally, comprises two distinct contracts, — one to pay the
principal sum and the other to pay the interest. A judg-
ment, after the principal is due, in an action for interest,
does not merge both contracts.^ F. discounted a bill
drawn by J. upon A., and J. and A. agreed at the same
time that in case the bill was not paid at maturity they
would pay thereon twenty pounds for each month, and
F. sued J. on the bill, claiming no interest, and recovered.
It was afterwards held that the agreement to pay tw'enty
pounds per month interest was a distinct agreement, upon
which F. could recover in another action for every month
until the bill had merged into the judgment obtained
upon it.' A note signed by A B & Co. and by A B fur-
nishes two causes of action, — one against A B and the
other against the firm. Each cause of action may be re-
covereil upon severally.* Where the law provided that
the plaintiff should have judgment in certain cases, unless
an affidavit of defense was filed, the defendant having
filed such affidavit as to part of the claim, the plaintiff
took judgment for the balance. The court thereupon held
that there could be but one final judgment in an action,
and that plaintiff was precluded from proceeding for the
disputed portion of the claim.®
§ 239. Actions on Account. — In actions for goods sold,
for money loaned and received, or for labor performed, at
' Smith V. Jones, 15 Johns. 229. proper after the principal became due.
'^ Andover Sav. Bank v. Adams, 1 The dissenting opinion of Judge Emery
Allen, 28; Dulaney v. Payne, 101 111. appears to us to be more in consonance
325; 40 Am. Rep. 205; Sparhawk v. with reason and authority than tlie
Wills, 6 Gr'ay, 163. The case of Howe opinion of the majority as delivered by
V. Bradey, 19 Me. 31, is sometimes Judge Shepley. +
cited as sustaining a different view; ^ Florence v. Jenings, 2 Com. B.,
and perhaps it inferentially does. N. S., 454.
But that case did not involve any * (xibnan & Co. v. Foote & Co., 22
question concerning the efifect of a re- Iowa, 5()0.
covery for interest. It merely deter- * Brazier v. Banning, 20 Pa. St.
mined that such a recovery was iui- 345.
Juno. L— 27
§ 239 MERGER, OR FORMER RECOVERY, 418
various times, the whole sum due at the commencement
of the suit probably constitutes but one demand. It is
said to be reasonable for the courts to presume, in such
cases, that an agreement existed in pursuance of which
the plaintiff, for a definite period of time, or at the will of
both parties, was to furnish goods, to loan money, or to
perform labor; and that the amount due under the agree-
ment should constitute but one cause of action.^ The
amounts due upon a book-account are generally regarded
as constituting an indivisible demand.^ What is an ac-
count or a dealing upon account is difficult to state, and is
probably a question of fact to be determined from all the
circumstances. Doubtless where the parties are merchant
and customer, or are regularly doing business with each
other, under circumstances calling for the keeping of ac-
counts, the debtor has a right to have his entire indebt-
edness treated as one and indivisible. And generally,
where a creditor seeks to recover two or more judgments
for items of indebtedness due him when the first action
was brought, he must show some reason why such in-
debtedness should be treated as divisible. The question
is one of agreement or understanding, express or implied,
to be determined by the ordinary modes of business,* or
by the direct agreement of the parties. Thus where one
person is furnishing articles to another, and they agree
that bills are to be made out and due and payable at the
end of each month, this has been held to give rise to a
separate cause of action at the end of each month, and
to warrant two separate actions and recoveries for the
amounts due at the end of two months, though both were
due before either action was brought.* Some courts, how-
'Secor V. Stur^is, 16 N". Y. 548; 458; Corey v. Miller, 12 R. I. 337;
Bunnell w. Pinto, 2 Conn. 431; Pinney Stevens r. Lockwood, 13 Wend. 644;
V. Barnes, 17 Conn. 420; Lucas v. Le 28 Am. Dec. 492.
Compte, 42 111. 303. ^ Pittman v. Chrisman, 59 Miss.
^ Avery v. Fitch, 4 Conn. 362; Lucas 126; Magruder v. Randolph, 77 N. C.
V. Le Compte, 42 111. 303; 2 Smith's 79; Borngesser v. Harrison, 12 Wis.
Lead. Cas. 671; Bendernagle v. Cocks, 544; 78 Am. Dec. 757; Buck v. Wilson,
19 Wend. 257; 32 Am. Dec. 448; 113 Pa. St. 423.
Oliver v. Holt, 11 Ala. 574; 46 Am. ♦ Beck i;. DevereauXj 9 Neb. 109.
Dec. 228; Alemmer v. Carey, 30 Alino,
419 MERGER, OR FORMER RECOVERY. § 2iO
ever, consider each separate charge as a distinct cause of
action, not to be affected by proceedings for the recovery
of other charges, antecedent or subsequent.' A contract
to pay the hire of a horse and buggy is so distinct from
the implied obligation to pay for damages thereto during
the period of the hiring that judgment for the hire does
not affect the claim for damages.^
§ 240. Indivisible Demands. — Where the action is
upon a contract, it merges all amounts due under or aris-
ing out of the contract prior to the suit. They constitute
a single, indivisible demand.^ If a railroad company
agrees to build a crossing, this cannot be distinguished
from, a covenant to do any other act. Upon a breach of
the covenant, by a failure to erect the crossing, the cove-
nantor may bring an action. The judgment obtained in
such action will be considered as a full compensation for
all damages which have arisen or which may arise from
the breach of the covenant; and the plaintiff cannot
therefore recover for any damages sustained by him sub-
sequently to the former recovery.* If a bond is given to
a constable to indemnify him from all damages, charges,
trouble, and expense that he may be put to by reason of
a levy upon and sale of specified property, all these items
constitute a single demand.^
If one has hired property of or is himself working for
another for a compensation to be paid at regular intervals,
as by the week or month, whatever is due him at any one
time, though it may be made up of wages due for two or
more months or years, is regarded as due upon one con-
tract, and therefore not subject to separate actions, and a
iRex V. Sheriff, 1 Barn. & Adol. 179; Rosenmueller v. Lampe, 89 111.
672; Mcintosh v. Lown, 49 Barb. 550. 212; 31 Am. Rep. 74; Joyce v. Moore,
2 Shaw V. Beers, 25 Ala. 449. 10 Mo. 271.
* Goodrich v. Yale, 97 Mass. 15; Miuliaiia B. R. R. Co. v. Koons,
O'Beirne v. Lloyd, 43 N. Y. 248; Hopf 105 Ind. 507; Smith v. Great Western
V. Myers, 42 Barb. 270; Warren v. R'y Co., 6 U. C. C. P. 156; citing
Comings, 6 Cnsh. 103; Daltoii v. Bent- Manning v. Eastern Counties R'y Co.,
ley, 15 111. 420; Cliinn v. Hamilton, 12 Mues. & W. 2S7.
Hemp. 438; Draper v. Stouvenel, 38 * Bancroft v. Wiuspear, 44 Barb.
N. Y. 219; Sykea v. Gerber, 98 Pa. St. 209.
§ 240 MERGER, OR FORMER RECOVERY. 420
recovery for any month or year precludes any further re-
covery for wages due when the action w^as brought,
whether earned before or after those for which a recovery
was had;^ or if the contract was for a year or other stated
time, and the employee is wrongfully discharged, and be-
fore the expiration of the year sues for and recovers part
of his wages, or damages for his dismissal, his entire claim
is thereby merged.^ If, by virtue of a lease or contract,
moneys become due in installments or at regular intervals,
a recovery of any installment merges any other due at the
time of the commencement of the action,^ but does not
affect installments subsequently falling due.* Therefore
if a bond of indemnity is given, a judgment for a breach
thereof cannot merge a cause of action arising out of a
subsequent breach.^ Though a note under which inter-
est falls due in installments declares that if any install-
ment is not paid when due the entire principal shall
become due, a recovery of interest does not merge the
principal/ Where there is a continuing covenant, such,
for instance, as a covenant for rej^airs, a recovery thereon
will not destroy or affect the plaintiff's right to recover
damages occasioned by a breach of covenant occurring
subsequently to the commencement of the prior action/
An extreme application of the rule that but one cause
of action can arise from an entire contract occurred in
a case in Ohio, in which it appeared that the owner of
a barge entered into a contract declaring that" he had
hired it to the owners of a steamer " for the sum of ten
dollars per day, until delivered back in like good order
as received." After his barge had been retained in the
service of the owners of the steamer for a considerable
' Rosenmneller u. Lampe, 89111. 212; St. 58; Armfield v. Nash, 31 Miss. 361;
31 Am. Rep. 74; Stein v. The Prairie Epstein v. Greer, 85 Ind. 372; Ahl v.
Rose, 17 Ohio St. 475; 93 Am. Dec. 6:U. Ahl, 60 Md. 207; Clark v. Jones, 1
2 Booge V. Pacitic R. R. Co., 33 Mo. Denio, 519; 43 Am. Dec. 706.
212; 82 Am. Dec. 160; Kahn v. Kahn, * Orendorflf v. Utz, 48 Md. 298.
24 Neb. 709. « Wehrly v. Morfoot, 103 111. 183.
3 Perry v. Mills, 76 Iowa, 622. ' Beach v. Crain, 2 N. Y. 86; 49 Am.
* Burritt v. Belfy, 47 Conn. 323; 36 Dec. 369; Fish v. Folley, 6 Hill, 54.
Am. Rep. 79; Hamm v. Beaver, 31 Pa.
421 MERGER, OR FORMER RECOVERY. § 240
period of time, he brought an action against them, and
recovered the amount due up to the commencement
thereof. At a subsequent date he brought another ac-
tion, to recover an amount alleged to have become due
him for the hire of the barge after the commencement of
the former action. Thereupon the court determined that
the contract was entire for the use of the barge to be re-
turned in a reasonable time; that if it were not so returned
there might be an action for breach of contract for its
return; that the right of the party was, not to exact ten
dollars per day perpetually, but to charge that for a rea-
sonable time; that his former action, in effect, averred
that the reasonable time had expired, and that the whole
debt was then due, and therefore that his former recovery
merged his entire claim to recover for the use of his barge
under the contract.^
Judgment for a breach of a covenant in a lease is a bar
to an action for any other breach previously committed.^
This doctrine, though well sustained, is pronounced hereti-
cal in Mcintosh v. Lown, 49 Barb. 550, where the extreme
ground is attempted to be maintained that each successive
breach of any contract constitutes an independent cause
of action, so that a plaintiff, after recovering for one
breach of a covenant in his lease, is at liberty to recover
damages for any preceding breach. To the same effect is
the opinion in the case of Badger v. Titcomb, 15 Pick. 409;
26 Am. Dec. 611. There the defendant, being the keeper
of an office for procuring crews for vessels, agreed to pay
plaintiff a specified sum for each man shipped. The court
decided that the plaintiff could maintain an action for the
breach of this contract, occurring antecedent to another
breach, upon which judgment has been obtained.' Of
course the recovery upon a contract does not affect any
distinct cause of action subsequently accruing. Thus an
' stein V. The Prairie Rose, 17 Ohio 6 Hill, 54; Stuyvesant v. Mayor of
St. 475; 93 Am. Dec. 6.31. N. Y., 11 Paige, 414.
^ Beiulernagle v. Cocks, 19 Wend. ' Perry v. Harrmyton, 2 Met. 3GS;
207; 32 Am. Dec. 448; Fish v. Foiley, 37 Am. Dec. 98.
§ 241 MERGER, OR FORMER RECOVERY. 422
indorser who, upon being compelled to pay part of a note,
recovers the amount paid, from a second indorser, will,
when obliged to pay the balance, be in condition to suc-
cessfully prosecute another action against the second in-
dorser/ Presenting an entire'demand as a defense to an
action or as a set-off, and its partial allowance, merges the
whole demand. When the set-off, being fully established,
exceeds the plaintiff's demand, the defendant cannot in a
subsequent action recover the excess.^
§241. Indivisible Demands Ex Delicto. — The rule
that one cause of action cannot be split into several is as
applicable to actions ex delicto as to those ex contractu. A
single tort can be the foundation for but one claim for
damages.^ A judgment for plaintiff in replevin for a por-
tion of the things taken is a bar to a subsequent action
for damages for the same taking, it not being shown that
any of the things not recovered in the former action were
concealed or so disposed of that as to them the replevin
would not lie.* The rule is without exception that if sev-
eral chattels are taken at the same time, a recovery of any
of them, whether in trespass or in trover, merges the
entire demand arising out of the taking, and no further
recovery can be had in any form of action.^ The pro-
priety of this rule is manifest. To allow as many suits
to be prosecuted as there are articles taken or detained by
the defendant would be to inflict upon him a penalty
more serious than any authorized by the penal laws, and
to obstruct the tribunals of justice with a cloud of petty
cases, supported by the same facts and involving the same
legal principles. "It would be outrageous to allow a
' Wright V. Butler, 6 Wend. 284; 21 252; 46 Am. Dec. 150; Karhler v.
Am. Dec. 323. Dobberpulil, 60 Wis. 256.
» Simes v. Zane, 24 Pa. St. 242; In- * Bennett v. Hood, 1 Allen, 47; 79
slee V. Hampton, 11 Hun, 156; O'Con- Am. Dec. 105; Herriter v. Porter, 23
nor?'. Varney, 11 Gray, 231. Cal. .S85.
^ Wichita & W. R. R. Co. v. Beebe, 39 ^ Union R. R. Co. v. Traube, 59 Mo.
Kan. 465; Saddler z). Apple, 9 Humi)h. 355; O'Neal v. Brown, 21 Ala. 482;
3i2; Whitney v. Clarendon, 18 Vt. McCaffrey v. Carter, 125 Masd. 330.
423 MERGER, OR FORMER RECOVERY. § 241
*■
thousand actions for taking a thousand barrels of flour."*
When a house and a shop were burned by the same fire,
through the negligence of defendant's servants, a judg-
ment for the damages occasioned by the burning of the
shop was adjudged to be a bar to a recovery, in a subse-
quent action, for the destruction of the house.'^ If the
defendant stopped the plaintiff's wagon and team and
forcibly took a horse therefrom, and the plaintiff sued in
trover and recovered for the taking of the horse, he can-
not thereafter recover in trespass for his injuries suffered
from the stopping of the wagon and team, for all that the
defendant did was but one continuous tortious act.* After
recovering judgment for malicious prosecution, the plain-
tiff cannot sustain an action for slander, consisting of pre-
ferring the charge on which the malicious prosecution
took place; but slander consisting of subsequent repeti-
tions of the charge is not merger in the judgment for
malicious prosecution.* All the damages which can by
any possibility result from a single tort form an indivis-
ible cause of action.^ Every cause of action in tort con-
sists of two parts, to wit, the unlawful act, and all the
damages which can arise out of it. For damages alone,
no action can be permitted. Hence if a recovery has
once been had for the unlawful act, no subsequent suit
can be sustained. There must be a fresh act as well as a
fresh damage.^ A recovery in trover for the conversion
of slaves is a bar to any claim, either for trespass in for-
cibly taking them, or in assumpsit for the value of their
1 Farrington v. Payne, 1 5 Johns. 432; ' Trask v. Railroad, 2 Allen, 331.
8 Am. Dec. 261 ; Bates v. Quattleboue, » Kite v. Long, 6 Rand. 457; 18 Am.
2 Nott & McC. 20.5; Cracraft v. Coch- Dec. 719. or xr v
ran, 16 Iowa, 301; Cunnincrham v. * Rockwell v. Brown, 36 IN Y.
Ha;ri.s, 5 Cal. 81; Veghte .. Hoagland. 207; Jarmgan t;. Flemnig 43 Miss.
29 N. J. L. 125; Buckland i». Johnson, 710; 5 Am Rep 514; Sheldon w.
15 Com. B. 145. A recovery for the Carpenter, 4 N. Y. 579; 55 Am. Dec.
conversion of certain chattels bars any 301. -r. u 4. op.o„17o. M
sabsequeat recovery for other chattels " Norton ^Doherty. 3 Gray, ^72 63
converted by the same act, although Am. Dec. 758; Stickney v. Goudy. 132
the plaiutifif was prevented from 111- HI- 21.i. c. „ i,„_<, n Ad A-
eluding them in the former suit, by « Hcdsoll v. Stallebrass, 11 Ad. &
the fraud of the defendant: McCaffrey E. 301.
V. Carter, 125 Mass. 330.
§ 241 MERGER, OR FORMER RECOVERY. 424
services during the period of their conversion.* Judg-
ment upon contract for breach of agreement in not dis-
charging an execution merges the claim for damages
occasioned by an arrest under the same execution.'^ If a
fire is started by a locomotive-engine under such circum-
stances as to make its owner answerable, all damages
resulting to one person by the act must be recovered in
one judgment, although the fire was communicated to two
tracts of land situate a considerable distance from each
other.^ A recent case is difiicult to reconcile with the
principle we have here stated and illustrated. A hus-
band and wife, while riding as passengers in a railway
car, suffered injuries from the same negligence. He
brought an action and recovered judgment for his per-
sonal injuries, and thereafter commenced another action,
seeking compensation for the loss of the services and so-
ciety of his wife, caused by her being injured at the same
time with him, and for the expense to which he was put
in providing her with physicians, medicines, and care.
The former recovery being pleaded in bar, the appellate
court decided the plea not to be sustained, on the ground
that to entitle him to recover in the former action, it was
not necessary for him to show that he had lost the society
or services of his wife, or that she had been injured; that
the loss of the services and society of his wife was an en-
tirely different cause of action from the injury to himself,
and did not occur until after such injury, nor result
therefrom or pertain thereto.*
The fact that the damages now sought to be compen-
sated had not become apparent when the former judgment
was obtained does not form any exception to the rule.^
Thus where the defendant had made an excavation into
^ Cook V. Cook, 2 Brev. 349; Thomp- * Skoglund v. Minneapolis Street
son V. Rosers, 2 Brev. 410; Yowle v. R'y Co., 45 Minn. 330; 22 Am. St.
N. H. & N. Co., 107 Mass. 352; Smith Rep. 733.
V. G. W. R'y Co., 6 U. C. C. P. 156. ^ Watson v. Van Meter, 43 Iowa,
^ Smith w.'Way, 9 Allen, 47-2. 76; Fowle v. New Haven, 107 Mass.
s Knowlton v. N. Y. & N. E. R. R. 352; Clegg v. Deardeu, 12 Q. B.
Co., 147 Mass. 606. 676.
425 MERGER, OR FORMER RECOVERY. § 241
plaintiff's coal mine, tlirougli which water flowed, and
plaintiff recovered damages for making the aperture, and
afterward brought another action to obtain compensation
for damages occasioned by the flowing of water through
the opening into his mine, it was held that as defendant
was under no legal obligation to close the excavation, no
fresh act had been done, and no further suit could be main-
tained.^ In this case the damages upon which the second
suit was based, though accruing subsequent to the com-
mencing of the first suit, were the natural and inevitable
result of the excavation. The absence of that fact, how-
ever, would not have changed the result. The rule yields
to no hardship. Unforeseen and improbable injuries re-
sulting from any act are, equally with existing and probable
injuries, parts of an inseverable demand. After judgment
recovered for an assault and battery, parts of the plain-
tiff's skull came out, and he sought to recover for the
damage thus occasioned, and it was decided that he could
not, because the defendants had not committed any fresh
wrong.^ The principles of this case were afiirmed by a
majority of the judges of the supreme court of Vermont.'
^ Watson V. Van Meter, 43 Iowa, 76; rulings or instructions of the court in
Fowle V. New Haven, 107 Mass. 352; this behalf, so far as relates to any
Clegg V. Dearden, 12 Q. B. 576. damage accruing to either of plaintiff's
* Fetter v. Eeale, Salk. 11. lots prior to and up to the time of filing
3 Whitney v. Town of Clarendon, IS his complaint or making his settlement
Vt. 252; 46 Am. Dec. 150. A some- in the former action. The elements of
■what extreme application of the rule his damage up to that time may have
that from one tort but one cause of been multifarious, but the cause of it
action can arise was made in Beronio was a unit, — the constructi(m and
V. Southern Pac. R. R. Co., 86 Cal. 415; operation of a single raih-oad which
21 Am. St. Rep. 57. The plaintiff sued was complete at the time. The fact
to recover damages for the construe- that it damaged two lots belonging to
tion of a railway in front of a lot in the same man, at the same time and
block 20 in the town of San Buenaven- by the same means, no more created
tura. In defense of this action the two causes of action than if two horses
defendant showed that it had con- belonging to the same man had been
structed its railroad in front of a lot killed by a single collision with a loco-
belonging to plaintiff, in lot 19; that motive, and this has been held to con-
plaintiff had sued for and recovered stitute but a single cause of action:
damages suffered to the latter lot; and Brannenburg v. Indianapolis etc. K. R.
the claim was made that all the dam- Co., 13 Ind. 103; 74 Am. Dec. 250.
awes suffered by the plaintiff from the In cases of tort, the question as to the
location of the road constituted a sin- number of causes of action which the
gle indivisible cause of action. The same person may have turns upon the
court sustained this defense, saying: number of the torts, not upon tiie num-
•• We think there was no error in the bcr of diflcreut pieces of property which
§ 242 MERGER, OR FORMER RECOVERY. 426
The cLief justice, however, dissented. He contended that
there could not have been any recovery for this damage
in the first action, because it had not then arisen; and
that tlie law ought not to be so construed as to require
juries upon the trial of actions to estimate prospective
damages. The injustice of such a requirement is self-
evident. No case can arise involving claims for serious
injuries to the person in which the assessment of damage,
as the law now stands, can be otherwise than imperfect
and unfair. In the majority of cases, defendants must
pay for damages which never develop; while in the
minority, the most serious injuries must be borne with-
out compensation. A recovery in an action for false im-
prisonment, brought during the imprisonment, does not
merge any claim for damages for the continuance of the
same imprisonment.* In an action for malicious prose-
cution the plaintiff may, in addition to the damages occa-
sioned by the unlawful arrest and detention, recover for
injury to his reputation by reason of the false accusation.
Therefore a judgment for false imprisonment is a bar to
an action of slander for the same accusation on which the
imprisonment was procured.^ But such a judgment is no
bar, if the utterances complained of, though of the same
character and purport, were made at a different time from
the accusation by means of which the false imiDrisonment
was occasioned.*
§ 242. Cases of Nuisance. — In cases of nuisance, the
injury may be of two kinds: 1. The injury produced by
the act; and 2. That occasioned by the continuing of the
nuisance produced by the act. For, while a trespasser is
under no obligation to rebuild or replace what he has torn
may have been injured. Each sepa- Marble v. Keyes, 9 Gray, 221, and in
rate tort gives a separate cause of ac- very many other cases. There is noth-
tion, and bvit a single one: 1 Sutherland ing in the authorities cited by appel-
on Damages, 183, aud cases cited, lant in conflict with this view. "
Whenever by one act a permanent in- ' Leland v. Marsh, 16 Mass. oS9.
jury is done, the damages are assessed "■' Carpenter v. Sheldon, i N. Y,
once for all: 3 Sutherland on Damages, 579.
372. This principle is established iu ^ Rockwell v. Brown, 36 N. Y. 207.
427 MERGER, OR FORMER RECOVERY. § 242
down or destroyed, lie who creates a nuisance is under
a continuing obligation to abate it/ Therefore only the
damage done at the date of the writ can be compensated
in that suit. If that damage exposes the plaintiff to the
expenditure of money, he may recover the full amount
which he is liable to expend, whether it has been already
paid out or not. The material inquiry in the second
action is, whether the damages on w^hich it is based are
attributable to the original act, or to the continuing of the
state of facts produced by that act. In the latter case a
new cause has arisen, and a new action will lie. "There
may, of course, be cases where it may be difficult to draAV
the line, but it is apprehended they will not be numerous.
Wherever the nuisance is of such a character that its con-
tinuance is necessarily an injury, and where it is of a per-
manent character, that will continue without change from
any cause but human labor, there the damage is an
original damage, and may be at once fully compensated,
since the injured person has no means in his power ,to
compel the individual doing the wrong to apply the labor
necessary to remove the cause of injury, and can only
cause it to be done, if at all, by the expenditure of his
own means. But where the continuance of such act is
not necessarily injurious, and w^here it is necessarily of a
permanent character, but may or may not be injurious,
or may or may not be continued, there the injury to be
compensated in a suit is only the damage that has hap-
pened. Thus the individual who so manages the water he
uses for his mills as to wash away the soil of his neighbor
is liable at once for all the injury occasioned by its re-
moval, because it is in its nature a permanent injury;
but if his works are so constructed that upon the recur-
rence of a similar freshet the water will probably wash
away more of the land, for this there can be no recovery
until the damage has actually arisen; because it is yet
contingent whether any such damage will ever arise. If
1 Clegg V. Doarden, 12 Q. B. 576.
§ 242 MERGER, OR FORMER RECOVERY. 428
a person erects a dam upon his own land, which throws
back the water upon his neighbor's land, he will be an-
swerable for all damage which he has caused before the
date of the writ, and, ordinarily, for no more, because it
is as yet contingent and uncertain whether any further
damage will be occasioned or not, because such a dam is
not, of its own nature and necessarily, injurious to the
lands above, since that depends more upon the manner
in which the dam is used than upon its form. But if
such a dam is in its nature of a permanent character,
and from its nature must continue permanently to affect
the value of the land flowed, then the entire injury is at
once occasioned by the wrongful act, and may be at once
recovered in damages."^ Thus where, in building a
canal, a river is dammed as a feeder to the canal, and the
lands of an adjacent owner are permanently flooded, he
cannot recover each year the damage occasioned by the
non-use of the land for that year, but must at one time
recover the damages, to wit, the full value of the land.
But when a dam is built, or a canal dug, or a structure
erected which may or may not do damage of a particular
character, then each recurring damage constitutes a new
cause of action justifying a new recovery.^
When proceedings in the exercise of the right of emi-
nent domain are prosecuted, the parties affected must
then recover all damages M^hich are the natural and rea-
sonable results of the improvement contemplated; but if
it is afterwards constructed or maintained in an unskill-
ful and negligent manner, an additional recovery may be
1 Troy V. Cheshire R. R. Co., 23 Iowa, 659; 7 Am. St. Rep. 501; Har-
N. H. 83; 55 Am. Dec. 177; St. Louis bach v. Des Moines etc. R. R. Co., 80
etc. R. R. Co. V. Biggs, 52 Ark. 240; Iowa, 593; Athens Mfg. Co. v. Rucker,
20 Am. St. Rep. 174; Chicago etc. 80 Ga. 291; Valley R. R. Co. u Franz,
R. R. Co. V. McAuley, 121 111. 160; 43 Ohio St. 623; Reid v. City of At-
Stadlerr. Grieben, 61 Wis. 500; Rams- lanta, 73 Ga. 523; Colrick v. Swin-
dale V. Foote, 55 Wis. 557; Miller v. bourne, 105 N. Y. 503; Werges v. St.
Keokuk R. R. Co., 63 Iowa, 680. Louis etc. R. R, Co., 35 La. Ann. 641 ;
^ St. Louis etc. R. R. Co. v. Biggs, Omaha etc. R. R. Co. v. Standen, 22
52 Ark. 240; 20 Am. St. Rep. 174; Neb. 343; Stodgill u. C, B., & Q. R. R.
SuUens v. Chicago etc. R. R. Co., 74 Co., 53 Iowa, 341.
429 MERGER, OR FORMER RECOVERY. § 243
had for resulting damages.' A railroad must be regarded
as permanent in its nature, and not as intended to affect
some temporary purpose, after which it is to be discon-
tinued. The damage occasioned, therefore, to a roadway
and bridge by the construction of a railroad track over
them must be estimated for a permanent appropriation.
Parties affected by such appropriation are entitled to re-
cover at once their full damages, and if they recover any
part, they cannot further recover in a subsequent action.^
The cases in which different recoveries have been sus-
tained for the results of the same permanent nuisance
have chiefly been where water, as the result of unusual
freshets, has done damage, and it was not possible to
know, when the nuisance was erected, whether it would do
the damage afterwards resulting from it, or if so, when or
how frequently. Generally, when a nuisance of a perma-
nent character is erected, all the damages which its
continuance in the same form will produce must be
compensated in one action.^ Thus if a ditch is dug, a
street graded, or an embankment built, whereby plaintiff's
lands will necessarily be flooded or washed away, or the
waters of a stream to which he is entitled necessarily
diverted, all his damages must be embraced in one judg-
ment.* So for the deterioration in value of plaintiff's
premises by the erection and maintenance of gas-works,
he can have but one action.^
§ 243. Separate Torts and Contracts. — But separate
torts give rise to separate causes of action, and each cause
remains unaffected by a judgment for any other tort sub-
1 Denver C I & W. Co. v. Mid- * Powers v. Council Bluffs, 45 Iowa,
daugh, 12 Col. 434; 13 Am. St. Rep. 652; 24 Am. Rep. 792; Sto.lgill v.
234; Chicago etc. R. R. Co. v. Schatfer, Chicago etc. R. R. Co., 53 Iowa, 4bl;
124 111 112 North Vernou v. Voegler, lO.i Ind.
2 Town of Troy v. Cheshire R. R. 314; Bizer v. Ottumwa H. Co., 70
Co., 23 N. H. 83; 55 Am. Dec. 177; Iowa, 145; Haisch v. Keokuk R. R.
Chicago etc. R. R. Co. v. McAuley, Co., 71 Iowa, 600; St. Louis etc. R. R.
121 111. 160; Chicago etc. R. R. Co. v. Co. v. Morris, 35 Ark. 622.
Loel), 118 111. 203; 59 Am. Rep. 341. " Decatur G. L. & C. Co. V. Uowell,
5 Chicago etc. R. R. Co. v. SchalTer, 92 IIL 19.
124 111. 112.
§ 244 MERGER, OR FORMER RECOVERY. 430
sequent or antecedent. One against whom or against
whose property distinct and sej^arate tortious acts have
been committed has a cause of action for each; and a re-
covery for one does not bar a recovery for another, wliether
committed before or after the commencement of the action
in which the recovery was had.^ Thus a sailor who has
maintained an action in a court of admiralty for an assault
and battery committed on the high seas is not thereby
precluded from obtaining in a common-law court a judg-
ment for an assault and imprisonment on shore during
the same voyage.^ But where A took a bond, conditioned
that B should abstain from injuring certain property, a
recovery under the bond was held to estop A from obtain-
ing compensation for any injury committed after taking
the bond, and before the commencement of the first suit;
that while A could have separately recovered for each dis-
tinct injury, independent of the bond, yet having elected
to proceed under the bond, he was bound by that elec-
tion, and could neither sustain another action upon the
bond, nor disregard it by proceeding upon the tort alone.'
But if one is liable to another on several distinct contracts,
express or implied, he may maintain an action upon eaeh;^
and for each 'breach of the same contract may have a
separate recovery,^ except that if he waits until two or
more breaches have occurred, he must unite all upon
which he then has a right of recovery.
§ 244. Exceptions to General Law of Merger. — The
law of merger as applied to judgments does not forbid all
inquiry into the nature of the cause of action. Such
' Williams v. Hay, 120 Pa. St. 485; 447; Eastman v. Porter, 14 Wis. 39;
6 Am. St. Rep. 719; Pishaway y. Ruu- Bliss v. Weil, 14 Wis. 35; 80 Am. Dec.
nels, 71 Tex. 352; De la Guerra v. 7b6; White v. Smith, 33 Pa. St. 186;
Newhall, 55 Cal. 21; Whiter. Moseley, 75 Am. Dec. 589; Kronshage v. Chi-
8 Pick. .350; Lenoir's Adm'rj;. Wilson, cage etc. R. R. Co., 45 Wis. 500;
36 Ala. 600. ante, sec. 238.
2 Adams V. Haffards, 20 Pick. 127. ^ McEvoy v. Bock, 37 Minn. 402
» Goodrich v. Yale, 97 Mass. 15. Insurance Co. v. Alges, 31 Pa. St. 446
* Stark V. Stark, 94 U. S. 477; Phil- Andrew v. Schmidt, 64 Wis. 664
lips V. Berick, 16 Johns. 136; 8 Am. Givens v. Peake, 1 Dana, 225; ante,
Dec. 299; Flaherty v. Taylor, 35 Mo. sec. 240.
431 MERGER, OR FORMER RECOVERY. § 245
inquiry may be prosecuted for any purpose consistent with
the judgment; and is frequently necessary to its interpre-
tation. The place where a contract was made may be
ascertained, in order that the lex loci, which was a part of
the contract, may have its effect upon the judgment. If
the prevailing party was entitled to certain privileges or
exempted from certain burdens under his contract, he
may be entitled to the same privileges and exemptions, in
many cases, under his judgment. And whenever justice
requires it, judgments will generally be construed, not as
a new debt, but as an old debt in a new form.^
§ 245. Doctrine of Merger Modified in Proceedings in
Bankruptcy. — In no class of cases has the technical
operation of the doctrine of merger been so frequently
limited as in those where the effect of a discharge of a
debtor under laws for the relief of insolvents had to be
determined. In many cases, judgments entered subse-
quently to the filing of the debtor's petition have been
deemed to be beyond the scope of his discharge,^ while in
a still greater number of cases it has been held that when-
ever a cause of action, existing at the time of the filing of
the debtor's petition, was of such a nature that the dis-
charge would have affected it, any judgment recovered
thereon prior to the decree of discharge will be affected to
an equal extent; and that within the meaning of those
laws such judgments are never to be regarded as new
debts arising subsequently to the filing of the petition.^
» Evans v. Sprigs;, 2 Md. 457; AVy- Clark v. Rowlinsj, 3 N. Y. 216; 53
inan«. Mitchell, 1 Cow. 316; Clark v. Am. Dec. 290; Rogers t;. Ins. to., 1
Bowlin" 3 N Y 216. La. Ann. 161; Dick v. Powell, 2 Swan,
^ Bra'lford v. Rice, 102 Mass. 472; 632; Stratton v. Ferry, 2 Tenn. Cli.
3 Am Rep 4s3; Ellis v. Ham, 28 Me. 683; Harrington v. McNaughton, 20
385- Kellofrg „. Schuyler, 2 Uenio, 73; Vt. 293; McDonald v. Iiigraham, 30
Uran v. Houdlette, 36 Me. 15; Roden Miss. 389; 64 Am. Dec. 166; Betts v.
V. Jaco, 17 Ala. 344; Pike v. McDon- Bagley, 12 P.ck. 572; Raymond v
aid 3-^ Me 418- 54 Am. Dec. 597; Merchant, 3 Cow. 147; Fox v. Wood-
Woodbury V. Perkins, 5 Cush. 86; 51 bury, 9 Barb. 498; Dresser v. Brooks,
Am. Dec. 51; Cutter z;. Ev=uis, 115 3 Barb. 429: Anderson v And.r-
Mass. 27; McCarthy v. Goodwin, 8 son, 05 Ga. ol8; 38 Am. Rep /J/;
Mo Ann 380 Dawson v. Hartsheld, 79 JN. C.
^Bhuiford 'v. Foote, 1 Cowp. 138; 334; Stockwell v. Woodward, 52 Vt.
Imlav V Carpenter, 14 Cal. 173; John- 234; Dinsdale v. Lames, 4 Moore, 3y0;
eon V. Fitzlmgh, 3 Barb. Ch. 3G0; 2 Bred. & B. 8.
§ 245 MERGER, OR FORMER RECOVERY. 432
If a statute authorizing the granting of discharges in
bankruptcy or insolvency excepts from its operation debts
of a particular character, and those debts have merged
into judgments, the question arises whether they have
become new obligations, so as to be brought within the
operation of the discharge. The opinion generally pre-
vailing upon this subject is, that the judgment retains the
character of the indebtedness out of which it arose, and
is not discharged unless that indebtedness would have
been discharged had no judgment been recovered thereon.^
Whether a contract made in another state and reduced to
judgment in this loses its rights to protection against in-
solvency laws is a difficult question to answer. In one
case it was held not liable to be discharged by insolvency
laws of the state where the original indebtedness arose,'^
while in another case it was held to be affected by such
discharge if both parties still resided in the state wherein
it was granted.' If, however, a creditor who is a citizen
of another state sues in this and recovers judgment here,
we think he does not thereby submit either himself or
his indebtedness to the jurisdiction of this state to the
extent that it can discharge his indebtedness under its in-
solvency laws, and that if it is beyond the power of this
state to grant a discharge in insolvency operative against
the original debt, it is equally beyond its power to grant
a discharge against a judgment recovered thereon in this
state by one who continues to be a citizen of another
state.^
» Donald v. Kell, 111 Ind. 1; Horner cott v. Hodge, 15 Gray, 547; 77 Am.
V. Spellman, 78 111. 5*06; Wade v. Dec. 381; Bradford w. Rice, 102 Mass.
aark, 52 Iowa, 158; 35 Am. Rep< 262; 472; 3 Am. Rep. 483.
Howland v. Carson, 28 Ohio St. 625; ^ Green v. Sarmiento, 3 Wash. 17.
Carit V. Williams, 74 Cal. 183; Matter ' Betts v. Bagley, 12 Pick. 580.
of Patterson, 2 Ben. 156; Simpson r. * Murphy v. Manuiag, 134 Mass.
Simpson, 80 N. C. 332. CoiUra, Wol- 488.
433 THE JUDGMENT AS AN ESTOPPEL. § 246
CHAPTER XII.
THE .TUDGMENT AS AN ESTOPPEL.
Part L— NATURE AND EXTENT OF JUDGMENT ESTOPPELS.
§ 246. Definition of estoppel.
§ 247. Judgment estoppel not odious.
§ 248. Decrees — Estoppels in equity.
§ 249. General extent of judgment estoppel.
Part II. —REQUISITES TO JUDGMENT ESTOPPEL.
§ 250. Must be free from fraud and collusion,
§ 251. Must be a final adjudication.
§ 252. Identities demanded.
§253. Identity of subject-matter.
§ 254. Identity of purpose.
§ 255. Identity of form.
§ 256. Identity of issues.
§ 257. Facts must have been directly in issue.
§ 258. Cannot extend to collateral questions, nor to matters inferable only by
argument.
§ 259. Identity of evidence.
§ 260. Must arise from judgment on the merits.
§ 261. Motion for nonsuit is waiver of trial on the merits.
§ 261 a. Estoppel not created by nonsuit.
§ 262. Dismissal by agreement.
§ 263. Classification of judgments not on the merits.
§ 264. Judgments of dismissal for want of jurisdiction, and void judgments.
§ 265. Judgments where remedy was misconceived.
§ 266. Judgment for want of proper parties.
§ 267. Judgments on demurrer.
§ 268. Judgment in suits prematurely brought.
§ 269. Claims not admissible under the pleadings.
§ 270. Decree of bill dismissed.
§ 270 a. Bill dismissed before the hearing.
§ 271. Does not extend to immaterial findings.
PartIIL— OF EVIDENCE TO ESTABLISH OR REBUT THE PRE-
SUMPTION OF RES JUDICATA.
§ 272. Whether matter in issue may be shown to have not been put in evi-
dence.
§ 273. Estoppel may be shown by parol.
§ 274. Parol evidence to rebut presumption of estoppeL
§ 275. Record not to be impugned.
§ 276. Onus of proof.
§ 276 a. Where there are two or more defenses disposed of.
JUDQ. L — 28
§ 246 THE JUDGMENT AS AN ESTOPPEL. 434
Paet IV. — MATTERS WHICH DEFEND AlfT MAY OR MAY NOT
LITIGATE.
§ 277. Set-off not presented.
§ 278. Set-off not decided.
§ 279. Set-off rejected.
§ 280. Set-off voluntarily allowed.
§ 281. Equitable defenses.
§ 282. Cross-claims.
Paet V. — OF PLEADING FORMER JUDGMENT AS AN ESTOPPEL.
§ 283. Necessity.
§ 284. Consequence of neglect to plead.
Paet_VL— OF ACTIONS TENDING TO CONTRADICT FORMER AD-
JUDICATIONS.
§ 284 a. Defenses and causes of action already adjudicated.
§ 285. Action for payments not credited.
§ 286. Action for credits not allowed.
§ 287. Action for money paid to satisfy judgments.
§ 288. Action for money paid under legal process.
§ 289. Action for obtaining judgments by fraud or perjury.
§ 290. Motions for satisfaction.
§ 291. Taking judgment for sum paid as consideration for a promise.
§ 292. Exceptional cases.
Part VII. — JUDGMENTS IN VARIOUS ACTIONS.
FiBST. — In Actions Affecting the Title or Possession of Real Estate.
§ 293. Distinctions applicable to real actions.
§ 294. Common recovery.
§ 295. Ejectment at common law.
§ 296. Ejectment at common law on confession.
§ 297. Ejectment at common law — Evidence for mesne profits.
§ 298. Ejectment at common law — Costs in.
§ 299. Ejectment under recent statutes.
§ 300. Ejectment under recent statutes — Pleadings in.
§ 301. Ejectment under recent statutes — Issues in.
§ 302. Ejectment under recent statutes — How estoppel rebutted.
§ 302 a. Forcible entry and unlawful detainer.
§ 303. Foreclosure suits.
§ 303 a. Judgments affecting rigbt to dower.
§ 304. Partition.
§ 305. Partition, plaintiff not in possession.
§ 306. Partition against persons not in esse..
§ 307. Partition against persons unknown.
§ 308. Partition final without deed.
§ 309. Quieting title.
§ 310. Trespass on real estate in other suits for trespass.
§ 311. In actions of ejectment.
435 THE JUDGMENT AS AN ESTOPPEL. § 246
Second. — Judgments in Personal Actions.
§ 312. Suits for breaches of warrautiea.
§ 313. Divorce.
§ 314. Alimony.
§ 315. Against partnership.
.§ 316. Replevin.
§ 317. Trespass.
Third. — Criminal Cases.
§ 318. Judgments in, effect in criminal cases.
§ 319. Judgments in, effect in civil cases.
Fourth. — Probate Proceedings.
§ 319 a. Decrees and orders of probate courts..
Part Vni. — ESTOPPELS ARISITNG FROM MOTIONS AND SPECIAL
PROCEEDIl^GS.
§ 320. Awards of arbitrators.
§ 321. General submission of demands.
§ 322. Demands not disputed.
§ 323. Bills of review.
§ 324. Habeas corpus.
§ 325. Motions and special proceedings.
§ 326. Rules applied to motions.
§ 327. Proceedings supplementary to judgment.
Part IX. — MISCELLANEOUS MATTERS
§ 327 a. Establishing identity of defendant.
§ 328. Appeal, effect of.
§ 329. After-acquired rights.
.§ 330. Defaults and admissions.
§ 331. Defaults and admissions, English cases on,
§ 331 a. Disclaimers of title.
§ 332. Latest adjudication prevails over prior ones.
§ 333, Reversal.
Part L— NATURE AND EXTENT OF JUDGMENT ESTOPPELS.
§ 246. Definition of Estoppel. — Having treated of the
parties whose relation to an adjudication is such as to
bind them by the facts which it necessarily affirms to the
same extent that the immediate parties to the record are
bound, we come now to the consideration of the question,
What facts does a judgment or decree so establish that
neither the parties nor their privies can ever afterward
gainsay them? But before undertaking to considet or
to answer the question, we may, without wandering far
from our subject, show that the word "estoppel," in the
§ 247 THE JUDGMENT AS AN ESTOPPEL. 436
sense in which it is defined by Lord Coke, is a term not
proper for the designation of that conclusiveness which
confessedly attends every final determination of the rights
of the parties to any action or proceeding. According to
that definition, an estoppel is "where a man is not per-
mitted to speak the truth." Whatever is settled by a
judgment is the result of an investigation conducted un-
der the most favorable rules that mankind have been able
to devise for the exposure of falsehood and the ascertain-
ment of truth. Unless the law is much less "than the
perfection of human wisdom," this result can rarely be
inconsistent with truth. In the common as in the civil
law, "the authority of res judicata induces a presumption
that everything contained in the judgment is true, and
this presumption, being juris et de jure, excludes every
proof to the contrary." ^ The term " estoppel," as applied
to judgments, should therefore be defined as that -which
prohibits a party from disputing the truth.
§ 247. Not Odious. — The word "estoppel," as asso-
ciated with judgments, has ceased to be odious. It is
more than freed from opprobrious appellations; the vo-
cabulary of the judges has been wellnigh exhausted to
supply it with honorable and endearing titles. This will
be made evident by quotations from a few American and
a few English cases: "The doctrine of estoppel by a
former judgment between the same parties is one of the
most beneficial principles of our jurisprudence, and has
been less affected by legislation than almost any other." ^
"The maxim that there must be an end to litigation
was dictated by wisdom and is sanctified by age."^ That
an estoppel is odious is not to be applied to former adju-
dications. The prevention of relitigation, after years
have elapsed, does not necessarily shut out the truth.
' 1 Pothier on Obligations, pt. 4, c. * Carothers, J., in V^^arwick v. Un-
3, sec. 3, art. 3. derwood, 3 Head, 238; 75 Am. Dec.
2 Miller, J,, in Aurora City v. West, 767.
7 Wall. 82.
437 THE JUDGMENT AS AN ESTOPPEL. § 247
The doctrine of estoppels in judgments, instead of being
odious, is one of the most conservative and salutary doc-
trines of the law/ "It has been affirmed that there is no
such thing as an equitable estoj^pel. But the doctrine of
election, which prevents a party from claiming in repug-
nant rights, and which has been advantageously intro-
duced into courts of equity, is manifestly an extension of
this principle. In courts of law they are for the most
part reconcilable to the purest morality; and when they
produce neither hardship nor injustice, they merit in-
dulgence, if not favor. The conclusiveness of judgments,
which conduces so essentially to peace and repose, has
no other foundation."^ "The very object of instituting
courts of justice is, that litigation should be decided, and
decided finally. That has been felt by all jurists. It is
long since a reason has been assigned why judgments
should be considered final, and should not be ripped up
again, — Ne lites sent immortales, dum litanies sunt mortales.
Human life is not long enough to allow of matters once
disposed of being brought under discussion again; and
for this reason it has always been considered a funda-
mental rule that when a matter has once become res
judicata, there shall be an end to the question."^ The
doctrine of estoppel is not strictly applicable to a judg-
ment. A judgment is not the act of a party; an estoppel
is. A judgment is a bar, not because a party has done
some act which precludes him from asserting a right or
title; it is properly a bar on principles of public policy,
because the peace and order of society, the structure of
our judicial system, and the principles of our government
require that a matter once litigated should not again be
drawn in question between the same parties or their
privies,* A party whose interests are placed in jeopardy
'Gray v. Pingry, 17 Vt. 419; 44 ^ Willes, J., in Great Northern R. R.
Am. Dec. 345. Co. v. Mossop, 17 Com. B. 140.
2 Gibson, J., in Martin v. Ives, 17 * Huston, J., in Kilheffur v. Kerr, 17
Serg. & R. 364-3G6. See also Nelson, Serg. & R. 31-0; 17 Am. Dec. 658;
J., in Van Rensselaer v. Kearney, 11 Kennedy, J., in Maish r. Pier, 4
How, 326. Rawle, 273; 26 Am. Dec. 131.
§ 248 THE JUDGMENT AS AN ESTOPPEL. 438
by a trial has a right to judicial immunity from the con-
sequences of further trials involving the same issues. If
a claim is in issue, and is not withdrawn at the trial, it
should be disposed of by the judgment; and if the court,
under such circumstances, reserves such claim by reciting
in the judgment that "no judgment is hereby rendered
touching the same," this action, it is said, will be reversed
on appeal by making the judgment a final bar to the
further prosecution of the claim.*
§248. Decrees — Estoppels in Equity. — A final de-
cree in chancery is as conclusive as a judgment at law.^
Such decrees are available as estoppels, whether the sec-
ond action involving the same question be at law or in
equity.^ Hence a decree dismissing a bill for foreclosure
on the ground that the mortgage was void is a complete
defense to an action of ejectment subsequently brought
by the mortgagor. "A verdict and judgment of a court
of record or a decree in chancery puts an end to all points
thus decided between the parties to the suit. In this
there is, and ought to be, no difference between a verdict
and judgment in a court of law and a decree in a court
of equity. They both stand on the same footing, and
may be offered in evidence under the same limitations;
and it would be difficult to assign a reason why it should
be otherwise."* A judgment at law is conclusive on the
same question in equity.* "Nor is there anything anoma-
' Schmidt v. Zahensdorf, 30 Iowa, Ga. 650; Williams v. Row, 62 Pa. St.
498. 118; Westcott v. Adams, 68 Pa. St. 34;
2 Sibbald's Case, 12 Pet. 492; Evans Powers v. Chelsea S. B., 129 Mass. 44;
V. Tatem, 9 Serg. & R. 261; 11 Am. Thompson v. Lester, 75 Tex. 521;
Dec. 717; Kelsey v. Murphy, 26 Pa. Shenandoah V. R. R. v. Griffith, 76
St. 78; White v. Bank of U. S., 6 Va, 913; Stevens v. Du Berry, 1
Ohio, 529; Bank of U. S. v. Bever- Mackey, 294.
ley, 1 How. 148; Low v. Mussey, 41 * Smith v. Kernochen, 7 How. 198;
Vt. 393; Maguire v. Tyler, 40 Mo. 406; Hopkms v. Lee, 6 Wheat. 109; Marsh
McDonald v. Mol)ile L. I. Co., 65 Ala. v. Burroughs, 19 Am. Law Rep. 718;
358; Denver v. Lobenstein, 3 Col. 316. Wilson v. Boughton, 50 Mo. 17; The
s Stark V. Woodward, 1 Nott & McC. Pha?be Stuart, L. C. Adm. Rep. 63.
328; Hook v. Hood, 2 How. (Miss.) * Pearce r. Gray, 2 Younge & C. Ch.
867; Moody v. Harper, 38 Miss. 599; 322; Hendrickson v. Noreross, 19 N. J.
Western M. & M. Co. v. V. C. 0. Co., Eq. 417; Spellman v. Bowen, 8 GUI &
10 W. Va, 250; Baldwin v. McRea, 38 J. 50; 29 Am. Dec. 524; Pollock ».
439 THE JUDGMENT AS AN ESTOPPEL. § 249
Ions or unusual in setting up a former adjudication as an
estoppel to an action for equitable relief. There is noth-
ing unjust or inequitable in insisting upon an estoppel
by a judgment upon the same point; on the contrary, the
rule is a beneficial one, and it is a matter in which the
public is said to have an interest as well as the parties,
that there should be an end to litigation." ^ It will be
seen from the authorities just cited and quoted that the
law of estoppel arising from a former adjudication is
equally applicable, whether the second action or proceed-
ing or the former litigation be of a legal or of an equita-
ble nature. And this adoption of the law of estoppel as
a part of the principles of equity jurisprudence shows
that it is by common consent deemed consistent with
and necessary to a disposition of the rights of the parties,
according to equity and good conscience. The fact that
a party was, in a suit in equity, not permitted to be a
witness on his own behalf will not prevent the decree
entered therein from being conclusive against him in a
subsequent action at law, though in such action he is
competent to appear as a witness for himself.^
§ 249. Extent of the Estoppel. — There is no doubt that
a judgment or decree necessarily affirming the existence
of any fact is conclusive upon the parties or their privies,
whenever the existence of that fact is again in issue be-
tween them,^ not only when the subject-matter is the same,
Gilbert, 16 Ga. 398; 60 Am. Dec. 732; Duncan, 20 Ark. 85; Hibshman v.
Bonney v. Bowman, 63 Miss. IGG; Dulleban, 4 Watts, 183; Gist v. Davis,
Cowan V. Wheeler, 25 Me. 267; 43 Am. 2 Hill Ch. 335; 29 Am. Dec. 80: Lare v.
Dec. 283; McCampbell v. McCampbell, Truman, 10 Ohio St. 45; Wales v.
5 Litt. 92; 15 Am. Dec. 48; Lane v. Lyon, 2 Mich. 276; Mayor v. Lord, 9
Lane, 80 Me. 270; Tilson v. Davis, 32 Wall. 409; Sabin v. Sherman, 28 Kan.
Gratt. 92. 289; Heroman v. Louisiana D. & D. I.,
1 San Francisco v. S. V. W. W., 39 34 La. Ann. 805; IJutlson v. Superior
Cal. 473. Judge, 42 Mich. 239; Williams v.
^Putnam v. Clark, 34 N. J. Eq. Bachelor, 90 N. C. 364; Spriiii,'3 v.
532. Schenck, 106 N. C. 153; Kellogg
^Duchessof Kingston's Case, II State v. Maddocks, 1 Wash. 407; Bleckeley
Trials, 261; Gahanv. Maingay, 1 Irish v. Branyan, 28 S. C. 445; Smith v.
Term P^ep. 54; Croudson v. Leonard, Sims, 77 Mo. 2()9; Lieb v. Lichteiistein,
4Cranch, 436; Outram v. Morewood, 121 Ind. 4S3; Morse v. Ebus, 131 Miiss.
3 East, 345; Gardner v. Biickl)ee, 3 151; Parnell v. Halm, 61 Cal. 131;
Cow. 120; 15 Am. Dec. 256; Peay v. AUis v. Davidson, 23 Miun. 442.
§ 249 THE JUDGMENT AS AN ESTOPPEL. 440
but when the point comes incidentally in question in rela-
tion to a different matter/ in the same or any other court,
except on appeal, writ of error, or other proceeding pro-
vided for its revision.^
The judgments of appellate courts are as conclusive as
those of any other court. They not only establish facts,
but also settle the law, so that the law as decided upon
any appeal must be applied in all the subsequent stages
of the cause.^ Nor can the effect of a judgment as res ju-
dicata be avoided by showing that though an appeal was
attempted to be taken the judgment was affirmed without
considering the cause on its merits, because of the absence
of a sufficient assignment of errors, or of some other de-
fect in the appellate proceedings.'*
" It is a universal principle that where power or juris-
diction is delegated to any public officer or tribunal over
a subject-matter, and its exercise is confided to his or their
discretion, the acts so done are binding and valid as to
the subject-matter; and individual rights will not be dis-
turbed collaterally for anything done in the exercise of
that discretion within the authority and power conferred.
The only questions which can arise between an individual
claiming a right under acts done, and the public or any
person denying its validity, are, power in the officer and
fraud in the party. All other questions are settled by
the decision made or act done by the tribunal or officer,
whether executive, legislative, judicial, or special, unless
an appeal is taken." ^ After judgment on the merits, the
parties " cannot canvass the same question again in an-
other action, although, perhaps, some objection or argu-
ment might have been urged upon the first trial which
would have led to a different judgment."^
* Gray v. Dougherty, 25 Cal. 272; Lucas v. San Francisco, 28 Cal. 591;
Caperton v. Schmidt, 26 Cal. 493; 85 Sturgis v. Rogers, 26 Ind. 1.
Am. Dec. 187; Garwood v. Garwood, * Miller v. Bernicker, 46 Mo. 194.
29 Cal. 521. * United States v. Arredondo, 6 Pet.
2 Demeritt v. Lyford, 7 Fost. 729; Waugh v. Chauncey, 1.3 Cal. 12,
541. "^ Greathead v. Bromley, 7 Term Hep.
3 Chouteau v. Gibson, 76 Mo. 38; 456,
441 THE JUDGMENT AS AN ESTOPPEL. § 249
"An adjudication is final and concluaive not only as
to the matter actually determined, but as to every other
matter which the parties might have litigated and have
had decided as incident to or essentially connected with
the subject-matter of the litigation, and every matter
coming within the legitimate purview of the original ac-
tion, both in respect to matters of claim and of defense."'
The general expression, often found in the reports, that a
judgment is conclusive of every matter which the parties
might have litigated in the action is misleading. What
is really meant by this expression is, that a judgment is
conclusive upon the issues tendered by the plaintiff's
complaint. It may be that the plaintiff might have united
other causes of action with that set out in his complaint,
or that the defendant might have interposed counter-
claims, cross-bills, and equitable defenses, or either of the
parties may have acquired new rights pending the litiga-
tion, which might, by permission of the court, have been
pleaded by supplemental complaint or answer, and there-
fore might have been litigated in the action. But as
long as these several matters are not tendered as issues
in the action, they are not affected by it. Whatever mate-
rial allegations the plaintiff makes in his pleadings he
must maintain, if they are controverted, and failing to do
so, a judgment against him is conclusive of their falsity.
The defendant, on his part, must controvert all these alle-
gations which he wishes to gainsay, and failing to do so,
their truth is incontestably established as against him.
* Harris v. Harris, 36 Barb. 88; Cle- might have been pleaded is a waiver of
mens v. Clemens, 37 N. Y. 59; Burford them forever: Dewey w. Peck, .33 Iowa,
V. Kersey, 48 Miss. 643; Bates v. 242; Lawrence S. B. v. Stevens, 4G
Spooner, 45 Ind. 489; Estill v. Taul, 2 Iowa, 429; Murrell v. Smith, 51 Ala.
Yerg. 466; 24 Am. Dec. 498; Petersine 301 ; Kelly v. Donlin, 70 111. 378; (Jaines
V. Thomas, 28 Ohio St. 596; Tuska v. v. Kennedy, 53 Miss. 103; Covington
O'Brien, 68 N. Y. 446; Cromwell v. & C. B. Co. v. Sargent, 27 Ohio St. 233.
County of Sac, 94 U. S. 351; Case But to come witliin this rule, the inat-
V. Beauregard, 101 U. S. 688; Thomp- ter claimed to be barred must he such
son V. Myrick, 24 Minn. 4; Jacob- that the party was bound to present
son V. Miller, 41 Mich. 90; Roby v. it: Malloney r. Horan, 49 N. Y. 115;
Rainsberger, 27 Ohio St. 674; Knight 10 Am. liep. 335; Barwoll v. Kuight,
V. Atkinsbon, 2 Teun. Ch. 384. Failure 51 Barb. 267.
to plead matters of defease which
§ 249 THE JUDGMENT AS AN ESTOPPEL. 442
He cannot by failing to deny any of them, or if he denies
them, by failing to offer evidence to controvert that offered
by plaintiff in support of any of them, successfully claim
that it has not been litigated and determined against him.
In other words, neither party can decline to meet an issue
tendered by the other, and then maintain that it has not
become res judicata. The plaintiff must support all the
issues necessary to maintain his cause of action. The
defendant must bring forward all the defenses which he
has to the cause of action asserted in the plaintiff's plead-
ings ' at the time they were filed. In this sense is it true
that a judgment is conclusive of every matter which
might have been litigated and decided in the action. But
the plaintiff is under no obligation to tender issues not
necessary to support his cause of action, nor is the defend-
ant required to meet issues not tendered by plaintiff; and
if, after the defendant has fully met all the issues tendered
by plaintiff, there is any matter not admissible in evidence
under the pleadings, it is generally not concluded by the
judgment, though the parties might by different pleadings
have made it an issue in the action and had it determined.
Thus in an action to recover real estate, the defendant
cannot put in evidence a title acquired pendente lite, unless
he has pleaded it by a supplemental answer;^ and there-
fore where he has not so pleaded it, he is not concluded
from asserting it in a subsequent action.^ In one case it
i Glenn w. Savage, 14 Or. 567; Nich- 110; State v. Brown, 64 Md. 199-
ols V. Dibrell, 61 Tex. 539; Caston v. Faust v. Faust, 31 S. C. 576; Sloan v.
Perry, 1 Bail. 533; 21 Am. Dec. 482; Price, 84 Ga. 171; 20 Am. St. Rep. 354;
Neil V. Tolman, 12 Or. 289; Mally v. Stickney v. Goudy, 132 III. 213; Berry
Mallv, 52 Iowa, 654; Ludeling v. v. Whiddin, 62 N. H. 473; Warren v.
Chaffe, 40 La. Ann. 645; Gage v. Cook, 116 III. 199; Sauls i;. Freeman,
Downey, 79 Cal. 140; Woodhouse v. 24 Fla. 209; 12 Am. St. Rep. 190; Ben-
Duncan, 106 N. Y. 527; Biererw. Fritz, nitt v. Wilmington S. M. Co., 119 111.
37 Kan. 27; Lee v. Kingsbury, 13 Tex. 9; Elwood v. Beymer, 100 Ind. 504;
68; 62 Am. Dec. 546; Ellis v. Clarke, Jarboe v. Severin, 112 Ind. 572; Kurtz
19 Ark. 420; 70 Am. Dec. 603; Wilson v. Carr, 105 Ind. 574.
V. Stripe, 4 G. Greene, 551; 61 Am. '•' Bagley v. Ward, 37 Cal. 121; 99
Dec. 138; Kenyon v. Wilson, 78 Iowa, Am. Dec. 256; Valentine v. Mahoney,
408; Embury v. Conner, 3 N. Y. 511; 37 Cal. 396; Thompson v. McKay, 41
53 Am. Dec. 527; Denver C. I. & W. Cal. 221.
Co. V. Middaugh, 12 Col. 434; 13 Am. ^ People's Sav. B. v. Hodgdon, 64
St. Rep. 234: Sayre v. Harpold, 33 Cal. 95.
W. Va. 553; Howe v, Lewis, 121 Ind.
443 THE JUDGMENT AS AN ESTOPPEL. § 249
was decided that the fact that a question could have been
determined in a former controversy was sufficient to
make it res judicata as to the property there involved, but
did not settle it as to other property, unless it was actually
litigated/
"Where the matter adjudicated is by a court of pecu-
liar and exclusive jurisdiction, and the same matter
comes incidentally in question before another court, the
sentence in the former is conclusive upon the latter, as
to the matter directly decided, not only between the same
parties, but against strangers, unless it can be impeached
on the ground of fraud or collusion."^ The discovery of
new evidence, not in the power of the party at the former
trial, forms no exception to the rule in relation to estop-
pels, whether the second action is at law or in equity.^ If
a judgment of reversal provides that it is not to prejudice
any future claim which the appellee may make on further
proof, this judgment is nevertheless conclusive in a sec-
ond action, unless the proof is different from that in the
first action.* To render a matter res judicata, it is not
essential that it should have been distinctly and specifi-
cally put in issue by the pleadings. It is sufficient that
it be shown to have been tried and settled in the former
suit.^ AVhen a matter is once adjudicated, it is conclu-
sively determined as between the same parties and their
privies; and this determination is binding as an estoppel,
in all other actions, whether commenced before or after
the action in which the adjudication was made.^ The
effect of a judgment as res judicata is not limited nor en-
larged by the reasons given by the court for its rendition,^
1 Sloan V. Price, 84 Ga. 171; 20 v. Keyea, 9 Gray, 221; Memphis & C.
Am. St. Rep. 354. R. R. Co. v. Grayson, 88 Ala. 572; 16
■■* Lessee of Rhoades v. Selin, 4 Wash. Am. St. Rep. 69; Schuler v. Israel, 120
C. C. 716. U. S. 506; Casebeer v. Mowry, 55 Pa.
3 Kilheffer v. Kerr, 17 Serg. & R. St. 419; 93 Am. Dec. 766. Contra,
319; 17 Am. Dec. 658. State v. Spikes, 33 Ark. 801.
* Inuis V. Roane, 4 Call, 379. ' Davis v. Millaudin, 17 La. Ann. 15;
^ Bigelow V. Winsor, 1 Gray, 299. 87 Am. Dec. 517; Garvin v. Garvin, 27
* Poorman v. Mitchell, 48 Mo. 45; S. C. 472; Girardiu v. Dean, 49 Tex.
Allis V. Davidson, 23 Minn. 442; Fin- 243.
ley V. Hanhest, 30 Pa. St. PJO; Marble
§ 249 THE JUDGMENT AS AN ESTOPPEL. 444
nor by the failure of the court to give its reasons in writ-
ing on every jDoint when required to do so by the consti-
tution of the state. ^ Neither can the force of a judgment
as res judicata be destroyed or impaired by showing that
it was clearly erroneous, and ought not to have been ren-
dered, whether such error resulted from the court drawing
an erroneous conclusion from conceded or established
facts,^ or making a ruling during the progress of the trial
whereby evidence was erroneously admitted or excluded,
or the law misstated to the jury, or one of the parties was
otherwise deprived of the benefit of his cause of action or
defense, or of some part thereof.^ Nor is the effect of a
judgment as res judicata lessened when the fact that it is
erroneous is established by the decision of the highest
appellate tribunal in the state, rendered in another action.*
The law of the case seems not only to govern the action
in its subsequent stages, but to control other actions be-
tween the same parties relating to the same subject-matter
or transaction. Thus where several installments of money
were due on a contract, and the court decided that it was
such a contract that an action could be sustained for one
installment without impairing the right to subsequently
sue for another installment due when the first action was
brought, it was held that the parties were estopped in a
third action from contending that the decision in the
j:)rior action was erroneous, and that a judgment for any
one installment merged others due when the action was
brought.^ So where the character and effect of a writing
is settled by the judgment of a court of competent juris-
diction, it cannot be shown in another action between the
1 Heury v. Davis, 13 W. Va. 230. v. Hill, 132 U. S. 107; State v. Bowen,
2 Case V. Beauregard, 101 U. S. 688; 45 Minn. 145.
State V. Rarnsl)urg, 43 Md. 325; ^ Winslow v. Stokes, 3 Jones, 285;
Pvountree v. Walker, 46 Tex. 300; 67 Am. Dec. 242; Sayre v. Harpold, 33
Linehan v. Hathaway, 54 Cal. 251; W. Va. 553.
Crenshaw v. Julian, 26 S. C. 283; 4 * Stevenson v. Edwards, 98 Mo. 622;
Am. St. Rep. 719; Darke v. Ireland, Frost v. Frost, 21 S. C. 501.
4 Utah, 192; Leavenworth v. Chicago ^ Lorillard v. Clyde, 122 N. Y. 41;
etc. R. R. Co., 134 U. S. 688; Howison 19 Am. St. Rep. 470; and case with
V. Weeden, 77 Va. 704; Peck v. Cul- same title in 102 N. Y. 69.
berson, 104 N. C. 425; Scotland County
445 THE JUDGMENT AS AN ESTOPPEL. § 24^
same parties that it ought to be given a different effect,'
and a judgment in favor of defendants in a suit against
county commissioners to enjoin an assessment for road
improvements, on the ground of their want of jurisdiction
to make it, is a bar to a subsequent suit claiming their
want of jurisdiction, upon a ground not before urged.*
In proceedings in the court of claims the law of res
judicata applies against the government as if it were an
ordinary suitor.^ The fact that the amount in controversy
is so small that the defeated party has no right of appeal
does not make the judgment any the less conclusive when
the same question arises in a subsequent litigation, though
the amount there involved is suflficiently large to support
an appeal.'' If a decree or order is entered authorizing
the sale of land or other property, it is conclusive of all
matters which might have been urged against granting
it, and the court will not consider any of such matters as
grounds for denying the confirmation of a sale made pur-
suant to such order or decree;^ and the order of confirma-
tion, unless vacated by the court which entered it, is
conclusive upon all facts necessary to support the sale, if
the court had jurisdiction of the cause and of the parties,
and authority to order the sale.® A judgment refusing a
writ of mandate or other prerogative writ is effective as a
bar to any further litigation based upon the same right of
recovery.^ On the other hand, on an application for a
writ of mandate to compel the levy of a tax to pay a judg-
ment, it has been held that, if it appears that the judg-
ment was recovered upon certain bonds or coupons which
1 Thorn v. Newsom, 64 Tex. 161; 53 « Freeman on Executions, soc. 304 1;
Am. Rep. 747. Barling v. Melhoru, 75 Va. 631);
2 Martin w. Roney, 41 Ohio St. 141. Langyher v. Patter.wn, 77 Va. 470;
5 Fendall v. United States, 14 Ct. of Brown v. Gilinore, 8 Md. 332; Nelij^h
CI 247 "■ Keene, 16 Noh. 407; Wyant v. Tut-
' Griffin v. Long Island R. R. Co., hill, 17 Neb. 495; McGavoek v. Bell, 3
102 N. Y. 449. ("old. 512; Dresbach v. Stein, 41 Ohio
^Hale v. Manchester etc. R. R. Co., St. 70; Sewell v. Watson, 21 La. Ann.
61 N. H. 641; Freeman on Executions, 589; State N. B. v. Neel, 53 Ark. 110;
sec. 304 f; Koeliler r. Ball, 2 Kan. l.')4; 22 Am. St. Rep. 185.
S3 Am. Dec. 451; Musgrove v. Lusk, "Louis v. Brown, 109 U. S. 162;
2 Tenu. Ch. 579; Norris v. Callahan, Santa Cruz Gap Turnpike etc. Co. v.
19 W. Va. 159. Sauta Cruz Co. Supervisors, 62 Cal. 40.
§ 250 THE JUDGMENT AS AN ESTOPPEL. 446
were void for want of authority to issue them, the writ
will be denied on account of their invalidity, not-
withstandiug the judgment recovered upon them.' Pre-
cisely what conditions are indispensable to a judgment in
one action, in order that it may be received as conclusive
in another, has never been specified in any very distinct
or satisfactory manner. We shall, however, proceed to
show those requisites which have been enumerated by
various judges.
Part II. — REQUISITES TO JUDGMENT ESTOPPELS.
§ 250. Judgment must be Free from Collusion. — Ac-
cording to the statement made by Wedderburn in his
argument in the celebrated case against the Duchess of
Kingston, and adopted by Lord Brougham in a subse-
quent case,'^ to receive credit as an estoppel, a judgment
or decree must be " a judicial determination of a cause
agitated between real parties, upon which a real interest
has been settled. In order to make a sentence, there
must be a real interest, a real prosecution, a real defense,
and a real decision. Of all these requisites, not one takes
place in a fraudulent or collusive suit. There is no judge,
but a person invested with the insignia of a judicial office
is misemployed in listening to a fictitious cause proposed
to him. There is no party litigating; there is no party
defendant, no real interest brought in question."^ It is
also said that the principle of res judicata cannot be in-
voked to sustain fraud. Therefore, in an action against
several judgment defendants upon a judgment, one of
them may show that it was obtained by a conspiracy
between the plaintiff and one of the defendants.^ One
cannot, by procuring proceedings to be commenced against
himself and controlling both the prosecution and defense,
procure a judgment "which will bar another action in
' Brownsville v. League, 129 U. S. ' Duchess Kingston's Case, 11 State
493. Trials; Batts i). ' Winstead, 77 N. 0.
2 Earl of Bandon v. Becber, 3 Clark 238,
& F. 479. * Spencer v. Vigneaux, 20 Cal. 442.
447 THE JUDGMENT AS AN ESTOPPEL. § 251
favor of a party whose name has been used, but who in
fact had no knowledge or control of the prosecution of the
action,"^
§251. Judgment must be Final. — No question be-
comes res adjudicata until it is settled by a final judgment.^
For this reason, the verdict of a jury, the finding of a
court, or the report of a referee or master is not admis-
sible as evidence to create an estoppel, before it has
received the sanction of the court, by passing into a
judgment.' But where no power exists to destroy the
effect of a verdict, it is conclusive in the absence of any
judgment. Thus where a justice of the peace was, by law,
bound to enter a judgment according to the findings of
the jury, and had no authority to arrest it nor to award a
new trial, it was held that his omission to comply with
the law did not prevent the verdict from barring a new
suit. "The entry of judgment was a thing of course, and
in justice and sound policy the verdict ought to be equally
conclusive against any further litigation between the same
parties, on the same matter, as if the formal entry of judg-
ment had been made." * So in Vermont if a judgment
is regularly rendered, and the cause continued for the
assessment of damages, the validity of the contract on
which the action is founded is regarded as established
beyond further controversy.^ The same reasons which
require that a verdict should not, by itself, be regarded as
conclusive are equally applicable to such interlocutory
judgments or decrees as may at any time be modified
or vacated by the court which rendered them.® The rule
' Ice V. State, 123 Ind. 593. Neb. 124; 93 Am. Dec. 333; Hum-
'^ Collins V. Jennings, 42 Iowa, 447; i^hreys v. Browne, 19 La. Ann. 158;
Webb V. Buckelew, 82 N. Y. 555; Schurmeier v. Johnson, 10 Minn. 319;
State V. Jenkins, 70 Md. 472; Banking Gilbert v. Graham, East. T. 1873, Iq
Ass'n V. Adams, 3 Woods, 21. New Brunswick.
» Smith V. McCool, 16 Wall. 560; ^ Felter v. Mulliner, 2 Johns. 181;
Benson v. Post, 2 Dak. 220; Hoi- Estep v. Hutchmau, 14 Serg. & R.
bert's Estate, 57 Cal. 257; Nash v. 181.
Hunt, 116 Mass. 237; Pvidgely v. Spen- ^ New York C. B. v. Dorset Marble
ser, 2 Biun. 70; Whitaker v. Bramson, Co., 58 Vt. 70.
2 Paine, 209; McReady v. Rogers, 1 ^ Baugh v. Baugh, 4 Bibb, 550.
§ 252 THE JUDGMENT AS AN ESTOPPEL. 448
upon this subject, and the grounds upon which it is based,
are well stated by Pothier. He says: " A judgment, to
have the authority or even the name of res judicata, must
be a definitive judgment of condemnation or dismissal, A
provisional condemnation, then, cannot have either the
name or the authority of res judicata, for although it gives
the party obtaining it a right to compel the opposite party
to pay, or deliver provisionally, the money or things de-
manded, it does not put an end to the cause, or form a
presumption juris de jure, that what is ordered to be paid
or delivered is due, since the party condemned may be
admitted in the principal case to prove that what he was
ordered to pay was not due, and consequently to obtain a
reversion of the judgment."*
§ 252. Identities Demanded. — "To make a matter res
adjudicata, there must be a concurrence, — 1. Of identity of
the subject-matter; 2. Of the cause of action; 3. Of per-
son and parties; and 4. In the quality of the persons for
or against whom the claim is made."^ According to
another case, the requisites are: 1. That the judgment
proceed from a court having jurisdiction; 2. That it be
between the same parties; and 3. That it be for the same
purpose.^ In Massachusetts, to ascertain whether a judg-
ment is a bar, the courts will inquire, —
1. Whether the subject-matter m controversy has been
brought in question, and within the issue in the former
proceeding, and has terminated in a regular judgment on
the merits;
2. Whether the former suit was between the same
parties, in the same right or capacity, or their jDrivies
claiming under them;
3. Whether the former judgment was before a court of
competent jurisdiction.*
1 Pothier on Obligations, pt. 4, c. 3, Judicata; Slocomb r. De Lizardi, 21
sec. 3, art. 1. La. Ann. 355; 99 Am. Dec. 740.
'^ Benz V. Hines, 3 Kan. 397; 89 Am. ^ Aspden v. Nixon, 4 How. 467, 497.
Dec. 594; State v. Jumel, 30 La. Ann. * Biyelow v. Windsor, ] Gray, 299.
801; 2 Bouvier'a Law Die, tit. Rea See also McDonogh's Succession, 24
449 THE JUDGMENT AS AN ESTOPPEL. § 253
That a judgment, to constitute an estoppel, must pro-
ceed from a court of competent jurisdiction is a propo-
sition which requires neither arguments nor authorities
to prove its existence or to illustrate its application. The
necessity of a judgment being between the same parties
or their privies, and the limitation and extensions of the
rule in this respect, have already been fully considered
in the chapter on parties. But the cases cited seem to
demand the existence of the following identities between
two suits, to constitute the first decided a bar to the
further prosecution of the second, to wit: 1, Identity of
subject-matter; 2. Identity of cause of action; and 3. Iden-
tity of purpose or object. While a concurrence of these
identities usually attends when one case is determined by
the decision in another, yet nothing is indispensable to
impart a conclusive effect to a former judgment, as will
be manifest by reference to a few of the reported cases,
except identity of issues or issues involved. If any ques-
tion of fact has been necessarily and directly drawn in
question and determined by a final judgment, such deter-
mination of it is generally conclusive in a subsequent
action between the same parties and those in privity with
them, whether the form or subject-matter of the two ac-
tions be the same or different. On the other hand, if two
actions are upon different causes, a judgment in one can-
not affect the other, though the. subject-matter of each is
the same.'
§ 253. Identity of Subject-matter. — The principle is
recognized and supported in most of the American cases,
that a decision upon any material point is conclusive,
though the subject-matter of the two suits is different ^
La. Ann. 33; Miller v. McManis, 57 v. Starr, 5 Conn. 550; 13 Am. Dec. 94,
111. 126; Tucker v. Rohrback, 13 Mich, and note; Doty v. Brown, 4 N. Y. 71;
75; Green v. Iredale, 13 S. C. 588; 53 Am. Dec. 350; Williams?;. Fitzhugh,
Carre v. New Orleans, 41 La. Ann. 91)6; 44 Barb. 321 ; Walker v. Chase, 53 Me.
Goodwin?;. Snyder. 75 Wis. 450; State 258; Cromwell v. County of Sac, 94
V. Jumel, 30 La. Ann., pt. 2, p. 861; U. S. 351; 4 Cent. L. J. 416; Rucker
McCamant v. Roberts, 66 Tex. 260; v. Steelman, 97 Ind. 222; Flanagan v.
Gilbreath v. Jones, 66 Ala. 129. Thompson, 4 Hughes, 421; Sketchley
1 Linne v. Stout, 44 Minn. 110. v. fcsuiith, 78 Iowa, 542.
» Spencer?;. Dearth, 43 Vt. 98; Betts
JODG. L— 29
§ 253 THE JUDGMENT AS AN ESTOPPEL. 450
N. sued R., a servant of C, for property. C. defended for
his servant, claiming title under a chattel mortgage from
H.; N. claimed under judgment against H.,and sought to
impeach the mortgage, on the ground that it was fraudu-
lent as to creditors. At the trial, N. failing to prove his
judgment, the decision was in favor of R. C. afterward
sued N. for the same property, and contended that the
judgment in favor of R., under the circumstances, was
conclusive that the property belonged to C. N., to avoid
the operation of the estoppel, contended, — 1. That in the
former suit the chattel mortgage matter had not been
determined; 2. That the parties were different. But it
was held that the issues in the first suit were such that
the findings of either in favor of C. constituted an es-
toppel. One issue was the bona fides of the mortgage,
the other was the title of N. to the property in dispute,
N. having failed to show that he was a judgment creditor,
could not, on that account, raise the question of bona fides,
and he is now estopped.^ A verdict in a summary pro-
ceeding, to remove a tenant for non-payment of rent,
finding that no rent is due, is conclusive in favor of the
tenant, in a replevin suit brought by him to recover cattle
distrained by the landlord, to satisfy the same claim of
rent.^ The only matter essential to making a former
judgment on the merits conclusive between the same
parties is, that the question to be determined in the sec-
ond action is the same question judicially settled in the
first. A judgment is conclusive not only as to the sub-
ject-matter in suit, but as to all other suits which, though
concerning other subject-matters, involve the same ques-
tions of controversy.^ A judgment in favor of a bond-
holder, upon certain municipal bonds against the town
issuing them, is conclusive on the question of the validity
of other bonds being part of the same issue, in an action
between the same parties, all the objections and matters
1 Castle V. Noyes, 14 N. Y. 329. 15 Am. Dec. 256; Bouchaud v. Dias,
« White V. Coatsworth, 6 N. Y. 138. 3 Deiiio, 238; Babcock v. Camp, 12
« Gardner v. Buckbee, 3 Cow. 120; Ohio St. 11.
451 THE JUDGMENT AS AN ESTOPPEL. § 253
of defense in the second action having been equally avail-
able to the town in the first.^ If A, as a defense to an
action against him, pleads that he has been released from
the liability, by virtue of his discharge in a proceeding
for the relief of insolvent debtors, and the plaintiff seeks
to avoid the discharge, on the ground that it was procured
by fraud, a judgment for the defendant is conclusive in
his favor upon the question of fraud, in any other action
between the same parties, though upon a different con-
tract.^ If an issue is tried in any proceeding as to
whether the defendant is a member of a firm, the result
of the trial will be conclusive between the parties when-
ever the same issue again arises between them.^ After a
judgment has been recovered for a quarter's rent upon a
lease, no defense can be made in a subsequent action for
rent alleged to be due upon the same lease, substantially
involving the same points decided against the defendant
in the first suit.^ If an instrument has been judicially
construed, this construction must be adopted in every
other controversy between the parties, in which the effect
of the same instrument is brought in question.^ A sold
land to B, and agreed to cease keeping tavern on adjacent
land as soon as B built certain buildings. B afterward
recovered in an action for a breach of this agreement.
In a second action, claiming damages for a subsequent
breach, it was held that the only matters upon which
defendant was not concluded were the subsequent breach
and the amount of damages resulting from it.** If a suit
to recover an installment of purchase-money is defended
on account of an alleged failure of title occasioned by
encumbrances, the decision of the court is conclusive
' Beloit V. Morgan, 7 Wall. 619; ler, 41 Mich. 90; Hewlett v. Tarte, 10
San Antonio v. Lane, 32 Tex. Com. B., N. S., 813.
411. ^Stewart v. Stebbina, 30 Miss. 66;
^ Merriam v. Whittemore, 5 Gray, Bloodgood v. Carsey, 31 Ala. 575;
316; Van Dolsen v. Abendroth, 43 Tioga R. R. Co. v. B. &. C. R. R. Co.,
N. Y. Sup. Ct. 470. 20 Wall. 137; Lorillard v. Clyde, 122
3 Lynch v. Swanton, 53 Me. 100. N. Y. 41; 19 Am. St. Rep. 470.
* Kelsey w. Ward, 38 N. Y. 83; Love « Heichew r. Hamilton, 4 G. Greene,
V. Waltz, 7 Cal. 250; Jacobson.i;. Mil- 317; 61 Am. Dec. 122.
§ 253 THE JUDGMENT AS AN ESTOPPEL. 452
upou that subject, in any future action, to recover a sub-
sequent installment falling due on the same purchase.^
After a decree in favor of plaintiff, upon a contract for
the payment of money in installments, the only question
open to litigation, in respect to any subsequent install-
ment, is whether as to it the defendant is in default.
Upon this question the defendant is entitled to a hearing;
and if a sale is made without such hearing, for the pur-
pose of paying a sum which has fallen due since the entry
of the original decree, and which is alleged to remain
unpaid, the sale is void.^ The recovery by judgment, of a
sum claimed to be due as interest on a promissory note,
precludes the defendant from contesting the payment of
the principal on the ground that the note was procured
by fraud;^ or upon any other defense involved in the
former suit.* A note and a mortgage for its security,
alleged to be made at the same time, are not necessarily
inseparable. The note may have been delivered, and the
mortgage not; or the former may have been obtained by
fraud and duress, and the latter not. Hence, a judgment
against the validity of the mortgage does not per se estab-
lish the invalidity of the note.^ If an assessment is im-
posed on certain lots, payable in installments, the recovery
on any installment unavoidably affirms the validity of the
assessment, and precludes it from being controverted in
a subsequent action between the same parties for subse-
quently accruing installments;'' and on the other hand,
where the issue of the certificate of a special assessment
is restrained, on the ground that the contract with the
city was unauthorized, the judgment is conclusive against
the city or its assignee in an action to collect the amount
of the assessment.^ Some of the English courts, if we
may judge from the opinions expressed by Lord Chelms-
1 Kane v. Fisher, 2 Watts, 246. ? Lander v. Arno, 65 Me. 26.
« Perkins v. Perkins. 16 Mich. 162. « People v. Brislin, 80 III. 423; Leh-
s Edgell V. Sigerson, 26 Mo. 583. mer v. People, 80 111. 601.
* Black River Savings Bank v. Ed- " Lawrence v. Milwaukee, 45 Wis,
wards, 10 Gray, 387. 306.
453 THE JUDGMENT AS AN ESTOPPEL. § 253
ford, deny the application of the principle of res judicata
to cases where the subject-matter of the two suits is not
identical. Hence he determined that a judgment against
one poor-rate was not binding in a controversy in refer-
ence to a subsequent rate, though the issues in the two
controversies were the same.'
The effect of a judgment upon a subsequent action in-
volving the same issues, but a different though similar
subject-matter, has recently been very fully considered in
the supreme court of the United States. The conclusion
there reached is, that when any issue is in fact litigated
and determined, such determination is conclusive upon
the parties and their privies in any subsequent action in
which the same issue is drawn in question, though the
subject-matter of the action is different. In order to suc-
cessfully invoke this rule, it must be shown that in the
former action the issue was in fact litigated and decided.
It is not sufficient that it was there so involved that it
might have been litigated. With respect to the subject-
matter of an action, each party must bring forward every
cause of action or defense involved in the pleadings, and
the judgment will often be conclusive not only upon the
matters litigated, but also upon those which the parties
might have litigated in that action. But in a subsequent
action involving a different subject-matter, the former
adjudication cannot be relied upon, unless it appears, not
that the issue now presented was presented, and ought to
have been litigated in the prior action, but furtlier, that
it was litigated and decided, as well as involved.- Thus
where a suit to recover upon certain coupons failed, be-
cause it was not shown that the plaintiff was a purchaser
of the bonds to which they were attached, for value and
before maturity, he was held not to be estopped in an ac-
tion on the bonds from showing that he did purchase
them before maturity, it not appearing that tliis issue was
' Commissioners V. Inspectors, L. R. U. S. 351; 4 Cent. L. J. 416; Davis
1 H. L. S. 22. r. Brown, 94 U. S. 423; Russell v.
^Cromwell v. County of Sac, 94 Place, 94 U. S. 606.
254
THE JUDGMENT AS AN ESTOPPEL.
454
the subject of controversy in the former suit/ So, also,
the omission of the indorser of a series of notes, when
sued upon one or more of them, to assert a defense equally
available as against all of them does not preclude him
from relying upon such defense when sued upon other
notes of the same series.^
§ 254, Identity of Purpose. — It has been said that, the
cause and object of the action being the same, the former
judgment bars the suit; but the principle runs through
nearly all the American cases, that a judgment is conclu-
sive, if upon the direct point, though the objects of the
two suits are different.^ A judgment against the assignee
^ Cromwell v. County of Sac, 94
U. S. 351. In this case Judge Field,
delivering the opinion of the court,
said: "In considering the operation of
this judgment it should be borne in
mind, as stated by counsel, that there
is a difference between the effect of a
judgment as a bar or estoppel against
the prosecution of a second action upon
the same claim or demand, and its effect
as an estoppel in another action be-
tween the same parties upon a differ-
ent claim or cause of action. In the
former case, the judgment, if rendered
upon the merits, constitutes an abso-
lute bar to a subsequent action. It is
a finality as to the claim or demand in
controversj', including parties and
those in privity with them, not only
as to every matter which was offered
and received to sustain or defeat the
claim or demand, but as to any other
admissible matter which might have
been offered for that purpose. Thus,
for example, a judgment rendered
upon a promissory note is conclusive
as to the validity of the instrument
and the amount due upon it, although
it be subsequently alleged that perfect
defenses actually existed, of which no
proof was offered, such as forgery,
want of consideration, or payment.
If such defenses were not presented in
the action, and established by compe-
tent evidence, the subsequent allega-
tion of their existence is of no legal
consequence. The judgment is as con-
clusive, so far as future proceedings at
law are concerned, as though the de-
fenses never existed. The language,
therefore, which is so often used, that
a judgment estops not only as to every
ground of recovery or defense actually
presented in the action, but also as to
every ground which might have been
presented, is strictly accurate when
applied to the demand or claim in con-
troversy. Such demand or claim, hav-
ing passed into judgment, cannot again
be brought into litigation between the
parties in proceedings at law upon any
ground whatever. But where the sec-
ond action between the same parties is
upon a different claim or demand, the
judgment in the prior action operates
as an estoppel only as to those matters
in issue, or points controverted, upon
the determination of wliich the findmg
or verdict was rendered. In all cases,
therefore, where it is sought to apply
the estoppel of a judgment rendered
upon one cause of action to matters
arising in a suit upon a different cause
of action, the inquiry must always be
as to the point or question actually
litigated and determined in the origi-
nal action, not what might have l)een
thus litigated and determined. Only
upon such matters is the judgment
conclusive in another action."
^ Davis V. Brown, 94 U. S. 423; Rus-
sell V. Place, 94 U. S. 606. The ten-
dency in the English courts is to con-
fine the effect of a judgment estoppel
to the issues actually litigated: Gou-
cher V. Clayton, II Jur., N. S., 107;
34 L. J. Ch. 239; 13 Week. Rep. 336.
^ Note 261 to Phillipps on Evidence;
Barker v. Cleaveland, 19 Mich. 230;
but in Robinson v. Kruse, 29 Ark. 575,
455 THE JUDGMENT AS AN ESTOPPEL. § 255
of an insolvent debtor, in an action brought to set aside
a conveyance, is conclusive against him in an action of
trover, to recover of the same defendants any of the prop-
erty included in the convej-ance/ One who defends an
action to recover for work, on the ground that the work
was so done as to be of no value, and fails to establish
his defense, is precluded from afterward maintaining any
suit against the plaintiff for damages alleged to have arisen
from the unskillful doing of the same work.^
§ 255. Identity of Form of Action. — By the rules of
the civil as well as of the common law, "res judicata is
not changed by a change in the form of action,"^ It is
not material that the form of action be the same, if the
merits were tried in the first.^ A judgment for the de-
fendant in trover, for conversion of goods, is a bar to an
action against him for money had and received from the
proceeds of the sale of the same goods. No party can
bring the same cause of action twice to a final determi-
nation.^ Hence judgment for defendant, in an action of
trover, estops plaintiff from maintaining assumpsit for the
value of the goods which in the former action were claimed
to have been converted,^ or trespass for taking them;' a
decision against the claimant on a trial of the right of
property concludes him in an action of trover against the
same officer for converting the same property;^ a judg-
ment in favor of a bank, in an action against it for the
the recovery by plaintifif in replevin 121 Ind. 483; Harryman v. Roberts,
was decided not to prevent the defend- 52 Md. 64; Thomas v. Merry, 113 Ind.
ant from sustaining an action against 83; Hatch v. Coddington, 32 Minn. 92;
the former plaintiff for the conversion Hellebush v. Richter, 37 Ohio St. 222;
of the same property. Edwards v. Baker, 99 N. C. 258;
1 Bigelow V. Winsor, 1 Gray, 299. Schroers v. Fish. 10 Col. 599; Sander-
2 Merriam v. Woodcock, 104 Mass. son v. Peabody, 58 N. H. 116; Murphy
326. V. De France, 101 Mo. 151.
5 Pothier on Obligations, pt. 4, c. 3, * Lawrence e. Vernon, 5 Sum. 20;
sec. 3, art. 4; Eastman v. Cooper, 15 Hitchin v. Campbell, 2 VV. Black. 778,
Pick. 285. 827; Ferrer's Case, 6 Coke, 7.
1 Moore v. Williams, 132 111. 589; « Agnew v. Martin, 10 Smedes & M.
Marsh V. Pier, 4 Rawle, 273; 26 Am. 552; 48 Am. Dec. 772.
Dec. 131; White v. Martin, 1 Port. ' Hite v. Long, 6 Rand. 457; 18 Am.
215; 26 Am. Dec. 365; Owens v. Dec. 719.
Rrdeigh, 6 Bush, 656; Bell v. McCul- » Krenchi v. Dehlcr, 50 111. 176; Ste-
loch, 31 Ohio St. 397; Sewell v. Scott, vens v. Springer, 23 Mo. App. 375.
35 La. Ann. 553; Lieb v. Lichtenstein,
§ 256 THE JUDGMENT AS AN ESTOPPEL. 456
conversion of a note, is conclusive in its favor in a subse-
quent action against it by the same plaintiff for money
had and received to his use, being the proceeds of the
same note;^ and a judgment for the defendant, in an
action for malicious prosecution, has been held to bar a
subsequent action for slander in making the same charge
uttered before the bringing of the first action.^ The form
of the prior action is immaterial, if it was such as to per-
mit a trial on the merits. If proper parties join issue
upon a question of law or of fact, before a competent court,
they must abide by the decision. Hence it was held in
Louisiana that a party who had proceeded by rule or
motion, and had in that manner had a complete hearing
on the merits, resulting in a discharge of the rule, was
barred from obtaining an injunction in an action brought
for that purpose, unless he could show other facts than
those existing at the time of discharging the rule.^
Whether and when the decision of a motion is entitled to
the effect o? res judicata is a question upon which the au-
thorities disagree, and which will be considered hereafter.''
But "when one is barred in any action, real or personal,
by a judgment on demurrer, confession, verdict, etc., he
is barred as to that or the like action of the like nature
for the same thing forever." ^
§ 256. Identity of Issues. — It will be seen from ex-
amining the authorities already cited that to render any
judgment or other final adjudication proceeding from a
court of competent jurisdiction available as a bar in a sec-
ond action between the same parties or their privies, two
things only are essential, viz.: 1. That the issue in the sec-
ond action, upon which the judgment is brought to bear,
was a material issue in the first action, necessarily deter-
mined by the judgment therein;® 2. That the former
' State Bank v. Rude, 23 Kan. 143. * Post, sees. 325-327.
2 Tedwell v. Witherspoon, 21 Fla. * Westcott v. Brock, 2 Col. 335;
359: 58 Am. Rep. 6li5. Geisriter v. Sevier, 32 Ark. 522.
^ Trescott v. Lewis, 12 La. Ann. 197. ® Graceland Cemetery Co. v. People,
See also Brown v. Moran, 42 Me. 44. 92 111. G19; Blackwell v. Bragg, 78 Va.
457 THE JUDGMENT AS AX ESTOPPEL. § 256
judgment was upon the merits. The chief difficulty ia
applying a former judgment to a present litigation arises
from the necessity of determining what were the matters
affirmed or denied by the former decision. In determining
this question, it ma}' be, and frequently is, impossible to
obtain sufficient data to form any satisfactory conclusion,
without looking beyond the record in the former suit, and
ascertaining from any other competent evidence what
were the real issues brought before the court, and neces-
sarily entering into the consideration of the judgment.
And whether the issues in the former action sufficiently
appear from the record, or are made known by extrinsic
proofs, the necessity still remains of deciding whether a
matter controverted at the former trial was a material
issue, or a mere matter of evidence brought forward to
aid in establishing some material issue. Courts have,
from time to time, endeavored to lay down general rules,
or more properly speaking, general descriptions, by which
to determine what questions are and what are not settled
by a former adjudication. We shall now state some of
these general descriptions, leaving the reader to harmo-
nize them if he can, and feeling that if he cannot he is
not less successful than we have been.
A judgment is conclusive upon every matter actually
and necessarily decided in the former suit, though not
then directly the point in issue. If the facts involved in
the second suit are so cardinal that without them the
former decision cannot stand, they must now be taken as
conclusively settled. In an order of settlement, John G.
and William G. were adjudged to be the lawful children
of William G. and Esther G., and to have their settlement
in a certain township. Afterward a contest arose in rela-
tion to the settlement of Esther G. Whereupon it was
considered that as the settlement of the children depended
529; Bouchard v. Parker, 32 La. Ann. 7 Gray, 499; 66 Am. Dec. 518; Newby
535; Doty v. Brown, 4 N. Y. 71; 53 v. Caldwell, 54 Iowa, 102; Huntley v.
Am. Dec. 350; Sawyer v. Woodbury, Holt, 59 Conn. 102; 21 Am. St. Rep. 71.
§ 256 THE JUDGMENT AS AN ESTOPPEL. 458
on that of their father, and on his marriage with their
mother, Esther, the father's settlement and marriage
must have been decided as the ground-work of the former
order, and that as those facts which upheld the order of
settlement of the children were necessarily and exclusively
applicable to their mother, her settlement was fixed by
the decision in relation to that of her children.^ And in
Vermont it was decided that the adjudication, upon an
order of removal, that a woman had a settlement in W.
was conclusive between the same parties in a proceeding
to remove her illegitimate son, who, being a minor, could
obtain no settlement for himself, and whose settlement was
therefore necessarily identical with that of his mother.^
In a number of cases several notes were given in pay-
ment for property purchased of the payee; and in a suit
on the first note due, the defense of want of consideration
arising from fraud in the sale, or from the worthless
character of the property sold, was made. In cases of
this character, and in all other cases where several notes
or other obligations are given, against all of which a par-
ticular defense is equally applicable, or where a single
contract is payable in installments, if such defense is
interposed against either note, obligation, or installment,
and determined either to be or not to be an existing and
sufficient defense, such determination is conclusive of the
existence or non-existence of such defense in any subse-
quent action upon any other note, obligation, or install-
ment."'' To have this effect, it must appear that the defense
passed upon in the former action, conceding it to have
1 Regina v. Hartington, 4 El. & B. Hart, 66 Miss. 642; Trescott v.
780. Barnes, 51 Iowa, 409; Aultman v.
^ Cabot V. Washington, 41 Vt. Mount, 62 Iowa, 674; French v. Smith,
168. 88 Ind. 149; 45 Am. Rep. 454; Foster
* Cleveland y. Creviston, 93 Ind. 31; v. Konkright. 70 Ind. 123; Kilander
47 Am. Rep. 267; Bank of New Lon- v. Hoover, 111 Ind. 10; Furneaux v.
don V. Ketchum, 66 Wis. 428; Gaml- First N. B., 39 Kan. 144; 7 Am. St.
ner v. Buckbee, 3 Cow. 120; 15 Am. Rep. 541; Young v. Brehe, 19 Nev.
Dec. 256; Freeman v. Bass, 34 Ga. 355; 379; 3 Am. St. Rep. 892. Contra,
89 Am. Dec. 255; Mason L. Co. v. Eastman v. Cooper, 15 Pick. 276; 26
Butchel, 101 U. S. 638; Davis v. Am. Dec. 60.
459 THE JUDGMENT AS AN ESTOPrEL. § 256
existed, was necessarily conclusive of the demand sued
upon in the second action;^ for it may have been a partial
defense, applicable only to the demands against which it
was interposed, or in the nature of a counterclaim for
damages, which, being allowed and compensated in the
first action, cannot again be set off or recovered in the
second. A judgment for or against the validity of a
coupon is generally conclusive for or against every other
coupon attached to the same bond.^ In New York, where
A and B were sureties for the same person on two bonds,
an action by A for contribution from B, for money paid
upon one bond, was held to be conclusive in a like suit
upon the other bond, the same defense being offered in
both suits.^ In New York it is well settled that the re-
covery by a physician of a judgment upon his claim for
professional services is a conclusive affirmance of the
valuable character of those services, and, as such, is a bar
to any action against him for malpractice,* although the
former judgment was rendered without any claim of mal-
practice being offered as a defense,^ or although such
defense was expressly withdrawn before going to trial."
E., a tenant, committed an act of bankruptcy. An as-
signee was appointed, who entered on the demised land,
and drove off cattle to prevent their being distrained.
They were pursued and seized by the landlord's bailiff.
The assignee brought an action of replevin for the cattle.
This action turned upon the question whether the
assignee, by his entry, became a tenant; that is, whether
he had elected to receive the lease instead of relinquish-
ing it as damnosa hereditas. The action having been
determined against him, it was held, in a subsequent
1 Clark V. Sammons, 12 Iowa, 368; Iowa, 595; Block v. Bourbon Co., 99
Knickerbocker v. Ream, 42 Kan. 17; U. S. 686.
Knorr v. Peerless Reaper Co., 23 ' Bouchaiid v. Dias, 3 Demo, 243.
Neb. 636; 8 Am. St. Rep. 140; Felton * Edwards v. Stewart, 15 Barb.
V. Smith, 88 Ind. 149; 45 Am. Rep. 67.
454. * Gates v. Preston, 41 N. Y. 113.
■^ Bissell V. Spring Valley, 124 U. S. « Bellinger v. Craigue, 31 Barb. 534.
225; Whitaker v. Johnson County, 12 See yost, sec. 282,
§ 256 THE JUDGMENT AS AN ESTOPPEL, 460
controversy between him and the landlord, to conclusively
establish his tenancy.^
If in any action based upon an alleged leasing the
existence or validity of the lease is denied, or it is sought
to be avoided on some ground, the judgment in such
action is conclusive in all subsequent actions of the exist-
ence or non-existence, validity or non-validity, of such
lease.^ The same rule applies to other writings. If a
writing is assailed on some ground, as where it is claimed
to be fraudulent, forged, or altered, the determination of
this question is conclusive in all subsequent contro-
versies;^ and if it is determined to be invalid because of
the mental capacity of the person executing it, this is
conclusive that other writings executed at the same time
were invalid for the same reason.* So if a contract is
construed, or a party is determined not to be entitled to
its benefit, such construction^ or determination^ is con-
clusive in subsequent controversies.
A good illustration of the rule that the effect of a former
adjudication extends to every question necessarily litigated
between the parties, and is not confined to actions having
the same purpose or involving the same subject-matter, is
found in a case decided by the supreme court of Califor-
nia. J., W., and T. made a note in favor of D. T., being
the owner of a tract of land, soon after conveyed it to D.
After the maturity of the note, D. sued J., T., and W. upon
1 Hancock v. Welsh, 1 Stark. 347. McWilliams v. Morrell, 23 Him, ]62
A gave a horse to B to board, with in- Jacobsou v. Miller, 41 Mich. 90
structious not to use him. B used the Nemetty v. Mayor, 100 N. Y. 562
horse and foundered him. A aban- Oregonian R'y Co. v. Oregon R'y &
doned the horse and sued for his con- N. Co., 27 Fed Rep. 277.
version. B then sued for the horse's ^ Ballard v. Franklin L. I. Co., 81
board. A set up defense of the con- Ind. 239; Haniia v. Read, 102 111. 596;
version. The justice, on demurrer, 40 Am. Rep. 608; Yates v. Yates, 81
overruled this defense, and afterwards N. C. 397; Lawrence v. Milwaukee, 45
entered judgment against A for the Wis. 306.
horse's board. This was held to estop * Hanna v. Read, 102 111.596; 40
A from maintaining his action for Am. Rep. 608.
conversion, because it was not possible ^ Buchanan v. Smith, 75 Mo. 463;
for A to have been lialde for the board, Lorillard v. Clyde, 122 N.Y. 41; 19
if B had previously converted the Am. St. Rep. 470; Robinson v. Fries,
horse: <Jollins v. Bennett, 46 N. Y. 490. 22 Fla. .303.
=* Wilson V. Deen, 121 U. S. 525; ^ Noyes v. Kern, 94 III. 521.
461 THE JUDGMENT AS AN ESTOPPEL. § 256
it. J. made no defense. T. and W. answered that they
were accommodation makers without any considerations,
and that the deed to D. was made and accepted as a dis-
charge of the note. Issue was taken upon this point, and
the trial of the case was directed to the question whether
the deed was accepted as a security or as a satisfaction of the
debt. The jury found in favor of the defendants, and judg-
ment was entered accordingly. Two days after the entry
of this judgment, T. conveyed the same lands to J., who
thereafter commenced suit against D. to recover them on
the ground that the former deed to D. was a mortgage.
It was held that the character of the deed was in "issue in
the former action, and that J. could not prove its char-
acter to be different from what it was then determined to
be.^
The principle underlying and supporting all these de-
cisions is, that a judgment necessarily^ affirming or deny-
ing a fact is conclusive of its existence whenever it becomes
a matter in issue between the same parties or between
parties in privity with them.^ Therefore a judgment
abating a nuisance to a public highway is conclusive of
the existence both of the highway and of the nuisance;'
a judgment for the defendant in an action for obstructing
a watercourse, if based upon the ground that there was
no watercourse to be obstructed, is in subsequent actions
conclusive of the non-existence of such watercourse;'* but
if the judgment had been for the plaintiff, it would neces-
sarily have been conclusive in other actions of the exist-
ence of the watercourse and of its obstruction." If an
action is brought to recover wages, and defended on the
ground that there was no contract of hiring, or that the
plaintiff had been rightfully discharged, the judgment
affirming or denying either the contract or the rightful-
ness of the discharge is conclusive in subsequent actions
1 Jackson v. Lodge, 36 Cal. 28. ^ Hahn v. Miller, 68 Iowa, 745.
'Gould V. Sternberg, 128 111. 510; * Byrne i;. Minneapolis etc. R'y Co.,
15 Am. St. Rep. 138. 38 Minn. 212; 8 Am. St. Rep. 688;
* Brant v. Plunier, 64 Iowa, 33. McLeod v. Lee, 17 Nev. 103.
§ 256 THE JUDGMENT AS AN ESTOPPEL. 462
in which the same issue is material.^ A decision in a
suit in equity to reform a description in a deed, that a
survey must commence at a point designated, is conclusive
of that question in a subsequent action of ejectment.^
If the issues in the second action are necessarily dif-
ferent from those in the first, the judgment in the latter
is not conclusive of the former;^ but one cannot, by ten-
dering an immaterial issue in the second action, avoid
the effect of an issue determined against him in the for-
mer suit/ Generally, if the issues in the second action
are necessarily different from those in the first, and the
cause of action or of defense alleged therein may co-exist
with the matters determined in the former suit, the judg-
ment therein is not conclusive of the second.^ Hence a
judgment for defendant in an action for seduction accom-
plished under promise of marriage is not conclusive in
his favor in a subsequent action for a breach of promise
of marriage; for he may have promised the marriage and
been guilty of a breach of such promise, without having
seduced plaintiff by reason thereof.'' So if the cruelty
which amounts to the abandonment of a wife does not
necessarily entitle her to a divorce on the ground of ex-
treme cruelty, the denial to her of a divorce on that ground
is not conclusive in a second action by her seeking a
divorce on the ground of abandonment resulting from
the husband compelling her to live apart from him by
means of the same acts of cruelty relied upon in the for-
mer suit/
There is one class of actions in which a former judg-
* Strauss v. Meertief, 64 Ala. 299; Mich. 193; Geneva Bank v. Riverside
38 Am. Rep. 8; Kennedy i--. McCarthy, School Dist., 25 Fed. Rep. 629; Leon-
73 Ga. 346. ' ard v. Whitney, 109 Mass! 26.5; Palmer
2 Mueller v. Henning, 102 111. 646. v. Hussey, 87 'N. Y. 303; Mclntyre v.
^Fairchild v. Lynch, 99 N. Y. 359. Storey, 80111. 127; Keator v. St. John,
* Montgomery n. Harrington, 58 Cal. 42 Fed. Pv,ep. 585; Sheble v. Strong,
270. 128 Pa. St. 315; Hosford v. Wynn, 26
» Bowen v. Mandeville, 95 N. Y. 237
Scully V. Lowenstein, 56 Miss. 652
Fishburne v. Ferguson, 85 Va. 321
Gilmer v. Morris, 30 Fed. Rep. 476
S. 0. 130; Wixson v. Devine, 80 Cal.
S85.
•^ Ireland v. Emmerson, 93 Ind. 1;
47 Am. Rep. 364.
Lake Shore etc. R'y Go. v. People, 46 ' Rand v. Rand, 58 N. H. 536.
463 THE JUDGMENT AS AN ESTOPPEL. § 256
ment is conclusive, though the issues in the first action
are different from those in the second; but where this is
so, it is the law of election between inconsistent remedies,
rather than the law of estoppel, which controls. Thus
one defeated in an action wherein he elected to pursue
a particular remedy may afterwards be denied a remedy
open to him in the first place, had he then chosen to
adopt it, if the facts essential to support the second action
are necessarily inconsistent with those relied upon in the
first. Ini several instances, cases have been determined
upon this principle, which, in our judgment, did not
necessarily fall within it. Thus judgments in favor of
defendants in actions wherein they sued upon contracts
have frequently, and perhaps uniformly, been hehl to
debar plaintiffs from maintaining suits to reform such
contracts.^ So one suffering defeat in an action on a prom-
issory note on the ground of its fraudulent alteration will
not be permitted to recover on the original indebtedness;^
and it has been held that a receiver of an insolvent estate
failing in his attack upon a deed, upon the ground of its
being without consideration, cannot afterwards assail it
as a fraudulent preference.^
A few cases may be found determined in apparent oblivi-
ousness of the rule that an issue necessarily determined
in one action cannot be relitigated in another between
the same parties. Thus in an early case in New Hamp-
shire, the plaintiff recovered damages for the non-fulfill-
ment of a contract to work for a year, though he had
defended an action against him by the defendant for two
months' labor of the same year, on the ground of a special
hiring for the whole year, and had failed in his defense.^
In New Jersey, a chief of police was discharged on a cer-
tain day by the town council, if it had power to do so.
1 Thomas v. Joslin, 36 Minn. 1; 1 ^ gykeg ». Gerber, 98 Pa. St. 179.
Am. St. Rep. 624; Steinbach v. Relief * Patterson v. Wold, 33 Fed. Rep.
Fire Ins. Co., 77 N. Y. 498; 33 Am. 791.
Rep. 655; Thwing v. Great W. Ins. * Town v. Nims, 5 N. H. 259; 20
Co., Ill Mass. 93; Washburnu Great Am. Dec. 57S. See Metcalf v. Gilmore,
W. Ins. Co., 114 Mass. 175. 03 N. H. 174.
§ 257 THE JUDGMENT AS AN ESTOPPEL. 464
He commenced a suit for his salary, after the attempted
discharge, and obtained judgment. He then sued for
salary accruing after the commencement of the former
action. It was conceded that the question of his discharge
was decided in his favor in the first suit; but it was con-
sidered the question was not concluded in the second
action because it was a matter of laiv} So in Indiana, an
adjudication, in an action to recover certain property, that
the assignment under which plaintiff claimed was void on
account of being tainted by fraud, was held to be'confined
in its effect to the subject-matter of that controversy, and
not to impair the claim of the plaintiff to other property
included in the same assignment,^ An entirely similar
opinion is supported by the courts of New Hampshire, on
the grounds that the assignment is, in the first action, a
matter of evidence, and not a matter in issue; and that
the only issue before the court is, whether plaintiff has
title to the subject-matter of the suit.*
§ 257. Extends only to Facts in Issue. — The former
verdict is conclusive only as to fact.s directly and dis-
tinctly put in issue, and the finding of which is necessary
to uphold the judgment.* The doctrine of estoppel is re-
stricted to facts directly in issue, and does not extend to
facts which may be in controversy, but which rest in evi-
dence, and are merely collateral. "A fact or matter in
issue is that upon which plaintiff proceeds by his action,
and which the defendant controverts in his pleadings,
while collateral facts are such as are offered in evidence
to establish the matters or facts in issue."'' "It must ap-
pear that the matter set up as a bar was in issue in the
former suit. If a suit is brought to procure the entry of
» Bernhard v. City of Hoboken, 27 St. Romes v. C. 0. & N. Co., 24 La.
N. J. L. 412. Ann. 331; Glass v. Wheeliss, 24 La.
" Roberts v. Robeson, 27 Ind. 454. Ann. 397; Henry v. Davis, 13 W. Va.
^ King V. Chase, 15 N. H. 9; 41 Am. 230; Crum v. Boss, 7 Rep. 107.
Dee. 675; Taylor v. Dustin, 43 N. H. ^ Garwood v. Garwood, 29 Cal. 521;
493. King v. Chase, 15 N. H. 16; 41 Am.
* Hunter v. Davis, 19 Ga. 413; De Dec. 675.
465 THE JUDGMENT AS AN ESTOrPEL. § 257
satisfaction of a mortgage, and the judgment is, tliat the
mortgage is not satisfied because a specified amount re-
mains unpaid, this judgment is, in subsequent contro-
versies between the parties, conclusive that the mortgage
was not paid, but the amount due is still unsettled, because
it was not in issue in a former suit,"^ A decree setting
aside a deed does not affect any title held by defendant,
and not deraigned through such deed.'^ An estoppel ex-
tends beyond what aj)pears on the face of the judgment to
every allegation which, having been made on the one
side and denied on the other, was at issue and determined
in the course of the proceedings. It not only establishes
the case of the plaintiff, but disproves or negatives that of
the defendant.^ The record of a former recovery is com-
petent evidence in a second action " when the point in
issue is the same in both, or when some question raised
and to be passed upon in the last has already been deter-
mined in the first." * " It is not the object of the suit,
the recovery, or fruits of the litigation alone, that consti-
tutes the estoppel, but the facts put in issue and found,
upon which the recovery is based," — facts in issue as dis-
tinguished from the evidence in controversy.^ It is not
necessary to the conclusiveness of the former judgment
that the issue should have been taken upon the precise
point which it is proposed to controvert in the collateral
action. It is sufficient if that point was essential to the
former judgment.® "Every point which has been either
expressly or by necessary implication in issue, which must
necessarily have been decided in order to support the
judgment or decree, is concluded."^ "It is allowable to
reason back from a judgment to the basis on which it
1 Campbell v. Consalus, 25 N. Y. Gardner, 4.S Cal. 306; Rogers v. Hig-
613. gins, 57 III. 244; Chesapeake Co. v.
'^ Beeson v. Comley, 19 Mich. 103. Gettings, 37 Md. 276; Shepardsoii v.
* Stevens v. Hughes, 31 Pa. St. Cary, '29 Wis. 34.
381. ^ Lee v. Kingsbury, 13 Tex. 68; 62
* Sage V. McAlpin, 11 Cush. 105. Am. Dec. 546.
s Caperton v. Schmidt, 26 Cal. 479; ' Board of S. v. M. P. R. R. Co.,
85 Am. Dec. 187. See also Phelau v. 24 Wis. 124.
JUDG. I. — 30.
§ 258 THE JUDGMENT AS AN ESTOPPEL, 466
stands, upon the obvious principle that, where a conclu-
sion is indisputable, and could have been drawn only from
certain premises, the premises are equally conclusive and
indisputable with the conclusion. But such an inference
must be inevitable, or it cannot be drawn." ^ For as we
have already shown, if a judgment necessarily determines
a particular fact, that determination is conclusive, and
requires the same fact to be determined in the same way
in all subsequent actions between the same parties. And
a fact is necessarily determined to exist or not to exist, if
its existence or non-existence is required to support the
judgment rendered.^ Thus if a town plat is entitled to
record only when properly acknowledged, an order direct-
ing it to be recorded establishes that it was so acknowl-
edged;^ if a party is entitled to property only by virtue of
its devise to him, a decree distributing it to him is con-
clusive of the devise and its validity;* a judgment upon a
note against the defendants as partners conclusively estab-
lishes their partnership at the time when the note was
made.^ And it has been held that an issue, not absolutely
necessary to be determined, may become res judicata if
presented by the pleadings, argued by counsel, and in
fact decided by the court.^
§ 258. Confined to Matters in Issue and Decided. — No
judgment or decree is evidence in relation to any matter
which came collaterally in question, nor to any matter
incidentally cognizable, or to be inferred from the judg-
ment only by argument or construction.' An estoppel
1 Bnrlen v. Shannon, 99 Mass. 200; * Almy v. Daniels, 15 R. I. 312.
96 Am. Dec. 733; Lea i;. Lea, 99 Mass. ' Kitson v. Farwell, 132 111. 327;
493; 97 Am. Dec. 772. Lawrence v. Hunt, 10 Wend. 81; 25
•■''Duncan V. Bancroft, 110 Mass. Am. Dec. 539; Jackson v. VA^ood, 3
267; Davis v. Demming, 12 W. Va. Wend. 27; Wood r. Jackson, 8 Wend.
246'; Dorris v. Erwin, 101 Pa. St. 239; 35; 22 Am. Dec. 603; Hopkins r. Lee,
School Dist. V. Stocker, 42 N. J. L. 6 Wheat. 109; Lewis and Nelson^ Ap-
115 peal, 67 Pa. St. 165; Howard v. Kim-
* Scott V. Des Moines, 64 Iowa, 438. ball, 65 Me. 308; Hammer v. Pounds,
* Greenwood v. Murry, 26 Minn. 259. 57 Ala. 348; Land v. Keirn, 52 Miss.
6 Dutton t'. Woodman, 9 Cash. 255; 341; Henry v. Davis, 13 W. Va.
57 Am. Dec. 46. 230.
.467 THE JUDGMENT AS AN ESTOPPEL. § 258
cannot be created by mere argument. A owned a saw-
mill, and A and B owned a grist-mill, both of which were
run by water from the same dam, and had wheels on the
same level, and were equally affected by backwater from
the mill of C, situate on the same stream. A brought an
action against C for damages occasioned by water being
backed upon his saw-mill, in which it was settled that C's
dam backed the water so as to injure the saw-mill. A
and B then sued for damages occasioned to their grist-
mill, and upon trial it was found that C's dam did not
back the water upon the grist-mill. After the judgment
in favor of C, A commenced a second action against C for
damages to the saw-mill. It was agreed that, upon the
facts of the case, there ought to be the same finding in
respect to both the saw-mill and the grist-mill. The court
held that the former adjudication between A and C was
upon the precise question now in controversy; that the
judgment in the case concerning the grist-mill was, at
most, not upon the same point involved in the present
suit, but upon a fact which, by argument only, is shown
to be applicable in this case; that this is not one adjudi-
cation against another, but only an adjudication one way,
and a probable argument founded on another adjudication
of a distinct question the other way. It leaves the effect
of the first judgment untouched.^ The correctness of this
decision is doubtful. For we may argue from a judgment,
and if the argument is so cogent that a particular con-
clusion cannot be avoided without denying effect to the
judgment or denying some premises essential to its sup-
port, then the judgment supports the conclusion beyond
further controversy. If, on the other hand, the judgment
merely tends to show that the existence or non-existence
of a fact is highly probable or highly improbable, it is
not conclusive respecting such existence.*
1 Mersereau V. Pearsall, ION. Y. 108. Conn. 417; Koon v. Mallctt, 68 Iowa,
2 Sewall «. Robbins, 139 Mass. IGi; 205; Shall v. Biscoe, 18 Ark. 142;
McCravey v. Remson, 19 Ala. 4.30; 54 Lawrence v. Hunt, 10 Wend. SO; 25
Am. Dec. 194; Dickinson v. Hayes, 31 Am. Dec. 539; Wahle v. Wahle, 71
§ 259 THE JUDGMENT AS AN ESTOPPEL. 468
During the trial of a cause, evidence may properly be
received of the existence or non-existence of facts which,
though they bear upon an issue and tend to show on
which side of it the truth is, are not, though conceded to
exist, necessarily conclusive. It is this class of facts which
the courts have usually intended to designate by the terms
"collateral," "incidental," or "not directly in issue," and
therefore as not being proved or disproved by the judg-
ment, though controverted at the trial, and perhaps passed
upon by court or jury and exercising a controlling effect
over the verdict and judgment. Still, if the judgment can
be correct, whether the fact in question exists or not, it is
not directly in ^issue, and therefore does not become res
judicata}
In determining what has been decided, and what has
therefore become a binding adjudication, the actual judg-
ment of the court must be consulted, and, so far as it
speaks, must be allowed to control. Its clear import can-
not be modified or controlled by the expressed opinions
of the judges by whom it was pronounced, nor by the
reasons urged by them in its support. In ascertaining
whether a particular matter has become res judicata, the
reasoning of the court is less to be regarded than the
judgment itself, and the premises which its existence
necessarily affirms.^
§ 259. Identity of Evidence. — The best and most in-
variable test as to whether a former judgment is a bar is
to inquire whether the same evidence will sustain both
111 570; Hymes v. Estey, 116 K Y. Hubbard i'. Flynt, 5S Miss. 266; Houser
501- 15' Am. St. Rep. 421; Dry den u v. Ruffner, 18 VV. Va. 244; Gilbert i>.
St Joseph etc. R. R. Co., 23 Kan. 525; Thompson, 9 Cash. 348; Doonan v.
Trimble v. Fariss, 78 Ala. 260. Glynn, 28 W. Va. 715; Beckwith
1 Henry v Davis, 13 W. Va. 230; v. Thompson, 18 W. Va. 103; Wood v.
Hymes v. Estey, 116 N. Y. 501; 15 Jackson, 8 Wend. 9; 22 Am. Dec. 603;
Am. St. Rep. 421; McKinney v. Cur- Lentz v. Wallace, 17 Pa. St. 412; 5o
tis 60 Mich. 611; Kidd v. Laird, 15 Am. Dec. 569.
Cal. 161; 76 Am. Dec. 472; Smith v. 2 McDonough's Succession, 24 La.
Sherwood, 4 Conn. 276; 10 Am. Dec. Ann. 34; Plicque w. Perret, 19 La. 318;
143; Cavanaugh V. Buehler, 120 Pa. St. Hill v. Bowman, 14 La. 445; Buckner
441; Stannard v. Hubbell, 123 N. Y. v. Calcote, 6 Cushman, 432.
520; Lorauce v. Piatt, 67 Miss. 183;
469 THE JUDGMENT AS AN ESTOPPEL. § 259
the present and the former action.* If this identity of
evidence is found, it will make no difference that the
form of the two actions is not the same.'^ Thus a judg-
ment for defendant in a suit for wheat cut and carried
aw^ay is a bar to an acjion of trespass quare clausum fregit
for cutting and carrying away the same wheat, because
the estoppel depends, not on the identity of the action, but
on the identity of the proofs.^ Whatever be the form of
action, the issue is deemed the same whenever it may in
both actions be supported by substantially the same evi-
dence.* If so supported, a judgment in one action is con-
clusive upon the same issue in any other suit, though the
cause of action is different.' But where, as in Missis-
sippi, an action of replevin must be brought within one
year, but an action in trover may be maintained at any
time within two years, a plaintiff, defeated in an action of
replevin because it was brought after one year from the
taking, may thereafter sustain trover for the same taking.
In both cases the evidence required to support the plain-
tiff's cause of action, though in most respects identical, is
not entirely so, because in the first action proof of taking
within a year is indispensable, while in the second action
such proof is entirely immaterial.^ On the other hand,
if different proofs are required to sustain two actions,
a judgment in one of them is no bar to the other. If the
evidence in a second suit between the same parties is
sufficient to entitle j)laintifif to a recovery, his right can-
not be defeated by showing any judgment against him in
1 Kitchen v. Campbell, 3 Wils. 304; * Ramsey v. Herndon, 1 McLean,
Clegg V. Dearden, 12 Q. B. 576; Crock- 450; Martin v. Kennedy, 2 Bos.
ettw. Ronton, Dud. (Ga.) 254; Hunter & P. 71; Duncan v. Stokes, 47 Ga,
V. .Stewart, 31 L. J. Ch. 346; Taylor v. 595.
Castle, 42 Cal. 371; Cannon v. Brame, ^ Johnson v. Smith, 8 Johns. 383.
45 Ala. 262; Percy v. Foote, 36 Conn. * Hitchin v. Campbell, 2 Black,
102; (Mayer v. Parker, 24 Neb. (543; 8 827; Outram v. Morewood, 3 East,
Am'. St. Pv-ep. 227; Dawley v. Brown, 346; Birkhead v. Brown, 5 Sand.
79 N. Y. 390; Riker v. Hooper, 35 Vt. 134.
457; 82 Am. Doc. 646; Gates v. Gore- * Doty v. Brown, 4 N. Y. 71; 53 Am.
ham, 5 Vt. 317; 26 Am. Dec. 303; Dec. 350.
Marsh v. Pier, 4 Rawle, 273; 26 Am. ® Johnson v. White, 13 Smedes & M.
Dec. 131. 584.
§ 259 THE JUDGMENT AS AN ESTOPPEL. 470
any action where the evidence in the present suit could
not, if offered, have altered the result/ Thus a judgment
against a vendor suing for purchase-money before it is
due, or against the payee of a note, in an action against
three, when the note was only the note of two, is no bar
to a subsequent suit in the first-named case after the
money is due, nor in the second case upon the note as
the note of two; for in neither of these cases could evi-
dence amply sufficient to maintain the second action
have had any influence in the first.^ For the same reason
judgment for defendant in an action on a note as a con-
tract to pay money is no bar to a suit against him on the
same note as a contract to pay money in foreign billsJ' Suit
was brought on a promissory note alleged to be lost, and
which was described as payable on demand, with interest
from date. The defendant pleaded a former judgment in
bar. In the previous suit the note was described as in
this, except that it was alleged to be payable one day after
date. It was held that as the issue joined in the former
suit would not have permitted plaintiff to recover upon
proof of a note payable on demand, the former judgment
was not a bar.* An account stated operates as a change
of the original indebtedness, and is in the nature of a new
undertaking. An action upon it is not founded on the
original items, but upon a balance ascertained by the
mutual understanding of the parties.^ Therefore if in an
action on a contract the defendant introduces in evidence
a judgment roll showing that plaintiff had previously com-
menced an action, setting forth the same contract, and
alleging that a specified sum was due as an account stated,
' Gordon t). State, 71 Ala. 315; Cleary Scriver v. Eckenrode, 87 Pa. St. 213;
V. Folger, 84 Cal. 316; IS Am. St. Rep. Whaley v. Stevens, 24 S. C. 479.
187; Florida S. R'y v. Brown, 23 Fla. ^ Kirkpatrick v. Stingley, 2 Cart.
106; Ireland!). Emmersou, 93Ind. 1; 47 273; N. E. Bank v. Lewis, 8 Pick. 113;
Am. Rep. 364; Stringer v. Adams, 98 United States v. Cushman, 2 Sum. 426;
Ind. 5.39; Ballon v. Billings, 136 Mass. Lawrence v. Vernon, 3 Sum. 20,
307; Nichols v. Marsh, 61 Mich. 509; ^ jo^eg v. Fales, 4 Mass. 255.
Kirkpatrick v. McElroy, 41 N. J. Eq. * Jones v. Fales, 4 Mass. 255.
539; Marsh v. Masterson, 101 N. Y. * Pattison t). Jones, 27 lud. 457.
401; Belden v. State, 103 N. Y. Ij
471 THE JUDGMENT AS AN ESTOPPEL, § 260
in which action defendant prevailed, this recovery is no
bar to the present suit. In deciding this j^oint the court
said: *' A judgment is a bar, if the cause of action be the
same, though the form be different. The cause is the
same when the same evidence will support both actions;
or rather, the judgment in the former action will be a
bar, provided the evidence necessary to sustain the judg-
ment for plaintiff in the present action would have au-
thorized a judgment for him in the former. The present
action would have been sustained upon j^roof of a contract
and the performance on the part of plaintiff, and non-
payment by the defendants. This proof would not have
sustained the former action. Therefore the judgment is
not a bar." *
§ 260. Merits. — The estoppel arising from a judgment
or decree is not odious because it is confined to those
points which either were in fact litigated and determined
between the parties or which were determined in the ab-
sence of any actual contest, but not until after a full legal
opportunity was given both parties to make such contest
as they might deem proper. It follows from this that no
judgment can be available as an estoppel, unless it is a
judgment on the merits} But an occasional difficulty may
arise in deciding what is a judgment on the merits as
the term is generally employed by judges and lawyers.
To create such a judgment, it is by no means essential
that the controversy between plaintiff and defendant be
» Taylor r. Castle, 42 Cal. 371. So Mo. .360; Houston v. Mnsgrove, 35
a note offered in evidence in an action Tex. 594; Verhein v. Strickhein, 57
on an account stated, and rejected be- Mo. 326; Mosby v. Wall, 23 Miss. 81;
cause not admissible in that form of 55 Am. Dec. 71; Dixon v. Sinclair, 4
action, maybe subsequently recovered Vt. 354; 24 Am. Dec. 610; Carson v.
upon an action thereon in proper form: Clark, 1 Scam. 113; 25 Am. Dec. 79;
Lindell v. Leggett, 1 Mo. 432; 14 Am. Gould v. Railroad, 91 U. S. 526; Pep-
Dec. 298; and a failure to recover per ?'. Donnelly, 87 Ky. 259; Detroit
against one as a common carrier does v. HouL;hton, 42 Micii. 459. Judg-
not shield him from liability as aware- mcnt by consent for defendant after a
houseman: Kronshage v. C, M., & St. plea in abatement has been sustained
P. R'y Co., 45 Wis. 500. is not on the merits: Jordan r. Siefert,
2 Taylor v. Larkin, 12 Mo. 103; 49 126 Mass. 25.
Am. Dec. 119; Bell v. Hoaglaud, 15
§ 260 THE JUDGMENT AS AN ESTOPPEL. 472
determined "on the merits," in the moral or abstract
sense of those words. It is sufficient that the status of
the action was such that the parties might have had their
lawsuit disposed of according to their respective rights,
if they had presented all their evidence, and the court
had properly understood the facts and correctly applied
the law.^ But if either party fails to present all his proofs,
or improperly manages his case, or afterward discovers ad-
ditional evidence in his behalf, or if the court finds con-
trary to the evidence, or misapplies the law, — in all tliese
cases the judgment, until corrected or vacated in some
appropriate manner, is as conclusive upon the parties
as though it had settled their controversy in accordance
with the principles of abstract justice. Frequent in-
stances occur tending to convince us of the unwelcome
truth that many judgments which in law are regarded as
being "on the merits" are in fact repugnant to any dis-
position of the rights of the parties "on the merits," as
those words are employed in relation to the ordinary
affairs of men. If in an action on a judgment the plea
of nul tiel record is interposed, and the plaintiff fails ow-
ing to a defect in the certificate, he is estopped from
afterward asserting the judgment, though its validity
is free from doubt.^ Assignees of a bankrupt, failing in
a suit because they cannot prove an act of bankruptcy
sufficiently early, cannot afterward maintain an action for
the same demand, though they secure evidence for want
of which they suffered the former defeat.^ A former suit,
in which the defendant recovered on the erroneous ground
that the cause of action had not then accrued, is a bar to
a further prosecution.^ A plaintiff sued on a recognizance,
> Hughes V. United States, 4 Wall. Keene v. Clark, 5 Eob. (N. Y.) 38;
232; Lore v. Truman, 10 Ohio St. 45; Kenan v. Miller, 2 Kelly, 325; Rogers
Birch V. Funk, 2 Met. 544; Johnson v. v. Higgins, 57 111. 244; Parker v.
"White, 13 Smedes & M. 584; Agnew Clift. 9 Lea, 524.
V. MeElroy, 10 Smedes & M. 552; 48 ^ Foltz v. Prouse, 15 111. 434.
Am. Dec. 772; Brackett v. Hoitt, 20 » Stafford v. Clark, 1 Car. & P.
N. H. 257; Van Vleet v. Olin, 1 Nev. 403.
95; Wilbur v. Gilmore, 21 Pick. 250; * Morgan v. Plumb, 9 Wend. 287.
473 THE JUDGMENT AS AN ESTOPPEL. § 260
"but failed in his suit because he did not prove that the
recognizance had been filed as required by statute. It
was held that the judgment precluded him from after-
ward alleging or proving that the filing existed prior to
the former suit.^ Certain justices, having jurisdiction to
act, allowed several accounts, without giving them any-
particular consideration, supposing that several impor-
tant matters of law were involved, and that an appeal lay
to the quarter sessions. But it w^as decided that no such
appeal could be taken. The justices, after the decision,
were anxious to hear the matter on the merits. A man-
damus being applied for to compel them to do so. Lord
Denman, C. J., said: "We think we have no power to
issue this mandamus to the justices to hear and decide
upon the allowance of accounts, they having already done
so, though under a mistaken notion that an appeal lay to
the sessions, and though they are now anxious to enter
on the merits of the case. To unravel the grounds and
motives which may have led to the determination of a
question once settled by the jurisdiction to which the law
has referred it would be extremely dangerous; but many
authorities prove that it is beyond our own competency,
and there is none to the opposite effect."^
The most familiar instances of judgments not on the
merits are those entered for some defect in the pleadings,
preventing the plaintiff from putting in evidence his cause
of action,^ or in favor of the defendant upon some tempo-
rary defense or plea in abatement,^ or because the action
was prematurely brought, either before the debt sued upon
became due, or before the plaintiff had made some demand
or done some other act necessary to perfect his cause of
action.^
' People V. Smith, 51 Barb. 360. * Atkins v. Anderson, 63 Iowa, 739;
" Regina v. Yorkshire, 1 Ad. & E., Garrett v. Greenwell, 92 jMo. 120.
N. S., 625. " Roberts v. Norris, 67 Ind. 3S6;
3 Docter w. Furch, 76 Wis. 153; Rod- Walbridge v. Shaw, 7 Cush. 560;
man v. Michij^an C. Pi-. R. Co., 59 Boyer v. Austin, 54 Iowa, 402; Crosby
Mich. 31)5; Florida S. R. R. Co. v. v. Baker, 6 Allen, 295; Mortou v.
Brown, 23 fla. 104. Sweetser, 12 Alien, 134.
§ 261 THE JUDGMENT AS AN ESTOPPEL. 474
§ 261. Judgments of Nonsuit/ of Non Prosequitur,- of
Nolle Prosequi/ of Dismissal/ and of Discontinuance ° are
exceptions to the general rule that when the pleadings, the
court, and the parties are such as to permit of a trial on
the merits, the judgment will be considered as final and
conclusive of all matters which could have been so tried.*
A nonsuit "is but like the blowing out of a candle, which
a man at his own pleasure may light again."' Under no
circumstances will such a judgment be deemed final,
whether entered before or at the trial.* That such judg-
ment was entered by the court upon an agreed statement
of facts will not give it any force as an estoppel.^ A judg-
ment of nonsuit was entered against plaintiff on a certain
count of his complaint for not replying to a special plea
within the time required by the court. The effect of the
judgment was held to be to turn plaintiff out of court, and
to place him, as to such count, as though it had never
been filed.^° The dismissal of a claim against an insolvent
1 Baudin v. Roliff, 1 Martin, N. S., * Harvey v. Large, 51 Barb. 222;
165; 14 Am. Doc. 181; Daggett v. Audubon v. Excelsior Ins. Co., 27
Robins, 2 Blackf. 415; 21 Am. Dec. N. Y. 216; People v. Vilas, 36 N. Y.
752; Lowry v. McMillan, 8 Pa. St. 157; 459; 93 Am. Dec. 520; Baudin v. Roliff,
49 Am. Dec. 501; Fleming v. Hawley, 1 Martin, N. S., 165; 14 Am. Dec. 81;
65 Cal. 492; Pendergrass v. York Mfg. Dana v. Gill, 1 J. J. Marsh. 242; 20
Co., 76 Me. 509; Holmes v. Chicago Am. Dec. 255; Harrison v. Wood, 2
etc. R. R. Co., 94 111. 439; Cheeriey v. Duer, 50; Merchants' Bank Ass'n v.
Cooper, 14 Neb. 415; Manhattan L. I. Mariposa Co., 7 Robt. 225. With re-
Co. V. Broughton, 109 U. S. 121; More- spect to judgments of dismissal other
land V. Gardner, 109 Pa. St. 116. than those entered by agreement, see
2 Howes V. Austin, 35 111. 412. Wheeler v. Ruckman, 51 N. Y. 391;
3 Lambert y. Sandford, 2 Blackf. 137; Kelton v. Jacobs, 5 Baxt. 574; Brown
18 Am. Dec. 149. v. Kirkbride, 19 Kau. 588; Wanzer v.
* Jones V. Graham, 36 Ark. 383; Self, 80 Ohio St. 378.
Roberts v. Hamilton, 56 Iowa, 683; ' March on Arbitraments, 215;
Hebler v. Shipp, 78 Ky. 64; Boyrg v. cited in Clapp v. Thomas, 5 Allen,
Gerding, 33 La. Ann. 1369; Craver 158.
V. Christian, 34 Minn. 897; Philpott v. « Foster v. Wells, 4 Tex. 101; Pillow-
Brown, 16 Neb. 387; Hughes?;. Walker, V. Elliott, 25 Tex. Supp. 322; Taylor
14 Or. 481; Bigleyit. Jones, 114 Pa. St. v. Larkin, 12 Mo. 103; 49 Am. Dec.
610; Fowlkes v. State, 14 Lea, 14; 119; Greely v. Smith, 1 Wood. & M.
Jackson v. Elliott, 49 Tex. 62; Ben- 181.
ware v. Pine Valley, 53 Wis. 527. ^ Homer v. Brown, 16 How. 354;
^ Phelps V. Winona etc. R. R. Co., Bridge i'. Sumner, 1 Pick. 371; Morgan
37 Minn. 485; 5 Am. St. Rep. 867; v. Bliss, 2 Mass. 113; Derby «. Jacques,
Gibson v. Gibson, 20 Pa. St. 9; Lord 1 Cliff. 425; Knox v. Waldoborough, 5
V. Chadbourne, 42 Me. 429; 66 Am. Me. 185.
Dec. 290; Muse v. Farmers' Bank, 27 ^® Howes v. Austin, 35 111. 396.
Gratt. 252.
475 THE JUDGMENT AS AN ESTOPPEL. § 261
estate for want of proof has the same effect in Louisiana
as a nonsuit, and will not support the plea of res judicata}
If, upon a trial before a justice of the peace, he expresses
an opinion against the plaintiff, who thereupon withdraws
his suit and pays the costs, this is but a dismissal of his
suit, not affecting any future action.^ Parol evidence will
not be admitted to show that a cause was tried upon the
merits, but that the justice entered a judgment of nonsuit
because he supposed he could not enter any other.* In
New York it is the duty of a justice of the peace before
whom a cause has been tried and submitted to determine
it. He cannot evade this duty by entering a judgment of
nonsuit. If he attempts to do so, his judgment may be
reversed upon appeal.* The prosecution of an appeal in
such a case seems to be an idle ceremony, because the de-
fendant is entitled to treat the judgment as a final adjudi-
cation upon the merits. " If the cause be submitted to
the justice, and he take time to make up his judgment,
the plaintiff cannot then voluntarily submit to a nonsuit.
The case is sub judice upon the merits, and must be disposed
of upon the merits; and I apprehend it is not then in the
power of the justice to nonsuit the plaintiff. His deter-
mination of the case is equivalent to a verdict of a jury
and a judgment thereon; and although he may call his
judgment a judgment of nonsuit, and enter it accordingly,
if the record or minutes of the trial show that it was ren-
dered after the cause was submitted to him, and after he
took time to deliberate, and not at the trial, it will be con-
sidered a judgment for the defendant, and will be a bar
to any subsequent action." ^ But it seems to be well es-
tablished in the same state that the fact that the cause
w^as submitted for judgment must appear from the docket
and minutes of the justice; and that when he has entered
' Allinet v. Creditors, 15 La. Ann. Hess v. Beekman, 11 Johns. 457;
130. Peters v. Diossy, 3 E. D. Sniitli, 115.
■•* Jones V. Walker, 5 Yerg. 428. ^ Elwell v. McQueen, 10 \Vena. 522;
» Brintnall v. Foster, 7 Wend. 103. Gillilaa v. Spratt, 8 Abb, Fr., N. S.,
♦ Young V. Hubbell, 3 Johns. 430; 15.
§ 261 THE JUDGMENT AS AN ESTOPPEL. 476
a judgment of nonsuit, it is not competent, for tlie pur-
pose of showing that the decision was upon the merits, to
put him upon the stand as a witness, and have him state
the circumstances preceding the entry of the judgment.
"It would be dangerous to permit an inquiry into the
evidence and proceedings of a trial before the justice to
show that the kind of judgment rendered by him was not
such as he ought to have rendered, and to give effect to it
as it should have been, rather than as it is." ^ A judg-
ment was reversed upon appeal to the supreme court, and
the cause remanded for further proceedings. The plain-
tiff, afterward becoming nonsuit, was allowed to bring
another action, on the ground that the rule in reference
to nonsuits was not altered by the cases having been in
the appellate court.^ "A dismissal or nonsuit not deter-
mining the rights of the parties cannot support the plea
of res adjudicata. Nor will the reasoning and opinion of
the court upon the subject, on the evidence adduced be-
fore it, have the force and effect of a thing adjudged,
unless the subject-matter be definitely disposed of by the
judgment."^ "At common law there is no form of an
entry in the books of a judgment dismissing an action.
Every judgment against a plaintiff is either upon a retraxit,
non prosequitur, nonsuit, nolle prosequi, discontinuance, or
a judgment on an issue found by jury in favor of defend-
ant, or upon demurrer. The inducements or preliminary
recitals in these several kinds of judgment are variant,
but the conclusion in each is alwa;^s the same; it is as
follows: 'Therefore it is considered by the court that
plaintiff take nothing by his writ, and that the defendant
go without day, and recover of plaintiflp his costs.' Of
these several judgments, none but a retraxit or one on the
merits will bar subsequent actions."* In some of the
states, judgments of dismissal seem to be entered after
hearing and determining a cause on its merits, and are
» Brintnall v. Foster, 7 Wend. 104. » Fisk v. Parker, 14 La. Ann. 491.
2 Holland v. Hatch, 15 Ohio St. 464. * Bond v. McNider, 3 Ired. 440.
477 THE JUDGMENT AS AN ESTOPPEL. §§ 261 a, 262
equivalent to a general judgment in favor of the defend-
ant. Where this practice prevails, if a judgment of dis-
missal appears to have been given after the trial and
submission of the cause on the merits, it is res judicata.^
§ 261 a. The Defendant's Motion for a Nonsuit is a
Waiver of his right to have judgment upon the merits,
and also of his right to litigate new matter set up in his
answer, and upon which he has demanded affirmative
relief. In an action to quiet title, the court, on motion
of defendant, ordered a nonsuit. He then offered to prove
the new matter alleged by him, but the court refused to
hear the evidence. This refusal, having been made the
ground of an appeal, was sustained by the appellate court
on the following grounds: "A defendant, conceiving that
the plaintiff has failed to prove his case, may waive a
motion for a nonsuit, and proceed to prove his own case,
and have judgment on the merits. But if he move for
a nonsuit, and the nonsuit be granted, he cannot proceed
and have judgment on the merits, because, by reason of
the nonsuit, the plaintiff is virtually out of court. A non-
suit granted on the motion of the defendant is equivalent,
in its operation on the action, to a dismissal with the
consent of the defendant."^
§ 262. Retraxit and Dismissal by Agreement. — Re-
cently the supreme court of California considered the
effect of a judgment of dismissal entered by agreement.
Such a judgment was compared to that of a retraxit at
common law, and the court were of the opinion that, like
a retraxit, " such a dismissal, when had by such consent,
amounts to the open and voluntary renunciation of a suit
pending." The court adopted the language of Chief Jus-
tice Robinson of Kentucky, as follows: "It has frequently
been decided by this court that the legal deduction from
^ Bestr. Hoppie, 3 Col. 137; Brothers v. Erwin, 33 La. Ann. 615; Amory v,
V. Higgins, 5 J. J. Marsh. 658; Granger Amory, 26 Wis. 152.
V. Singleton, 32 La. Ann. 898; Bledsoe * Wood v. Ramond, 42 Cal. 644.
§ 262 THE JUDGMENT AS AN ESTOPPEL. 478
a judgment dismissing a suit 'agreed' is, that the parties
had, by their agreement, adjusted the subject-matter of
the controversy in that suit; and the legal effect of such a
judgment is, therefore, that it will operate as a bar to any
other suit between the same parties, on the identical
cause of action then adjusted by the parties, and merged
in the judgment therein rendered at their instance and
in consequence of their agreement."^ These decisions
are not intended to conflict with the rules universally
understood as applying to voluntary dismissals in the
absence of an agreement. To avoid all misapprehension
on this subject, the court in California said: "We are not
to be understood as holding that a mere dismissal of an
action by the plaintiff under the statute, and without any
agreement upon his part to do so, is to be held to consti-
tute a bar to its renewal, nor that a judgment of nonsuit,
even entered by consent, would have that effect, but only
that a judgment of dismissal, when based upon and entered
in pursuance of the agreement of the parties, must be un-
derstood, in the absence of anything to the contrary ex-
pressed in the agreement, and contained in the judgment
itself, to amount to such an adjustment of the merits of
the controversy, by the parties themselves, through the
judgment of the court, as will constitute a defense to
another action afterward brought upon the same cause of
action."^ That the dismissal of an action by agreement
is equivalent in its effect to a retraxit is now generally
conceded;^ and a retraxit has always been deemed a judg-
ment on the merits against the plaintiff, estopping him
from subsequently maintaining an action for the cause
renounced by his retraxit.^
^ Bank of Commonwealth t?. Hopkins, This effect was denied to a judgment
2 Dana, 395. See also Jarboe ii. Smith, of "dismissed agreed" in an action of
10 B. Men. 257; 52 Am. Dec. 541; ejectment: Stockton v. Copelaud, 30
Phillpotts?;. Blaisdel, lONev. 19; Hoo- W. Va. 674.
ver V. Mitchell, 25 Gratt. 387. Contra, * Coffman v. Brown, 7 Smedes & M.
Hoffman v. Porter, 2 Brock. 156. 125; 45 Am. Dec. 299; Lowry v. Mc-
2 Merritt v. Campbell, 47 Cal. 542. Millan, 8 Pa. St. 157; 49 Am. Dec. 501;
3 Crossman v. Davis, 79 Cal. 603; Cunningham v. Schley, 68 Ga. 105;
United States v. Parker, 120 U. S. 89; Harris v. Preston, 10 Ark. 201; Craw-
Wohlford V. Compton, 79 Va. 333. ford v. Glass, 11 Ired. 118.
479 THE JUDGMENT AS AN ESTOPPEL. §§ 263, 264
§ 263. Judgments not on Merits. — Mr. Smith, in his
Leading Cases, divides those judgments which are not a
bar to another action, because not on the merits, into the
following classes: —
1. Where the plaintiff fails for want of jurisdiction in
the court to hear his complaint or to grant him relief;
2. Where he has misconceived his action;
3. Where he has not brought the proper parties before
the court;
4. Where the decision was on demurrer, and the com-
plaint in the second suit sets forth the cause of action in
proper form;
5. Where the first suit was prematurely brought;
6. Where the matter in the first suit is ruled out as in-
admissible under the pleadings.^
§ 264. Want of Jurisdiction. — There can be no doubt
that the dismissal of an action for want of jurisdiction is
not a judgment on the merits, and cannot prevent the
plaintiff from subsequently prosecuting his action in any
court authorized to entertain and determine it.^ Nor can
a judgment of a court having no jurisdiction to enter it
create an estoppel for or against any one, whether it pur-
ports to be on the merits or not.* In Massachusetts, a
widow may present her petition to the probate court to
have her homestead set off from the rest of the estate of
her deceased husband. If, however, the heirs dispute
her claim, the court is ousted of all further jurisdiction in
the matter, and the issue formed between her and the
heirs must be tried in some other court. But a widow
having presented her petition, and the heirs having filed
their opposition, the probate court proceeded to hear the
' Smith's Lead. Cas. 673. ^ Blin v. Campbell, 14 Johns. 432;
« Smith V. McNeil, 109 U. S. 426; Offutt r. Offutt, 2 Har.'& G. ITS; Schin-
Roberts v. Hamilton, 56 Iowa, 68H; dell v. Smiiaii, 13 Md. 310; State v.
Smith V. Adams, 24 Wend. 585; Green 0<lell, 4 Bluckf. 156; Comnmnwealtb
V. United States, 18 Ct. of CI. 93; Keo- v. Peters, 12 Met. 387; Thompson w.
kuk etc. R'y Co. t;. Douuell, 77 lovva, State, 6 Neb. 102.
221.
§ 265 THE JUDGMENT AS AN ESTOPPEL. 480
matter as though it had jurisdiction, and after a trial, in
which all the parties in interest participated, entered a
decree denying the petition, on the ground that the peti-
tioner had no homestead right. In proceedings before a
court of competent jurisdiction, she afterward sought to
assert her claim to the homestead. It was opposed on the
ground that by the decree of the probate court her rights
had been terminated. But the supreme court, in consid-
ering the effect of the decree, said: "It is then further
urged that if this be so, yet it is not competent for the
tenant, who was the petitioner to the probate court, to set
up want of jurisdiction in reply to the plea in bar in this
suit, even if it might have availed her in the probate court
or on an appeal. But we think this an erroneous view of
the matter, and that these judgments of the probate court
are to be treated as wholly void. They would have been
so if in her favor, and they ought to have no more effect
having been against her." ^ While a court may have
jurisdiction of the parties to the action, and for certain
purposes or to a certain extent may be authorized to de-
termine some of the issues in controversy, yet if it goes
beyond the bounds of its authority, its decision as to these
matters not within its jurisdiction cannot acquire the
force of res judicata?
§ 265. In Misconceived Actions. — The second subdi-
vision includes all judgments rendered on the ground
that conceding the plaintiff to have a cause of action upon
which he is entitled to a remedy, yet he is not entitled to
so recover under the remedy or form of action which he
has chosen.' The exception which takes these cases out
of the general rules in relation to estoppel is a very im-
portant one, saving the plaintiff from the loss of his claim,
through any error of judgment on the part of his attorney
in determining what form of action is best suited for the
1 Mercier v. Chace, 9 Allen, 242. ^ Basom v. Taylor, 39 Mich. 682;
« Houston V. Musgrove, 35 Tex. Kittredge v. Holt, 58 N. H. 191;
594. Charles v. Charles, 13 S. C. 385.
481 THE JUDGMENT AS AN ESTOPPEL. § 266
enforcement of the plaintiff's rights.* Wherever the adop-
tion of a code of civil procedure has obviated the neces-
sit}^ of choosing between different forms of action, the
number of cases in which plaintiffs will be obliged to in-
voke the protection of this exception will be much less
than if the common-law rules were still in force. If, by
mistake, plaintiff brings trespass instead of trover, and
judgment is given against him o?i that account, the de-
fendant cannot successfully assert it as a bar to a subse-
quent action of trover.'^ If a defendant, in an action
against him on a promissory note, obtains judgment on a
plea of infancy, the note being given by him for a chattel
which he had obtained through fraud, and had refused to
deliver to the owner on demand, an action in tort may
still be maintained for the conversion of the chattel.^ A
plaintiff who, bringing an action of replevin for a sum of
money, is defeated in that action because it lies to recover
only things existing in specie, is not estopped by the judg-
ment against him from prosecuting a subsequent action
as upon the contract for the same sum of money. The
former judgment is conclusive that the defendant did not
have the specific money; but it does not determine whether
he is liable for money had and received.*
§ 266. Defect of Parties. — A judgment given because of
a misjoinder or non-joinder of parties plaintiff or defend-
ant, or because of the want of capacity of a party plaintiff
or defendant to sue or to be sued, establishes nothing but
such defect or incapacity, and cannot defeat a subsequent
suit in which the vice causing the former judgment does
not exist.' If, however, though there was a defect in the
» Foster v. Wells, 4 Tex. 101; Liver- Richards, 36 Minn, 111; Weinberger
more v. Herschell, 3 Pick. 33; Wyman v. Merchants' Ins. Co., 41 La. Ann. .31;
V. Dorr, 3 Greenl. 185. Tierney v. Abbott, 4G Wis. 329; St.
2 Chitty's Pleading, 198. Homes v. Levee Cotton Press Co., 127
8 Walker V. Davis, 1 Gray, 506. U. S. 614; Robbins v. Wells, 1 Rob.
* Sager v. Blain, 44 N. Y. 445. (N. Y.) GG6; Corl v. Riggs, 12 Mo. 430;
*McCall«. Jones, 72 Ala. 368; Tif- Wheeler v. Ruckman, 7 Rob. (N. Y.)
fany v. Stewart, 60 Iowa, 207; Smith 447; 35 How. Pr. 350; Whiter. Gaines,
V. Auld, 31 Kan. 262; Richardson v. 29 La, Ann. 769.
JUDG. I. — 31
§ 267 THE JUDGMENT AS AN ESTOPPEL. 482
parties, the action was tried and determined on the merits,
the force of the judgment as an estoppel is not lessened
by such defect/
§ 267. Judgments on Demurrer. — A judgment on de-
murrer to the plaintiff's complaint is conclusive of every-
thing necessarily determined by it. If the court decides
that plaintiff has not stated facts sufficient to constitute
a cause of action, or that his complaint is otherwise liable
to any objection urged against it, such decision does not
extend to any issue not before the court on the hearing
of the demurrer. It leaves the plaintiff at liberty to
present his complaint in another action so corrected in
form or substance as to be no longer vulnerable to the
attack made in the former suit.^ But a judgment upon
demurrer may be a judgment on the merits. If so, its
effect is as conclusive as though the facts set forth in
the complaint were admitted by the parties or estab-
lished by evidence submitted to the court or jury. No
subsequent action can be maintained by the plaintiff if
the judgment is against him, on the same facts stated in
the former complaint.''' If any court errs in sustaining a
demurrer and entering judgment for defendant thereon,
when the complaint is sufficient, the judgment is never-
theless *'on the merits." It is final and conclusive until
reversed on appeal. Until then the plaintiff cannot dis-
regard it and maintain another action. The effect of a
judgment still in force is never diminished on account of
any mistake of law on which it is founded.* A judgment
in favor of defendant on demurrer to an answer is a bar
J Gerardin v. Dean, 49 Tex. 243. ' Clearwater r. Meredith, 1 Wall. 25;
» Robinson v. Howard, 5 Cal. 428; Aurora City v. West, 7 Wall. 82; Now-
Gerrish v. Pratt, 6 Minn. 5.3; Oilman Ian v. Geddes, 1 East, 634; Bouchaud
V. Rives, 10 Pet. 298; Nickelson v. r. Dias, 3 Denio, 244; Goodrich r. City,
Ingram, 24 Tex. 630; Birch v. Funk, 2 5 Wall. 573; Perkins v. Moore, 16 Ala.
Met. (Ky.) 544; Wells v. Moore, 49 17; Gould v. Evansville etc. R. R.
Mo. 229; Spicer v. United States, 5 Co., 91 U. S. 526; Felt v. Turnure,
Nott& H. 34; Gould v. Evansville etc. 48 Iowa, 397; Nispel v. Laparle, 74111.
R. R. Co., 91 U. S. 526; Stowell v. 306.
Chamberlain, 60 N. Y. 272; Bounifield * Vallaadingham v. Ryan, 17 111.
V. Price, 1 Wyo. Ter. 223. 25.
483 THE JUDGMENT AS AN ESTOPPEL. § 267
to a subsequent suit for the same cause of action.^ If a de-
murrer is interposed to a good plea in bar, it will estop the
plaintiff, though his declaration is defective, because his
demurrer confesses the grounds of^ defense.^ Although an
answer has been filed, yet if judgment is entered against
plaintiff upon the pleadings for defects in his complaint,
this, like judgment upon demurrer, is no bar to a sub-
sequent suit in which the cause of action is sufficiently
set forth.* If a demurrer is overruled, and a judgment
thereupon entered, it is on the merits, and is necessarily
conclusive, in favor of the party against whom the de-
murrer was interposed, of the material facts confessed
thereby, and that they entitle him to the relief given.
The judgment is as effective as an estoppel as though the
facts had been put in issue and established by a verdict.*
If, on the other hand, a demurrer is sustained and a judg-
ment entered thereon, this is a decision that upon the
facts stated in the complaint the plaintiff is not entitled
to recover. To that extent it is upon the merits, and he
must necessarily fail in every subsequent action based
upon the same facts as those disclosed by his pleading
in the former action;^ but it may be that the plaintiff
had a good cause of action, and failed only because his
pleading did not allege all of the facts, or was otherwise
defective in form or substance. Then the question arises
whether he may, upon a proper and sufficient pleading,
recover in a second action. There are cases which pro-
ceed upon the theory that if a party, at the time of com-
mencing an action, has a good cause therefor, he must
allege it in his pleading, and that if he fails to do so and
» Wilson V. Ray, 24 Ind. 156. lumbia, 19 Ct. of CI. 445; Gray v. Gray;
2 Lampen v. Kedgewin, 1 Mod. 207. 34 Ga. 499; Carey v. Giles, 10 Ga. 9,
3 Gerrish v. Pratt, 6 Minn. 53. Parker v. Spencer, Gl Tex. 155; Boinar
♦Bissellv. Spring Valley, 124 U. S. v. Parker, 68 Tex. 435; Carlin v.
225; Coffin v. Knott, 2 G. Greene, 582; Brackett, .38 Miun. 307; Los Augeiea
52 Am. Dec. 537; Johnson v. Pate, 90 v. Melius, 58 Cal. 16; Felt v. Turner,
N. C. 334. 48 Iowa, 397; Woolley v. Louisville
* McLaughlin «. Doane, 40 Kan. 392; Banking Co., 81 Ky. 527; Francis v.
10 Am. St. Rep. 210; Parkes v. Cliff, Wood, 81 Ky. 16; Dixon v. Zadex, 59
9 Lea, 624; Brown v. District of Co- Tex. 529.
§ 268 THE JUDGMENT AS AN ESTOPPEL. 484
a demurrer to his complaint is sustained and a judgment
entered thereon, he cannot, in a subsequent action, by a
complaint not subject to the objections interposed in the
former action, recover for the same matters for which he
might have recovered in the first instance had he prop-
erly disclosed them in his pleading at that time.^ But
the decisions to the opposite effect are very numerous,
and establish, almost beyond controversy, that a judgment
sustaining a demurrer to a demurrable complaint cannot
be successfully pleaded in bar to a subsequent action in
which the complaint is perfect, though the plaintiff might,
had he chosen to do so, have made the same allegations in
the first action as in the second.^
§ 268. Premature Suits. — That a judgment obtained
for the reason that an alleged demand is not yet due is
no bar to an action brought on the same demand after it
has fallen due is a universally acknowledged rule appli-
cable to every case in which a judgment can be rendered
against any one because he has undertaken to assert a
claim which has yet to ripen into a cause of action.^ A
suit upon a bond before condition broken, in which plain-
tiff fails on that account to recover, is no bar to any ac-
tion brought against the same defendant after condition
broken." When a vendee brought an action to recover
money paid by him as purchase-money for a tract of land,
and failed because he had not yet been evicted, he was
allowed to maintain a subsequent action upon showing
1 Lamb v. McConkey, 76 Iowa, 47; Dayton, 10 Johns. 513; 10 Am. Dec.
Price V. Bonnifield, 2 Wyo. Ter. 80; 286; Keater v. Hock, 16 Iowa, 23;
Smith V. Hornsby, 70 Ga. 552; Ruegger Terry v. Hammond, 47 Cal. 32; Estep
V Indianapolis etc. R. R. Co., 103 111. v. Larsh, 21 Ind. 190; Los Angeles v.
449 Melius, 59 Cal. 444.
2 Moore v. Dunn, 41 Ohio St. 62; ^ ^j-app v. Eldridge, 33 Kan. 106;
Bonnifield v. Price, 1 Wyo. Ter. 240; Tracy v. Merrill, 103 Mass. 280; Dil-
Pritchard v. Woodruff, 36 Ark. 19G; linger v. Kelly, 84 Mo. 561; Maxwell
Grotenkemper v. Carver, 4 Lea, 375; v. Clarke, 139 Mass. 112; Woocl v.
Halcombec. Hey wood CountyComm'rs, Faut, 55 Mich. 185; Conn v. Bern-
89 N C. 346; Lockett v. Lindsay, 1 heimer, 67 Miss. 498; Brackett v. Peo-
Idaho, N. S., 324; Detrick v. Sharrar, pie, 115 111. 29; Garrett v. Greenwell,
95 Pa. St. 521; Rodman v. Michigan 92 Mo. 120.
etc. R. R. Co., 59 Mich. 395; Morrell * McFarlane v. Cushman, 21 Wia.
V. Morgan, 65 Cal. 575; Skinner v. 401.
485 THE JUDGMENT AS AN ESTOPPEL. § 269
his eviction since the former siiit.^ If a suit is brought
for several demands, some of which are due and others of
which are not due, and a general verdict is given for the
plaintiff, he may show in a second suit, for the demands
not due at the trial of the first suit, that though pre-
sented to the court or jury, they were disallowed because
not yet due.^ If from the record in the first suit it
appears that the demands were prematurely sued upon,
it will be presumed that they were on that account re-
jected by the jury, and that they form no part of the
judgment. But it may be shown that the demand, though
not due, was not objected to by the defendants, and was
allowed by the jury.^ Under the code the same answer
may present permanent defenses along with those of a
temporary nature. Thus to an action upon a draft, the
defendant may answer, — "1. That the draft is usurious;
2. That it is paid; and 3. That the suit is premature,
because defendant has not been allowed days of grace."
If this action should proceed to trial, resulting in a find-
ing in favor of the defendant upon each of these issues,
followed by a general judgment in his favor, such judg-
ment will be as conclusive in relation to the permanent
defenses of payment and usury as upon the temporary
defense in relation to the days of grace. If the plaintiff
believes that the findings are correct as to the tem-
porary, and incorrect as to the permanent, defenses, he
must, to preserve his rights, take such proceedings as
will enable him to overthrow the findings upon the per-
manent defenses, and to obtain a judgment without pre-
judice to a subsequent action.^
§ 269. Claims not Admissible. — Any claim of the
plaintiff which is offered by him, but is ruled out because
not admissible under his pleadings, is, if it luere not ad-
1 Hurst V. Means, 2 Sneed, 546. 155; Kane v. Fisher, 2 Watts, 246;
" Kane v. Fisher, 2 Watts, 246; Bull Yaldon v. Hubburd, Com. Rep. .321.
V. Hopkins', 7 Johns. 22. * Sheldon v. Edwards, 35 N. Y.
» Grouse v. Mdler, 10 Serg. & R. 279.
§ 270 THE JUDGMENT AS AN ESTOPPEL. 486
missible, to be afterward treated as though it had not been
oflPered.^ Not being involved in the issues, it cannot
become res judicata, unless, without objection by the
defendant or through error of the court, it is allowed
and becomes a part of the judgment. If, however, the
court erroneously rejects a claim as inadmissible, when
it should be admitted, this error must be corrected upon
appeal, and, until reversed, the judgment is conclusive
against the rejected claim. On the other hand, though a
cause of action or of defense is so imperfectly alleged that
the court ought to exclude evidence offered to support it,
yet if the court decides otherwise, and receives the evi-
dence when offered, and thereafter decides it to be insuf-
ficient, or to be overcome by countervailing evidence, the
decision is conclusive, and cannot be avoided on the ground
that the court erred in regarding the pleading as sufficient
to present the question upon which the evidence was
offered and received.^ Where a defendant in scire facias,
on 7iul tiel record pleaded, prevailed because the scire facias
stated the judgment to be against James H. Green, and
the record offered was against James Green, it was held
that this was no bar to a second scire facias? So an ac-
quittal upon an indictment charging the burning of the
barn of Josiah T. is no bar to a prosecution for burning
the barn of Josias T.*
§ 270. Dismissal of a Bill in Equity. — "The dismissal
of a bill in chancery stands nearly on the same footing as
a judgment at law, and will be presumed to be a final and
conclusive adjudication on the merits, whether they were
or w^ere not heard and determined, unless the contrary is
apparent on the face of the pleadings or in the decree of
the court."* Only two cases have come under our obser-
1 Baker v. Rand, 13 Barb. 152; Hard- * Commonwealth v. Mortimer, 2 Va.
ing V. Hale, 2 Gray, 399; De Graaf v. Cas. 325.
Wychoff, 118 N. Y. 1; Millard v. Mis- ^ 2 Smith's Lead. Cas. 667; Wilcox
souri etc. R. R. Co., 86 N. Y. 441. v. Balger, 6 Ohio, 406; Taylor v. Yar-
* Chouteau v. Gibson, 76 Mo. 38. borough, 13 Gratt. 183; Scully v. Chi-
' Benton v. Duffy, Cam. & N. 98. cago etc. R. R. Co., 46 Iowa, 528;
487 THE JUDGMENT AS AN ESTOPPEL. § 270
vation in whicb the decree dismissing a bill has not been
considered as necessarily final and conclusive/ while the
cases are numerous sustaining the view that such dis-
missal is a bar to any subsequent bill, unless it appears
on the record to have been made without prejudice, or
otherwise not on the merits.^ If in fact a decree is ren-
dered dismissing a bill because of some defect in the plead-
ings, or for want of jurisdiction, or because complainant
has an adequate remedy at law, or on any other ground
not involving the merits, it is the general practice, both
in England and in the United States, to state in the decree
that the dismissal is without prejudice; and the omission
of these words is an error which will be corrected upon
appeal.^ If a decree on its face dismisses a bill for
want of equity, its effect as res judicata cannot be avoided
by showing that the cause was not heard, but that the
plaintiff failed to appear, and the judgment was not on
the merits.* A dismissal of a libel for divorce in Massa-
chusetts stands on the same footing as the dismissal of a
bill in equity; and, unless it appears on its face to be
made "without prejudice," will be a bar to another libel
for the same cause.® Where the plaintiff did not in his
bill show any interest or liability requiring the aid or
Adams v. Cameron, 40 Mich. 506; The English rule seems to permit the
Cochran v. Couper, 2 Del. Ch. 27; complainant to show that the dismis-
Thompson v. Clay, 3 T. B. Mon. 359; sal of his bill was not on the merits,
16 Am. Dec. 108; Case v. Beauregard, although the record does not state it
101 U. S. 688; Strang v. Moog, 72 was "without prejudice": Beere v.
Ala. 460; McDonald v. Mobile L. I., Fleming, 13 I. R. C. L. 506; Long-
65 Ala. 358; Stickney v. Goudy, 132 mead v. JNlaple, IS Com. B., N. S.,
111. 213; Tilleyi'. Bridges, 105 111. 336; 255; 11 Jur., N. S., 177; 13 Week.
Knowlton v. Hanbury, 117 111. 471; Rep. 469; 12 L. T., N. S., 143.
Granger t?. SinLdetou, 32 La. Ann. 894; * Durant v. Essex Co., 7 Wall.
Parkes v. Clift, 9 Lea, 524; Murdock 107.
V. Haskill, 7 Baxt. 22; Blackinton v. * Lyon t-. Perin & G. Mfg. Co., 125
Blackinton, 113 Mass. 231; Pelton v. U. S. 698; Gove v. Lyford, 44 N. H.
Mott, 11 Vt. 148; 34 Am. Dec. 678. 525; Wilcox v. Badger, 6 Ohio, 400.
' Wright V. De Klyne, 1 Pet. C. C. Nor can the efifect of the decree be
199; Chase's Case, 1 Bland, 206; 17 avoided by showing that it was entered
Am. Dec. 277. in consideration of an agreement in
- Kelsey v. Murphy, 26 Pa. St. 78; writing made by plaiutiQ", and which
Perine v. Dunn, 4 Johns. Ch. 142; he has failed to perform: Hicks v.
Neafie v. Neafie, 7 Johns. Ch. 1; 11 Aylsworth, 13 R. L 502.
Am. Dec. 380; Foote v. Gibbs, 1 Gray, * Thurston v. Thurston, 99 Mass.
412; Parrish v. Ferris, 2 Black, 606, 39.
§ 270 THE JUDGMENT AS AN ESTOPPEL. 488
interference of a court of equity, and it was dismissed on
that ground, he will not be estopped from bringing a new
bill stating matters sufficient to authorize the action of
the court.' If a bill filed does not bring before the court
all the parties necessary for a proper determination of
the suit, but the bill, instead of being dismissed on that
account, is dismissed for want of equity, this is a bar to
any future bill seeking the same relief.'^ A bill to redeem
was filed. The defendant having answered, the plaintiff
failed to reply, and, without the knowledge of the defend-
ant, dismissed the suit. The defendant afterward had
judgment entered in his favor for costs. It was held, the
bill being dismissed without any restriction, that this was
a judgment on the merits, and as such it was a bar to any
future bill for the same cause.^ If a bill by a vendor seek-
ing a specific performance of a contract to purchase is
dismissed on account of some defect in his title, the doors
of courts of equity are, and ought to be, forever closed
upon him, though he may afterward be able to make a
good title. If the court intended to grant the complain-
ant further time, it should have continued the cause, and
thereby given him an opportunity to complete his title,
or should have dismissed the bill without prejudice.
In case it dismisses the bill generally, the right of the
vendor to compel a specific performance is thereby con-
clusively and perpetually negatived.* If the decree declares
the bill to be dismissed without prejudice, it leaves the
complainant free to prosecute another suit based upon
the same cause.^ A section of the law of the United
States in relation to patents provides that where two pat-
ents interfere, any person interested may apply in equity,
on notice to the adverse parties, and the court may adjudge
and declare either of the patents void, in whole or in part, or
1 Gist V. Davis, 2 Hill Ch. 335; 29 = Borrowscale v. Tuttle, 5 Allen, 377,
Am. Dec. 89; Emory v. Keighan, 88 * Hepburn v. Dunlop, 1 Wheat. 179.
III. 516; Gage v. Ewing, 114 111. 15. * Lang v. Waring, 25 Ala. 625; 60
Contra, Smith v. Hornsby, 70 Ga. 552. Am. Dec. 533; Nevitt v. Bacon, 32
2 Curts V. Trustees of Bardstown, 6 Miss. 212; 66 Am. Dec. 609; Magill v.
J. J. Marsh. 536. Mercantile T. Co., 81 Ky. 129.
489 THE JUDGMENT AS AN ESTOPPEL. § 270 a
inoperative and invalid in any particular part of the United
States.^ The effect of a decree entered, generally dismiss-
ing a bill brought before the court under this act, is not
equivalent to a judicial declaration that the patent of the
complainant is either inoperative or void. In announ-
cing this conclusion, the court, after suggesting that the
dismissal may have been ordered because the plaintiff did
not show that defendant violated his rights, or because
the defendant may have shown a license from the plain-
tifiP, said: "A judgment or decree under this statute cannot
be accepted as determining that point, unless it be direct
and affirmative in terms, and in the words of the statute.
The court must adjudge the patent void in v/hole or in
part, or inoperative and invalid in some particular part
of the United States. Had the decree asserted the inter-
ference of the patents, and declared either of them void,
that decree would have been conclusive.^
§ 270 a. A Bill may be Dismissed before the Hearing,
on the motion of the plaintiff, upon payment of costs.^
Such a dismissal has no higher effect as res judicata than
the voluntary dismissal of an action at law.* This rule
was applied where the cause had been set down for hear-
ing, but before the testimony was published the complain-
ant dismissed his bill.® In a case before Chancellor Kent,
the decree relied upon as a bar was one dismissing a
former bill, because no one appeared on the part of the
complainant at the hearing. The chancellor said: "The
merits of the former cause were never discussed, and no
opinion of the court has ever been expressed upon them.
It is, therefore, not a case within the rule rendering a
decree a bar to a new suit. The ground of this defense
> Patent Act, 1S3G, sec. ]6; 5 U. S. meath, 1 Beat. 174; Knox v. Brown, 2
Stats, at Large, 123. Brown Ch. 185.
* Tyler -y. Hyde, 2 Blatchf. 308. * VValden v. Bodloy, 14 Pet. IGO;
* Cummins v. Bennett, 8 Paige, 79; Conn. v. Penn., 5 Wheat. 427; Badger
Simpson v. Brewster, 9 Paige, 245; v. Badger, 1 Cliff. 241; Butchers' S. &
Carrington v. Holly, 1 Dick. 280; Cur- M. Ass'n v. Boston, 137 Mass. ISo;
tis V Lloyd 4 Mylne & C. 194; Lock Jourolmon v. Massengill, 86 Tenn. 81.
V. Nash, 2 iladd. 389; White v. Weat- " Badger v. Badger, 1 Cliff. 241.
§ 271 THE JUDGMENT AS AN ESTOPPEL. 490
by plea is, that the matter has already been decided, and
there has been no decision of the matter."^ But this
decision has since been overruled, on the ground "that
as the bill was dismissed after publication had passed, it
was the same thing, in legal effect, as though the cause had
been brought to a hearing on the pleading and proofs."^
The opinion of the chancellor thus overruled was doubt-
less correct, and is supported by the weight of authority.'
If the defendant at any time procures the dismissal of
the bill for want of prosecution, this is not a judgment
on the merits, and therefore not res judicata.* In fact, the
better opinion is, that a decree dismissing a bill is conclu-
sive only when it is, or from the language in which it is
expressed or the circumstances of its entry must be pre-
sumed to be, on the merits. After the cause has been set
down for final hearing it has been held that the com-
plainant has no power to dismiss it, and that his volun-
tary dismissal is equivalent to a judgment on the merits,
unless the chancellor orders it to be without prejudice;®
but this is not universally conceded. In some of the
states it has no greater force as res judicata than a judg-
ment of discontinuance at law.® If the bill is defective,
and a demurrer is sustained thereto, and final decree en-
tered therein, this will not preclude complainant from
recovering upon a subsequent and sufficient bill.^
§ 271. Immaterial Findings. — The effect of every judg-
ment or decree as an estoppel is restricted to such mat-
ters as might have been litigated under the pleadings.®
Thus if plaintiif, in an action in relation to real estate,
avers no title beyond his own life, the judgment rendered
1 Rosse V. Rust, 4 Johns. Ch. 300. Porter v. Vaughn, 26 Vt. 624; Curtis v.
2 Ogsbury v. La Farge, 2 N. Y. Lloyd, 4 Myliie & C. 194.
114; citing Byrne v. Frere, 2 Molloy, * Edgar v. Buck, 65 Mich. 356; Phil-
157. lips V. V^^ormley, 58 Miss. 398.
3 Baird v. Bardwell, 60 Miss. 164; '^Kemptonv.'Burgess, 136 Mass. 192.
Loudenback v. Collins, 4 Ohio St. 251; ^ Gage v. Ewing, 114 II . 15; Emory
Porter?;. Vaughn, 26 Vt. 624; Curtis z;. v. Koighan, 88 111. 516.
Lloyd, 4 Mylne & C. 194. « Town v. Lamphere, 34 Vt. 365;
* Baird v. Bardwell, 60 Miss. 164; Duncan v. Holcomh, 26 Ind. 378; Bur-
Loudenback v. Collins, 4 Ohio St. 251; dick v. Post, 12 Barb. 168.
491 THE JUDGMENT AS AN ESTOPPEL. § 271
in his favor is not conclusive as to any greater title than
he put in issue.* The agreement of the litigants that
matters not in issue may be given in evidence, and may
be determined by the verdict of the jury, will not enlarge
the effect of the judgment as an estoppel.'^ Nor can evi-
dence be admitted "to show a prior or contemporaneous
parol agreement between the parties, the effect of which
would be to materially vary the terms of the decree and
change the rights of the parties thereunder." A divorced
husband cannot, in a proceeding by his former wife to
obtain an allowance for the support of their child, show
that the decree of divorce was entered in pursuance of a
parol agreement, by the terms of which she was to pro-
vide for the child.*
The rule that no judgment or decree is conclusive of
anything not required to support it is not a mere rule of
construction employed in giving effect to an adjudication,
where the record fails to disclose what findings were
made. It is an unyielding restriction of the powers of
the parties, of the court, and of the jury. If the language
of a decree is general, it will be restrained to the issues
made in the case, and to the subject-matter under con-
sideration by the court." But if "a decree, in express
terms, purports to affirm a particular fact or rule of law,
yet if such fact or rule of law was immaterial to the issue,
and the controversy did not turn upon it, the decree will
not conclude the parties in reference thereto."^ The dec-
laration, in a decree, of the character of the title of one of
the parties, when the consideration of such character is
foreign to the case and unnecessary to its disposition, has
no force upon the parties or privies, nor upon any one
else, as an adjudication of title.' A special finding of a
' Bradford v. Bradford, 5 Conn. 127. ' Woodgate v. Fleet 44 N. Y 1 ;
» Campbell v. Consalus, 25 N. Y. People v. .Tohnso.i 38 N. Y. 63: 5
613; Wolfe v. Washburn, 6 Cow. 262; Trans App. 299; 97 Am. Dec 770;
Guest ,;. Warner, 9 Ex. 379. Hotchk.ss v. Nichols 3 Day, 1 38; Coit
3 Wilson V. Wilson, 45 Cal. 399. v. Tracy, 8 Conn. 268; 20 Am. Dec.
* Boavillain v. Bourg, 16 La. Ann. 110
ggg t- Fulton V. Haulow, 20 Cal. 450.
§ 272 THE JUDGMENT AS AN ESTOPPEL. 492
court or a verdict of a jury not confirmed by any judg-
ment of the court, nor involved in any general verdict,
cannot be relied upon on a trial before another or the
same jury, in the same or another suit, as proof of the
facts so found. It is only when such special finding has
become the basis of a judgment that the matters affirmed
or denied by it are res adjudicata.^ No record is conclu-
sive as to the truth of any immaterial allegations contained
in the pleadings. Thus in an action of debt on a bond,
it may be shown that the bond was made at A, though in
a former suit it was described as being made at B. A
conviction for felony, upon a general verdict, is never
conclusive that the offense was committed on the day
named in the indictment; for time was not of the essence
of the offense. And this rule will hold good in relation
to all facts stated in the pleadings of either party, whether
denied or admitted by his adversary, if the existence or
non-existence of those facts could have no effect upon the
final determination of the rights of the parties.^ The New
York court of appeals has, however, recently determined
that the acceptance of a judgment by confession for cer-
tain goods "as sold and delivered" by plaintiff to the de-
fendant is conclusive against the former in an action
against the husband of the former defendant for the con-
version of the same goods.^
Part III. —OF EVIDENCE TO ESTABLISH OR REBUT THE PRE-
SUMPTION OF RES JUDICATA.
§ 272. Whether Matter in Issue can be Shown to have
been Omitted. — We have shown that the rule excluding
from the conclusive effect of a final adjudication all of
those matters which were not material to the decision of
the controversy made by the pleadings is an inflexible rule.
> Hawks V. Truesdell, 99 Mass. 557; Bohn, 41 Minn, 235; Lorillardt;. Clyde,
Yeates v. Briggs, 05 111. 79; Bayliss v. 99 N. Y. 196.
Deford, 73 Iowa, 495; Wilson V. Stripe, ^2 Phillipps's Evidence, 4th Am.
4 G. Greene, 551; 01 Am. Dec. 138; ed., 2.
Auld V. Smith, 23 Kan. 65; Mitchell ^ yigi^ v. Bland, 21 Alb. L. J.
V. Insley, 33 Kan. 654; Woolsey v. 511.
493 THE JUDGMENT AS AN ESTOPPEL. § 272
It seems that there ought to be a rule the converse of
this, and equally inflexible, to the effect that there shall
be included in the conclusive effect of every final adju-
dication every matter material to the disposition of the
controversy as made by the pleadings, when the cause
is submitted for decision; and such, probably, is the
generally recognized rule at the present day. But it is
opposed by decisions which permit either the plaintiff or
the defendant, in certain cases, to show that a matter
asserted as a claim or as a defense by his pleading was
not attempted to be asserted by him at the trial. Thus
it has been said that " if a party attempt, on the trial of
his action, to prove a demand against the defendant, and
fail, he cannot set it up again on a second action; but if
he can clearly show that he omitted to give any evidence
of his demand in the action, he is not concluded from
doing so afterward." ^ In the case from which this quo-
tation is made, a plaintiff, having two demands, clearly
distinct, sued upon both, and obtained a default. In
executing the writ of inquiry, he gave evidence upon but
one of his demands, and recovered judgment accordingly.
In rendering a decision permitting a second action to be
maintained for the demand not allowed in the first. Lord
Kenyon said: "In truth, this is a question of great deli-
cacy. We must take care not to tempt persons to try
experiments in one action, and when they fail, to suffer
them to bring other actions for the same demand. The
plaintiff who brings a second action ought not to leave it
to nice investigation to see whether the two causes of
action are the same. He ought to show, beyond all con-
troversy, that the second is a different cause of action from
the first, in which he failed. In this case it is clearly
shown that this demand was not inquired into in the
former action." ^ " But if plaintiff, having several causes
1 Serldon v. Tutop, 6 Term Rep. G07; " Seddon v. Tutop, 6 Term Rep.
Thorpe v. Cooper, 5 Bing. 1K3; Deacon 607; Newell v. Carpenter, 118 Mass.
V. Great Western R'y Co. , 6 U. C. C. P. 41 1.
241; Hadley v. Green, 2 Tyrw. 390.
§ 272 THE JUDGMENT AS AN ESTOPPEL. 494
of action against the defendant, on the trial offers evi-
dence on these causes, and fails for want of sufficient
evidence to sustain some of them, he cannot bring another
action for those causes of action on which he failed.
Where the plaintiff fails to recover all that he is entitled
to for want of some proof on the first trial, he should
move to set aside the verdict that he has obtained."* But
so far as the plaintifif is concerned, most of the American
cases go further. They declare that he will not be al-
lowed to bring another action, because in the first he gave
no evidence of his demand;'^ that he will not be permitted
to reserve, or from any cause not to produce, part of his
evidence; and that the judgment will be conclusive as to
every matter which he could have proved in the first suit,
and which was not proved nor withdrawn.^ The defend-
ant, however, although his pleadings present a claim,
need not give evidence in its support, unless it is one
which he is compelled to present and litigate in that
action. Thus where a defendant, sued for the price of
a horse, set up as a defense a breach of warranty of
soundness of the horse, and failed to appear at the trial,
and judgment was rendered against him, he was allowed
afterward to recover of the plaintiff for the same breach
of warranty, because this was an affirmative cause of
action which defendant had a right to litigate as a plain-
tiff. In cases like this, the question whether the claim
was presented and submitted as a defense may be settled
by proof at the trial of the second action. But if the
claim is specifically embraced in the pleadings, the pre-
sumption is, that it was presented at the trial, and con-
sidered in the rendition of the judgment.* If a court
erroneously rejects evidence, offered to prove a claim or
defense, on the ground that it is inadmissible, such claim,
» Stafford v. Clark, 2 Bing. 377; v. Miller, 20 Tex. 579; Tate's Ex'r v.
Brockway v. Kinney, 2 Johns. 210; Hunter, 3 Strob. Eq. 136; Barrett v.
McGuinty v. Herrick, 5 Wend. 240. Failing, 8 Or. 152.
2 Ramsey u Herndon, 1 McLean, 450. * Burwell v. Knight, 51 Barb. 267;
s Baker v. Rand, 13 Barb. 152; Fisk McDaniel v. Fox, 77 111. 343.
495 THE JUDGMENT AS AN ESTOPPEL. § 272
nevertheless, on rendition of the judgment, becomes res
judicata, and so remains until the judgment is vacated or
reversed by some appropriate proceeding.' If such evi-
dence was offered to establish a cause of action stated in
a particular count of the plaintiff's declaration, and the
plaintiff, failing to strike out or withdraw that count,
suffers a general verdict on the whole cause, the judgment
will be a bar to another action on the claim so attempted
to be established.^
A judgment of a court possessing competent jurisdiction
is final, not only in reference to the matters actually or
formally litigated, but as to all other matters which the
parties might have litigated and had decided in the cause.'
A party cannot try his action in parts. The judgment is
conclusive, not only of the matters contested, but as to
every other thing within the knowledge of the complain-
ant which might have been set up as a ground for relief
in the first suit." If the determination of a question is
necessarily involved in the judgment, it is immaterial
whether it was actually litigated or not.^ Where in fact
items of an account were specifically set forth in the
statement of the causes of action in a former suit, and,
though known to exist, were for some reason overlooked
and not considered, they cannot in law be the ground of
a second action,^ nor can they be made the ground of such
action, though they were omitted, owing to an error of the
justice before whom the case was tried, in rendering his
judgment.'^ The omission of a court to award relief prayed
for is ah adjudication, in effect, that the complainant is
not entitled thereto.^ Hence if, in an action on a note
and mortgage,*judgment is rendered on the note, without
» Beall V. Pearre, 12 Md. 555; Bur- * Hamilton v. Quimby, 46 111. 90;
nett V. Smith, 4 Gray, 50; Grant v. Shaffer v. Scudtly, 14 La. Ann. 575.
Button, 14 Johns. 377. ° Barker v. Cleveland, 19 Mich. 230.
2 Smith V. Whiting, 11 Mass. 445. « Keokuk v. Alexander, 21 Iowa,
3 Bellineer v. Craigue, 31 Barb. 534; 377.
Davis V. Tallcott, 12 N. Y. 184; ■ Town v. Smith, 14 Mich. 348,
Marriott v. Hampton, 7 Term Rep. ^ Thompson v. McKay, 41 Cal.
265; Bruen v. Houe, 2 Barb. 596. 221.
§ 273 THE JUDGMENT AS AN ESTOPPEL. 496
any order of sale, this is conclusive that the plaintiff has
no lien, and he cannot afterward maintain an action to
foreclose his mortgage.^ From the decisions cited in this
section, the conclusion is irresistible that a judgment or
decree is conclusive upon all causes of actions and all
matters of defense presented by the pleadings and not with-
drawn before or during the trial, except, — 1. Where the
plaintiff claims upon several and distinct causes of action,
in which case he may, according to some of the author-
ities, maintain a second action upon any one of those
causes upon which he can show that he offered no evi-
dence at the trial of the former case;^ 2. Where the de-
fendant pleads a matter as a defense which he might have
successfully employed as a cause of action against the
plaintiff; in which case it appears that the right to such
cause of action is not lost to the defendant, unless he fol-
lowed up his pleading by offering evidence upon it in the
former suit. With the possible exceptions here stated, a
judgment is conclusive upon all the material issues made
by the pleadings, and also upon every material allegation,
whether of claim or of defense, which the part}'^ against
whom such allegation is made does not choose to contro-
vert.
§ 273. Evidence to Show What was Decided. — A few
early cases proceeded upon the theory that a former judg-
ment would be received as evidence in a second action
only as to those matters which, from an inspection of the
'Johnson v. Murphy, 17 Tex. ticular claim was neither presented nor
216. considered: Wood v. Corl, 4 Met. 203;
■^ 2 Smith's Lead. Cas. 669. In this Southside R. R. Co. v. Daniels, 20
first class may be included those cases Gratt. 3G6; AUebaugh v. Coakley, 75
in which several counts are inserted Va. 628; Parks v. Moore, 13 Vt. 183;
in a declaration, and the general issue 37 Am. Dec. 589; Cunningham v.
being pleaded, a general judgment is Foster, 49 Me. 68; Merchants' Bank
entered thereon. Such judgment is v. Schixlenberg, 48 Mich. 102; Paine v.
prima facte evidence of the prior ad- Schenectady I. Co., 12 R. I. 440; Con-
judication of every demand which verse v. Colton, 49 Pa. St. 346; Hun-
might have been litigated under the gerford's Appeal, 41 Conn. 322; Dick-
pleadings; but this evidence may be inson v. Hayes, 31 Conn. 423; Sweet
overcome by proving that some par- v. Maupin, 65 Mo. 65.
497 THE JUDGMENT AS AN ESTOPPEL. § 273
record, could be sliown to have been settled in the first.*
But it happens frequently, and perhaps in a majority of
cases, that the matters litigated between the parties to an
action cannot be ascertained from the record. It is now
generally, and perhaps universally^ conceded that parol
evidence may be received for the purpose of showing
wdiether a question was determined in a former suit;^
and that "the estoppel extends, beyond what appears on
the face of the judgment, to every allegation which, having
been made on one side and denied on the other, was at
issue and determined in the course of the proceedings;
and that while there exists a strong presumption that the
judgment covers every matter in the issues and appar-
ently settled by the judgment, yet that this presumption
may be overcome by clear proof that no evidence was
given as to that fact by the plaintiflF, or that defendant
failed to take advantage of some defense which he might
have made available."^ It may always be shown by evi-
dence aliunde that any matter which the issue was broad
enough to cover arose and was determined in the prior
suit.* The record may be first put in evidence, and then
it may be followed by such parol evidence as may be
necessary to give it proper effect.^ If the record in an
action of ejectment does not show on what grounds the
1 Smith V. Sherwood, 4 Conn. 276; Gates v. Bennett, 33 Ark. 475; San-
10 Am. Dee. 143; Church v. Leaven- derson v. Peabody, 5 N. H. 116; Haller
worth, 4 Day, 281; 1 Esp. 43; Manny v. Pine, 8 Blackf. 175; 44 Am. Dec.
V. Harris, 2 Johns. 29; 3 Am. Dec. 762; Bridge v. Gray, 14 Pick. 55; 25
386. Am. Dec. .358; Strauss v. Meertief, 64
•■' Taylor v. Dustin, 43 N. H. 493; Ala. 299; 38 Am. Rep. 8; Wilson v.
Kingr. Chase, 15 N. H. 9; 41 Am. Dec. Dean, 121 U. S. 525; Feudal! v. United
675; Foster v. Wells, 4 Tex. 101; States, 14 Ct. of 01. 247; Foyet-. Patch,
Walker v. Chase, 53 Me. 258; Wood 132 Mass. 105; White v. Chase, 128
V. Jackson, 8 Wend. 9; 22 Am. Dec. Mass. 158.
603; Teal v. Terrell, 48 Tex. 491; Estill 3 Clemens v. Clemens, 37 N. Y. 59
V. Taul, 2 Yerg. 466; 24 Am. Dec. 498; * Chamberlain v. Gaillard, 26 Ala,
Young V. Black, 7 Crauch, 565; Dris- 504; Duuckel v. Wiles, 11 N. Y. 420
coll V. Damp. 16 Wis. 106; Davis v. Harris v. Harris, 36 Barb. 88; Law
Brown, 94 U. S. 423; Vallandingham rence v. Hunt, 10 Wend. 80; 25 Am
V. Rvan, 17 111. 2."); Russell v. Place, Dec. 539; Gardner v. Buckbee, 3 Cow,
94 U. S. 606; Hill v. Freeman, 7 Ga. 120; 15 Am. Dec. 256; Eastman
211; State v. Morton, 18 Mo. 53; Cooper, 15 Pick. 276; 26 Am. Dec.
Brown v. King, 10 Mo. 56; Anisden v. 600.
Dubuque etc. R. R. Co., 32 Iowa, 2S8j * Briggs v. Wells, 12 Barb. 567.
JUDG. I.— 32
§ 274 THE JUDGMENT AS AN ESTOPPEL. 49S
plaintiff or defendant recovered, it may be explained by
showing what title was established or set up in the action.*
And for the purpose of ascertaining what was determined
in a former action, the opinion of the court ^ and the briefs
of counsel^ may be considered. Judgment on the merits
against the master, in an action of trespass for the act of
his servant, is a bar to an action against the servant for
the same act, though such judgment was not rendered
until after the general issue was pleaded to the action
against the servant; and parol evidence is admissible to
show that the same matter is in controversy in both ac-
tions.* An entry of "dismisi^ed at costs of plaintiff, being
susceptible of a double construction, i. e., that it was a
judgment for defendant on the merits, or a judgment of
nonsuit or discontinuance, may be explained by evidence
of the justice to show which character of judgment he in-
tended to enter." ^ "When a number of issues are pre-
sented, the finding in any one of which will warrant the
verdict and judgment, it is competent to show that the
finding was upon one rather than on another of these
different issues. Nor does the subsequent application of
the verdict to a single count by the court preclude this
inquiry." In order to show by evidence aliunde that a
matter is res judicata, it must appear, not only that it was
properly in issue in the former trial, but also that the ver-
dict and judgment necessarily involved its determination.*
§ 274. Evidence to Rebut Apparent Estoppel. — If it
appears prima facie that a question has been adjudicated,
it may be proved by parol testimony that such question
was not in fact decided in the former suit.^ Where items
1 Emery v. Fowler, 39 Me. 326; 63 « Packet Co. v. Sickles, 5 Wall. 580.
Am. Dec. 627. 'Johnson v. Smith, 15 East. 213;
2 Legrand v. Rixey, 83 Va. 862; Whittemore v. Whittemore, 2 N. H.
New Orleans etc. R. R. Co. v. New 26; Parker ?». Thompson, 3 Pick. 429;
Orleans, 14 Fed. Rep. 373; Serong v. Phillips v. Berick, 16 Johns. 136; 8
Grant, 2 Mackey, 218. Am. Dec. 299; Wheeler v. Van Hon-
* Greenlee v. Lowing, 35 Mich, ten, 12 Johns. 311; Coleman's Appeal,
63. 62 Pa. St. 252; Southside R. R. Co. v.
* Carr v. Woodleff, 6 Jones, 400. Daniel, 20 Gratt. 363; Spiadling v.
* W. A. & G. S. P. Co. V. Sickles, 24 Conway, 51 Mo. 51; Bottorff v. Wise,
How. 333. 53 lud. 32.
499 THE JUDGMENT AS AN ESTOPPEL. § 275
could have been proved in a former action, the presump-
tion arises that they were proved, but it may be rebutted
aliunde.^ If a matter was pleaded as a credit, it is com-
petent to show that it was not offered as a credit on the
trial, and that the court in deciding the case expressly
excluded it from consideration.^ Parol evidence is also
admissible, according to some decisions, to prove that a
former action in a justice's court was not tried on the
merits, but was nonsuited.* In an action for goods sold,
the plaintiff, to avoid the plea of res judicata, may show
that the previous judgment against him was rendered on
the ground that the time of credit given on the goods had
not expired.* If the defendant in a real action pleads a
former recover^'' as a bar, the plaintiff may prove that he
failed in his suit on the sole ground that his grantor was
disseised at the time of conveying title; and the plaintiff
may thereupon establish his title under a subsequent con-
veyance from such grantor.^ Where the subject-matter
has "been in litigation before, the evidence that the
merits were not passed upon ought to exclude all other
hypotheses,'"^ but when the evidence clearly shows that a
former judgment was not on the merits, its force as res
judicata is destroyed.''
§ 275. Record not to be Impng-ned. — It is important
that the evidence offered to explain a record should not
contradict it. For it cannot be shown, in opposition to
the record, that a question which appears by it to have
been settled was not in fact decided,^ nor that, while a
special cause of action was in issue, a different matter was
1 Badger V. Titcomb, 15 Pick. 416; « pigk j,, ]\iji]er, 20 Tex. 579; Graves
26 Am.' Dec. 611; Webster v. Lee, 5 v. White, 13 Tex. 123; Fox v. Hud-
Mass. 33-t; Golightly v. Jellicoe, 4 son, 20 Kan. 246; Armstrong v. St.
Term Rep. 147; Seddon v. Tutop, 6 Louis, 69 Mo. 309; 33 Am. Rep. 499;
Term Rep. 607. Long v. Wehl), 24 Minn. 380; Under-
^ Smith V. Talbot, 11 Ark. 666. wood v. Frencli, 6 Or. 60; 25 Am. Rep.
SEistoni). Brattmi, 13 Tex. 30. 500; Burthe v. Denis, 1.33 U. S. 515;
« Wdcox V. Lee, 1 Rob. (N. Y.) Lordlard v. Clyde, 122 N. Y. 41; 19
355. Am. St. Rep. 470; Davidson v. New
» Perkins v. Parker, 10 Allen, 22. Orleans, 32 La. Ann. 1424; Jones v.
• Baxter v. Aubrey, 41 Mich. 13. Perkins, 54 Me. 393; Butler v. Suffolk
' Wood V. Faut, 55 Mich. 185. Glass Co., 126 Mass. 512.
§ 275 THE JUDGMENT AS AN ESTOPPEL. 500
in truth litigated/ In other words, where it appears by
the record that a particular issue was determined, all
question of fact is excluded, and the court must, as a mat-
ter of law, declare such determination to exist and to be
conclusive.^ In New York, because the proceedings in
justices' courts are informal, it is said that the rule ex-
cluding from the effect of a former judgment matters not
apparently within the issues is not always applicable, and
that it may be shown that matters were received in evi-
dence and adjudicated which were not within the issues.'
Parol proof can be given to show the grounds of a judg-
ment only when such grounds do not appear from the
record itself. In no case can any matter be alleged or
proved to have been passed upon, except it be such as
might have been given in evidence, legitimately, under
the issue joined.* Where a complaint is free from am-
biguity, it cannot be shown that the judgment given
thereon was for damages occasioned by injuries to land
not a part of the premises described in the complaint.'
A provision of a statute provided that whenever a sheriff
failed to make money on an execution by the first day of
the term before which it was returnable, the plaintiff
might suggest that the failure was attributable to want of
diligence, and that upon such suggestion the court should
cause an issue to be made to try the fact. In an action
upon a sheriff's bond for not making money on an exe-
cution, the defendants pleaded that an issue made under
this statute had been found in their favor. Plaintiffs re-
plied that the matters, neglects, and defaults complained
of were not the same identical ones in respect to which
defendants recovered their judgment. It was held that
the matters sought to be put in issue in the replication
• Campbell v. Butts, 3 K Y. 173; » McLean v. Hungarin, 13 Johns.
Campljell v. Consalus. 25 N. Y. 616; 184; King v. Fuller, 3 Caines,
Standish v. Parker, 2 Pick. 20; 13 152; Wilder v. Case, 16 Wend.
Am. Dec. 393. 583.
2 Bitzer v. Killinger, 46 Pa. St. 44; * Briggs v. Wells, 12 Barb. 567.
Coulter V. Price, 13 Lea, 451; Fiuley » Gay v. Wells, 7 Pick. 219.
V. Hanbest, 30 Pa. St. 190.
501 THE JUDGMENT AS AN ESTOPPEL. § 27G
were necessarily involved in the former trial, and that to
uphold the replication would he to permit a second litiga-
tion of the same questions; that the facts in issue in the
suit appear hy necessary intendment to be the facts in-
volved in the proceeding under the statute; and that to
say they were not so involved is to contradict the record
itself.^ When the subject-matter of the present and the
former action is not the same, the principles stated in
this section may, in some instances, seem inapplicable.
Thus if after an action has been prosecuted to final judg-
ment on a bond or note resulting in a recovery by the
plaintiff, the defendant can never, in another action in-
volving the same note, be permitted to show that he had
a good defense thereto, "which he failed to present for the
consideration of the court in the first action, and thereby
pi-eserved it from the operation of the judgment; in other
words, he cannot show that the matter of his defense has
not become res judicata, for to do so would clearly contra-
dict the record. But if the defendant were to be sued
upon another note or bond of the same series, and to
which he in fact had no other defenses than those which
existed against the former note or bond, he may show
that some valid defense existing against both was not pre-
sented and litigated in the former action, and may avail
himself of such defense in the present case, though for-
ever barred from using it against the recovery in the
prior action.^
§ 276. Onus of Proof. — There are two classes of cases
in which evidence aliunde is admissible for the purpose
of showing what matters are res judicata, viz.: 1. All those
cases in which from the record alone no intimation is
given whether a particular matter has been determined or
not; 2. All those cases in which from the record it ap-
pears that a particular question was probably determined.
» Chapman ». Smith, IG How. 114. U. S. .351; Davis v. Brown, 94 U. S.
* Cromwell v. County of Sac, 94 423; Russell v. Place, 94 U. S. GOG.
§ 276 THE JUDGMENT AS AN ESTOPPEL. 502
As a general rule, the onus of establishing an estoppel is
by the law cast upon him who invokes it/ Under this
rule there can be no doubt that in all cases coming under
the first class it is incumbent upon a party alleging that
a question has been settled by a former adjudication to
supi^ort his allegation by evidence aliu7ide} But in rela-
tion to cases of the second class, there appears to be a
radical difference of opinion. On the one side it is claimed
that "where the declaration in the second action is framed
in such a manner that the causes of action may be the
same as those in the first suit, it is incumbent upon the
party bringing the second action to show that they are not
the same."^ "A party who brings a second action must
not leave it to nice investigation to see whether the two
causes are the same. He ought to show beyond doubt
that the second is a different cause of action from the first,
in which he failed."* In cases where several issues are
made by the pleadings, and evidence is given upon all
those issues, and a general verdict is obtained, the ques-
tion arises as to which of the issues this verdict is con-
clusive. In Vermont, Oregon, Pennsylvania, and Indiana
the 2:)resumption is, that it is conclusive that all the issues
were found in favor of the prevailing party. Whoever
denies this must rebut that presumption, if he can, by
showing that the finding and judgment were upon a par-
ticular issue.* In Massachusetts it is settled by a number
of decisions that a general verdict in favor of a party pre-
senting several claims or defenses is not of itself prima
facie conclusive upon any of those claims or defenses.
Thus in an action for breaking several covenants in a
^ Cummings v. Col grove, 25 Pa. St. * Lord Bagot v. Williams, 3 Barn. &
150; Bennett v. Holmes, 1 Dev. & B. C. 235.
486; Strother v. Butler, 17 Ala. 733; * Agnew v. McElroy, 10 Smedes &
Doty V. Brown, 4 N. Y. 71; 53 Am. M. 552; 48 Am. Dec. 772; Baxter v.
Dec. 350; Davis v. Talcott, 14 Barb. Aubrey, 41 Mich. 13.
611; Smalley v. Edey, 19 111. 207; Van ^ Hall v. Zeller, 17 Or. 381; White
Valkenburgv. Milwaukee, 43 Wis. 574. v. Simonds, .33 Vt. 178; 78 Am. Dec.
•■' Pruitt V. Holly, 73 Ala. 369; Han- G20; Rockwell v. Langley, 19 Pa. St.
cheyw. Croskery, 81 Ala. 149; Morgan 502; Day v. Vallette, 25 Ind. 42; 87
V. Burr, 58 N. H. 470. Am. Dec. 353.
503 THE JUDGMENT AS AN ESTOPPEL. § 276
lease, the plaintiff recovered a general verdict for nominal
damages. In a subsequent action, the record in the for-
mer action was held not to show, of itself, that the breach
in question was res judicata. The cause was remanded
for further proceedings, in which it was shown, by evi-
dence aliunde, that the breach involved in the second ac-
tion was one of the questions litigated in the former suit,
and on which evidence was offered at the trial. With this
proof to support it, the former judgment was considered
a bar.^ According to some of the most recent and author-
itative adjudications upon this subject, "if there be any
uncertainty in the record, as, for example, if it appear
that several distinct matters may have been litigated, upon
one or more of which judgment was rendered, the whole
subject-matter of the action will be at large and open to
a new contention, unless the uncertainty be removed by
extrinsic evidence showing the precise point involved and
determined."^ In an action where plaintiff sought to re-
cover from defendant for board of the latter's wife, and
at the trial relied on two grounds, viz.: 1. That she was
absent from her husband by his consent; 2. That she was
^justifiably absent from him on account of his cruelty to
lier, — a judgment was rendered for plaintiff. This judg-
ment was held to establish against defendant that his wife
was justifiably absent, and to leave the jury to judge from
the judgment, and from such other evidence as came be-
fore them, whether the ground of the former recovery was
absence by consent or absence on account of cruelty.*
In the same state a decree dismissing a bill was insisted
upon as a bar. It appeared from the record that some
temporary defenses were relied upon in the former suit,
but that the bill was dismissed without specifying any
reasons, and without any restriction upon its effect. It
1 Sawyer v. Woodbury, 7 Gray, 499; Ocean etc. Co., 125 N. Y. 341; Bell v.
66 Am. Dec. 588. Mernfiekl, 109 N. Y. 202; 4 Am. St.
2 Russell V. Place, 94 U. S. 60G; Rep. 4:?(j.
Chri.sinan's Adin'r v. Harman, 29 ^ Burlea v. Shauuon, 14 Gray,
Gratt. 494; 20 Am. Rep. 387; Lewis v. 433.
§ 276 a THE JUDGMENT AS AN ESTOPPEL. 504
was decided not to be conclusive on the merits. In an-
nouncing this decision, the court said: "To be a bar to
future proceedings, it must appear that the former judg-
mient necessarily involved the determination of the same
fact, to prove or disprove which it is offered in evidence.
It is not enough that the question was in issue in the for-
mer suit; it must also appear to be precisely determined.
Where in the answer various matters of defense are set
forth, some of which relate to the maintenance of the suit,
and others to the merits, and there is a general decree of
bill dismissed, it is impossible to hold the decree a bar to
future proceedings,"^ In Kentucky, if the record of a for-
mer judgment is not shown, it will be presumed to have
been entered on the merits.^ If relief in equity is sought
upon several grounds, and the bill is dismissed, this is
necessarily a decision against all of them.^ So, generally,
if two or more causes of action are united, a judgment in
favor of plaintiff for one only is conclusive against him
as to the other;* and if a judgment may be rested upon
either of two grounds, and the court in fact decides both
of them, then the judgment is conclusive respecting both.^
i<
§ 276 a. Where there are Several Defenses, any one of
which is sufficient to defeat the action, and the court or
jury finds specially in favor of the defendant upon all of
them, each becomes res judicata, and the judgment is upon
the merits, although some of the defenses are in the nature
of pleas in abatement, and go only to defeat the present
action.^ If a bill in equity is demurred to upon several
distinct grounds, and on this demurrer a general decree
is entered of bill dismissed, this is a judgment upon the
' Foster t>. The Richard Busteed, 100 Mass. 178; Hoyle v. Farquharson, 80
Mass. 409; 1 Am. Rep. 425; Burlen v. Mo. 37/.
Slianiion, 99 Mass. 200"; 96 Am. Dec. * Hawes v. Contra Costa W. Co., 5
733. Saw. 287; Florida etc. R'y Co. v.
••* National Bank v. Bryant, 13 Bush, Schutt, 103 U. S. 118.
419. « The 420 Mining Co. v. Bullion Min.
^ Attorney-General v. Chicago etc. Co., 3 Saw. 634; Hawes v. C. C. W.
K. R. Co., 112 111. 520. Co., 5 Saw. 287; 7 Reporter, 100;
* Bassett v. Conn, R. R. Co., 150 Sheldon v. Edwards, 35 N, Y. 286,
505
THE JUDGMENT AS AN ESTOPPEL. § 277
merits, though some of the grounds of demurrer did not
involve the merits of the suit/ If several defenses are
presented, some of which in point of law are good and
others bad, and defendant has judgment, it will not be
presumed that the court decided erroneously and gave
judgment in his favor on the insufficient defense. That
defense, therefore, is not affected by the judgment.^
Part IV. — IMATTERS WHICH NEED NOT BE LITIGATED.
§277. Set-off not Presented.— It has already been
stated that the defendant is not barred by judgment of
any matter of defense which he was not bound to present
to the court or jury, and on which he offered no evidence
at the trial. The statutes of set-off are for the benefit of
defendants, and plaintiffs cannot compel defendants to
avail themselves of those benefits. It is well understood
that, unless some state statute provides otherwise, the
defendant may waive his set-off or counterclaim in an
action against him, and thereafter litigate it in an action
instituted by himself.* By the Code of Civil Procedure of
California, if the counterclaim arises " out of the transac-
tion set forth in the complaint as the foundation of the
plaintiff's claim," or is " connected with the subject of the
action," and the suit is in any other than a justice's court,
the defendant, by omitting to set up such counterclaim,
waives all right to subsequently employ it as a cause of
action.* But if the action is in a justice's court, then
the defendant must present all facts " constituting a
defense or counterclaim upon which an action might be
brought by the defendant against the plaintiff in a jus-
tice's court"; and if he fails so to do, "neither he nor
his assignee can afterward maintain an action against
» House V. Mullen, 22 Wall. 42. ton, 7 Port. 110; McEwen v. Bigelow,
* Lenton v. Crosby, 61 Iowa, 401. 40 Mich. 215; Emmerson v. Heniford,
* Waterman on >Set-off, G31; Hobbs 8 Bush, 229; Fannin v. Thomasson, 45
V. Duff, 23 Cal. 590; Robljins v. Har- Ga. 533; Weaver v. Brown, 87 Ala,
rison, 31 Ala. 160; Le Guen v. Gou- 533; Axtel v. Chase, 83 Ind. 546; Sa-
verneur, 1 Johns. Cas. 501; 1 Am. very v. Sypher, 39 Iowa, 675; Kezar
Dec. 121; Robinson v. Wiley, Hemp. v. Elkins, 52 Vt. 119.
38. Contra, see Crawford v. Simou- * Code Civ. Proc, sees. 438, 439.
§ 277 THE JUDGMENT AS AN ESTOPPEL. 506
the plaintiff therefor."' In some states, while the right
to waive a set-off' or counterclaim and institute a suit
upon it afterward is recognized, yet defendants are dis-
couraged from so doing by a provision of the statute
providing that in the subsequent action they shall not
recover costs.^ Sometimes, however, counterclaims are
created by statute, and required to be presented in actions
against the persons entitled to their benefit. Thus if per-
sons in possession of property, on being sued therefor by
the holders of paramount title, are entitled in such action
to an allowance for improvements made or taxes paid, but
fail to present their claims therein, they cannot subse-
quently assert such claims.' Though a matter is pleaded
as a set-off or counterclaim, yet if it is for any reason not
allowable as such in the action, and is excluded from evi-
dence, and not taken into consideration in rendering judg-
ment, an- action may afterward be maintained thereon.*
"While all matters of defense are barred, the distinction
between a matter of defense and a cross-claim must be
constantly kept in view. A cross-claim, set-off, or matter
of recoupment may be interposed by defendant, but he is
not bound to do so. Thus though in an action for the
price of goods sold defendant might give in evidence a
breach of warranty of those goods, or of deceit in the
sale, and so defeat the action in whole or in part, yet he
is under no obligation to do so, and he may maintain his
cross-action for the damages, after having submitted to
a judgment for tlie price.^ When part performance of
a contract (e. g., to work for a year) forms the ground of
an action, the defendant may suffer judgment, and after-
ward may sue and recover damages for a breach of the
contract.^ A sued B to recover the price of constructing
' Code Civ. Proc, sees. 855, 856. Mfg. Co. v. Colgate, 12 Ohio St. 344;
■■'Oliio Code, 96, 119; Neb. Code, Beebe r. Buell, 12 Wend. 504; 27 Am.
102 116. I'ec. 150; Fitield v. Edwards, 39 Mich.
^Raymond v. Ross, 40 Ohio St. 264.
343 •' & Cook V. Moseley, 13 Wend. 277.
*'Haas V. Taylor, 80 Ala. 459; Crab- « Biitton r. Turner, 6 N. H. 481; 26
tree v. Welles, 19 III. 65; Lancaster Am. Dec. 713.
507 THE JUDGMENT AS AN ESTOPPEL. § 278
a kitchen range. The defendant paid into court a sum
which plaintiff accepted as a full satisfaction. B then,
sued A for negligently performing the work, and was per-
mitted to recover, on the ground that the recovery in the
second action was not inconsistent with the work sued for
in the first, being of some value.^ If a matter avaihible
as a counterclaim is relied upon as a defense, and the de-
cision is against it, it cannot afterward be asserted either
as a counterclaim or cause of action.^ But when it is
allowed as a defense to the extent of preventing any re-
covery by plaintiff, the question may then arise whether
it can be used as a counterclaim or cause of action for the
purpose of supporting any further recovery. In Massa-
chusetts a party who is sued and is entitled to urge a
matter, either as a defense to an action or as a ground for
a recovery in an independent action, must elect which he
will do, and if he elects to interpose it as a defense merely,
and obtains the benefit of it as such, cannot afterwards
maintain a further action to recover damages, though
such damages exceed the amount of the benefit involved
in the former defense.'
§ 278. Set-off not Decided. — If the defendant sets up
and claims a set-off, and the records shows that the court
excluded all evidence in relation to the set-off, the judg-
ment cannot be used as an estoppel in an action by the
defendant for the same set-off,^ because "although a court
of law declines to determine a question of set-ofif, yet it is
not res judicata, so as to preclude an inquiry in a court of
equity."* And the same rule prevails where, instead of
the court's excluding the evidence, the defendant failed
to present any proof in support of his counterclaim.®
1 Rigge V. Burbidge, 15 Mees. & W. * Hobbs v. Duff, 23 Cal. 506.
598. * Hackett v. Coimett, 2 EJw. Ch.
■■' Patrick v. Shaffer, 94 N. Y. 42.3. 73.-
3 O'Conner v. Varney, 10 Gray, 231; " Eastmure v. Laws, 7 Scott, 4G1
Bennett?'. Gray, 4 Gray, 511; Sawyer Reynolds v. Reynolds, 3 Ohio, 2()S
V. Woodbury, 7 Gray, 499; 66 Am. Janney v. Smith, 2 Cranch C. C. 4!t9
Dec. 518. But see Odborue v. Wil- Garrott v. Johnson, 11 Gill & J. 173
liams, 39 Minn. 353. 35 Am. Dec. 272.
§ 279 THE JUDGMENT AS AN ESTOPPEL. 608
§ 279. Set-off not Allowed. — There is no doubt that if
a set-off is presented by defendant in his pleadings, and
attempted to be supported by evidence to the jury, it will,
whether allowed or disallowed, become res judicata. It is
settled by the judgment as conclusively, when it does not
appear to have been allowed, as though there were an
express finding against it.^ AVhen the set-off has been
presented to the jury, and evidence offered to sustain it,
the effect of the judgment afterward rendered cannot be
changed in a subsequent action by showing that the jury
did not in fact consider the set-off in making their ver-
dict.^ If a judgment is pleaded as a set-off when it is a
proper matter of set-off, and is disallowed by the jury, it
is extinguished, and can no longer be the basis of an
action. If the plaintiff afterward issues execution upon
it, he is a trespasser.^ A claim presented as a set-off, and
not allowed, will not be barred, except it was in such a
condition as to have been barred if then offered as a
cause of action in a suit by the defendant against the
plaintiff. Thus if when offered it is not legally a set-off,
because not yet due, it may, if not allowed, be employed
as a cause of action or as a set-off in any subsequent suit
between the same parties. If the defendant pleads matter
which he might have made the basis of a suit, and on the
trial cross-examines the plaintiff's witnesses in reference
to the matters so pleaded in defense, he cannot avoid the
effect of the judgment on the ground that he introduced
no witnesses to testify on the subject, nor because the
referee decided the case before the defendant was pre-
pared with all his proofs.*
The language generally employed in treating of this
1 Wright V. Salisbury, 46 Mo. 26; cient: Green v. Sanborn, 150 Mass.
Nave I'. Wilson, 33 Ind. 294; Howe v. 454.
Lewis, 121 Ind. 110; Stevens v. Mil- 2 Baker r. Stincbfield, 57 Me. 363.
ler, 13 Gray, 283; Worrell w. Smith, 6 ' McGuinty v. Herrick, 5 Wend.
Col. 141; Ruegger i\ Indianapolis etc. 240. The same rule applies to mat-
R. R. Co., 113 111. 449. Nor is it ters of defense erroneously rejected:
material that the evidence to support Collins v. Bennett, 46 N. Y. 490.
a set-off was excluded because insuifi- * Ehle v. Bmgliam, 7 Barb. 494.
609 THE JUDGMENT AS AN ESTOPPEL. § 280
subject is such as to indicate that, to coiiclucle a claim
of set-off, it must be presented to the jury, and some evi-
dence given upon it. But it has been decided that a set-
off not withdrawn becomes res judicata, though no evidence
is given to support it, and the defendant was not prepared
to give such evidence at the trial of the former case.'
This seems to be a just and reasonable decision. There
is as much propriety in requiring defendant either to
litigate or withdraw his demands as there is in requiring
the plaintiff to support or withdraw his alleged causes of
action.
§ 280. Voluntary Allowance of an Offset. — A plaintiff
cannot, in a suit against the defendant, compel the latter
to present or litigate his counterclaim by giving him
credit for any items of such claim and suing for the bal-
ance. Thus if A sue B upon an account in which he
credits B with certain goods, B may suffer judgment by
default, and may then sue A for the goods, if the credit
was not their full value. The value of the goods is not
fixed by the former judgment, because it was not directly
in issue, and the defendant offered no evidence upon it.
He is not bound to offer such evidence at his own ex-
pense, when he can, by commencing another action, offer
it at the expense of his adversary.^ But if the credits for
goods were of their full value, this is a good defense to
an action brought by the defendant against the plaintiff
for the same goods.^ If the plaintiff brings an action in
which he credits defendant in certain sums, and claims
an amount specified as a balance due, the defendant may
come in and confess judgment for the amount sued for,
and this will not prevent him from sustaining a subse-
quent action for demands due to him from the plaintiff,
and not allowed by the latter in the first suit.*
' Eastmure v. Laws, 7 Dowl. 431. ^ Briggs v. Richmond, 10 Pick. 392;
^ Minor v. Walter, 17 Mass. 2.37; 20 Am. Dec. 52G.
McEwen v. Bigclow, 40 Mich. 215. * Kauffw. Me^sner, 4 Brewst. 98.
§ 281 THE JUDGMENT AS AN ESTorPEL. 510
§ 281. Equitable Defenses. — It follows from the rule
that a matter cannot become res judicata until it can be
tried upon the merits, that a failure at law does not affect
a remedy or defense cognizable only in equity.^ When-
ever a "party has equitable rights not cognizable in a
court of law which would in a court of equity have pre-
vented such an adjudication as was made in the court of
law, the judgment wall interpose no obstacle to redress in
equity, since the court of law had no proper jurisdiction
of the subject-matter forming the basis of redress in
equity.'"^ Under the code of procedure as in force in
New York and in California, matters formerly recognized
only in equity may be interposed as defenses to actions at
law. The question has arisen in both states whether it
is incumbent on the defendant to present his equitable
defense, or whether he may suffer judgment to be taken
against him, and subsequently assert his claims in equity.
The answer given to the question in the former state is,
that, "as a general rule, the defendant who has an equi-
table defense to an action, being now authorized to inter-
pose it by answer, is bound to do so, and shall not be
permitted to bring a separate action merely for the
purpose of restraining the prosecution of another action
pending in the same court." ^ In California, however,
the answer is in direct conflict w'ith that given in New
York. In an early case it was held that "although a
party may set up an equitable defense to an action at
law, his remedy is not confined to that proceeding. He
may let the judgment go at law, and file his bill in equity
for relief. Our practice, while it enlarges the field of
remedy, does not take away pre-existing remedies by
J Mosby V. Wall, 23 Miss. 81 ; 55 Ala. 345; Hawley v. Simons, 102 III.
Am. Dec. 71; White v. Crew, 16 Ga. 115.
416; Arnold v. Grimes, 2 Clarke, 1; ^ Story's Eq. Jiir., sec. 1573; Dun-
Pollack V. Gilbert, 16 Ga. 398; 60 Am. ham v. Downer, 31 Vt. 249.
Dec. 7^2; McCurry v. Robinson, 23 ^ Wintiekl v. Bacon, 24 Barb. 154;
Ga. 321; Worthington v. Curd, 22 Foot v. Sprague, 12 How. Pr. ^r>5;
Ark. 277; Nims v. Vaughn, 40 Mich. Fannin r. Thomasson, 45 Ga. 553;
35(); Chicago etc. R. R. Co. v. Hay, Tuttle v. Harrill, 85 N. C. 456.
119 111. 439; Jenkins v. Harrison, 66
511 THE JUDGMENT AS AN ESTOPPEL. § 2S2
implication."^ Ten years later, it was said that "this de-
cision has been acquiesced in and acted on as settled law
by the profession from the time it was rendered, and, so
far as we are advised, its correctness has never been the
subject of judicial doubt." ^ Accordingly, a defendant,
who, having an equitable defense to an action of eject-
ment on the ground that he was entitled to a conveyance
from the plaintiff, and who first pleaded such defense, and
afterward withdrew it, and suffered judgment to be taken
against him, was allowed in a subsequent suit to compel
the specific performance of the contract to convey. A like
rule prevails where the defendant, pleading an equitable
defense, without withdrawing it, fails to appear at the trial,
and judgment is therefore given against him without any
presentation or consideration of his defense.^ And even
though the rule prevails that equitable defenses must be
interposed, it is not operative where a defense exists
which could not be made available in the court of law for
want of proper parties, or for which, if then interposed,
the court could not grant adequate relief.* If an equitable
defense is interposed, which the court has jurisdiction to
entertain, its decision in favor of the plaintiff is conclu-
sive, and the defendant cannot subsequently assert as an
affirmative cause of action that w^hich he failed to estab-
lish as a defease.^
§282. Cross-claims. — Whenever a plaintiff seeks to
recover for some matter which he might have presented
in a former action against himself as the foundation for
a claim in the nature of a cross-action for damages, the
test of his right to recover in the second action, after hav-
ing waived his cross-claim in the first, is. Can all the facts
1 Lorraine v. Long, 6 Cal. 452. * Parnell v. Hahn, 61 Cal. 131; Pres-
!« Houi^h D. Waters, .30 Cal oUH; Hills ton v. Rickets, 91 Mo. 3-0; St. Louis
I'. Sherwood, 48 Cal. 3S(); Hill ?;. Coojier, v. Scliuleiiherg, 98 Mo. 61.3; Wiiipeniiy
6 Or. 181; Spaur v. McB^e, 19 Or. 70. v. Wiiiijejiny, 9'2 Pa. St. 440; Kcas v.
=* McC-earv v. Casey, 45 Cal. 128. Vickers, 27 W. Va. 45(1; TerriU v.
* RadcLffe' y. Varney, 56 (ia. 222; Hggs, 1 J)e (iex & J. 388; Arnold
Waters V. Perkins. 05 Ca. 32; S|jHur v. Aliinor, 15 Uraut (U. C), 375.
V. McBee, 19 Or. 70.
§ 282 THE JUDGMENT AS AN ESTOPPEL. 512
necessary to support the judgment rendered against him
exist at the same time with the facts necessary to support
the cross-claim sought to be enforced in the second suit?
For if, in order to recover in the first action, the j)laintiff
must have shown the falsity of the allegations made by
defendant in the second suit, then the former judgment
is a bar.^ Thus if plaintiff sues upon a contract to do
certain w^ork upon his part, alleging a full performance,
and claiming the price stipulated by the contract, his re-
covery depends upon a full compliance with his agree-
inent, and estops the defendant from afterward contending
that he sustained any damage from the non-fulfillment of
the contract.^ Therefore a recovery by a carrier for the
amount of his charges for transportation j)recludes the
defendant from maintaining an action for damages for
the negligence of such carrier in not transporting the
property in due time.^ A judgment in favor of a physician
and surgeon for professional services is a bar to an action
against him by the defendant in the former action for
malpractice in rendering those services/ If, however,
a matter in the nature of a defense and cross-claim is
pleaded, the contrary of which need not necessarily be
established by plaintiff in making out his cause of action
under the allegations in his complaint, the defendant
may withdraw it at or before the trial, without losing his
right to assert it in a subsequent suit. Thus the recovery
upon a complaint for work and and labor done, etc., will
not estop defendant from recovering damages sustained
by him by the manner of performing the work and labor;
because the claim of the defendant "not being necessary
or at all involved, as part of the plaintiflf's evidence, prima
1 Dunham v. Bower, 77 N. Y. 76; 33 » Dunham v. Bower, 77 N. Y. 73; 33
Am. Rep. 570. Am. Rep. 570.
2 Davis V. Tallcot, 12 N. Y. 184. * Blair v. Bartlett, 75 K Y. 150; 31
Matters of defense cannot be litigated Am. Rep. 455; Howell v. Goodrich, 69
in a second action, because not pleaded 111. 556; Haynes v. Ordway, 58 N. H.
in the first: Hackv/orth v. Zollars, 30 167; Goble v. Dillon, 86 lud. 327; 44
Iowa 433. Am. Rep. 308. Contra, Re'^seqnie v.
Byers, 52 Wis. 650; 38 Am. Rup. 775.
513 THE JUDGMENT AS AN ESTOPPEL. § 283
facie, it has not been tried or passed upon," and is not
barred unless put in issue by the answer/ A judgment
in favor of the vendor of property for the purchase price
thereof does not preclude the vendee from maintaining
an action for a breach of a covenant of warranty or of
quality made by the vendor.^ But the defense of a breach
of warranty ^ or any other defense set up by way of recoup-
ment or counterclaim, and not withdrawn from the con-
sideration of the court, and adjudged to be insufficient,
thereby becomes res judicata, and cannot thereafter sup-
port an independent action.*
Part V. — PLEADINGS TO MAKE FOPvMER JUDGMENT AVAIL-
ABLE.
§ 283. Necessity of Pleading. — In all these cases,
where a party relying upon a former adjudication as an
estoppel had no opportunity to plead it, it is equally a
bar as though an opportunity had been given and it had
been pleaded.^ Thus if in an action of trespass quare clau-
sum the defendant pleads title in a third person, under
wdiom he claims, without showing how such title was ac-
quired, nor when it accrued, the plaintiff may, at the trial,
give in evidence an award against the title of such third
person, without pleading it.'' Where the declaration con-
tains no intimation of the source of plaintiff's title, the
defendant is not bound to plead an estoppel, nor to show
that the title claimed by plaintiff proceeds from a given
source, and then intercept it by pleading a former adju-
dication. And if an estoppel by judgment or otherwise
1 Foster v. Milliner, 50 Barb. 385; * South & N. A. R. R. Co. v. Hen-
Davenport V. Hubbard, 46 Vt. 200; 14 lein, 56 Ala. 368; Baker v. Stinchfield,
Am. Rep. 620; Bascom v. Manning, 52 57 Me. 363.
N. H. 132. MVixson v. Devine, 67 Cal. 341;
2 Bodurtha v. Phelan, 13 Gray, 413; Sheldon v. Patterson, 55 111. 507; Dame
McKnight v. Devlin, 52 N. Y. 399; 11 v. Wingate, 12 N. H. 291; Dows v.
Am. Rep. 715; Parker i^. Roberts, 63 McMieliael, 6 Paige, 139; Howard v.
N. H. 431; Thoreson r. Minu. H. W., Mitchell, 14 Mass. 241; McNair v.
29 Minn. 341; Gilson v. Bingham, 43 O'Fallon, 8 Mo. 188; Isaacs v. Clark,
Vt. 410; 5 Am. Rep. 289; Davis v. 12 Vt. 692; 36 Am. Dec. 372; Wood-
Hedges, L. R. 6 Q. B. 687. house v. Williams, 3 Dev, 508; Ward
3 Earl V. Bull, 15 Cal. 421; Timmons v. Ward, 22 N. J. L. 699.
V. Dunn, 4 Ohio St. 680. « Shelton v. Alcox, 11 Conn. 240.
JUDG. L — 33
§ 283 THE JUDGMENT AS AN ESTOPPEL. 514
forms part of the muniment of either party's title, he is no
more bound to set it forth in his pleadings than he is to
insert therein any of his title deeds. ^
When the authorities speak of a party having no op-
portunity to plead a judgment, they use language well
calculated to mislead, and to indicate that whenever it is
possible for one relying upon an estoppel by judgment to
plead it, he must do so. But in this sense the opportunity
to plead a judgment is never wanting, unless when it is
rendered pendente lite, and the court refuses to permit any
supplemental pleading. What the courts apparently mean
is, that when a claim of right is disclosed in the pleadings,
so that its source and character can be known therefrom,
and the party claiming the benefit of a judgment can see
that the right claimed is one against which his estoppel
applies, then he should plead it. Both by the common
law and the codes of procedure in force in many of the
states, if a plaintiff sues for the possession of property,
real or personal, without disclosing the nature or source
of his claim of title, the defendant is not obliged to antici-
pate and understand it, and plead such judgment estoppels
as may exist against it. AVhen it is'disclosed at the trial,
he may, under the general issue, establish any judgment or
other estoppel which may exist in his favor.^ Because the
pleadings did not show that the plaintiff would rely uj^on
any title against which the estoppel existed, the defendant
is said to have had no opportunity to plead it. When,
however, the plaintiff's cause of action is so set forth as
to advise the defendant of its source and character, and he
wishes to avail himself of a judgment estoppel, he must
specially plead it, except where the rules of the common
law continue in force, and permit it to be received in evi-
dence under the general issue.^
' Adams v. Barnes, 17 Mass. 365; ^ State v. Comm'rs, 12 Nev. 17;
Clink V. Thurston, 47 Cal. 29. Norris v. Amos, 15 Ind. 365; Fowler
2 Grum V. Barney, 55 Cal. 254; v. Hait, 10 Johns. Ill; Greaves u Mid-
Jackson V. Lodge, 36 Cal. 38; Flan- dlebrooks, 59 Ga. 240; Turley v. Tur-
dreau v. Downey, 23 Cal. 358; Young ley, 85 Teiin. 251; Planning v. Ins.
r. Rummell, 2 Hill, 481; 38 Am. Dec. Co., 37 Ohio St. 344; 41 Am. Rep.
594; Miller v, Manici, 6 Hill, 131. 617.
515 THE JUDGMENT AS AN ESTOPPEL. § 284
§ 284. Effect of Judgment as Evidence when not Spe-
cially Pleaded. — According to the practice at common law,
a judgment, though not pleaded as an estoppel, could be
given in evide'nce under the general issue.^ Upon this
point there is no doubt; but upon the question of what
effect is to be given to it wiien so put in evidence, great
contrariety of opinion exists. In the celebrated case
against the Duchess of Kingston,^ a case more frequently
cited, we think, than any other ever decided in an English
court, a former adjudication is spoken of as being "as a
plea, a bar; and as evidence, conclusive." Whether the
judge writing the opinion in this case understood that a
former adjudication was "as evidence conclusive," though
not pleaded as an estoppel, or whether he intended the
language employed by him should be applicable only to
those cases in which the conclusive effect of a former judg-
ment was invoked by the pleadings, is unknown; but it
is probable that he designed merely to state to what
extent a former adjudication might prevail, if properly
insisted upon, by a party entitled to its benefits, and that
he had no intention of pointing out the means essential
to securing those benefits. However this may be, it is
certain that a decided preponderance of the authorities
in England sustains the view that the record of a former
action, if given in evidence under the general issue, when
it might have been pleaded as a bar, "is not conclusive,
but is a mere matter of argument or inference" in favor
of the party presenting it.' In the United States, how-
ever, the authority of the English decisions on this sub-
ject has not been universally respected. Still, there are
1 Welsh V. Lindo, 1 Cranch C. C. Morewoocl, '3 East, 346; Vooght v.
508; Young v. Rummell, 2 Hill, 478; Winch, 2 Barn. & Aid. 6G'2; Haniiaford
38 Am. Dec. 591; Cook v. Field, 3 v. Hiinn, 2 Car. & P. 148; Magrath v.
Ala. 53; 36 Am. Dec. 436; Ronkert v. Hardy, 4 Bing. N. C. 782; Doe v.
Elliott, 11 Lea, 235; Fowlkcs v. State, Huddart, 2 Cromp. M. & R. 316; Fe-
14 Lea, 14; Gilchrist v. Bale, 8 Watts, versham v. Emerson, 11 Ex. 385;
355; 34 Am. Dec. 469; Chitty's Plead- Dimes v. G. J. Canal Co., 9 Q. B. 469,
ing, 198. 517; Hooper v. Hooper, McClel. & Y.
^ 20 How. St. Tr. 478. 509.
* Chitty's Pleading, 198; Outram v.
§ 284 THE JUDGMENT AS AN ESTOPPEL. 516
a number of cases in this country asserting that a "judg-
ment which if pleaded would have been a perfect bar is,
when given in evidence under the general issue, not con-
clusive on the jury, but only evidence to be weighed by
them,"' "because if not pleaded the matter is left at large,
and the party may think he can do better than he did
before."^
In New York, the cases are hardly consistent wdth one
another. In Wright v. Butler, 6 Wend. 284, 21 Am. Dec.
323, it is said: " In actions where the former recovery can
be set up in pleading by way of estoppel, the party must
plead it, or it will not be conclusive upon the jury in the
second action; but in actions of assumpsit, etc., where the
party has no opportunity to plead the former verdict as
an estoppel, the record thereof may be given in evidence,
and is conclusive and binding on the party, the court, and
the jury as to every fact decided by the former verdict."
In Wood V. Jackson, 8 Wend. 10, 35, 22 Am. Dec. 603,
Chancellor Walworth states that "there is a certain class
of cases in which the party may avail himself of an es-
toppel by pleading the same in bar to a suit, or in reply
to allegations set out in a plea. In such cases, if he ne-
glects to make the objection in that manner, and puts
the facts directly in issue, without pleading the former
verdict or decree as an estoppel, the jury may find accord-
ing to the truth of the case on the issue. But tliispriiici-
ple is only applicable to those cases where special pleading is
required; it does not extend to actions of assumpsit, where
an estoppel as a former recovery or bar is embraced within
and may be given in evidence under the general issue.
Neither does it apply to cases where the plaintiff's title
is by estoppel, or w^here the party relying upon the es-
toppel had no opportunity to plead the same specially as
1 Haller v. Pine, 8 Blackf. 175; 44 5 Watts, 103; Smiths. Elliott, 9 Pa. St.
Am. Dec. 732; Cleaton v. Chambliss, 345; Adams r, Barnes, 17 Mass. 368;
6 Rand. 86; Town v. Nims, 5 N. H. Picquet v. McKay, 2 Blackf. 465; Fer-
259; 20 Am. Dec. 578; Howard v. guson v. Miller, 5 Ohio, 460.
Mitchell, 14 Mass. 242; Bartholomew ■^ Redmond v. Coffin, 2 Dev. Eq.
t'. Caudee, 14 Pick. 167; Long v. Long, 445.
517 THE JUDGMENT AS AN ESTOPPEL. § 284
a bar. From these principles it necessarily follows that
in ejectment, where special pleading is not allowed, the
defendant, in support of his possession, may give in
evidence any matter which would have operate(i as a bar
if pleaded by him by way of an estoppel to a real action."
These cases, and some others in the same state,' incline
to the view that in those actions where a judgment can
properly be given in evidence under the general issue, its
effect is conclusive, unless the case is such that some
special pleading is allowed, and, taken altogether, they
rather affirm than deny the English rule upon the sub-
ject. The greater number of the American cases, however,
repudiate the theory that a former adjudication can in
any event be properly admitted in evidence for the pur-
pose of determining any issue in the second action by
proving how the same issue was determined in the first,
without being absolutely conclusive so far as it is applicable
to the second action. The judgment, if admitted under
the pleadings, must be received as, what it purports to
be, a final determination of the rights of the parties.
The reasons for this departure from English precedents
are thus forcibly and convincingly stated by Kennedy, J.,
in the case of 3farsh v. Pier, 4 Rawle, 273, 26 Am. Dec.
131: "The maxim, Nemo debet bis vexari, si constat curix
quod sit pro una et eadem causa, being considered, as doubt-
less it w-as, established for the protection and benefit of
the party, he may therefore waive it; and unquestionably,
so far as he is individually concerned, there can be no
rational objection to his doing so. But then it ought to
be recollected that the community has also an equal in-
terest and concern in the matter, on account of its peace
and quiet, which ought not to be disturbed at the Avill
and pleasure of every individual, in order to gratify vin-
dictive and litigious feelings. Hence it would seem to
follow that wherever on the trial of a cause, from the
' Burt V. Sternburgh, 4 Cow. 559; 3 Cow. 120; 15 Am. Dec. 256; Miller
15 Am. Dec. 402; Gardner v. Buckbee, v. Manici, ti Hill, 114.
§ 284 THE JUDGMENT AS AN ESTOPrEL. 518
state of the pleadings iu it, the record of a judgment
rendered by a competent tribunal upon the merits iu a
former action between the same parties, or those claiming
under them, is properly given in evidence to the jury, that
it ought to be considered conclusivelv binding on both
court and jury, and to preclude all further inquiry in the
cause; otherwise the rule or maxim, Expedit rei publica ut
sit finis litium, which is as old as the law itself, and a part
of it, will be exploded and entirely disregarded. But if it
be part of our law, and it seems to be admitted by all that
it is, it appears to me that the court and jury are clearly
bound by it, and not at liberty to find against such former
judgment. A contrary doctrine, as it seems to me, sub-
jects the public peace and quiet to the will or neglect of
individuals, and prefers the gratification of a litigious
disposition on the part of suitors to the preservation of
tlie public tranquillity and happiness. The result, among
other things, would be, that the tribunals of the state
would be bound to give their time and attention to the
trial of new actions for the same causes, tried once or
oftener, in former actions between the same parties or
privies, without any limitation, other than the will of the
parties litigant, to the great delay and injury, if not ex-
clusion occasionally, of other causes which never have
passed in rem ji dicatem. The effect of a judgment of a
court having jurisdiction over the subject-matter of con-
troversy between the parties, even as an estoppel, is very
dilferent from an estoppel arising from the act of the party
himself in making a deed of indenture, etc., which may
or may not be enforced, at the election of the other party;
because whatever the parties may have done by compact,
they may undo by the same means. But a judgment of
a proper court, being the sentence or conclusion of law
upon the facts contained within the record, puts an end
to all further litigation on account of the same matter,
and becomes the law of the case, which cannot be changed
or altered, even by consent of the parties, and is not only
519 THE JUDGMENT AS AN ESTOPPEL. § 284
binding upon tliem, but upon tlje courts, so long as it
shall remain in force and unreversed."^
In a case in Maine, the suj)reme court, declining to
pass upon the question, because it was not then material,
stated that when it necessarily arose, the}'- should give it
a very careful consideration before they would hold "that
the conclusiveness of judgments, and the consequent peace
of the community, and the convenience of fresh litigants
shall depend upon the option of persons litigiously dis-
posed, or upon the accuracy of pleaders."^ Following
this intimation, and, it is to be presumed, upon careful
consideration, this court subsequently decided that a for-
mer judgment might be pleaded as an estoppel, or given
in evidence under the general issue, and that whichever
course was pursued, the result is the same.^ In Illinois, the
courts "do not sanction the technical distinction which
makes a former recovery a bar only when pleaded as an
estoppel";* and believe that the rule adopted by them
" is doubtless the safer rule, and the one alone upon
which an end may be made to litigation, and unsuspect-
ing innocence and right may repose regardless of and
undisturbed by technical rules of pleading."^ And the
rule generally prevailing upon this subject in the United
States is, that any judgment or decree, whenever properly
in evidence before the court or jury, is as conclusive as if
specially pleaded as a bar.®
Aside from considerations of public policy, which ap-
parently influenced some of the American decisions just
cited, they seem to be more sustainable than the line of
1 See also Cist v. Zeigler, 16 Serg. & 550; Shaffer v. Stonebraker, 4 Gill &
R. 282; 16 Am. Dec. 573; Betts v. J. 3-15; Chamberlain v. Carlisle, 26 N.
Starr, 5 Conn. 550; 13 Am. Dec. 94. H. 540; King?'. Chase, 15 N. H. 9; 41
2 Sturtevant >\ Randall, 53 ]\Ie. 149. Am. Dec. 675; Taylor v. Dustin, 43
* Walker v. Chase, 53 Me. 258. N. H. 493; Bethlehem v. Watertown,
* Vallandingham V. Ryan, 17 111.25. 51 Conn. 490; Offutt v. John, 8 Mo.
" Gray v. Gillilan, 15 111. 453; 60 120; 40 Am. Dec. 125; Garten v. Botts,
Am. Dec. 761. 73 Mo. 274; Flandreau v. Downey, 23
* Warwick v. Underwood, 3 Head, Cal. 354; Westcott v. Edmunds, 68
238; 75 Am. Dec. 767; Blodgett v. Pa. St. 34; Krekeler v. Ritter, 62
Jordan, 6 Vt. 580; George v. Gillespie, N. Y. 372; Marston v. Swett, 66 N. Y.
1 Iowa, 421; Beall v. Pearre, 12 Md. 206; 23 Am. Rep. 43.
8 284 THE JUDGMENT AS AN ESTOPPEL. 520
decisions with which they are in conflict. If w^e concede
that principles founded in public policy do not prohibit
the parties to an adjudication from reopening by mutual
consent matters already litigated, and from indulging
their litigious dispositions to an unlimited extent, it does
not follow that a court or jury should be at liberty to
reinvestigate matters which have been before judicially
investigated and determined, when that determination is
properly placed before such court or jury to influence the
decision in the second action. If a judgment is admis-
sible in any case under the general issue, its admission
ought to produce some well-defined and unavoidable re-
sult. It ought to be received,as conclusive of all the ques-
tions settled by it, or rejected altogether. To admit it in
evidence, with the understanding that it may be regarded
or disregarded, at the pleasure of the court or of the jury,
is to establish a rule wdnch authorizes the final determi-
nation of the rights of parties, not according to settled and
unvariable principles, but at the mere caprice of men.
Every law and every interpretation of law must be im-
perfect and unjust, if, when applied to identical facts, it
may result in diametrical judgments. Under the decis-
ions leaving the effect of a former recovery to the caprice
or discretion of a court or a jury, it may happen that of
two actions, each supported by the same evidence and in-
volving the same issues, a part of the evidence in each
case being the record of a former recovery, one action
may result in a judgment for plaintiff" and the other in a
judgment for defendant, and yet the two adverse judg-
ments be equally consistent with law. If the failure to
plead a former adjudication in bar is a waiver of the bene-
fits accruing under it, then it should not be allowed to be
placed in evidence in the second action. But why should
a party be deemed to waive a matter while his pleadings
are such that he may lawfully present it in evidence be-
fore the jury ? Why should the court or jury be at liberty
to consider a matter as waived which is included in the
521 THE JUDGMENT AS AN ESTOPPEL. § 284 a
issues, established by the evidence, and relied upon at
the argument? The English rule is inconsistent with
itself. It treats a former adjudication as inconclusive be-
cause not specially pleaded, but permits it to be given in
evidence in order that the jury may, if they choose, give
it as conclusive an effect as if it were pleaded specially.
In the United States this inconsistency will, in time, un-
doubtedly disappear. In some of the states the rules of
pleading are now so altered as to require a former adju-
dication to be specially alleged by the party relying upon
it, when he has an opportunity so to do, before it can be
given in evidence. Other states will probably adopt the
same rule. But where the common-law system of plead-
ing is retained, a judgment >iH, no doubt, at some not
far distant day of the future, whenever received in evi-
dence, be carried into effect irrespective of the question
whether it was admitted under the general issue or in
support of a special plea.
Part VI. — ACTIONS TENDING TO CONTRADICT FORMER JUDG-
MENT.
§ 284 a. Defenses and Causes of Action Once Presented
and Considered cannot be again asserted in another suit,
without a violation of the principles of res judicata. But
the obstinacy with which litigants press their claims upon
the attention of courts is such that it is not uncommon
for matters once fully determined to be again made, or at
least attempted to be made, the subjects of judicial inquiry.
Sometimes the circumstances attending a former decision
are such as to render the application of the law of res
judicata apparently a matter of great injustice. Hard
cases have long been characterized as the quicksands of
the law. Such cases are quicksands in which the law oires
judicata sometimes sinks so far that the judges are entirely
unable to see it, or even to remember it. Generally, how-
ever, such is not the case; and the instances are compar-
atively few in which any cause of action or any matter of
§ 285 THE JUDGMENT AS AN ESTOPPEL. 522
defense is allowed to prevail where it is inconsistent with
the facts necessary to uphold an}^ previous adjudication
between the same parties. Therefore a plaintiff taking
judgment for too small a sum, without the fraud or fault
of his adversary, cannot maintain a subsequent action to
recover the remainder;^ nor can a defendant avoid the
effect of a judgment against him by showing that the debt
on which it was based was void for want of consideration,
or that such debt had been merged in a former judgment,^
or was affected by usury; ^ nor can he maintain an action
to recover money which he has been compelled by judg-
ment to pa}'-;'' nor can parties to a judgment under which
land was directed to be sold show in a collateral action
that it belonged to them and was ordered sold by mistake.^
But if the defendant is not personally served with process,
and has no notice of the action, and moneys belonging to
him are garnished and collected therein, he may maintain
an action against the plaintiff for damages, if the latter
had no cause of action.^ But one who had knowledge of
an action against him and an opj)ortunity to defend it
cannot, while the judgment therein remains in force, re-
cover damages of the plaintiff and others for conspiring
against him and thereby procuring such judgment.^
§ 285. Suits for Payments not Credited. — A few cases
have been decided, mainly, if not exclusively, in Massa-
chusetts, in w^hich causes of action have been recognized
and enforced, in direct opposition to a former judgment.
In the first of these cases, a note was placed in the hands
of an attorney for collection. After collecting a portion
of the sum due, he failed to give the proper credit, and
thereafter sued and recovered judgment for the full
amount of the note. The debtor was "permitted, while
1 Ewing V. McNairy, 20 Ohio St. 316. * Davis v. Young, 36 La. Ann. 374.
2 Lewis V. Armstrong, 45 Ga. 131. ^ Jones v. Coffey, 97 N. C. 347.
3 Heath % Frackletou, 20 Wis. 320; « Powell v. Geisendorff, 23 Kan. 538.
91 Am. Dec. 405; Thatcher v. Gam- ' Smith i;. Abbott, 40 Me. 442; White
mon, 12 Mass. 268; Footman v. Stet- v. Merritt, 7 N. Y. 352: 57 Am. Dec.
son, 32 Me. 17j 52 Am. Dec. 634. 527.
523 THE JUDGMENT AS AN ESTOPPEL. § 285
tlie original judgment remained in force, to maintain an
action against the attorney for money had and received,
on the ground that when the attorney received the pay-
ment there arose an implied trust that he would credit it
on the note.^ In a later case, the same remedy was held
to be available in behalf of a debtor against whom, after
reception of a partial payment, the creditor had taken
judgment by default for the whole sum.^ But this decision
w^as subsequently overruled;^ and we apprehend at the
present time the recovery of judgment, while it remains
in force, must everywhere be received as conclusive that
the amount recovered remained unpaid at the date of the
recovery.* But>if there is an independent agreement that
if the defendant will do some act, the plaintiff will accept
a less sum than is due, in full satisfaction of a note, and
the plaintiff, notwithstanding such agreement, takes judg-
ment for the full sum, an action can be sustained against
him for his breach of his agreement/ A, having obtained
judgment against B, and extended his execution upon
certain real estate, thereby became a tenant in common
with C. A then sued C for a share of the rents and profits
of the estate, and obtained a judgment, which C paid.
After this, A's judgment against B was reversed on writ
of error. C, while the judgment against him was still
unaffected by any proceeding directed against it, was per-
mitted to recover from A the money paid to obtain its
satisfaction, on the ground that, from circumstances oc-
curring since the payment to him, A had no right to
retain the money.^ AVhere an action on a judgment ren-
dered in Kentucky was brought in Texas, the defendant
was permitted to avoid it in part by proving that during
the progress of the former suit he resided in the last-
named state; that he paid a part of the demand before
' Fowler v. Shearer, 7 Mass. U. * Bird v. Smith, 34 Me. 63: 56 Am.
■^ Roweu Smith, IG Mass. 30G. See Dec. 635; Ruff v. Doty, 26 S. C. 173;
Loring v. Mansfield, 17 Mass. 394. 4 Am. St. Rep. 709.
^Fuller V. Shattuck. 13 Gray, 70; " Hunt v. Brown, 146 Mass. 2.)3.
74 Am. Dec. 622. ^ Lazcll v. Miller, 15 Mass. 207.
§ 286 THE JUDGMENT AS AN ESTOPPEL. 524
judgment pendente lite, and reposed confidence in tlie
plaintiff in Kentucky to make the proper credits, who had
failed to do so/
§ 286. Suits for Credits not Allowed. — There can be
no doubt that these decisions are in direct conflict with
the true rule upon the subject; that they were induced by
yielding to the hardship of the particular cases in which
they were pronounced, and are good illustrations of the
maxim "that hard cases make bad precedents."^ They
are altogether inconsistent with avast number of English
and American authorities.^ ''It is clear that if there be
a bona fide legal process under w^iich money is recovered,
although not actually due, it cannot be recovered back,
inasmuch as there must be some end to litigation."^ A
party having found a receipt for a debt which he had
been compelled to pay by judgment, having sought to re-
cover back the money paid. Lord Kenyon, before whom
the case came, said: "I am afraid of such a precedent.
If this action could be maintained, I know not what cause
of action could ever be at rest. After recovery by process
of law, there would be no security for any person." ° To
a similar effect is the opinion in a recent English case
denying the right to recover back part of a debt paid
before judgment, but which plaintiff did not credit. "It
is not," said the court, "competent to either party to an
action to aver anything either expressing or importing a
contradiction to the record which, while it stands, is, as
between them, of uncontrollable verity."® Substantially
the same view is taken in nearly all of the United States.
1 Clay ?'. Clay, 13 Tex. 195. an action for the price of such arti-
2 2 Smith's Lead. Cas. 667. cles, failed to prove such payments,
* Bobe's Heirs v. Stickney, 36 Ala. cannot maintain an action to recover
4S2; State v. McBride, 76 Ala. 51 ; Corey back the amount so paid by him: Wil-
V. Gale, 13 Vt. 638; Kirklan v. Brown, son v. Cameron, 1 Kerr, 542.
4 Humph. 174; 40 Am. Dec. 635; * Marriott v. Hampton, 7 Term Rep.
Davis V. Murphy, 2 Rich. 560; 45 Am. 269. See also Phillips v. Hunter, 2
Dec. 749. H. Black. 410.
* Duke de Cadaval v. Collins, 4 Ad. " Huffer v. Allen, 12 Jur., N S.,
& E. 867. A party who made pay- 930; L. R. 2 Ex. Cas. 15.
ments on articles sold, and who, in
525 THE JUDGMENT AS AN ESTOPPEL. § 287
The only remedy of the defendant in such cases is by ap-
peal, new trial, proceedings in chancery, or in the nature
of an audita querela} And no doubt equity would not
interfere in his behalf, unless the failure to present his
defense of payment was occasioned by accident, surprise,
or mistake, or the fraud of the opposite party, unmixed
with any contributory fault or negligence of the com-
plainant.'' In the case of Binck v. Wood, 43 Barb. 315, it
was decided that the maker of a promissory note, against
whom a judgment by default had been taken, could not
recover for any pa^'^ment made on the note prior to the
suit, and not considered as a credit in entering judgment.
The authorities on the subject were reviewed. The early
cases in Massachusetts were inconsistent with the case of
Loring v. Mansfield, 17 Mass. 39^,'^ and that has been over-
ruled.* The case of Smith v. Wilkes, 26 Barb. 463, was
overruled; and the other cases in New York, as well as
those in the other states and in England, were declared to
unanimously sustain the view that while a judgment is
permitted to stand, no money paid upon it can be recov-
ered. If, after the rendition of a judgment, any facts
occur making it clear that the judgment should not be
enforced, relief may be given in equity, or an action for
money had and received may be maintained.^ No action
can be successfully prosecuted to recover back usurious
interest included in a judgment which defendant has sat-
isfied.«
§ 287. Suits for Money Paid on Judgments where De-
fenses are Concealed. — A brought an action against B to
recover the insurance on a lost vessel, and secured a judg-
' Kirklan v. Brown, 4 Humph. 174; » xhey surely are at variance \vith
40 Am. Dec. 635; Corbet v. Evans, 25 Stephens v. Howe, 1'27 Mass. 1G4.
Pa. St. 310; Tiltoii r. Gordon, 1 N. H. * Fuller?;. Shattuck, 13 Grayi 70; 74
33; Le Grand v. Francisco, 3 Munf. 83; Am. Dec. 622.
James v. Cavit, 2 Brev. 174; Stephens ^ Smith v. McCluskey, 45 Barb.
V. Howe, 127 Mass. 164; Greenabaum 610.
V. Elliott, 2 Cent. L. J. i'^0. ^ Thatcher r. Gammon, 12 Mass. 268;
2 Doyle V. Reilly, 18 Iowa, 108; 85 Footman v. Stetson, 32 Me. 17; 52
Am. Dec. 1S2. Am. Dec. 634.
§ 288 THE JUDGMENT AS AN ESTOPPEL. 526
meat, which was paid. B subsequently commenced suit
to recover back the money thus paid, on the ground that
the vessel was already lost when the insurance was ef-
fected; that he did not know of such loss when the former
judgment was obtained, and that such loss was fraudu-
lently concealed by A. The former judgment was deter-
mined to be a bar, because "provision being made by the
statute for a review of judgments within a time thought
reasonable by the legislature, it must be supposed that a
limit was intended of the right of parties to complain of
the wrong done," and because no reported case could be
found " in which the merits of a decided cause have been
allowed to be re-examined in any independent action." ^
If an agreement is made to extend the time for payment
of a note, this constitutes a matter of defense, which, if
not presented, is lost. No action can therefore be sus-
tained for a violation of the agreement. But it is other-
wise if the agreement is not to sue for a limited time.^
A quantity of wheat was purchased, and a nominal sum
paid to bind the bargain. The vendee afterwards sued
the vendor for non-^delivery, and recovered judgment for
full value of the wheat. The vendee then sued for the
price agreed to be paid for the wheat. The action, it was
decided, could not be maintained. The vendee should
have insisted on a proper measure of damages. Not hav-
ing done so, he could not succeed in a cross-action.^
§ 288. Actions by Third Persons. — The general rule
that the law will not allow money paid upon legal process
to be recovered back does not apply where the transaction
is res inter alios acta. The assignee of a bankrupt, not
being in privity with him, may recover money taken from
the bankrupt, under execution, after his act of bank-
ruptcy.*
1 Homer v. Fish, 1 Pick. 436; 11 ' Dey w. Dox, 9 Wend. 129; 24 Am.
Am. Dec. 218; First Presbyterian Dec. ll!7.
Church V. New Orleans, 30 La. Ann. * FoUett v. Hoppe, 5 Com. B.
259; 31 Am. Rep. 224. 243; Phillips v. Hunter. H. Black.
•^ Pearl v. Wells, 6 Wend. 291: 21 402.
Am. Dec. 328.
527 THE JUDGMENT AS AN ESTOPPEL. § 289
§ 289. Suits for Obtaining Judgments by Fraud, Con-
spiracy, or Perjury. — The settled policy of the law for-
bidding that a matter once adjudicated shall be again
drawn in issue while the former adjudication remains in
force does not permit the prosecution of an action for
obtaining a judgment by false and fraudulent practices,'
or by false and forged evidence.^ Neither can a party
against whom judgment has been recovered sustain an
action against his adversary and the witnesses for dam-
ages occasioned by their conspiring together and procur-
ing a judgment by fraud or perjury, as long as the
judgment remains in? force and unreversed; because
the charges made in the second action are conclusively
negatived by the former adjudication.^ Where in process
of foreign attachment a judgment has been entered, dis-
charging the trustee on his disclosure, the plaintiff cannot
sustain an action on the case against the trustee for
obtaining his discharge by falsehood or fraud in his
disclosure, and by fraudulent collusion with the principal
defendant. The action against the trustee would, if it
were allowable, involve a re-examination of the questions
determined by his discharge when summoned in the
former suit." The defendant in a judgment of foreclos-
ure cannot sustain an action to recover on account of
usurious interest included in the judgment. The fact of
usury, if it existed, was available as a defense in the
former suit; and whether pleaded as a defense or not, is
conclusively negatived by the decree of foreclosure.^ In
Kentucky, money coerced from defendant through a judg-
ment procured by fraud may be recovered back from him
by an action in equity, without vacating or otherwise set-
1 Hillsborough v. Nichols, 46 N. H, Sedgewicke, Cro. Jac. 601; Cunning-
379- Engstrom v. Sherburne, 137 Mass. ham v. Brown, IS Vt. 123; 46 Am. Dec.
J53' 140; Smith v. Lewis, 3 Johns. 157; 3
2'Note 265, by C. H. & E., to Phil- Am. Dec. 469; pout, sec. 489.
lipps on Evidence. * Lyford v. De Merritt, 32 N. H.
3 Dunlap V. Glidden, 31 Me. 435; 52 234.
Am. Dec. 625, citing Damport?;. Symp- ' Heath v. Frackleton, 20 W is. 610;
sou, Cro. Eliz. 520, and Eyres v. 91 Am. Dec. 405.
§§ 289 a-291 the judgment as an estoppel. 528
ting aside the original judgment.^ Generally, except in a
proceeding to vacate a judgment for fraud, the losing
party cannot avoid its effect by urging some fraud existing
before the entry of the judgment, and which, had he
proved it at the trial, ought to have prevented its rendi-
tion. If there was any fraud in the creation of the cause
of action, that fact must be interposed as a defense, and
if not so interposed, cannot be made the basis of an in-
dependent action.^ A judgment upon a note therefore
precludes the defendant from maintaining a subsequent
action to cancel the note for fraud in its procurement.*
§ 289 a. A judgment for plaintiff in an action for
goods sold and delivered is a bar to a subsequent suit by
defendant for non-delivery of the same goods.*
§ 290. Motion for Satisfaction. — The recovery of judg-
ment being conclusive of the amount due, and that the
plaintiff is the person to whom it is due, a motion for en-
try of satisfaction on the ground that plaintiff was not
the real party, and that the cause of action belonged to
another person, to w^hom payment has been made since
the entry of judgment, is inconsistent with the judgment.
Hence no evidence in support of the motion can be
heard."
§ 291. Failure to Give Credit as a Consideration for a
Promise. — While the defendant cannot, leaving the judg-
ment in force, recover of plaintiff a sum which ought to
have been credited, but was not, it seems that a promise
made after judgment to allow credit for a payment made
prior to judgment may be proved by defendant in an ac-
tion against him on the judgment. This evidence was
considered as admissible on the ground that, without
directly contradicting the judgment, it disclosed a state
' Ellis V. Kelly, 8 Bush, 621; West ^ Arnold v. Kyle, 8 Baxt. 319.
V. Kerby, 4 J. J. Marsh. 56. * Smith v. Kelly, 2 Hall, 217.
■^ Lewis V. Nenzil, 38 Pa. St. 222; ^ Merviue v. Parker, 18 Ala.
Roff V. Doty, 26 S. C. 173; Price v. 241.
Dewy, 6 Saw. 493,
529 THE JUDGMENT AS AN ESTOPPEL. § 292
of facts constituting sufficient consideration for the prom-
ise of the plaintiff to credit the amount, and that such
amount was to be treated as money paid on the judg-
ment.' In this instance a consideration for the promise
to credit on the judgment was essential to the defendant's
partial defense to the second action. In order to estab-
lish this consideration, the court listened to evidence
whose only object was to show that the former judgment
was unjust, and that not to take advantage of its unjust-
ness was a sufficient moral obligation to sustain the prom-
ise. In proving this consideration, it therefore appears to
us that the former judgment was assailed, and the prin-
ciple of res judicata violated.
§ 292. Cases in Which Recovery Back was Permitted.
— Where A having sued B, who settled, paying three dol-
lars as a full discharge of A's claim, who thereupon agreed
to dismiss his suit, but who, instead of doing so, took
judgment for twenty-five dollars, B was permitted to main-
tain an action for damages in not dismissing according
to his agreement.^ No doubt that although the second
suit is predicated upon matters which might have been
used as a defense in the first, yet if it involves no inquiry
into the merits of the former judgment, and is sustain-
able on grounds entirely independent of such judgment,
the rule inhibiting relitigation of decided issues is in no
danger of violation. But great contrariety of opinion is
likely to become manifest in deciding whether a second
suit is sustainable on grounds not involved in the first,
and actions will no doubt occasionally be prosecuted with
success, and result in a seeming disregard of some former
adjudication. Thus in Whitcomb v. Williams, 4 Pick.
228, the plaintiff, having purchased goods of the defend-
ants, paid them partly in cash and partly by his note.
He afterwards discovered that he had paid for more tlian
he received; but nevertheless he suffered judgment to be
' Thayer v. Mowry, 36 Me. 287. * Cobb v. Curtiss. 8 Johns. 470.
JUDG. L — 34
§ 293 THE JUDGMENT AS AN ESTOPPEL. 630
taken against him on tlie note, without interposing his
defense of want of consideration. He tlien sued to re-
cover back the amount paid on this judgment, and pre-
vailed, because, in the opinion of the court, the giving of
the note was equivalent to payment for the goods, and a
cause of action immediately arose, and steered clear of the
note and the judgment thereon; and though the mistake
might have been corrected in the suit on the note, yet
that the plaintiff had a right of election, as in cases of
set-off.
Part VII. — THE EFFECT OF JUDGMENTS IN VARIOUS ACTIONS.
FiEST. — In Actions Involving Title to or the Possession of Reai,
Estate.
§ 293. Distinction between Application of Res Judicata
to Real and to Personal Actions. — The high regard of the
people among whom the common law grew into being for
real property evinced itself in a vast variety of ways in
the different branches of that law, and in none of those
branches did it make itself more evident than in that
regulating the effect of former adjudications. The pur-
suit of any of the forms of personal action to a judgment
on the merits completely barred all other actions based
on the same right in every other form. But that the
law gave "consecutive remedies for injuries to real estate
is recognized in all the books that treat on real actions.
It is stated by Booth in the first page of his book. He
recommends beginning with the lower rather than with
the higher remedy; for he says 'a recovery in that of
the lower nature will not be a bar to an action of a higher
nature, and therefore it is not prudent to set forth a writ
of right, when you may have a writ of entry.'" He cites
Ferrer's Case, 6 Coke, 7. In that case, it was decided that
there was a difference between real and personal actions;
that in personal actions the bar is perpetual, for the
plaintiff cannot have an action of a higher nature; but if
demandant be barred in a real action by judgment, he
531 THE JUDGMENT AS AN ESTOPPEL. § 293
may have an action of a higher nature to try the same
right again/ In Yiner's Abridgment it is said that "a
recovery in assize is no bar to a formedon. A recovery
in assize is a bar to another assize, but not in mort d'an-
cestor; nor is a recovery in mort d'ancestor a bar to a writ
of right. "^ Under the common-law system of procedure,
"a judgment, therefore, in each species of action is final
only for its own proper purpose and object, and no further.
A judgment in trespass affirms the right of possession to
be, as between plaintiff and defendant, in the plaintiff at
the time the trespass was committed. In a real action it
affirms a right to the freehold of the land to be in the
demandant at the time of the writ brought. Each species
of judgments, from one in an action of trespass to one
upon a writ of right, is equally conclusive upon its own
subject-matter."^ "A bar in a real action, by judgment
on demurrer, confession, verdict, etc., is a bar to any
other action of the like nature for the same thing, which
is the case likewise in personal actions; but in personal
actions the bar is perpetual, and the defendant has no
remedy but by writ of error or attaint. In real actions,
on the contrary, if a man is barred by judgment in one
action, he may bring another of a higher nature, and try
the same right again. Thus if barred in an assize of
novel disseisin, yet upon showing a descent or other spe-
cial matter, he may have an assize of mort d'ancestor, a
writ of aiel, or besael, or of entry sur disseisin to his an-
cestor. So if a man is barred in a formedon in descender,
yet he may have a formedon in reverter or remainder, for
that is an action of a higher nature, and in which the
fee-simple is to be recovered. But a recovery in assize is
a bar to every other assize, and in a writ of entry in
nature of an assize, for they are both brought upon the
plaintiff's own possession, and are of the same nature,
' ArnoW v. Arnokl, 17 Pick. 4. Gray v. Gillilan, 15 111. 453; GO Airu
»Vin. Abr., tit. Jiul>4iiieiit. Q. Uec. 7lil.
' Outraiu V. Morewood, 3 East, 346;
§§ 294, 295 THE JUDGMENT AS AN ESTOPPEL. 532
and a judgment in a writ of aiel is a bar in a writ of he-
sael or cosinage, for they are both ancestral actions of
the same nature,"^
§ 294. Common Recovery. — A judgment in common
recovery is as conclusive as in any other case. It cannot
be collaterally assailed, except for fraud, or, as in other
real actions, because the defendant was not a tenant of
the freehold. If there is a proper tenant of the freehold,
all the expectant interests are involved in the result. The
issue in tail cannot falsify any point tried by the action.
The judgment is, that demandant recover his title to the
land. No one claiming under the title represented by
the tenant in prsecipe can avoid this judgment otherwise
than by writ of error. If there was no such judgment
against the voucher as would give to those in remainder
the nominal recompense which belongs to the form, this
does not avoid the judgment, but only affects its regu-
larity.^
§ 295. Ejectment at Common Law. — At common law,
a judgment in ejectment is not, in any case, conclusive
upon the title of either of the parties.^ " It is a recovery
of the possession without prejudice to the right as it may
afterward appear even between the same parties."* Its
only effect "is to put plaintiff in possession according to
liis right and title in the premises."^ "It is alw^ays in
the power of the party failing, whether claimant or de-
fendant, to bring a new action. The structure of the
record also renders it impossible to plead the former
I Roscoe on Real Actions, 213, 276; 10 Am. Dec. 143; Moran v. Jes-
citing Com. Dig., tit. Action, K, 1, 3; sup, 15 U. C. Q. B. 612; Clubine v.
Robinson's Case, 5 Rep. 32 b; Cowper McMullen, 11 U. C. Q. B. 250.
V. Andrews, Hob. 40; Portington's * Atkins ?>. Horde, 1 Burr. 114; Jack-
Case, 10 Rep. 38 a. son v. Dieffendorff, 3 Johns. 270. This
'^ Ransley v. Stott, 26 Pa. St. 126; rule remains in force in Missouri:
1 Rolle, 447; 3 Bulst. 247. Avery v. Fitzgerald, 94 Mo. 207; Spen-
3 Mitchell V. Robertson, 15 Ala. 412; cer v. O'Neill, 100 Mo. 49; Sulton v.
Hinton v. McNeil, 5 Ohio, 509; 24 Dameron, 100 Mo. 141; Kinimel v.
Am. Dec. 315; Pollard v. Baylors, 6 Benna, 70 Mo. 52.
Munf. 433; Holmes v. Carondelet, 38 ^ Minke v. McNamee, 30 Md. 294;
Mo. 551; Smith v. Sherwood, 4 Conn. 96 Am. Dec. 677.
533 THE JUDGMENT AS AN ESTOPPEL. § 296
recovery in bar to the second ejectment; for the plaintiff
m the sui+ is only a fictitious person, and as the demise
term, etc., may be hiid in many different ways, it cannot
be made to appear that the second ejectment is brought
upon the same title as the first." ^ Several verdicts in
favor of the same party, and his adversary's accepting a
lease and promising to give no more trouble, are not con-
clusive against the latter.^ But, notwithstanding its in-
conclusive effect, a judgment in ejectment seems to have,
even at common law, been admissible in evidence in a
second ejectment, where the parties were substantially
the same as in the first, and to have been allowed to go
to the jury in the second action, to be by them treated as
persuasive, though not conclusive, evidence of the facts
upon which it was based.^ "The inconclusiveness of a
verdict and judgment in ejectment is due to the form of
the action, not to the character of the subject-matter of
the controversy. There is no charm about land, as land,
which relieves it from the operation of the general rule
that a judgment between same parties or their privies
directly upon the same matter is the end of the contro-
versy. That it is an estoppel against future litigation of
the same question is evident from the fact that a fine, a
common recovery, a simple judgment on a writ of right,
and indeed judgments in any real action, have always
been held conclusive." * In some portions of the United
States the rules regarding actions of ejectment have been
so far modified that two judgments to the same effect are
conclusive upon the title, though one alone is not.^
§ 296. In Ejectment upon Confession. — In Kentucky,
the fact that a judgment in ejectment was rendered
1 Adams on Ejectment, 351. * Stevens v. Hughes, 31 Pa^ St. .3811
^ Richardson v. Stewart, 2 Serg. & ^ Boyle v. Wallace 81 Ala. |. 2;
■n oj Drexel v. Man, 2 ra. ht. 271; 4-1 Am,
■3 D^e V. Seaton, 1 Tyrw. & G. 19; 2 Uec. ]95; Kinter v. Jenks, 43 Pa. St.
rrnTYin M <t R 728- Writiht w. Tatham, 445; Woolston s Appeal, 51 1 •»• -^t.
^Ad ^& E 3 Bull N. Pr232 b; Doe-.! 452; Baze v. Arper, G Minn. 220; Bnt-
Wri<^ht, 10 Ad. & E. 7(53; Thompson ton r. Thornton 112 U S o20; Jones
V. Hill, 31 U. C. Q. B. 375. v. De Graflcuned, 00 Ala. 14a.
§§ 297, 298 THE JUDGMENT AS AN ESTOPPEL. 534
upon confession does not make it more conclusive than
if it were based on the verdict of a jury;^ but in Pennsyl-
vania the rule is otherwise. A judgment by confession
in ejectment is there "treated as a solemn judicial con-
fession of want of title, — a total and unconditional surren-
der of the field of controversy, — and, as such, conclusive
forever on the defendant and all his privies."^ In Illi-
nois, a judgment in ejectment, when the defendant was
defaulted, does not become conclusive until two years
after its entry.^
§ 297. In Actions for Mesne Profits. — In actions for
mesne profits, a judgment in ejectment is, as against de-
fendant, conclusive evidence of title in the lessor of the
plaintifi" from the time of the demise laid in the declara-
tion, and that he was not in possession at the institution
of his ejectment suit.* Beyond the time laid in the
demise it proves nothing, because beyond that time the
plaintiff alleged nothing;^ nor does it prove that the plain-
tiff was not in possession between the date laid in the
demise and the commencement of the action,^
§ 298. Payment of Costs. — The action of ejectment is
said to be peculiarly a creation of the court. The court
will so far control its creation as to stay proceedings in
the second suit, if the costs resulting from failure in a
former suit remain unpaid,^ if it appear that the second
1 Botts V. Shields, 3 Litt. 32. Doe v. Langs, 9 U. C. Q. B. 676;
2 Secrist v. Zimmerman, 55 Pa. St. Thompson v. Hall, 31 U. C. Q. B. 376;
446. West V. Hughes, 1 Har. & J. 574; 2
3 Cadwallader v. Harris, 76 HI. Am. Dec. 539; Crockett r. Lashbrook,
372. 5 T. B. Mon. 5^1; 17 Am. Dec. 98;
* Graves ?;. Joice, 5 Cow. 261; Leon Hinton v. McNeil, 5 Ohio, 509; 24
V. Burtis, 5 Cow. 408; Postens v. Am. Dec. 315. A judgment by default
Postesn, 3 Watts & S. 182; 38 Am. in ejectment is, in England, good evi-
Dec. 752; Brothers v. Hurdle, lO-Ired, dence of title for plaintiff in an action
490; 51 Am. Dec. 400; Shumake v. for mesne profits; but is not even
Nelms, 25 Ala. 126; Brewer v. Beck- prima facie evidence that defendant
with, 35 Miss. 467. w-as in possession: Pearse v. Coaker,
* Shumake v. Nelms's Adm'r, 25 Ala. L. R. 4 Ex. 92.
126; note 270, by C. H. & E., to Phil- ^ West v. Hughes, 1 Har. & J. 574;
lipps on Evidence; Bunthi v. Duchane, 2 Am. Dec. 539.
1 Rlackf. 56; Aslin v. Parkin, 2 Burr. ' Dauvers v. Morgan, 17 Com. B.
666; Dewey v. Osboru, 4 Cow. 329; 530.
535 THE JUDGMENT AS AN ESTOPPEL. § 299
action turns on tlie same question of title as tlie first,
though a different parcel of land be claimed and a differ-
ent person be made defendant.' This seems to be the
only power which the courts have reserved by which, if
need be, to prevent this, their creation, from perpetually
harassing the occupants of real estate by the repeated
assertion of pretensions whose worthless character has
been judicially ascertained,
§ 299. Ejectment Modified by Statutes. — Wherever
the common-law form of ejectment is abolished, and the
action is commenced by the parties in their own names, the
judgment is an estoppel, — a valid bar to any subsequent
action, — unless the privilege of commencing another is
given by statute.'^ Technically and substantially, under
the form of procedure in which the action to recover real
estate is conducted in the name of the real claimant, who
need not depend for his success on anything but his title,
we no longer have an action of ejectment. " We can see
no reason why a judgment upon a matter in regard to
realty, once put in issue, litigated, and determined, whether
it be title, right to present possession, or something else,
should not be conclusive, as well as when it relates to per-
sonalty. No principle of the common law would be vio-
lated by such a result. Nor would it be contrary to any
principle of public policy. The form of the complaint in
an action to recover real estate may be adapted to the
estate sought to be recovered, and the facts desired to be
put in issue."^ A judgment in ejectment, like every other
1 Doe on Demise; Brayne v. Bather, ^ Caperton v. Schmidt, 26 Cal. 479;
12 Q B 941 85 Am. Dec. 187; Dawley r. Brown, 79
2 Sturdy?;! Jackaway, 4 Wall. 174; N. Y. 390; Bouger v. Hol)l)s, 67 111.
Miles V. Caldwell, 2 Wall. 35; Beebe 592; Johnson v. Pate, 90 N. C. 3.S4;
V Elliott 4 Barb. 457; Sheridan v. Troutman v. Vernon, 1 Bush, 482;
Andrews 3 Lans 129; Campbell v. Benton v. Benton, 95 N. C. 559; Sobey
Hall 16 N Y 575; Castle v. Noyes, v. Beiler, 28 Iowa, 323; thll v. Cooper,
14 N Y .3''9- Fitch v. Cornell, 1 Saw. 8 Or. 254; Allen v. Salinger, 103 N. C.
156; betgen v. Ross, 54 111. 79; Doyle 14; Sims v. Sims, ^^J^^^-]~\' ^l>''^''
V. Hallam, 21 Minn. 515; Parks v. v. Stamps, 73 Ga. 209; 54 Am. Hep.
Moore, 13 Vt. 183; .37 Am. Dec. 589; 870.
Hodges V. Eddy, 52 Vt. 434.
§ 299 THE JUDGMENT AS AN ESTOPPEL. 636
final adjudication, bars only the causes of action and mat-
ters of defense put in issue in the former suit, or which,
if not put in issue, were of such a nature that the neglect
to put them in issue was an irrevocable confession of
their non-existence.^ It is not the fact that the land
sought to be recovered in two actions is the same that
creates an estoppel, but the fact that the issues are the
same.^ If the plaintiff relies upon a lease executed to him
by the defendant, and which in the present action estops
the defendant from denying the title of his landlord, the
judgment should leave the defendant free, after yielding
up possession, to contest his landlord's title in another
action.^ Where the owner of land is by law entitled to all
crops growing thereon, his recovery in ejectment because
it is conclusive that he is the owner of the land is equally
conclusive of his ownership of the crops thereon growing.*
Even where the common-law rules respecting the action of
ejectment and the inconclusiveness of judgments therein
prevail, if an action is brought upon an equitable title, in
a state in which such action is sustainable, it has the char-
acter of a suit in equity, and the judgment entered therein
is conclusive.^ So if, to defeat an action of ejectment, an
equitable defense is interposed, and the court decides it
not to be well founded, the defendant is estopped from
maintaining an independent suit founded on the same
equity.^ If the plaintiff sues for two parcels of land and
recovers but one, or for a large tract and recovers but a
part thereof, the judgment, though silent as to the part
not recovered, is nevertheless conclusive that the plaintiff
was not entitled thereto.'' No doubt the parties in their
pleadings may limit their controversy to a particular
title.® But in the absence of any limitation made by the
' Foster v. Evans, 51 Mo. 39. Winpenny v. Winpeimy, 92 Pa. St.
2 Dawley v. Brown, 79 N. Y. 390. 440.
3 Benton v. Benton, 95 N. C. « Chouteau v. Gibson, 76 Mo. 38;
559. Preston v. Rickets, 91 Mo. 320.
* Craig V. Watson, 68 Ga. 114. ' Thompson v. McKay, 41 Cal. 221 j
* Seitzitiger v. Ridgewav, 8 Watts, Woodin v. demons, 32 Iowa, 280.
496; Taylor v. Abbott, 41 Pa. St. 352; « Marshall v. Shaf ter, 32 Cal. 176.
537 THE JUDGMENT AS AN ESTOPPEL. §§ 300, 301
pleadings, the defendant must, at his peril, protect all his
rights in the land, or connected therewith. If, after
erecting buildings, he suffers judgment to be taken against
him for the possession of the land, he cannot surrender
possession and afterward maintain an action against the
plaintiff for the value of the buildings.^
§ 300. What Pleadings Involve Title. — If a complaint
alleges that plaintiff was at a specified time possessed
of lands, and that he claims such lands in fee-simple ab-
solute, and that being so possessed thereof, and being so
the owner thereof, the defendant entered and ejected plain-
tiff, etc., it tenders an issue of title. If to this complaint the
defendant makes a general denial, a subsequent judgment
for defendant is conclusive upon all the title held by the
plaintiff at that time.^ " It must be admitted by every one
that a recovery operates as an estoppel to this extent, to
preclude the losing party from denying that as to him
the prevailing party was at the time of the rendition of
the judgment entitled to the possession. It would seem
necessiarily to follow that, in order to avoid the estoppel,
the losing party must show other right to possession than
that which he had when the estoppel was created. He is
bound to show such right, because his former claim of
right was determined by the recovery."'
§ 301. Issues Concluded by Judgment in Ejectment. —
Under the code, a judgment in ejectment is conclusive of
but two points: the right of possession in plaintiff at the
commencement of the suit, and the occupation of the
premises by the defendant at the same date. At common
law, the judgment w^as, in an action for mesne profits, con-
clusive of title at the time of the alleged demise. Under
our practice the rule is different, because the plaintiff is
entitled to recover upon proof of right to the possession
at the commencement of his suit; and an allegation on
' Doak V. Wiswell, .33 Me. 355. * Marshall v. Shafter, 32 Cal. 176.
' Marshall v. Shafter, 32 Cal. 176.
§§ 302, 302 a the judgment as an estoppel. 538
his part in relation to the date of the acquisition of his
title is immaterial/
§ 302. Avoiding Effect of Former Judgment. — When-
ever, in an action for possession of realty, the question of
title is put in issue by the pleadings, the judgment prima
facie constitutes an estoppel to the assertion of any title
which existed in the losing party at the time of the former
suit. To avoid this estoppel he may show that by reason
of some lease or license his title could not be asserted in
the former suit.'^ Judgment in ejectment never affects
after-acquired title. Therefore a defeated party may in
any subsequent suit show, by parol or otherwise, that the
right to the possession has come to him since the former
suit.* Upon reasoning not adapted to our comprehension,
the supreme court of Vermont determining the effect of a
judgment in ejectment, wherein the plaintiff recovered a
part only of the land sued for, held that as to the lands
not recovered this was a conclusive adjudication that the
plaintiff had no title thereto, and that he could not avoid
the effect of the judgment by showing that the defendant
at the commencement of the former action was not in
possession of any part of the land which the plaintiff
therein failed to recover in the first action.* If, as the
plaintiff claimed, the defendant was not in possession of
part of the premises when the first action was brought,
that fact constituted a perfect defense, and one which
must have been sustained without considering the ques-
tion of title; and the judgment ought not to have pro-
tected the defendant when he subsequently for the first
time ousted the plaintiff.
§ 302 a. Judgments in Actions of Forcible Entry and
Unlawful Detainer are, to the same extent as judgments
in other actions, conclusive upon the questions within the
J Yount V. Howell, 14 Cal. 465; Sat- » Mahoney v. Van Winkle, 33 Cal.
terlee v. Bliss, 36 Cal. 489. 448; Emerson v. Sansome, 41 Cal. 552.
« Sherman v. Dilley, 3 Nev. 21; See post, sec. 329.
Chase v. Irvin, 87 Pa. St. 286. * Hodges v. Eddy, 62 Vt. 434.
539 THE JUDGMENT AS AN ESTOPPEL. § 303
issues, and determined by the court or confessed by the
parties.^ If a judgment is in favor of a plaintiff who sues
as landlord to recover of defendants for holding over, such
judgment is conclusive against them of the existence of
the lease and their unlawful holding over.^ And where
defendant claims to have constructive possession of tract
A by reason of his occupation of tract B, and judgment
for the possession of the latter tract has been recovered
against him in an action of forcible entry, such judgment
is conclusive evidence against him that his entry on tract
B "was a forcible intrusion on plaintiff's possession, and
when restitution was made under the judgment, the statu
quo was restored, and the defendant's possession" of the
tract B "became from the beginning the possession of
the plaintiff, and all constructive possession arising out
of the actual possession under color of title was thereby
extinguished."' So when, to maintain an action of forci-
ble entry and detainer, the plaintiff must establish an
actual prior possession, a judgment in his favor is conclu-
sive that he had had such possession.* The title to the
property is never in issue in these actions; and therefore
the judgment, whether for plaintiff or defendant, cannot
affect the title.^ The failure of plaintiff to recover in such
an action is a bar to his subsequent recovery upon the
same cause of action; but does not preclude him from sus-
taining the second suit, if he can show that from failure to
give the requisite notice, or from some other cause since
removed, the former judgment was rendered against him.®
§ 303. Judgments of Foreclosure. — If, under the stat-
utes of a state, proceedings for the foreclosure of a mort-
iDale V. Doddridge, 9 Neb. 13S; 428; Casey v. McFalls, 3 Sneed. 115;
Beeler v. Cardwell, 29 Mo. 72; 77 lliverside Co. v. Towiisend, 120 111. 9;
Am. Dec, 550; Haivie v. Turner, 46 Equitable Trust Co. v. Fislier, JOii 111.
Mo. 444; Mitchell v. Davis, 23 Cal. 189. In Kansas, the statute specially
381. provides that judgments in actions of
^ Norwood V. Kirby, 70 Ala. 397. forcil)le entry and unlawful detainer
* Bradley v. W«st, 08 Mo. 72. "shall not be a bar to any afteraction
* Brady v. Huff, 75 Ala. 80. brought by either party ": Waits v.
^Mattox V. Helm, 5 Litt. 185; 15 Teeters, 36 Kan. 604.
Am. Dec. 64; Fish v. Benson, 71 Cal. * Merrin v. Lewis, 90 HI. 505.
§ 303 THE JUDGMENT AS AN ESTOPPEL. 540
gage may be and are ex parte, the judgment entered
therein cannot be condnsive, where there was no defense,
for the obvious reason that there is no person, by proper
process, brought within the jurisdiction of the court,^
Where, however, proper parties are brought before the
court, a judgment either foreclosing or refusing to fore-
close a mortgage or other lien is conclusive of all the
issues necessarily determined by it. The ordering of a
sale is conclusive of the existence of the debt and of tlie
lien,^ and when followed by a sale, a conveyance pursu-
ant to such sale is, as against the parties to the action,
equivalent to a conveyance made by the mortgagor, at the
moment when the lien was created/ The mortgagor and
the other parties to the action cannot, after judgment
against them, be permitted to show that before judgment
the mortgage debt h'kd been paid, or that the decree was
taken contrary to agreement,* or that the mortgage was
not supported by a proper or sufficient consideration.®
The judgment in a writ of entry to foreclose a mortgage
is conclusive on all the title held by defendant at the date
of the judgment.^ If the defendant in a foreclosure suit
answers, claiming the whole equity of redemption, and
the complainant makes no replication, the decree will be
conclusive on the latter, so that he cannot afterwards set
np other claims.'^ Where a bill was opposed by the widow
of a deceased mortgagor on the ground that the prop-
erty mortgaged was hers, and the court found that the
husband had a life estate, and directed such estate to be
sold, it was held that the rights of the mortgagees were
thereby confined to the life estate, and that they could
not, in any subsequent action, show that the same prop-
erty belonged absolutely to the husband.^ In an action
1 Craft V. Perkins, 83 Ga. 760. ^ Watson v. Camper, 119 Ind. 60.
* Hayes v. Shattuck, 21 Cal. 51; * Shears v. Dusenbury, 13 Gray,
Dyer v. Hopkins, 112 111. 168. 292.
" Batterman v. Albright, 122 N. Y. ' Tower v. White, JO Paige, 395.
481; 19 Am. St. Rep. 510. » Manigault v. Holmes, 1 Bail. Eq.
«Windlett V. Life Ins. Co., 130 111. 283.
621; Spinka v. Glenn, 67 Ga. 74:4.
541 THE JUDGMENT AS AN ESTOPPEL. § 303
for foreclosure, no riglits ought to be litigated except those
which are claimed under the mortgagor. If the court
undertakes to determine claims hostile to the title of the
mortgagor, its decree will certainly be erroneous, and lia-
ble to reversal in an appellate court; but it is not coram
non judice and void. On the contrary, it is valid until
reversed, and is not subject to any collateral attack.* But
the priority of respective liens is a proper question to be
determined in a foreclosure suit. If a decree disposes of
the question of precedence between two mortgages, it is
final upon that point, though the bill neither asked for
such a decision nor for general relief. The words "that
it is ordered, adjudged, and decreed that the defendants
and all persons claiming under them, or either of them,
since the commencement of this cause be forever barred
and foreclosed of their equity of redemption, and claim
of, in, or to the mortgaged premises, and every part and
parcel thereof," are sutficient to show the decision of a
question of priority and to prevent its being again con-
tested.2 jf ^ defendant answers, asserting that he has a
junior mortgage and also a judgment lien, for both of
which he prays a decree of foreclosure, and the decree
finally rendered recognizes the judgment lien, and is
silent respecting the mortgage, it is conclusive against
the existence and lien of such mortgage.^ A decree or-
dering a sale necessarily negatives every claim that the
premises, for some reason, are not subject to sale. Hence
the homestead interest is necessarily disposed of by a
decree to which both husband and wife are parties; and
neither can therefore successfully resist an action for
property sold under an order of sale issued in a suit to
which he or she was a party on the ground that the land
sold is a homestead.-' So a decree adjudging the mort-
1 Board of Supervisors v. M. P. R. R. ' Haines v. Flinn, 26 Neb. 3S0; 18
Co., 24 Wis. 1-21; Bundy z;. Cunning- Am. St. Rep. 7.^5.
ham, 107 Ind. 360; Ulrichv. Dreschell, * Lee r. Kingsl.ury, 1.3 Tex. 68; 62
88 Ind 354 -^"i- '^^<^- ^'^^''- ^''^^ter v. Dear, 24 lex.
2 Board of Supervisors v. M. P. R. R. 17; 76 Am. Dec. 89; Hoiiaker v. Cecil,
Co., 24 Wis. 123. 84 Ky. 202.
§ 303 THE JUDGMENT AS AN ESTOPPEL. 542
gagee entitled to the rents and appointing a receiver to
collect thein precludes the mortgagor from claiming that
such rents are exempt.^
If specified persons are made defendants, and it is al-
leged that they claim some interest in tlie premises "as
subsequent purchasers or encumbrancers, or otherwise," a
general decree will preclude them from asserting any
rights acquired from the mortgagor after the execution of
the mortgage. But it will not divest any rights held par-
amount to the title of the mortgagor when he executed
the mortgage.^ The right of the wife of the mortgagor to
dower is such a paramount right. If she, after becoming
a widow, is made a party to a suit to foreclose a mortgage
executed by her husband alone, and no allegation is
made in the bill in reference to her claim for dower, the
decree will not be considered as affecting her dower estate.*
One who is made a party defendant to a suit to foreclose
a mortgage or other lien may have an interest in the prem-
ises in two or more capacities, and may sometimes be
bound in one capacity without being affected in the other.
If he is interested in a representative capacity, and the
complaint contains no statement concerning the capacity
in which he is sued, some, and perhaps all, of the courts
will regard him as being made a party only in his per-
sonal or private capacity. Hence where one who was an
assignee in bankruptcy of a mortgagor was made a party to
a foreclosure suit without any reference in the proceedings
to his being sued as assignee, it was held that the decree
of foreclosure and the sale thereunder did not affect the
title held by him as assignee.'' On the other hand, if one
is made a defendant in a representative capacity onlj', it
will not conclude him in his private capacity. Therefore
judgment against an executrix foreclosing a mortgage
made by her deceased husband will not estop her from
1 Storm V. Ermantront, 89 Ind. 214. ^ Lewis v. Smith, 9 N. Y. 502; 61
2 Fro.t V. Koon, 30 N. Y. 444; cit- Am. Dec. 706; MerchaiUs' Bank v.
ing Lewis v. Smith, 11 Barb. 156; Tliomson, 55 N. Y. 7; po^f, sec. ;W3 a.
Bank of Orleans v. Flass;, 3 Barb. Ch. ■* Lanilon v. Townshenil, 112 N. Y.
316; Elliott V. Pell, 1 Paige, 2u3. 93; 8 Am. St. Rep. 712.
543 THE JUDGMENT AS AN ESTOPPEL. § 303 a
resisting the issuing of a writ of assistance to put the pur-
chaser in possession, on the ground that the property
mortgaged was a homestead, and the mortgage therefore
void because she did not join therein.' Where the rule
prevails that title claimed adversely to the mortgagor
cannot be litigated in a suit to foreclose the mortgage,
and where the husband of a married woman is a proper
party to any suit affecting her separate property, the fore-
closure of a mortgage executed by a wife, but not by her
husband, though he was a party defendant to the foreclos-
ure, will not estop him from insisting that the property
mortgaged was not her separate property, and therefore
that the title thereto has not been affected by the decree
of foreclosure and the sale pursuant thereto,^
§ 303 a. Judgments Affecting Right of Dower. — It
seems that in order to conclude the wife's right of dower
it must in all cases be necessarily and specifically put in
issue, whether the proceeding be to foreclose a mortgage
to which the wife was not a party, or to enforce any other
claim to which her right of dower was paramount. M.
and wife conveyed their real property to his brother. M.'s
creditors subsequently recovered judgment against him
and obtained the appointment of a receiver. This re-
ceiver obtained a judgment against M. and wife and M.'s
brother, declaring the conveyance fraudulent and void as
to creditors, and directing a sale of the premises, and that
the parties in possession should deliver possession to the
purchaser. Prior to the sale M. died. His wife brought
an action to recover dower in the premises, and the judg-
ment against her in the action to set aside the deed was
claimed to bar her from asserting any claim to dower,
although she had not presented any such claim in her
answer, nor did the judgment purport to dispose of any
such claim. The court of appeals, in disposing of this
branch of the case, said: " She is bound by that judgment,
' Stockton B. &L. Ass'ni). Chalmers, ^ McCoinb v. Spangler, 71 Cal.
75 Cal. 322; 7 Am. St. Kup. 173. 418.
§ 303 a THE JUDGMENT AS AN ESTOPPEL. 544
wliatever may be its legitimate effect. The judgment is
final and conclusive upon her as to all matters put in
issue and litigated in the action. But, as stated above,
the matter of her inchoate right of dower was not put in
issue and litigated therein The plaintiff in this
action might have raised in that action the question that
she had a right of dowor, as yet inchoate, but which might
become complete; and might have asked that if it should
be found to exist, the judgment should make provision
therefor. But was she bound to do so? This would not
have been matter in direct opposition to the action in de-
fense to the claim made by the plaintiffs therein; it would
have been a quasi admission of the cause of action set up,
and a seeking for relief in the judgment which must fol-
low. And when the authorities say that a judgment is
final and conclusive upon the parties to it as to all mat-
ters which might have been litigated and decided in the
action, the expression must be limited as applicable to
such matters only as might have been used as a defense
in that action as against an adverse claim therein, and
such matters as if now considered would involve an
inquiry into the merits of the former judgment. The
existence of an inchoate right of dower in the plaintiff
would not have been a defense to the action of the re-
ceiver for a sale of the premises and a satisfaction from
the avails of the sale of the judgment debt which he rep-
resented. It could not, if pleaded and shown, have pre-
vented a judgment substantially that which was rendered.
The most which could have be^n effected would have been
to have secured in the judgment an auxiliary provision
recognizing and protecting the contingent right. And
again, it was a right pre-existent the claims and defenses
there litigated, and paramount to any right of the plain-
tiff in that action there sought to be enforced We
are of the opinion that the plaintiff is not estopped by the
record in the action brought by the receiver." ^ But when
» Malloney v. Horan, 49 N. Y. 115; 10 Am. Rep. 335; Grover, J., disseuting.
645 THE JUDGMENT AS AN ESTOPPEL. § 804
an action is brought for an assignment of dower, or the
claim to dower is otherwise brought in issue and deter-
mined, the judgment is conclusive of every issue essential
to its support. If the application to have dower assigned
is denied, this is, in all subsequent proceedings, conclusive
of the non-existence of the right to have dower assigned.^
If it is granted, the judgment is equally conclusive, not
only in favor of the right to dower, but also that every
fact necessary to that right existed, as that the husband
of the claimant died seised of the premises out of which
her dower w^as assigned.^
§ 804. Judgments of Partition. — We find it declared
in one case that " a writ of partition, or a petition for
partition, which is but a substitute for the former, is a
mere possessory action," and that it at most can bar
nothing but possessory actions.^ There are other au-
thorities indicating that a judgment in partition was but
a segregation into separate parcels of the titles which the
parties before held, and that it had no force as an estop-
pel.* Doubtless there may have been and may yet be
cases in which a particular claim of title is the only one
which is put in issue, and in which the final judgment
may affect nothing but such title. But at the present
time there can be no doubt that a judgment in a proceed-
ing for the partition of land's is as conclusive upon the
matter put in issue and tried as a judgment in any other
proceeding, and may be set up as a bar to a writ of entry
involving the same questions of title.® And a suit for
partition is perhaps the only proceeding known to the
law in which every possible question affecting tlie title to
real estate may be made an issue and determined, and in
' Erumr. Brady, 48 Mo. 560. Ohio St. 211; McRain v. McBain, 15
^ Gay V. Stancell, 76 N. C. 3G9; Sig- Ohio St. 3,37; 86 Am. Dec. 478.
non V. Haun, 86 N. C. 310. ^ Whittemore v. Shaw, 8 N. H. 393;
3 Mallett V. Foxcroft, 1 Story, 474. Doolittle r. Don Maus, 34 111. 457;
* Nicely v. Boyles, 4 Humph. 177; Pentz v. Kuester, 41 Mo. 450; Han-
40 Am. Dec. 638; Whitlock v. Hale, cock v. Lopez, 53 Cal. .302; Linehan
10 Humph. 63; McClure v. McClure, v. Hathaway, 54 Cal. 251; Jeukiua v.
14 Pa. St. 136; Tal)ler v. Wiseman, 2 Fahey, 73 N. Y. 355.
JCDG. I. — 35
§ 304 THE JUDGMENT AS AN ESTOPPEL. 546
which every person, whether in being or not, may be
bound by such determination.
Of course, a judgment in partition is, to the same extent
as every other judgment, restricted in its efi'ect to the par-
ties over whom the court acquired jurisdiction; and W'hile
there are provisions in the statutes of many of the states
authorizing the proceeding to be taken against unknown
owners, and under proper allegations to bring before the
court ever}^ person who has any interest in the property,
whether si:)ecially named or not, still, where this proceed-
ing is not resorted to, and the court has not acquired
jurisdiction over persons not named in the complaint or
process, doubtless they will not be affected by the judg-
ment. But as to the persons who are brought before the
court, the judgment is conclusive of every issue necessary
to its support. As already stated, all questions of title or
possession may be put in issue and finally determined.*
The judgment in a suit finally partitioning land estab-
lishes the title to the land partitioned, and is conclusive
upon every adverse claim of title or of possession existing
at the date of its rendition, and held by any of the parties
to the suit. The law requires the court to ascertain and
determine the rights of the parties, and makes it the duty
of parties to disclose their adverse claims. The decree
necessarily affirms that the parties named therein, who
are thereby adjudged to hold undivided interests in the
property, are tenants in common, joint tenants, or copar-
ceners, and, as such, the exclusive owners of the property
of which partition is made.^ If the land is set off or is
sold, the purchaser or the party to whom it is set off be-
comes thereby vested with the title held by all the parties
' Godfrey v. Godfrey, 17 Ind. 6; 79 Burghardt v. Van Dusen, 4 Allen,
Am. Dec. 448; De Uprev v. De Uprey, 374; Herr v. Herr, 5 Pa. St. 428; 47
27 Cal. 3'29; 87 Am. Dec. 81. Am. Dec. 416; Dixon v. Warters, 8
•^ Bobb V. Graham, 89 Mo. 200; Jones, 449; Rabb v. Aiken, 2 Mc-
Forder v. Davis, 38 Mo. 107; Clapp v. Cord Ch. 119; Linehan v. Hathaway,
Bromagham, 9 Cow. 569; Jordan v. 54 Cal. 251; Burroughs ?;. De Couts, 70
Van Epps, 85 N. Y. 427; Stean v. Cal. 361; L'Hommedieu v. Cincinnati
Anderson, 4 Harr. (Del.) 209; Freeman etc. R. R. Co., 120 Ind. 435; Luntz v.
on Cotenancy and Partition, sec. 531; Greve, 102 Ind, 173,
547 THE JUDGMENT AS AN ESTOPPEL. § 304
to the suit.' If one is made a party defendant under an
allegation that he claims some interest in the property,
the nature of which is to the plaintiff unknown, and he
fails to answer, and a judgment is entered declaring other
persons to be the owners of the property, and partition
is made accordingly, he is estopped by the judgment,
and cannot afterwards show that he was a co-tenant,
and that a portion of the land ought to have been set
apart to him.^ If a judgment in partition is entered in
an action between A and B, declaring the former to be
the owner of one third and the latter of two thirds of the
premises, A cannot disregard this judgment, and maintain
a second action, upon the theory that the two thirds were
held by B and his wife as tenants by entireties. It is
true that the former judgment is not binding upon the
wife, because she was not a party to it, but it is binding
upon both A and B, and neither can collaterally assail it.'
A decree in partition is conclusive that at its rendition
the lands set off to one of the parties, with a spring thereon,
were held in common by the parties prior to the judgment.*
The fact that a party is described as having a particular
interest will not prevent the judgment from aflfecting a
different interest, if such he had. As the object of the
proceeding is to make a final partition of the property, it
is unreasonable to suppose that when one is alleged to
have a particular interest he is made a party with respect
to that interest only, or is left free to avoid the partition
by subsequently asserting another interest. Hence if a
widow is made a party under the allegation that she is
entitled to dower, she cannot after judgment assert a right
to a homestead,^ and if by the judgment she is awarded
an interest as heir only, she cannot afterwards success-
fully claim dower.* But if one of the co-tenants is in-
^ Hart V. Steedman. 98 Mo. 452; » Hanna i>. Scott, 84 Ind. 71.
Crane v. Kimmer, 77 Ind. 215; Janes * Edson v. Munsell, 12 Allen, GOO.
V. Brown, 48 Iowa, 5CS; Cooper v. » Wright ?;. Dunning, 46 111. 271; 90
Baston, 89 Ind. 185; Oliver v. Mont- Am. Dec. 287.
gomery, 39 Iowa, 601. ^ Jordan v. Van Epps, 85 N. Y.
=* Morenhaut v. Higuera, 32 Cal. 290. 427. Nor will she be any the lesa
§§ 305, 306 THE JUDGMENT AS AN ESTOPPEL. 548
debted to the other for purchase-money, and the fact of
such indebtedness is not drawn in question in the suit for
partition, the judgment therein, it has been held, does
not estop the creditor co-tenant from maintaining an
equitable ejectment to enforce payment of such purchase-
money.*
If either of the parties acquires any new interest in the
property during the pendency of the suit, the authorities
appear to require him to assert it b}'' a supplemental
pleading; and if he permits a final judgment to be entered
without so asserting, he is barred by such judgment, to
the same extent as if such interest had been vested in
him at the commencement of the suit.'^
§ 305. Partition — Judgment in Favor of One not in Pos-
session. — Though a statute authorizes a partition to be
sought onlj'^ by some one in possession, yet the fact of
possession is not a jurisdictional fact, in the absence of
which the action of the court is void. If all the parties
in interest are brought before the court, its decree will be
binding, until vacated or reversed, though the applicant
was not one of the parties authorized by law to ask for a
partition.' A tenant in common of a vested remainder
may, while the tenant for life is in possession, maintain
an action for partition.^
§ 306. Partition — Persons not in Esse. — In proceedings
for partition, as well as in other actions affecting realty,
it is sufficient to bring into court the person entitled to
the first estate of inheritance with those claiming prior
interests, omitting all claiming or who may claim in re-
version or remainder after the vested inheritance. The
decree will therefore pass a title free from an}'- claims
bound if the pleadings seem to regard Co., 68 Cal. 73; 84 Cal. 541; Holladay
her as a child rather than as a widow v. Langsford, 87 Mo. 577; Bobb v.
of a deceased owner: Woodward v. Graham, 89 Mo. 207.
Elliott, 27 S. C. 368. ^ Blakeley v. Calder, 15 N. Y. 617.
1 McClure v. McClure, 14 Pa. St. * Mead v. Mitchell, 17 N. Y. 210;
134. 72 Am. Dec. 455; Clemens v. Clemens,
2 Christy v. Spring Valley Water 37 N. Y. 59.
549 THE JUDGMENT AS AN ESTOPPEL. §§ 307, 308
whicli might otherwise subsequently vest in persons not
in esse at the time of its rendition.' An English case
recognizes an exception to this principle of virtual repre-
sentation by denying its applicability in cases where the
person seised in fee is liable to have his seisin defeated
by a conditional limitation or an executory devise, be-
cause in that event the estate is insufficiently represented
by the person holding the first vested estate of inheri-
tance.^ This exception is repudiated so far as it seems to
be noticed in the United States.* But if the proceedings
in partition make no reference to the contingent interests
of persons not in being, and the judgment does not pro-
vide for "and protect such interests by substituting the
fund derived from the sale of the land in place of the
land, and preserving it to the extent necessary to satisfy
such interests as they arise," they are not, at least in New
York, concluded by the final judgment.*
§ 307. Partition — Unknown Owners. — Under statutes
providing that proceedings in partition may be prosecuted
against unknown owners, a decree regularly obtained is
conclusive, in the absence of fraud or collusion, of the
claims of a party in possession claiming in severalty, who
was only a party to the proceeding under the general
designation of unknown owners. By failing to answer,
he admits that the land is held in common, and that the
petitioners are entitled to have it partitioned.
s
§ 308. Conclusive without Deed of Partition. — A judg-
ment in partition, under the statute, is final between the
1 Wills V. Slade, 6 Ves. 498; Gaskell 320. See also McArthur v. Scott, 113
V. Gaskell, 6 Sim. C43; Nocline v. U. S. 340.
Greenfield, 7 Paige, 544; .34 Am. Dec. ^ Cook v. Allen, 2 Mass. 461; Nash
363; Cheesemau v. Thorne, 1 Edw. v. Church, 10 ^Yis. 303; 78 Am. Dec.
Ch. 629. See sec. 172. 678; Kane ?'. Rock River Co., 15 Wis.
* Goodess V. Williams, 2 Younge & 179; citing Kester v. Stark, 19 111. 328;
Q 595 Foxcroft v. Barnes, 29 Me. 128; Rogers
's Mead v. Mitchell, 17 N. Y. 210; 72 v. Tucker, 7 Ohio St. 417; Pfeltz v.
Am. Dec. 455; Brevoort v. Brevoort, Pfeltz, 1 Md. Ch. 455; Reese v. Holmes,
70 N. Y. 136. 5 Rich. Eq. 531.
♦ Monarque v, Monarque, 80 N. Y.
§ 308 a THE JUDGMENT AS AN ESTOPPEL. 550
parties, and is conclusive evidence of title, without the-,
execution of any deeds either by the parties or by com-
missioners;^ and the interlocutory decree, until set aside
or modified in some direct proceeding, is also " final and
conclusive as to the nature and extent of the rights of the
respective parties to it. If the parties choose to stop with
a decree ascertaining their rights, and not to proceed to
partition in fact, it is not perceived why their neglect to
take the latter should render the former step ineffectual." ^
§ 308 a. Partition of Lands of Decedents. — Under
statutes in force in many of the states, when the estate of
a decedent has been fully administered upon and the
obligations against it discharged, and it is ascertained
that a residue remains to which several persons are
entitled as his heirs or devisees, proceedings may be had
in the court having jurisdiction over the administration
of the estate to partition such residue among the parties
entitled thereto, either by allotting to each a parcel thereof
equivalent in value to his interest in the estate, to be held
in severalty, or by selling the whole and distributing to
each his share of the proceeds.
The application may be made by any one entitled to
the partition. If the person entitled is a minor, he may
apply by his guardian; if a married woman, her husband
may petition in her right.^ If any of the heirs has con-
veyed, his grantee is entitled to petition for partition.*
In Pennsylvania the application may be by the widow of
an heir who had an estate in remainder after the life of
his mother, who dies before the petition was filed,^ and
may probably also be by a tenant for life.^
A petition or application in writing is essential, and
a partition will be adjudged void unless such written
> Wright V. Marsh, 2 G. Greene, 94; * Stuart's Appeal, 56 Pa. St. 241 ;
Barney v. Chittenden, 2 G. Greene, De Castro u Barry, 18 Cal. 99; Manly 's
165. Estate, 1 Ashm. 363.
2 Allie t). Schmitz, 17 V^'"is. 169. * Cote's Appeal, 79 Pa. St. 235.
' Eckert v. Yous's Adm'r, 2 Rawle, ^ Rankin's Appeal, 95 Pa. St,
136. 358.
651 THE JUDGMENT AS AN ESTOPPEL. § 308 a
petition is established, except when the proceedings are
drawn in question after the lapse of so great a period of
time that the court may reasonably presume that such
petition existed in due form, but has been lost.^ In mosf
of the states the statutes are either wholly silent or else
speak in general and vague terms respecting the contents
of the petition for partition. Where any petition is re-
quired, it seems to be obvious that it ought to at least set
forth the facts upon which the court is called to act suffi-
ciently to inform the court of the names of the parties,
so far as known,^ the respective moieties and interests of
each, and the property sought to be divided among them.
The parties to the proceeding must include all persons
having any interest in the property derived from and
under the decedent, and if any of such persons are not
made parties, whether infants or adults, their interests
cannot be affected by the partition.^ By property derived
from and under the decedent we mean such only as is ac-
quired from him by descent, devise, or bequest; for if he
in his lifetime conveyed the property, or any part of it,
the part so conveyed constitutes no part of his estate in
probate, and cannot be there partitioned.* If any of the
heirs or devisees has conveyed his share, the conveyance
may be recognized and protected, and the part conveyed
set off to his grantee;^ and a conveyance made during the
pendency of the proceedings does not impair the force of
the partition.* A known vendee must be made a party,
or the proceedings will not affect his interests.^
The questions which may be litigated and determined
are restricted by the limited jurisdiction of the court, and
in some of the states by the manifest fear that the juris-
diction cannot be safely exercised in any but the most
1 Brown v. Sceggell, 22 N. H. 548. of Castro v. Barry, 18 Cal. 96; Wis.
'^ Ragan's Estate, 7 Watts, 438; Rev. Stats., sec. 3945; Howell's Mich.
Richards v. Rote, 68 Pa. St. 248. Stats., sec. 5970.
3 Whitman v. Reese, 59 Ala. 532. * Cook v. Davenport, 17 Mass. 345.
* Dreshcr v. A. W. Co., 52 Pa. St. ' Butler v. Roys, 25 Mich. 53; 12
225; 91 Am. Dec. 150. Am. Rep. 218; Thompson v. Stitt, 56
5 Vt. Stats. 18S0, sec. 2257; Estate Pa. St. 156.
§ 308 a THE JUDGMENT AS AN ESTOPPEL. -552
simple cases. The jurisdiction is only ancillary to the
settlement of the estate of the decedent, and therefore does
not extend over moieties and interests held by others/
unless specially included by statute. In some of the states,
if the decedent was a co-tenant with others, the court is
given authority' to set off his share from that of the living
co-tenants;^ and in others, the court may proceed to make
complete partition between a decedent and his surviving
co-tenants.^ Sometimes the court is authorized to act only
when the shares or interests of the parties are not in dis-
pute, or do not seem uncertain.^ In such cases the juris-
diction of the court is not ousted or suspended by the mere
claim of one of the parties that there is a dispute or uncer-
tainty. "To deprive the probate court of its jurisdiction
in a matter of this kind in any particular case, it must be
made to appear that there is a real doubt and uncertainty
in relation to the legal rights of the parties. The mere fact
that they do not agree what those rights are, or that they
are in controversy in respect to them with each other, is
not of itself sufficient and conclusive. It must first be by
some means affirmatively and satisfactorily shown that
there is an actual dispute and uncertainty concerning
their shares or proportions, which can be definitely deter-
mined only by submitting some controverted question of
fact to a jury, or some doubtful and contested question of
law to a legal tribunal competent to decide it. If the facts
in reference to which the alleged dispute or uncertainty
arises are all known to and expressly admitted by the
parties, and the law applicable thereto is clearly settled
and established, and if these show that the court has
jurisdiction, it is the duty of the judge to proceed and
cause the partition to be made, although one of the parties
should insist that there is dispute and controversy con-
' Romey's Appeal, 8 Watts, Stewart v. Alleghany Bank, 101 Pa. St.
415. 342.
2 Vt. Stats. 1880, sec. 2259; Mass. * Me. Stats, 1883, p. 550, sees. 8, 9;
Stats. 1882, p. 1035, sec. 60. Kelley v. Kelley, 41 N. H. 503; Gage
3 Tex. Stats. 1879, sec. 2132; Bright- v. Gage, 29 N. H. 533; Mass. Stats.
ly's Purdon's Dig., p. 538, sec. 152; 1882, p. 1035, sec. 59.
553 THE JUDGMENT AS AN ESTOPPEL. § 308 a
cerning their relative shares and proportions of the
estate."* If, after the court has assumed jurisdiction and
appointed commissioners, there arises a dispute or uncer-
tainty, the court will proceed with the partition,^ The
fact that the decedent did not die seised of the lands
sought to be partitioned sometimes ousts the court of its
jurisdiction.^ As the proceeding is merely ancillary to
the settlement of the estate of a decedent, it manifestly
cannot involve any title not held by him, nor determine
the title of one of the heirs who claims to be the sole
owner of the property.* Generally, questions of title, so
far as they can arise in probate proceedings, are disposed
of before the commissioners are appointed to make parti-
tion. The decree of distribution conclusively fixes the
share of each heir or devisee in the estate of his ancestor
or testator,® and the office of the proceeding for partition
is merely to segregate the shares so fixed, and transform
them from undivided interests to estates in severalty.
Jurisdiction over the persons whose interests are sought
to be affected by the proceeding is here, as elsewhere, in-
dispensable to the validity of the partition. This juris-
diction is not established by the original proceeding,
wherein the grant was made of letters testamentary or of
administration, nor yet by the proceeding for the distri-
bution of the estate in undivided moieties. It must be
brought into being by some kind of notice to the parties
interested, designed to advise them of the fact that the
interests which exist in common and undivided are about
to be segregated into estates in severalty. The contents
of the notice and the modes of its service may be as
prescribed by statute, or the court may bo vested with
a discretion to designate the form of the notice and the
mode of its service. But notice, as prescribed by the
' Dearborn v. Preston, 7 Allen, 93; McMasters v. Carothers, 1 Pa. St.
192. 324.
■^ Potter V. Hazard, 11 Allen, 187. * Eell'a Estate, 6 Pa. St. 457.
* Law V. Patterson, 1 Watts & S. * In re Garraud, 36 Cal. 277; Free-
184; Galbraith v. Green, 13 Serg. & R. man v. Rahm, 58 Cal. 111.
§ 308 a THE JUDGMENT AS AN ESTOPPEL. 654
statute or the order of the court, is essential, and if any
person has been proceeded against in the absence of such
notice, the proceeding is, as against him, a mere nullity.^
The statutes of Minnesota and California declare that
"before commissioners are appointed, or partition ordered
by the court, notice thereof must be given to all persons
interested who reside in this state, or to their guardians,
and to the agents, attorneys, or guardians, if any in this
state, of such as reside out of the state, either personally
or by public notice, as the court may direct."^ In Penn-
sylvania, notice to all persons named in the record is pre-
sumed.^
When land has been awarded to one of the heirs on
payment of a sum of money, the payment must be made
or secured in the manner designated by statute before the
title vests in such heir.* In Pennsylv9,nia, the security
must be, by recognizance or otherwise, to the satisfaction
of the court. "When security by recognizance is taken,
it operates as a lien on the lands." ^ "The persons to
whom or for whose use payment or satisfaction shall be
so made, in any of the cases aforesaid, for their respective
parts or shares of such real estate, shall be forever barred
of all right or title to the same." ®
Proceedings for partition in connection with the settle-
ment of the estates of deceased persons must, upon prin-
ciple, be regarded as binding and conclusive to the same
extent as other legal proceedings. When the court has
jurisdiction of the subject-matter, and of the persons of
» Breese v. Stiles, 22 Wis. 120; Ruth * Thayer v. Thayer, 7 Pick. 209;
V. Oberbrunner, 40 Wis. 238, 269; Jenks v. Howland, 3 Gray, 536; Bav-
Richards v. Rote, 68 Pa. St. 248; ington r. Clark, 2 Penr. & W. 115; 21
Smith V. Rice, 11 Mass. 507; Brown Am. Dec. 432; Smith v. Scudder, 11
V. Leggett, 22 N. B. 548; Wood v. Serg. & R. 325; Bellas v. Evans, 3
Myrich, 16 Minn. 494; Proctor v. Penr. & W. 479.
Newhall, 17 Mass. 81. * Kean v, Franklin, 5 Serg. & R.
^Cal. Code Civ. Proc, sec. 1676; 147; Share v. Anderson, 7 Serg. & R.
Minn. Comp. Stats., ed. 1878, p. 597, 43; 10 Am. Dec. 421; Cubbage v. Nes-
sec. 8. See also Mass. Gen. Stats, mith, 3 Watts, 314; Riddle's Appeal,
1882, p. 10.34, sec. 51; Wis. Rev. 37 Pa. St. 177.
Stats., sec. 3944. " Brightly's Purdon's Dig., p. 541,
3 Richards v. Rote. 68 Pa. St. 248; sec. 162; Merklein w. Trapnell, 34 Pa.
Vensel's Appeal, 77 Pa. St. 71. St. 42.
555 THE JUDGMENT AS AN ESTOPPEL. § 808 a
its owners, its final judgment operates to vest the title to
the several allotments in the persons to whom they are
respectively allotted. "There is no reason why a decree
of partition in the probate court should be auy less con-
clusive upon the parties than a judgment in a real action.
To permit one claiming under a party to such partition
again to litigate the title would manifestly violate the
maxim which declares that public interest requires an
end to litigation."^ All the incidents and appurtenances
of each allotment vest in the person to whom it is assigned.
"Unless there be some reservation or order made by the
committee, the buildings, fences, trees, stone, manure, etc.,
that are upon one part go to him to whom that part is
assigned";^ and his title is paramount to any conveyance
or encumbrance made by any of his co-heirs,^ The par-
tition is binding on minors, and cannot be disaffirmed by
them on attaining their majority.* It may, in some states,
be impeached for fraud. Thus in Mitchell v. Kintzer,' the
supreme court of Pennsylvania, in determining that evi-
dence ought to have been received to impeach a partition
for fraud, said: "The evidence so offered by defendant
was rejected by the court below, and the learned counsel
for Kintzer contended here that the court below were
right, because the proceedings and decree of the orphans'
court could not be impeached by parol, or for any cause,
but imported absolute verity, and vested the title in James
Mitchell and his heirs, irrespective of and beyond all the
circumstances which might have attended the transaction.
But in the eye of the law, fraud spoils everything it
touches. The broad seal of the commonwealth is crum-
bled into dust, as against the interest designed to be de-
frauded. Every transaction between individuals in which
it mingles is corrupted by its contagion. Why, then,
should it find shelter in the decrees of courts ? There is
» Carpenter v. Green, 11 Allen, 28; * Street's Appeal, 86 Pa. St. 222; IIol-
Mass. Stats. 1882, p. 10.36, sec. 63; comb r. Sherwood, 29 Coun. 418.
Howell's Mich. Stats., sec. ,5080. * Gelbach's Appeal, 8 Serg. & R. 295.
« Plumer v. Plumer, 30 N. H. 570. * 5 Pa. St. 217; 47 Am. Dec. 408.
§ 309 THE JUDGMENT AS AN ESTOPPEL. 556
the last Y)\a(ie on earth where it ought to find refuge. But
it is not protected by record, judgment, or decree; when-
ever and wherever it is detected, its disguises fall from
around it, and the lurking spirit of mischief, as if touched
b}'' the spear of Ithuriel, stands exposed to the rebuke and
condemnation of the law." The rhetoric of this quotation
is quite striking. In other respects, we are obliged to
refuse it our condemnation. A decree partitioning the
property of a decedent is, doubtless, neither more nor less
subject to collateral impeachment for fraud than is a de-
cree in any other proceeding in which a court has juris-
diction both of the parties and of the subject-matter, and
the general rule is, that the parties to an action or pro-
ceeding cannot collaterally impeach it, even for fraud.
§ 309. Action to Quiet Title. — If the defendant re-
covers judgment on the merits, in a proceeding to quiet
title under the statute authorizing suits to determine con-
flicting claims to real estate, the fact that he has a title is
as conclusively established as a judgment in favor of the
plaintiff would have established that defendant had no
title} If the judgment is in favor of the plaintiff, and
declares that he has title in fee-simple, and that the de-
fendant's claim is unjust and unfounded, every possible
interest of the latter in the land is cut off.^ The defend-
ant cannot successfully assert, notwithstanding such judg-
ment, that he has an easement in the land, to wit, the right
to construct or maintain a railway over it.' No matter
what is the form of the judgment, it is conclusive of the
facts declared by it, and within the issues, and of all other
facts without which the facts so declared could not exist,
or the relief granted could not be sustained. If the object
of the action was to declare invalid certain tax deeds, a
judgment granting the relief asked is conclusive not only
' Parrish v. Ferris, 2 Black, Farrar v. Clark, 97 Ind. 447; Good-
606. enow v. Litchfield, 59 Iowa, 226.
■^ Davis V. Lennan, 125 Ind. 185; ^ Indiana, B. ,& W. R'y Co. v. Allen,
Commissioners v. W^elch, 40 Kan. 767; 113 Ind. 581, 308.
557 THE JUDGMENT AS AN ESTOPPEL. § 309
of the invalidity of such deeds, but also of plaintiff's
ownership of the property, because, unless he was such
owner, he had no right to a decree against the tax deeds.^
So if the complainant asserts title by virtue of a will, ask-
ing that it be construed and his title thereunder declared
perfect, and judgment is pronounced in his favor, the de-
fendant cannot by a subsequent suit have the same will
set aside upon the ground of the mental unsoundness of
the testator.^
An action was brought to quiet title based upon two
inconsistent grounds. The court ordered plaintiff to elect
upon which of these grounds he would proceed. He made
such election, prosecuted his action to judgment, and was
defeated. He next commenced another action, based upon
the ground which he had abandoned under the order of
the court in the former litigation. The former judgment
was relied upon as a bar, and was so considered by the
judge, because, under the statute authorizing a suit to
ascertain and quiet the title of the parties, "the plaintiff
cannot, at his option, split it up into many suits with
which to harass and weary the defendant. By the final
decree in such a suit, the title to the premises, as between
the parties, is determined, and all questions or matters
affecting such title are concluded thereby. If either party
omits to set forth and prove all the grounds of his right,
or his adversary's want of it, he cannot correct his error
by bringing another suit upon the portion or fragment of
the case omitted."^
Under an act of the legislature of Louisiana " for the
further assurance of purchasers at judicial sales," the pur-
chaser of property may apply to the clerk of the court in
whose office the deed of sale was recorded for a monition
or advertisement and "praying that process may be
granted requiring all parties alleging any informality or
irregularity in the sale to show cause, if any they have,
1 Reed v. Douglas, 74 Iowa, 244; 7 * Starr j;. Stark, 1 Saw. 275, by Judge
Am. St. Rep. 476. Deady.
=* Faught V. Faught, 98 Ind. 470.
§ 310 THE JUDGMENT AS AN ESTOPPEL. 658
why the sale shall not be confirmed and homologated."
If advertisements in conformity with this act are duly
published, and no opposition being made, the court con-
firms and homologates the sale, "it is clear that the judg-
ment in the monition proceeding affords conclusive proof
that the judicial conveyance of the property vested a
complete title in the purchaser at the sheriff's sale."^
The dismissal of a bill to remove a cloud from the com-
plainant's title, or to cancel some deed or evidence of title
held by the defendant, by no means establishes that the
latter has or that the complainant has not a good title;
for the dismissal may have proceeded either on the ground
that the alleged deed or other matter was in law no cloud
upon the complainant's title, or that the controversy be-
tween the parties was one which ought to be determined
in a court of law.^
JUDGMENTS IN ACTIONS OF TRESPASS ON REAL ESTATE.
§ 310. First — In Like Actions. — It seems to be gen-
erally, if not universally, conceded that where one has
maintained trespass quare clausum f regit against another,
and afterward sues for a subsequent trespass, the former
recovery is conclusive in reference to the title set up to
the premises at the time of such recovery, and the defend-
ant can offer in evidence no title not acquired by him
since the previous suit.^ "A recovery in any one suit upon
issue joined on matter of title is clearly conclusive upon
the subject-matter of such title; and a finding upon title
in trespass not only operates as a bar to the future recov-
ery of damages for the trespass founded on the same
injury, but also operates by way of estoppel to another
action for ail injury to the same subject right of posses-
sion. It is not the recovery, but the matter alleged by
the party, and upon which the recovery proceeds, that
creates the estoppel The estoppel in trespass precludes
1 Montgomery?;. Samory, 99 U.S. 482. » Bert v. Sternburgh, 4 Cow. 559;
2 Phelps V. Harris, 101 U. S. 370; 12 15 Am. Dec. 402.
Chic. L. N. 326.
659 THE JUDGMENT AS AN ESTOPPEL. § 310
parties and privies from contending to the contrary of
that point of fact which, having once been put in issue,
has been solemnly found."' A judgment in trespass,
grounded upon the theory that the land described in the
pleadings is within the boundaries of one of the parties,
is conclusive upon that question in any other action of
trespass between the same pers()ns.^ Some cases, how-
ever, proceed upon the theory that in order to make a
judgment in trespass conclusive of title even in anotlier
action of trespass, the title must have been placed in issue
by plea of soil and freehold, or by some other equivalent
plea.*
In Massachusetts an action on the case for the inter-
ruption of lights or other easements, tried upon the gen-
eral issue, does not affect the title. But if the defendant
pleads title in bar, and issue is taken on it, the verdict
will be conclusive in subsequent controversies.* In the
same state a judgment in an action for the obstruction of
a private way, on the general issue, is admissible, but not
conclusive, evidence in a subsequent suit for the continu-
ance of the same obstruction.* In an action for overflow-
ing lands, occasioned by a mill-dam, a former recovery
between the same parties is conclusive as to the title of
the land, so far as it was involved in the former suit.^
When it has been adjudged that defendant has no right to
flow plaintiff's land without paying damages therefor, he
cannot, in a subsequent suit to increase the annual rent,
show a right by prescription or by grant prior to the former
judgment.^ Judgment for plaintiff in an action of tres-
pass, in which the defendant denied the trespass, and set
up that he had a right of w^ay over the land, is, in Massa-
1 Outram v. More wood, 3 East, 34G; * Standish v. Parker, 2 Pick. 20; 13
Illinois etc. R. R. Co. v. Cobb, 82 111. Am. Dec. 392.
183; Campbell v. Cross, 39 Ind. 155; ^ Parker v. Standish, 3 Pick. 288;
Bowyer v. Schofield, 1 Abb. App. Kent v. Gerrish, 18 Pick. 564.
177. ^ Jones V. Weathersbee, 4 Strob. 50;
■■' Warwick v. Underwood, 3 Head, 51 Am. Dec. 653; Kilheffer v. Herr, 17
238; 75 Am. Dec. 767. Serg. & R. 319; 17 Am. Dec. 658.
3 Potter V. Baker, 19 N. H. 166; ' Adams v. Pearson, 7 Pick. 341; 19
Stevens v. Hughes, 31 Pa. St. 383. Am. Dec. 290, and note.
§ 311 THE JUDGMENT AS AN ESTOPPEL. 560
chusetts, not conclusive that defendant had no right of
way, but only that he had trespassed on some portion of
plaintiff's land.'
§ 311. Second — In Actions in Ejectment. — In Penn-
sylvania, a recovery in an action of trespass quare clausum
/regit, if the only plea is liberum tenementum, is not con-
clusive of the title in a subsequent action of ejectment
for the same land.^ But in South Carolina an opposite
view is maintained. A defendant who, making such a
plea, and setting forth his claim by metes and bounds,
has a verdict and judgment in his favor may use this
judgment as conclusive evidence of title in an action
brought by him against the former plaintiff for the land
included in the plea; for the judgment is equivalent to a
finding that the title to the whole land included in the
plea is the property of the defendant.^ In New York, a
recovery in trespass is as conclusive as a recovery in any
other form of action. The reasoning used in support of
this liberal rule is, that the matter of estoppel depends
on the identity of the cause of action, and not on the
identity of the form; that the causes of action are the
same whenever they can be supported by the same evi-
dence, though they may be founded on different writs."*
In Massachusetts, a judgment for the plaintiff in an action
of tort in the nature of trespass quare clausum fregit is
perhaps never conclusive upon the title.^ " But the trial
of an action of trespass may turn upon the question of
title, and if that question is put in issue, tried, and passed
upon by the jury, or court, or a referee, the verdict or
finding, and judgment following it, are competent evi-
dence of that fact in a subsequent writ of entry between
the same parties, even if it does not operate as a conclu-
1 Howard v. Albro, 100 Mass. 236. Q. B. 606; Whittaker v. Jackson, 2
» Hoey V. Furman, 1 Pa. St. 295; 44 Hurl. & C. 926.
Am. Dec. 129; Sabins v. McGhee, 36 * Rice v. King, 7 Johns. 20; Mc-
Pa. St. 453; McKnight v. Bell, 135 Knight r. Dunlop, 4 Barb. 36; Camp-
Pa' St. 358. bell v. Cross, 39 Ind. 155.
3 Parker V. Leggett, 13 Rich. 171. ^ Arnold v. Arnold, 17 Pick. 4;
See also Chambers v. Dollar, 29 U. C. Morse v. Marshall, 97 Mass. 519.
561 THE JUDGMENT AS AN ESTOPPEL. § 311
sive estoppel."^ In Indiana, a recovery in an action of
trespass upon title to land being put in issue, no judg-
ment being rendered on such title further than it might
be supposed to enter into the determination of the action,
and no decision upon the title being essential to the judg-
ment, is no bar to an action of ejectment.^ *' So where
the declaration, in an action of trespass, or trespass on
the case, for an injury to land, alleges that the plaintiff
was well seised and possessed of the land as a good in-
defeasible estate in fee-simple, it is sufficient on the trial
for the plaintiff to show a lawful possession at the time
when the injury was committed. And a judgment for
the plaintiff in such a case, upon a general issue, is con-
clusive evidence between the parties and their privies
only of such title as the plaintiff was bound to prove." ^
The fact that a judgment is entered for nominal damages
does not depreciate its effect as res judicata}
While it is not possible to reconcile all the decisions
upon this subject, perhaps the greater portion of them
are not as conflicting as they at first seem to be. In the
great majority of actions of trespass, the issues in efTccb
tried and determined are, whether the plaintiff's possession
has been invaded, and what damages, if any, have resulted
from such invasion; and when such is the case, it is ob-
vious that the judgment cannot affect the title, because
title has not been considered nor determined, nor has
any fact been affirmed necessarily establishing or dis-
proving the title of either party; and certainly, unless it
affirmatively appears that the title w^as drawn in question
and decided, and that its decision was necessary, a judg-
ment will not be treated as concluding either party upon
the question of title;^ and that the title cannot, in some
of the states, be regarded as in issue, except upon a spe-
cial plea of soil, or freehold, or some other equivalent
1 White V. Chase, 128 Mass. 158. * Casler v. Shipman, 85 N. Y. 53.3.
2 Haraus v. Goodman, 12 Ind. 629. "* Hasten v. Olcott, 101 N. Y. 153;
s 1 Hriliard on Torts, 498; Parker Hargua v. Goodman, 12 lud. 629.
V. Hotchkiss, 25 Conn. 321.
JuDa. I. — 36
§ 312 THE JUDGMENT AS AN ESTOPPEL. 562
pleading;^ but that when such plea is interposed, or when
without any special plea the rules of practice in the state
permit the title to be received in evidence and to be con-
sidered by the court or jury, and it is in fact received,
considered, and made the basis of a verdict and judgment,
then that is as conclusively settled as if it had been drawn
in question and decided in some other action.^ In Michi-
gan, it is insisted that a judgment in trespass cannot,
under any circumstances, operate as an estoppel in an
action of ejectment, because a single judgment in eject-
ment is not there conclusive of title, and it would be
unreasonable to give a higher effect to a judgment in
trespass than to one in ejectment.^
The action commonly known as trespass to try title is,
as the name implies, one in which the title may be put
in issue and determined, and a judgment for or against
either party is conclusive upon all issues determined by
it, and precludes each from afterwards showing that the
title was different from that which the judgment in effect
asserted it to be.'*
§ 312. Suits for Breach of Warranty. — The successful
prosecution of an action for a breach of warranty of a
contract necessarily affirms, for all future actions, the
making of the contract.^ A judgment for the defendant
in an action of tort for a false representation of the
soundness of a horse is a bar to a subsequent action of.
contract on the defendant's promise, at the time of the
exchange, that the horse was sound.® P. brought an
action in chancery to set aside a sale and to enjoin the
1 Stapleton v. Dee, 132 Mass. 37 Mich. 2S5; Rice i-. Auditor-General,
279. 30 Mich. 13.
2 Dunckle v. Wiles, 5 Denio, 296; * Caston v. Perry, 1 Bail. 533; 21
Rogers w. Ratclifif, 3 Jones, 225; Staple- Am. Dec. 482; Fisk v. Miller, 20 Tt-x.
ton V. Dee, 132 Mass. 279; Shettles- 579; Hall v. Wooters, 54 Tex. 231;
worth V. Hughey, 9 Rich. 387; Moran Spence v. McGowan, 53 Tex. 30;
V. Mansur, 63 N. H. 377; Parker v. Graves v. Campbell, 74 Tex. 576;
Le.'gett, 13 Rich. 171; White v. Chase, Thompson v. Lester, 75 Tex. 521.
128 Mass. 158. * Barker v. Cleveland, 19 Mich. 230.
^ Keyser v. Sutherland, 59 Mich. * Norton v. Uoherty, 3 Gray, 372; 63
455; Denuisout>.GeueseeCircuit Judge, Am. Dec. 578.
563 THE JUDGMENT AS AN ESTOPPEL. § 312
collection of the purchase-money, on the ground of fraud
practiced by the vendor in making the sale. Failing in
chancery, he commenced suit at law to recover damages
for breach of warranty. It was held that the issues in the
two actions were different; that while, as affirmed by
the judgment in chancery, the vendor may not have been
guilty of fraud, it nowise necessarily followed that he did
not make a contract of warranty, nor that such contract,
if made, was not broken.^ In an action for breach of
warranty of the character, quality, or quantity of goods
sold, if it is conceded that the contract was made by the
parties, and has been fulfilled by the vendee, but broken
by the vendor, the issue presented to the court or jury is,
What are the damages occasioned by the breach of the
vendor's warranty? These damages must be estimated
the same, whether the purchase-money has been paid or
not. After a recovery by the vendee, the vendor may
maintain an action for the whole of the purchase-money,
if it has not been paid. The effect of the judgment for
the vendee in his action for breach of warranty is to es-
tablish the making of the contract, and that the vendor
has suffered in a prior suit all damages sustained for its
non-performance.^ If a party proceeds upon the theory
that a contract has been totally rescinded by the failure
of a vendor to perform his part thereof, the judgment is
conclusive on the vendee of all damages suffered by him,
including an amount advanced on the contract, and
equally conclusive against the vendor of the abrogation
of the contract, and of his right to recover any sum
stipulated for its performance.'^ If a warrantee recovers
and has satisfaction of his warrantor on his covenant to
warrant the title to real estate, he cannot afterwards re-
gain possession of the land from the warrantor on that
deed. He is estopped by the judgment procured in his
' Pleasants?;. Clements, 2 Leigh, 474. » Barker v. Cleveland, 19 Mich. 230;
« Barker v. Cleveland, 19 Mich. 230; Freeuiau v. Clute, 3 Barb. 424.
Perrine v. Serrell, 30 M. J. L. 458.
§ 313 THE JUDGMENT AS AN ESTOPPEL. 564
own behalf, and which proceeds upon the theory that the
deed did not convey the title.'
§ 313. Divorce. — One who brings a bill for divorce,
which, upon a trial on the merits, he fails to sustain,
cannot afterward proceed for the same offense,^ though
the decree simply dismisses his bill.^ " A libel for divorce
from the bonds of matrimony and a libel for divorce from
bed and board are proceedings having a direct and inti-
mate relation to each other. They" seek for different
degrees of change in the married relation, and concern
the same subject-matter."* In this case "the libelant in
the first suit asked a decision of the court uj)on the ques-
tion "whether she had been so cruelly treated as to justify
a judicial sentence of separation from her husband; and
the judgment given was that she was not. This judgment
was plainly a bar to any new application from bed and
board, upon the same ground up to that time, whether
upon the same or different evidence"; and it is also a bar
to the more complete remedy of divorce from the bonds
of matrimony. "A sentence of divorce necessarily affirms
the marriage, and no proceeding can afterward be had to
declare the marriage void ab initio."^ A decree of divorce,
so far as it affects the status of the parties, is considered
as a judgment in rem, and if free from fraud and collusion,
is binding on the whole world.** But except in relation to
the status of the parties, it is subject to the usual rule that
estoppels must be mutual, and does not conclude any third
person in reference to the facts which it necessarily affirms
or denies. A decree dismissing a bill for divorce, sought
on the ground of alleged adultery of a wife, is not evidence
against the husband that the wdfe did not commit adultery
1 Porter ?j. Hill, 9 Mass. 34; 6 Am. Dec. * Fera v. Fera, 98 Mass. 155.
22; Winslow v. Grindal, 2 Greenl. 64. * 2 Bishop on Marriage and Divorce,
^ 2 Bishop on Marriage and Divorce, sec. 705; May hew v. Mayhew, 3 Maule
sec. 766. & S. 266.
^ Thurston v. Thurston, 99 Mass. 30; *^ 2 Bishop on Marriage and Divorce,
Brown v. Brown, 37 N. H. 536; 75 sees. 755, 756.
Am. Dec. 154.
565 THE JUDGMENT AS AN ESTOPPEL. § 313
prior to the petition for divorce or during its pendency,
in an action against him for necessaries furnished to her
during their separation. So far as the parties to this
action are concerned, the matter is not res judicata. The
judgment in tlie divorce suit not being binding on the
plaintiff in this suit, he cannot avail himself of it for
the purpose of binding the defendant.^
If a husband files a bill for divorce on the ground of
desertion, and the wife by her answer justifies the deser-
tion on the ground of cruelty and other grounds sufficient
to entitle her to a divorce, and also files a cross-bill mak-
ing the same allegations and praying for separate main-
tenance, and the issues upon the husband's bill are tried
before a jury and a verdict given against him, this ver-
dict is not conclusive in her favor upon her cross-bill for
maintenance, because the verdict against the husband
may have been upon the ground that his wife's aban-
donment of him was by their mutual consent.^ So the
dismissal of a bill by a married woman for reasonable
support and maintenance is not conclusive against her
upon a bill filed against her by her husband charging
her with willful and continuous desertion without any
reasonable cause; for though the former judgment may
establish that her living apart from him was not 'without
her fault, still it does not establish that she willfully de-
serted and absented herself without reasonable cause.'
But upon such issues as are necessary to support it, a
judgment granting or denying a divorce is not less con-
clusive than any other judgment.* If the complaint
charges the defendant with committing adultery at vari-
ous times, between certain designated dates, and with
' Gill V. Rearl, 5 R. I. 343; 73 Am. v. Houcllette, 60 Me. 447; 58 Me.
Dec. 73. In Maine a divorce procured 513.
by one of the spouses is no bar to an - Wahle v. Wahle, 71 111. 510.
action for divorce subsequently brought ^ Umlauf v. Umlauf, 117 111. 580; 57
by the other. Each may obtain a di- Am. Rep. 880.
vorce from the other; or in otiier * Prescott v. Fisher, 22 111. 390; Slade
words, there may Ije two decrees dis- ?'. Slade, .'JS Me. 157; Kalisch w. Kalisch,
solving the same marriage: Stilphen 9 Wis. 529; Blain v. Blain, 45 Vt. 538.
§ 314 THE JUDGMENT AS AN ESTOPPEL. 506
different persons, some of whom are alleged to be un-
known, a judgment for the defendant bars any other
action based upon acts of adultery claimed to have been
committed at or between those dates, but as to charges of
offenses subsequent to the days named the defendant may
be proceeded against.^ If an action for divorce on a par-
ticular ground has been determined against plaintiff, he
cannot, in an action brought against him, use as a de-
fense the same acts upon which he relied as a cause of
action in the former suit.^
While a judgment of divorce remains in force, it is
conclusive evidence that the parties have ceased to be
husband and wife, and therefore precludes any further
action by either to procure a divorce from the other,' It
deprives each of the parties of all rights dependent on
their marital relations, though the cause of divorce is
not one recognized in the state or country in which the
judgment is offered in evidence.* An absolute divorce
dissolves all marriage ties and destroys the relation of
husband and wife as completely as if it had been termi-
nated by death.^ The wife becomes a ferae sole,^ and if
she goes into her late husband's house, is an intruder
who may be barred or put out/
§ 314. Alimony. — The question of a proper allowance
to the wife is one of the issues which should be litigated
in the action of divorce. The decree is therefore conclu-
sive on this subject, and the wife cannot afterwards main-
tain a suit to recover additional alimony.^ In England
the rule is otherwise; and the courts there can allow ali-
mony on a petition filed after the decree of divorce."
1 Vance v. Vance, 17 Me. 203. Am. Dec. 59; Hunt v. Thompson, 61
2 Lewis V. Lewis, 106 Mass. 309. Mo. 148; Miltimore v. Miltimore, 40 Pa.
3 Hood v. Hood, 11 Allen, 196; 87 St. 151; Porter i-. Porter, 27 Gratt. 599.
Am. Dec. 709; Cooper v. Cooper, 7 * Piper v. May, 51 Ind. 283.
Ohio, 239. ' Brown v. Smith, 83 111. 91; Merrill
* Roth V. Roth, 104 111. 35; 44 Am. v. Merrill, 38 Mich. 707.
Rep. 81; Ross v. Ross, 129 Mass. 248; « pischli v. Fischli, 1 Blackf. 360; 12
37 Am. Rep. 321. Am. Dec. 251.
* Hays V. Sanderson, 7 Bush, 489; » Covell v. Covell, L, R. 2 Pro. &
State V. Weatherby, 43 Me. 258; 69 D. 411.
567 THE JUDGMENT AS AN ESTOPPEL. §§ 315, 816
§ 315. Partnership. — If a plaintiff obtains judgment
against two as copartners, this is conclusive in a second
action between the same parties of the fact of the partner-
ship of the defendants.^ And where defendants, being
sued, pleaded in abatement the non-joinder of others, whom
they claimed to be their copartners, and succeeded in
maintaining their plea, the record in this suit is conclu-
sive, in a subsequent action against those who interposed
the plea in abatement, that the several persons were part-
ners, as alleged in the plea.^
§ 316. Replevin. — In consequence of the rule that the
conclusiveness of an adjudication is not affected by a
change in the form of the action, one who has failed
in replevin cannot subsequently maintain an action of
trespass^ or trover* for the taking of the same goods.
A judgment in replevin designating the rights of the
parties is as conclusive on an intervener as it is on the
plaintiff or on the defendant.^ A recovery in replevin
is equally conclusive on the defendant, whether he took
issue on the plaintiff's allegation of ownership or con-
fined himself to a denial of the taking and detention.^ A
determination of the rights of property in a replevin suit
is conclusive in an action on the replevin bond.'' Judg-
ment in replevin on plea of non detinet, accompanied by
a notice that the goods were the property of the defend-
ant, rendered on a special verdict, finding that defendant
unlawfully detained the goods, but silent on the issue of
property, is not conclusive on the title, where it does not
appear from the record that the title was passed upon,
because no decision in relation to title was essential to
the judgment, a mere right of plaintiff to a lien being
sufhcient to support his action.^ Whenever the defend-
' Dutton V. Woodman, 9 Cush. 255; ^ Witter v. Fisher, 27 Iowa, 9.
57 Am. Dec. 46. s Wells v. MoCleuiiiiig, 23 111.
■■* Witmer v. Schlatter, 15 Serg. & R. 409.
150- ' Denny v. Reynolds, 24 Ind. 248;
^ Ewald V. Waterhout, .37 Mo. G02. Ernst v. Hat,nie, 8G Ala. ri02.
♦ Hardin v. Paltnerloe, 28 Minn. 450; '^ I^orird of S. v. M. P. R. R. Co., 24
Claflin V. Fletcher, 10 Bias. 231. Wis. 125.
§§ 317, 318 THE JUDGMENT AS AN ESTOPPEL. 568
ant is, under the pleadings, entitled to try the title and
to have the property returned to him in case he succeeds,
he is bound to present his evidence of title, and cannot
seek his remedy by a cross-suit.^ A judgment for the de-
fendant, when he merely traverses plaintiff's complaint
without asking for a return of the property, establishes
either that plaintiff has no title or that the defendant does
not unlawfully detain. In order to give proper effect to
such a judgment, it must be shown aliunde on what
grounds the court or jury proceeded in the former action,'^
§ 317. Trespass. — Judgment for the defendant in an
action for taking goods is a bar to a subsequent action of
assumpsit for the value of the same goods.^ The plea of
not guilty, in an action of trespass de bonis asportatis, puts
nothing in issue but the wrongful taking. The simple
verdict of not guilty applies to the wrongful taking, and
leaves the question of title unsettled.* A recovery by the
defendant in an action on the case for cutting and carry-
ing away wheat bars an action of trespass quare clausum
/regit for the same cause.^
§318. Criminal Cases and Former Jeopardy. — The
principles applicable to judgments in criminal cases are,
in general, identical, so far as the question of estoppel is
involved, with the principles recognized in civil cases.
An acquittal or a conviction, under an indictment for any
offense, is a bar to any subsequent indictment substantially
like the former.^ But in criminal as in civil actions, it is
essential that the judgment be on the merits, and not
tainted with fraud.^ Thus going into a favorable court,
and submitting to a conviction, in order to escape a severe
penalty, is no bar to a- bona fide prosecution.*
^ McKnight V. Dunlop, 4 Barb. 36. « Phillipps on Evidence, rote 292;
» Angel V. Hollister, 38 N. ¥.^378. State v. Little, 1 N. H. 257-; Common-
'Ricei;. King, 7 Johns. 20. wealth v. Jackson, 2 Va. Cas. 501;
* Harris v. Mmer, 28 111. 139. Commonwealtli v. Alderman, 4 Mass.
* Johnson v. Smith, S Johns. 383. 477; State r. Cole, 48 Mo. 70; State v.
6Lesslie v. State, 18 Ohio St. 390. Colvin, 11 Hnmph. 599; 54 Am. Dec.
f State V. Swepson, 79 N. C. 632. 58; note to State v. Solomons, 27 Am.
569 THE JUDGMENT AS AN ESTOPPEL. § 318
There are many cases in wliich though a defendant
has not been in fact acquitted, yet he is entitled to the
same protection as if such acquittal had taken place.
Before the calling of a cause for trial, and until the jury is
sworn to try it, the prosecuting attorney may ask that a
judgment of nolle prosequi be entered; ^ and when entered,
like a judgment of nonsuit in a civil action, it merely ter-
minates the action in which it is entered, without affecting
the right to prosecute another action for the same cause.^
If the defendant reaches that stage in the cause in which
he is regarded as in jeopardy, the right to enter a judg-
ment of nolle prosequi ceases. There is some difference of
opinion respecting the point in a trial at which the de-
fendant is first in jeopardy. There are a few authorities
which declare him not to be in jeopardy until after the
jury has returned its verdict;^ but an almost overwhelm-
ing preponderance of authorities maintains that when a
defendant is placed on trial before a competent court, and
a jury is impaneled and sworn, he is in jeopardy, and
there is no longer any authority to enter a judgment of
nolle prosequi, and he must be treated as acquitted, unless
the trial is permitted to proceed until, by reason of the
death or illness of the judge or of a juryman, or the in-
ability of the jury to agree, or from some other overruling
necessity, the jury is discharged without a verdict.* Un-
Dec. 475-478; Watkins v. State, 68 Rep. 60; Hines v. State, 24 Ohio St.
Ind. 427; 34 Am. Rep. 273; McFarland 134; 17 Am. Rep. 4.36; McFad.Ien v.
V. State, 68 Wis. 400; 60 Am. Rep. Commonwealtli, 23 Pa. St. 12; 62 Am.
867; State v. Simpson, 28 Miun. 66; Dec. SOS; People v. Cage, 48 Cal. 323;
41 Am. Rep. 269. 17 Am. Rep. 436; People v. Hunckeler,
1 M.'Fadden v. Commonwealth, 23 48 Cal. 3.34; Teat v. State, 53 Miss.
Pa. St. 12; 62 Am. Dec. 308; Mount 453; 24 Am. Rep. 70S; Brink v. State,
V. State, 14 Ohio, 295; 45 Am. Dec. 18 Tex. App. 344; 51 Am. Rep. 317;
542; State v. Champeau, 52 Vt. 313; United States v. Shoemaker, 2 McLean,
36 Am. Rep. 754. 114. For aiitliorities showini? when
^ State V. Hornsby, 8 Rob. (La.) 583; the defendant is so far placed in jeop-
41 Am. Dec. 314; Commonwealth v. ardy to be entitled to be considered
Briggs, 7 Pick. 179. as accjixitted, unless a verdict of guilty
* People V. Coodwin, 18 Johns. 187; has been found against him, see Ex
9 Am. Dec. 203; State v. Moor, Walk, parte Clements, 50 Ala. 459; People
(Miss.) 134; 12 Am. Dec. 541; Taylor w. v. Olcott, 2 Johns. Cas. 301; 1 Am.
State, 35 Tex. 97; United States v. Dec. 168, and note; State v. Wood-
lOO.
Perez, 9 Wheat. 579. ruff, 2 Day, 504; Am. Dec. H
' Lee V. State, 26 Ark. 200; 7 Am. People v. Barrett, 2 Caines, 304; 2
§ 318 THE JUDGMENT AS AN ESTOPPEL. 670
der constitutional provisions universally prevailing, no
person is permitted to be placed twice in jeopardy for the
same offense.^ Therefore, if, after a defendant has been
placed in jeopardy, a nolle prosequi is entered, or the jury
is discharged without sufficient cause before returning a
verdict, the defendant is, in contemplation of law, ac-
quitted;^ and when he is again placed on trial the only
question is, whether the offense for which he is sought
to be tried is the same as that of which he has been
acquitted.
In criminal prosecutions, as in civil cases, when a for-
mer judgment in favor of the defendant is pleaded in bar,
the most satisfactory test, and the one most easily applied,
is to inquire whether evidence competent and sufficient to
sustain conviction under the second indictment would
have been equally competent and sufficient to support a
conviction on the indictment under which the defendant
has been acquitted. If the inquiry must be answered in
the affirmative, then the plea should be sustained.^ If, on
the other hand, the evidence necessary to justify a con-
viction under the second indictment could not have sus-
tained one under the first, the plea should be overruled.
The evidence required to convict under the second indict-
ment might have been unavailing if offered under the
Am. Dec. 239; People v. Goodwin, 18 monwealth, 111 Pa. St. 1; 56 Am.
Johns. 187; 9 Am. Dec. 20.3; Common- Rep. 235.
wealth V. Cook, 6 Serg. & R. 577; 9 ^ gt^te v. Norvell, 2 Yerg. 24; 24
Am. Dec. 46.5, and note; State v. Am. Dec. 458; Campbell ij. People, 109
Moor, Walk. (Miss.) 134; 12 Am. Dec. 111. 565; 50 Am. Rep. 621; Black v.
541, and note; State v. Burket, 2 Mill, State, 36 Ga. 447; 91 Am. Dec. 772;
155; 12 Am. Dec. 662; Commonwealth Parchman v. State, 2 Tex. App. 228;
V. Purchase, 2 Pick. 521; 13 Am. Dec. 28 Am. Rep. 435; State v. Larkin, 49
452. N. H. 36; 6 Am. Rep. 456; Durham v.
' State V. McKee, 1 Bail. 651; 21 People, 4 Scam. 172; 39 Am. Dec.
Am. Dec. 499, and note; State v. 407; Dinkey v. Commonwealth, 17 Pa.
Cooper, 13 N. J. L. 361; 25 Am. Dec, St. 126; 55 Am. Dec. 542; Dominick
490; Black v. State, 36 Ga. 447; 91 Am. v. State, 40 Ala. 680; 91 Am. Dec. 496.
Dec. 772; Dinkey v. Commonwealth, The true test is, " Could the prisoner,
17 Pa. St. 126; 55 Am. Dec. 542. upon any evidence that might have
^ O'Brian v. Commonwealth, 9 Bush, been produced, have been convicted
333; 15 Am. Rep. 715; Wright v. upon the first indictment of the offense
State, 5 Ind. 290; 61 Am. Dec. 90; that is charged in the second?": Corn-
State V. Wilson, 50 Ind. 477; 19 Am. monwealth v. Bakeman, 105 Mass. 53;
Rep. 719; State r?. McGimsey, 80 N. C, State v. Horneman, 16 Kan. 452; Price
377; 30 Am. Rep. 90; Hilands v. Com- v. State, 19 Ohio, 423.
571 THE JUDGMENT AS AN ESTOPPEL. § 318
former indictment, because of the entire insufficiency of
that indictment to support a conviction of any crime wliat-
ever. If so, his former trial could not have placed the
defendant in jeopardy, because he was not accused of any
criminal offense, and not being accused of any offense, he
has not been acquitted of any, and his plea of former ac-
quittal cannot prevail.^ Though no nolle prosequi can be
entered without consent of the defendant after the sub-
mission of any evidence to the jury, where the trial is
regularly brought on, yet if the arraignment of the defend-
ant is omitted, and he is tried without any plea, he is not
put in jeopardy, because there is no issue to which the
evidence can be applied, and a nolle prosequi may there-
fore be entered without his consent.'^
Though the indictment under which an acquittal has
been had charges an offense apparently different from
that charged in the second indictment, still the plea of
former acquittal may be sustained by showing that the
defendant could not have been guilty of the crime with
which he is now charged without also being guilty of that
of which he has been acquitted, as where the crimes
charged in both indictments are parts of the same crim-
nal act. Hence if two murders are committed by the
same act,^ or several pieces of property are embraced in
the same theft,* or destroyed by the same arson,^ an ac-
quittal of the murder of one of these persons, or of the
larceny or arson of one of these parcels of property, is an
acquittal as to the other.
Whoever, being convicted on a valid indictment, avails
himself of any remedy to relieve himself of the conviction,
on the ground that it is irregular or erroneous, docs so
on the implied condition of submitting himself to a new
1 Pritchett v. State, 2 Sneed, 285; 62 439; 24 Am. Rep. 708; State v. Nash,
Am. Dec. 468; State v. Ray, Rice, 1; 86 N. C. eoO; 41 Am. Rep. 742; Clem
.3.3 Am. Dec. 90; Black v. State, 36 Ga. v. State, 42 Iiid. 420; 13 Am. Rep. 369.
447; 91 Am. Dec. 772. ■* Fisher v. Commonwealth, 1 Bush,
■' Bryans v. State, 34 Ga. 323. 211; 89 Am. Dec. 620.
* People w. Majors, 65 Cal. 138; 52 = State v. Colgate, 31 Kan. 511; 47
Am. Rep. 2'Jo; Teat v. State, 53 Miss. Am. Rep. 507.
§ 319 THE JUDGMENT AS AN ESTOPPEL. 572
trial, whether he applies for it in the court below or not.^
Whenever a charge includes a minor charge, an acquittal
of the former includes the latter. Thus a verdict of not
guilty on an indictment for murder bars a prosecution for
manslaughter.^ This rule can apply only when, under
the indictment for the greater crime, it was legally possi-
ble, under evidence properly admissible at the former trial,
to have convicted the defendant of the lesser crime, in bar
of prosecution for which he pleads his former acquittal.
Therefore, in those states in which, under an indictment
of one as principal, it is not possible to convict him of
being an accessary, his acquittal does not bar his subse-
quent prosecution and conviction under an indictment
charging him with being an accessary before the fact of
the commission of the same crime.^
§ 319. Judgments in Criminal Cases as Evidence in
Civil. — The record of a conviction or of an acquittal is
not, according to a decided preponderance of authority,
conclusive of the facts on which it is based in any civil
action.* Thus an action of trover for money alleged to
be stolen is not prejudiced by the acquittal of the defend-
ant on a prosecution for theft in taking the same goods.^
A was indicted and convicted of obstructing a highway.
After the removal of the obstruction, he commenced an
action against B for using the same highway. In this
action the question arose whether the conviction could
be pleaded against A as an estoppel. The court held that
it could not, but that it might, however, be placed in evi-
dence for the purpose of showing that the locus in quo was
a highway.® The chief reason for excluding the record of
1 Stewart v. State, 13 Ark. 736. Steel v. Cazeaux, 8 Mart. (La.), 318; 13
* Phillipps on Evidence, 56; Sanders Am. Dec. 288, and note; Mead v. Bos-
V. State, 55 Ala. 42. ton, 3 Cush. 404; Cluff v. Mutual B.
3 State V. Larkin, 49 N. H. 36; 6 L. I. Co., 99 Mass. 317; Cottinghain
Am. Rep. 456; Rex v. Plant, 7 Car. & v. W^eeks, 54 Ga. 275.
P. 575; State v. Buzzell, 58 N. H. 257; * Hutchinson v. Bank of Wheeling,
42 Am. Rep. 586. 41 Pa. St. 42; SO Am. Dec. 596; Beau-
* Betts V. New Hartford, 25 Conn, soliel v. Brown, 15 La. Ann. 543.
185; 1 Greenl. Ev., sec. 537; Corbley « Petrie v. Nuttall, 11 Ex. 569.
V. Wilson, 71 111. 209; 22 Am. Rep. 98;
573 THE JUDGMENT AS AN ESTOPPEL. § 319
a criminal prosecution from evidence in a civil case is
that the parties to the two proceedings are different. One
who has been damaged by some criminal act of another
has a claim for remuneration, independent of the right
of the public to proceed against the offender, and to in-
flict the penalty prescribed hy law. This right to compen-
sation in damages ought not to be, and is not, dependent
on the success or failure of the prosecution conducted by
the people. If it w^ere, the party most injured would be
prejudiced by a proceeding to w^hich he was not a party,
and which he had no power to control. A person con-
victed of any offense is not estopped by the conviction
from disputing the facts on which it is based in a civil
action, because his adversary in the civil action would not
have been barred if the prosecution had terminated in an
acquittal.
Notwithstanding the weight of reason and of precedent
opposing the admission of any record of a criminal cause
as an estoppel in any civil action, it must be admitted that
the precedents are not, on this subject, consistent with
one another. In one case it was declared not to be an
error to instruct a jury on a trial in a civil action for
an assault and battery that the conviction of the defend-
ant on an indictment for the same offense showed that
the plaintiff was entitled to damages;^ in another, the
record of the conviction of the defendant upon an indict-
ment for adultery was received, in a subsequent action
against him for divorce, as evidence both of the adultery
and of his marriage to plaintiff;'' and the record of plain-
tiff's conviction is doubtless conclusive evidence against
him, in an action for malicious prosecution resulting in
such conviction, that such prosecution was not without
probable cause.' This effect of such conviction continues
1 Moses V. Bradley, 3 Whart. 27'2. ^ Herman on Estoppel, sec. 155; Grif-
See Horwood v. .Smith, 2 Term Rep. fis v. Sellars, 3 Dev. & B. 492; 31 Am.
750; May bee V. Avery, 18 Johns. 352. Dec. 422; Heruiau v. Bookcrhoff, 8
^ Anderson v. Anderson, 4 Greenl. Watts, 240.
100; 16 Am. Dec. 237; Randall v.
Randall, 4 Greenl, 326.
§ 319 THE JUDGMENT AS AN ESTOPPEL. 574
in some of the states, though a new trial has been granted
or the judgment reversed upon appeal;* in others, such
conviction, after being set aside upon appeal, or by the
granting of a new trial, is prima facie evidence only of
the existence of probable cause ;^ while in others it re-
mains conclusive evidence, unless shown to have been
procured by artifice or fraud.^
Of course, judgments in criminal, like those in civil,
cases are always competent evidence of their own rendi-
tion. Thus in an action for malicious prosecution, the
record in the criminal case may be put in evidence to es-
tablish the facts that there was a prosecution resulting in
an acquittal. In prosecutions against accessaries or against
receivers of stolen goods, the conviction of the principal
is admissible for the purpose of establishing that a con-
viction of the principal has been had, but not to show that
a crime was committed, or that the principal is in fact
guilty.* So a judgment of conviction founded upon a
plea of guilty may be received in a civil action as an ad-
mission by the ■ defendant of the facts confessed by his
plea;^ but this is manifestly only a mode of proving such
admission, and cannot be regarded as estopping the de-
fendant from showing that notwithstanding such confes-
sion and conviction he was not guilty.* So it has been
held, under a prosecution for trespass in unlawfully re-
moving stakes and rails from a boundary line, a judgment
in a civil action rendered before the commission of the
alleged trespass, in an action to which defendant w^as a
party, was conclusive evidence against him of the location
of such line.'
' Whitney v. Peckliam, 15 Mass. Kaye v. Kean, 18 B. Mon. 839; Wo-
243; Parker V. Huntington, 7 Gray, 36; mack v. Circle, 29 Gratt. 192.
66 Am. Dec. 455; Parker v. Farley, 10 * Pliillipps on Evidence, note 273;
Cush. 279; Cloon v. Gerry, 13 Gray, Greenl. Ev., sec. 537.
203; Denneheyw. Woodsiim, 100 Mass. * Bradley v. Bradley, 11 Me. 367;
197; Griffis v. Sellars, 3 Dev. & B. 492> Green v. Bedell, 48 N. H. 546.
31 Am. Dec. 422. * Commonwealth v. Horton, 9 Pick.
^ Goodrich v. Warner, 21 Conn. 432; 206; Clark v. Irwin, 9 Ohio, 131.
Burt V. Place, 4 Wend. 591. ' Dorr ell v. State, 83 lud. 357.
^ Spring V. Besoue, 12 B. Mon. 555;
575 THE JUDGMENT AS AN ESTOPPEL. § 319 a
Even where the parties are the same, there seems to he
an injustice in admitting an acquittal in a criminal pros-
ecution in evidence in a civil action, because to procure a
conviction in a criminal prosecution the jury must he
convinced, beyond a reasonable doubt, while in a civil
action it is their duty to find according to the preponder-
ance of evidence. Nevertheless, the authorities indicate
that when a prosecution is conducted by and in the
name of the United States, and results in an acquittal, the
judgment is conclusive in favor of the defendant in a sub-
sequent trial of a suit in rem, brought by the United States
against the same defendant, in which the issues are the
same as those involved in the criminal prosecution.^
The conviction of a defendant may be offered in evi-
dence in a subsequent criminal prosecution against him.
If so, the parties to the two prosecutions and the rules
of evidence applicable to them being the same, it would
appear that the former conviction is conclusive evidence
of any and every fact necessarily affirmed by it, and must
be received as such in the second prosecution.^
§ 319 a. Judgments in Civil Cases as Evidence in Penal
and Criminal Actions. — A judgment in a civil case must
generahy be excluded from evidence in a criminal pros-
ecution, because the parties are not the same, and were
they the same, it would be improper to receive a judgment
in a civil case as evidence of the commission of a crime
of which the defendant is accused, for the reason that such
judgment may be founded on a mere preponderance of
evidence not sufficient to satisfy the jury beyond a reason-
able doubt.' And where a suit is brought to recover a
forfeiture, and the rule of evidence in criminal cases ap-
plies, that all the facts material to sustain such suit must
be proved beyond reasonable doubt, a judgment in a civil
action between the same parties is not admissible in favor
1 Coffey V. U. S., IIG U. S. 436. » Greenl. Ev., sec. 537; Britton v.
2 Com. V. Evaii.'^. 101 Mass. 25; Com. State, 77 Ala, 202.
V. Feldman, 131 Mass. 588.
§ 319 b THE JUDGMENT AS AN ESTOPPEL. 576
of the plaintiff to establish any fact necessary to the main-
tenance of a civil action.^
§ 319 b. The Decrees and Orders of a Probate, Or-
phans', or Surrogate's Court, made in the exercise of
jurisdiction conferred upon it by law, are as final and
conclusive as the judgment decrees or orders of any
other court. The character and finality of res judicata
attach to their decisions, irrespective of the nature of
the issue determined, provided always that the court
had jurisdiction to determine it.^ Hence, whether the
adjudication be for or against the validity of a will, for
or against granting letters of administration, allowing
or disallowing an account, granting or refusing to grant
a homestead, it is in either case a final settlement of
the matter of which it assumes to dispose, and it can-
not be collaterally attacked, impeached, or avoided in the
same nor in any other court by any of the parties thereto,
nor by any person in privity with them.^ Courts having
the management and disposition of the estates of de-
cedents, minors, and incompetent persons exercise a
jurisdiction not second in importance to that possessed
by any other class of courts. Their judgments and other
1 Riker v. Hooper, 35 Vt. 457; 82 Ferrie, 5 Blatchf. 225; 13 Wall. 465;
Am. Dec. 646. Castro v. Richardson, 18 Cal. 478;
'■' Roach V. Martin's Lessee, 1 Harr. State v. McGlynn, 20 Cal. 233; 81
(Del.) 548; 27 Am. Dec. 746; Wymaa Am. Dec. 118; judson v. Lake, 3 Day,
V. Campbell, 6 Port. 219; 31 Am. Dec. 326; Gates v. Treat, 17 Conn. 392;
677; Bailey v. Delworth, 10 Smedes & Harrison v. Morehouse, 2 Kerr, 584;
M. 404; 48 Am. Dec. 760; McDade v. Lewis v. Allred, 57 Ala. 628; Hutton
McDade, 7 Ga. 559; 50 Am. Dec. 407; v. Williams, 60 Ala. 107; Cummings v.
Merrill v. Harris, 26 N. H. 142; 57 Cummings, 123 Mass. 270; Johnson v.
Am. Dec. 359; Johns v. Hodges, 62 Beazley, 65 Mo. 250; 27 Am. Rep. 276;
Md. 525. Sheetz v. Kirtley, 62 Mo. 417; Jones v.
2 Harris v. Colquit, 44 Ga. 663; Chase, 55 N. H. 234; Roderigas r. East
Rose V. Lewis, 3 Lans. 320; Stiles v. River Savings Inst., 63 N. Y. 460; 20
Burch, 5 Paige, 135; Womack v. Wo- Am. Rep. 555; Connolly v. Connolly, 9
mack, 23 La. Ann. 351; Rudy v. Ul- Rep. 830; Hood's Estate, 90 N. Y. 512;
rich, 69 Pa. St. 177; 8 Am. Rep. 238; Hutton v. Laws, 55 Iowa, 710; Hodge
Penderleath v. McGillivray, Stu. 470; v. Fabian, 31 S. C. 212; 17 Am. St.
Shropshire v. Probate Judge. 4 How. Rep. 25; Withers v. Patterson, 27 Tex.
(Mi-s.) 142; Cole w. Leak, 31 Miss. 131; 491; 86 Am. Dec. 643; Turner t'. Ma-
Crippen v. Dexter, 13 Gray, 330; Ab- lone, 24 S. C. 398; Cecil v. Cecil, 19
bott V. Bradstreet, 3 Allen, 587; Simp- Md. 72; 81 Am. Dec. 626; Wall w.
son V. Norton, 45 Me. 281; Davie v. Wall, 123 Pa. St. 545; 10 Am. St.
McDaniel, 47 Ga. 195; CaujoUe v. Rep. 549.
577 THE JUDGMENT AS AN ESTOPPEL. § 319 b
decisions necessarily determining issues of fact submitted
to tliem are equally conclusive with those of other courts.
This principle has been applied in a variety of circum-
stances and proceedings. Perhaps the only well-settled
exception to it is regarding the issue expressly or impliedly
presented in every case in which letters testamentary or
of administration are asked for; namely, the issue re-
specting the death of the person upon whose supposed
estate administration is sought. The granting of such
letters is an adjudication of such death. Nevertheless,
the issuing of the letters and the order or decree granting
them are no more than pruna facie evidence of such death,
and cannot estop the supposed decedent or his successors
in interest from showing that he was in fact alive.^
Where the rules of the common law upon this subject
still prevail, a will, so far as it affects real property, is left
to be proved or disproved the same as an ordinary con-
veyance thereof, and the fact that it has been granted or
refused admission to probate is entirely immaterial.^ In
some portions of the United States a will may be admitted
to probate in common form, that is, without any proceed-
ing bringing all the parties interested before the court;
and where this is the case, it is not conclusive on the
parties not represented. If a proceeding for the probate
of a will contemplates that all the parties interested shall
have notice, actual or constructive, of the application for
its probate, and an opportunity to resist such probate, the
decision of the court is conclusive as to every species of
' Tisdale v. Ins. Co., 26 Iowa, 170; Am. Dec. 527; Peeble's Appeal, 15
96 Am. Dec. 136; Lancaster v. Wash- Serg. & R. 42; Morgan v. Dodge, 44
ington L. I. Co., 62 Mo. 121; Conning- N. H. 259; 82 Am. Dec. 213; Bolton v.
ham V. Smith, 70 Pa. St. 450; wHte, sec. Jacks, 6 Kob. (N. Y.) 166. Contra,
120; Epping v. Robinson, 21 Fla. 36; Roderigas v. East River Sav. Inst., 63
Melia V. Simmons, 45 Wis. 334; .30 N. Y. 460; 20 Am. Rep. 555.
Am. Rep. 746; Jochumsen v. Suffolk '^ Doe v. Calvert, 2 Camp. 3S9;
Savings Bank, 3 Allen, 87; McPherson Tompkins v. Tompkins, 1 Story, 547;
V. Cunliff, 11 Serg. & R. 422; 14 Am. Rowland v. Evans, 6 Pa. St. 435; Asay
Dec. 642; Wales v. Willard, 2 Mass. v. Hoover, 5 Pa. St. 21; 45 Am. Dec.
120; Griffith v. Frazier, 8 Cranch, 9; 713; Smith v. Bonzall, 5 Rawle, 80;
Allen V. Dundas, 3 Term Rep. 125; HoUiday v. Ward, 19 Pa. St. 490.
Duncan v. Steuart, 25 Ala. 408; 60
JUDG. L — 37
4
§ 319 b THE JUDGMENT AS AN ESTOPPEL. 578
property, unless the statute, in express terms, gives the
parties, or some of them, further opportunity to make a
contest.' Furthermore, the admission of a will to probate
is, as to the parties bound thereby, conclusive evidence of
the facts necessary to uphold it, such as the testamentary
capacity of the testator,^ or his due execution of the will,^
and of the jurisdictional facts authorizing the court to
hear "and determine the application.* So a refusal to ad-
mit a will to probate is conclusive of the facts necessary
to support it;^ and if it w^as upon the merits, may further
conclude the parties upon the question that the testator's
residence was such that the court had jurisdiction to hear
and determine the application for probate.® The granting
of letters of administration is also a judicial decision, and,
as such, conclusive upon all the issues necessarily deter-
mined by it.'
Executors, administrators, and guardians are, in many
of the states, required to make reports of their acts and of
the condition of the estates in their care, accompanied
with accounts of their receipts and disbursements, either
yearly or at other stated intervals, and the courts to which
such accounts are made are required to allow or disallow
them. The action of the court is generally ex parte, and
for that reason is, in most of the states, not deemed a con-
clusive adjudication estopping the parties in subsequent
» Redmond v. Collins, 4 Dev. 430; * In re Griffith's Estate, 84 Cal. 107;
27 Am. Dec. 208; Wall v. Wall, 30 Thornton v. Baker, 15 R. I. 553; 2
Miss. 91; 64 Am. Dec. 147; Anderson Am. St. Rep. 925.
V. Green, 46 Ga. 361; Brigham v. » gc^^ifc^ ^ Schultz, 10 Gratt. 358;
Fayerweather, 140 Mass. 411; Warfield 60 Am. Dec, 335; Laughton v. Atkins,
V. Fox, 53 Pa. St. 382; O'Dell v. 1 Pick. 535.
Rogers, 44 Wis. 136, 173; Newman v. ® Thornton v. Baker, 15 R. I. 553; 2
Waterman, 63 Wis. 612; 53 Am. Reo. Am. St. Rep. 925.
310; Wilson v. Gaston, 92 Pa. St. 207; ' Barclift v. Treece, 77 Ala. 628;
Scott V. Calvitt, 3 How. (Miss.) 148; Davis v. Greeve, 32 La. Ann. 420;
Brock V. Frank, 51 Ala. 85; Norvell v. Sims v. Walters, 35 La. Ann. 442;
Lessneur, .33 Gratt. 222; Dublin v. Poullain v. Poullain, 72 Ga. 412; Mc-
Chadbourn, 16 Mass. 433. Farland v. Stone, 67 Vt. 165; 14 Am.
3 Parker V. Parker, 11 Gush. 519; Vt. Dec. 325; Lawrence t\ Englesby, 24
Baptist Convention v. Ladd, 59 Vt. 5. Vt. 42; Naylor v. Moffatt, 29 Mo. 126;
3 Moore v. Tanner, 5 T. B. Mon. 42; Savasje v. Benham, 17 Ala. 119; Palmer
17 Am. Dec. 35; Roach v. Martin, 1 v. Oakley, 2 Doug. (Mich.) 433; 47 Am.
Harr. (Del.) 548; 27 Am. Dec. 746. Dec. 41.
679 THE JUDGMENT AS AN ESTOPPEL. § 319 b
stages of the proceedings from showing that the account
as settled was not correct.^ If, however, the annual or
partial account is excepted to by some person interested
therein, and the exception is heard and determined by the
court, its decision is as conclusive as between the parties
contesting and the executor or administrator as if the
account were final.^ In a few of the states, a partial ac-
count and its allowance, whether excepted to or not, are
conclusive in subsequent proceedings as to all the items
set forth therein.^ Orders or decrees settling final ac-
counts entered after giving notice in the manner required
by statute are conclusive evidence that the amounts
found to be due thereby correctly represent the indebted-
ness of the party whose account is settled to the estate
in his care.*
When a court grants an order of sale, and in pursuance
of such order the property thereby authorized to be sold
is sold, the purchaser, to maintain his title, is not required
to re-establish the facts which the court must have found
to be true before it entered such order, nor yet to defend
the lefral conclusions which the court drew from such
facts. If any errors were committed, as in the admission
or rejection of evidence, or in making findings of fact,
express or implied, not sustained by the evidence, or in
reaching conclusions not warranted by the facts found,
1 Walls V. Walker, 37 Cal. 424; 99 McLellan'g Appeal, 76 Pa. St. 231;
Am. Dec. 290; Mix's Appeal, 35 Conn. Foss's Appeal, 105 Pa. St. 258.
121; 95 Am. Dec. 222; Picot v. Bid- * App v. Dreisbach, 2 Rawle, 287; 21
die's Ex'r, 35 Mo. 29; 86 Am. Dec. Am. Dec. 447; Stubl.lefield r. Mc-
134; Liddel v. McVickar, 6 N. J. L. Raven, 5 Smedes & M. 130; 43 Am.
44; 19 Am. Dec. .369; Folger v. Heidel, Dec. 502; McWilliams v. Kalbach, 55
60 Mo. 2S8; West r. West, 75 Mo. Iowa, 110; Williams r. Robinson, 63
204; Lucich v. Medin, 3 Nev. 93; 93 Tex. 576; Brodrib v. Brodril), 56 Cal.
Am. Dec. 376; Clark v. Cross, 20 Iowa, 563; Garton v. Botts, 73 Mo. 274;
60; State v. Wilson, 51 Ind. 96; Sturte- Shackelford v. Cunningham, 41 Ala.
vant V. Tallman, 27 Me. 85; Bantz v. 203; Commonwealth v. Gracey, 96 Pa.
Bautz, 52 Md. 686; Watts v. Watts, St. 70; Ringgold v. Stone, 20 Ark.
38 Ohio St. 480. 526; Holden v. Lathrop, 65 Mich. 652;
^Stayner's Case, 33 Ohio St. 481; Hatcher v. Dillard, 70 Ala. .343; Sim-
Watts V. Watts, .38 Ohio St. 480; Co- mons v. Goodell, 63 N. H. 456; Sever
burn V. Loomis, 49 Me. 406; Clement's v. Russfill, 4 Cush. 513; 50 Am. Dec.
Appeal, 49 Conn. 5.35. 811; Duusford v. Brown, 23 S. 0.
•Rhoada'a Appeal, 39 Pa. St. 186; 328.
§ 319 b THE JUDGMENT AS AN ESTOPPEL. 680
the remedy of any party prejudiced thereby is by motion
for a new trial, or by some other revisory or appellate
proceeding. Failing to resort to this remedy, the order
of sale must be resjDected, and cannot be destroyed by any
collateral assault.^ Hence the sale cannot be nullified by
proof that there was no necessity therefor, nor by any
other proof which involves a re-examination of the issues
necessarily involved in the order of sale.^ There are
some cases which appear to permit a re-examination of
the legal conclusions drawn by the court in ordering the
sale. Thus sales were held void in one instance because
ordered to raise funds to pay debts barred by the statute
of limitations,' and in another because the order did not
show any necessity for the sale.* If these and kindred
cases can be maintained upon principle, it must be on
the ground that the petitions and orders were so deficient
in essential elements that they did not disclose any case
calling for judicial action, and therefore left the court
without jurisdiction.
If an order of sale has been executed by the sale of the
property, the statutes generally require that the proceed-
ings be reported to the court, whose duty it is to hear the
report and the evidence ofi'ered, and either to confirm or
vacate the sale. If it confirms the sale, its order is an
adjudication that the prior proceedings were regular and
valid, and that the sale ought to be confirmed, and, as
such, is conclusive on all the parties before the court.*
1 Myers v. Davis, 47 Iowa, 325; 209; Trumble v. Williams, 18 N. C.
Fleming v. Bale, 23 Kan. 88; JklcDade 144; Saltonstall v. Riley, 28 Ala. 164;
V. Burch, 7 Ga. 559; 50 Am. Dec. 407; 65 Am. Dec. 334; Fordr. Ford's Adm'r,
Long V. Weller, 29 Gratt. 347; Gray- 68 Ala. 141; Thomson v. Blanchard, 2
son V. Weddle, 63 Mo. 523; Pratt v. Lea, 528.
Houghtaling, 45 Mich. 457; Weyer v. ^ Heath v. Wells, 5 Pick. 139; 16
Second Nat. Bank, 57 Lid. 198; Gard- Am. Dec. 383.
ner v. Mawney, 95 III. 552; Merrill v. * Wyatts v. Rambo, 29 Ala. 510; 68
Harris, 26 N. H. 143; 57 Am. Dec. Am. Dec. 89.
359. * Montgomery v. Somory, 99 U. S.
2 Bowen v. Bond, SO 111. 351; Allen 482; Willis v. Nicholson, 24 La. Ann.
V. Shepard, 87 111. 314; Myers v. Davis, 545; Cockey v. Cole, 28 Md. 276; 92
47 Iowa, 325; Arrowsmith v. Harmon- Am. Dec. 604; Hotchkiss v. Cutting,
ing, 42 Ohio St. 254; Davis v. Gaines, 14 Minn. 537; Wilkerson v. Allen, 67
104 U. S. 386; Abbott v. Curran, 98 Mo. 502; Freeman ou Void Judicial
N. Y. 665; CromM-ell v. Hull, 97 N. Y. Sales, sec. 44.
581 THE JUDGMENT AS AN ESTOPPEL. § 319 b
Though the statute declares that "all sales must be, under
oath, reported to and confirmed by the court before the
title to the property sold passes," if the order of confirma-
tion states "that the sale was duly verified by affidavit,"
the validity of the sale is established, and cannot be dis-
proved by producing the original return and showing
that no verification accompanied it.^ If, after the sale is
confirmed, the purchaser fails to pay the amount of his
bid, and thereupon is served with notice of a motion for
a resale at his risk, and no resistance being made to the
motion, such resale is ordered, and an action is thereafter
brought against the purchaser for the difference between
the price realized by the resale and that bid by him, he
cannot defend the action by showing that the adminis-
trator made false statements at the first sale; that the
decedent did not own the property sold; and that the
administrator had released him from all liability to pay
the purchase price and told him when he gave him
notice of the resale that he would not seek to hold him
liable. All these defenses are precluded by the order
of resale made upon due notice.^
An order making a final distribution of an estate to the
persons whom it finds entitled thereto as heirs, devisees,
or legatees of the decedent is also a conclusive adjudica-
tion, if upon sufficient notice, that the persons to whom
distribution is so made are the only persons entitled
to the property distributed as such heirs, devisees, or
legatees,^ but does not estop third persons from asserting
assignments or conveyances of the property made to them
by the distributees before the entry of the decree of dis-
tribution.*
The validity of orders and decrees made by courts ex-
ercising jurisdiction over the estates of decedents, minors,
and incompetent persons is, however, as in all other cases,
> Dennis v. Winter, G3 Cal. 16. of Probate v. Robins, 5 N. H. 246;
*Brummagitnv. Aml)rose,48 Cal. 366. Kcllogt^ v. John.son, 88 Conn. 2(i9.
* Loring v. Steineman, 1 Met. 204; ' Cliover v. Ching Hong Toy, 82
Extou V. Zule, 14 N. J. Eq. 501; Judge Cal. 08.
§ 320 THE JUDGMENT AS AN ESTOPPEL. 682
dependent on their having jurisdiction over the persons
and subject-matters affected thereby, and whenever the
statute requires a particular notice to be given, and the
omission to give it is conceded, the order or decree based
thereon must be treated as void/ In truth, matters are
regarded as jurisdictional in the probate, surrogate, and
orphans' courts which are not so regarded in other courts.
Thus a court ordering a sale of property is, according to
the majority of the authorities, without jurisdiction to do
so if the petition therefor was not presented by a person
having authority to present it,^ or was not sufficient in
substance to support the order sought,^ or did not sub-
stantially contain a statement of all the matters required
by statute to be stated therein.*
§ 320. Awards of Arbitrators. — The effect of a valid
award upon the matters submitted to the arbitrators is
equivalent, so far as the question of estoppel is concerned,
to the effect of valid judgment.' "No satisfactory reason
can be assigned why a judgment as an act by the law
1 Ruth V. Oberbrunner, 40 Wis. 238; * Guy v. Pierson, 21 Ind. 18; Verry
Crosley v. Calhoon, 45 Iowa, 557; v. McClellan, 6 Gray, 535; 06 Am.
Michel V. Hicks, 19 Kan. 578; 27 Am. Dec. 423; Tenny v. Poore, 14 Gray,
Rep. 161. 502; 77 Am. Dec. 340; Wilson v.
2 Miller v. Miller, 10 Tex. 319; Hastings, 66 Cal. 243; Boland's Estate,
Washington v. McCaughan, 34 Miss. 55 Cal. 310; Rose's Estate, 63 Cal. 346;
304; Pryor v. Downey, 50 Cal. 389; 19 Wright v. Edwards, 10 Or. 298; Hayes
Am. Rep. 656; Long v. Burnett, 13 v. McNealy, 16 Fla. 409; Ryder v.
Iowa, 28; 81 Am. liec. 410; Withers Flanders, .39 Mich. 336; Young v.
V. Patterson, 27 Tex. 501; 86 Am. Dec. Young, 12 Lea, 335; Arnett v. Bailey,
643. 60 Ala. 435; Gregory v. McPherson,
* Bompart v. Lucas, 21 Mo. 598; 13 Cal. 562; Gregory v. Talier, 19 Cal.
Farrar v. Dean, 24 Mo. 16; Wyatt's 397; 79 Cal. 219; Bree v. Bree, 51 111.
Adm'r v. Rambo, 29 Ala. 510; 68 Am. 367; Freeman on Void Judicial Sales,
Dec. 89; Newcomb v. Smith, 5 Ohio, sees. 11, 12.
448; Withers v. Patterson, 27 Tex. 499; ^ 2 Smith's Lead. Cas. 671 ; Jarvis v.
86 Am. Dec. 643; Ikelheimer v. Chap- Fountain W. Co., 5 Cal. 179; John-
man, 32 Ala. 676; Hall v. Chapman, ston v. Paul, 23 Minn. 46; Kane v.
35 Ala. 553; Pryor v. Downey, 50 Cal. Fond du Lac, 40 Wis. 495; Whitlock
389; 19 Am. Rep. 656; Wilson v. v. Crew, '.:8 Ga. 289; Hostetter v.
Armstrong, 42 Ala. 168; 94 Am. Dec. Pittsburgh, 107 Pa. St. 419; Curley v.
635; Spencer v. Jennings, 114 Pa. St. Dean, 4 Conn. 259; 10 Am. Dec. 140:
613; Stuart v. Allen, 16 Cal. 473; 76 Johnson v. Noble, 13 N. H. 286; 38
Am. Dec. 551; Bloom v. Burdick, 1 Am. Dec. 485; Shackleford v. Purket,
Hill, 130; 37 Am. Dec. 299; Morris 2 A. K. Marsh. 485; 12 Am. Dec. 432;
V. Hogle, 37 111. 150; 87 Am. Dec. Chapline r. Overseers, 7 Leigh, 231; 30
243. Am. Dec. 504.
583 THE JUDGMENT AS AN ESTOPPEL. § 320
should estop the parties, and an award, which is another
name for a judgment, which the parties have expressly
stipulated should he final as to the subjects submitted,
should not be equally conclusive."^
The authorities disagree in relation to the effect of an
award, upon a submission of all demands, on. a matter
w^hich in fact was never presented to the arbitrators. In
New York, the position is taken that " it would be a very
dangerous precedent to allow a party, on a submission
so general, intended to settle everything between the par-
ties, to lie by and submit only part of his demands, and
then institute a suit for the part not brought before the
arbitrators. The object of the submission was to avoid
litigation; and neither party is at liberty to withhold a
demand from the cognizance of the arbitrators on such
submission, and then to sue for it.'"^ Just and reason-
able as this view seems, it has not met with general
approbation. On the contrary, it appears to be well settled
by a decided preponderance of authorities that, notwith-
standing the general language of the submission, the
award will conclusively determine nothing not in fact
submitted, and that the prima facie final effect of the
award may be overthrown by any evidence which suffi-
ciently proves that a specified matter was never presented
to the arbitrators.' But, in Massachusetts, if a general
submission of all demands is made, it is in the power of
either of the parties to insist upon the presentation of any
claim held by his adversary; and if any party, upon being
requested to place any matter before the arbitrators, de-
clines to do so, he is precluded from ever afterward assert-
' Brazill v. Isham, 12 N. Y. 9. mitted and passed upon, then evidence
« Wheeler v. Van Houten, 12 Johns, should be admitted as to the fact of
311; Owen v. Boerum, 23 Barb. 187. the case: Keaton v. Mulligan, 43 Ga.
Cases sustaining the New York cases 308.
are Smith v. Johnson, 15 East, 213; * King v. Savory, 8 Cash. 309; Ed-
Bunnell v. Pinto, 2 Conn. 431; Mc- wards d. Stevens, 1 Allen, 315; Bixby
Gimsey v. Traverse, 1 Stew. 244; 18 v. Whitney, 5 Greenl. 192; Newman
Am. Dec. 43. An award is conclusive v. Wood, Mart. & Y. 190; Buck v.
as to the matters submitted; but if it Buck, 2 Vt. 420; Whittemore v. Whit-
is doubtful from the terms of the sub- temore, 2 N. H. 26; Englcman v. En-
mission whether a matter was sub- glenian, 1 Daua, 437.
§§ 321, 322 THE JUDGMENT AS AN ESTOPPEL. 684
ing it.* By following the course pointed out by this
decision, most of the evils arising from permitting a
party to avoid the effect of an award by showing that a
matter was overlooked and not presented may be avoided.
For either party may, if he wish, escape from the vexa-
tion of subsequent litigation, so far as regards any pre-
tension of his adversary of which he has any knowledge.
Still, it would seem more logical, and more consistent with
the principles applied to other legal controversies, to re-
quire each party to remember his own demands, instead
of requiring his adversary both to ascertain and suggest
the existence of such demands, or to be subjected to the
inconvenience of another litigation.
§ 321. Real Estate — General Submission. — A general
submission of all actions and causes of action, and of all
quarrels, controversies, trespasses, damages, and demands
whatsoever, authorizes the arbitrators to take cognizance
of questions concerning real property. The law does not
require a more specific submission as to one kind of prop-
erty than as to another.'^ Doubts were formerly enter-
tained whether "the title to land was submissible, since
it is in realty"; but these doubts were settled by declar-
ing the law to be that awards respecting realty " stand
upon the same ground as those respecting personal prop-
erty." * While an award cannot operate as a conveyance,
it may operate as an estoppel, and conclude the parties
in a subsequent controversy respecting real property from
contesting the questions settled by it.^
§.322. Matters not in Dispute. — It is generally con-
ceded that the mere existence of a cause of action will not
bring it within a general submission if it is not a matter
1 Warfieldi;. Holbrook, 20Pick. 531. * Shelton v. Alcox, 11 Conn. 240;
2 Sellick V. Addams, 15 Johns. 197; Robertson v. McNiel, 12 Wend. 575;
Munro v. Alaire, 2 Gaines, 327; 2 Am. Carey v. Wilcox, 6 N. H. 177; Por-
Dec. 330; Marks v. Marriott, 1 Ld. ter's Lessee v. Matthews, 2 Harr.
Baym. li4; Byers v. Vaa Deusen, 5 (Del.) 30; Davis v. Havard, 15 Ser^.
Wend. 268. & R. 1(55; 16 Am. Dec. 537; Cox v.
3 Sheltoa v. Alcox, 11 Conn. 240. Jagger, 2 Cow. CSS; 14 Am. Dec. 532.
585 THE JUDGMENT AS AN ESTOPPEL. §§ 323, 324
of dispute between the parties when the agreement to sub-
mit to arbitration is consummated.' But the submission
of a controversy growing out of a specified contract or
transaction, or of an account relating to a particular
course of dealing, must be so regarded that neither party-
shall be allowed to rebut the conclusive effect of the
award by showing that some item was not laid before
the arbitrators.'^ But a judgment on an award in favor
of the builder and against the owner of a house, upon a
submission of all demands, is no bar to an action against
the builder by the owner to recover a sum which he was
subsequently, though before payment of the award, com-
pelled to pay to discharge a mechanic's lien.'
§ 323. Bill of Review. — A complaint for the review of
a judgment is in the nature of a writ of error. A second
complaint to review the same judgment, after a final hear-
ing on the former complaint, will not be permitted.*
§ 324. Habeas Corpus. — The writ of habeas corpus may
be resorted to, — 1. By or in behalf of some person who
is imprisoned or otherwise deprived of his liberty; or 2. On
behalf of some person claiming the right to the custody
of a minor or other person, and that he is deprived of
such custody by some person not entitled to do so. In
cases of the first class it is well settled that the remandino-
to custod}'- of the person claimed to be illegally impris-
oned is not a decision to which the principle of o^es judi-
cata is applied. A party may apply successively to every
court having jurisdiction to grant the writ for his dis-
charge, until he exhausts the entire judicial authority of
the state.^ "How far judges would go in their examina-
tion, after a case had once been determined, is a question
J Ravee v. Farmer, 4 Term Rep. 146; ' Hale v. Huse, 10 Gray, 99.
Elliott?'. Quiml>y, 13 N. H. 181; Rob- * Coen v. Funk, 2G In.l. 2S9; Stra-
iri.son V. Morse, 29 Vt. 404; Trescott v. der v. Heirs of Byrd, 7 Obio,
Baker, 29 Vt. 459. 184.
•' Briggs V. Brewster, 2.3 Vt. 100; » In re Saell, 31 Minn. 110.
Duun V. Murray, 9 Barn. & C. 780.
§ 324 THE JUDGMENT AS AN ESTOPPEL. 586
which must rest exclusively in their own sound judgment;
but a previous examination cannot prevent their right to
re-examine the whole case if they should think proper to
do so."^ If, on the other hand, the prisoner is discharged
from custody, this is an adjudication that at that time he
was entitled to his libert}'-, and is conclusive in his favor,
should he be again arrested, unless some authority can be
shown for holding him, which did not exist at the time
of his discharge.^
In the cases of the second class to which wb have re-
ferred, though the party in whose behalf the writ issues
may be restrained of his liberty, yet the real object of the
parties in suing out the writ is to obtain a decision upon
some claim of right made either by the parly against
whom the writ issues, or the party by whom the applica-
tion for it was made; and he whose restraint is alleged
is often brought into court merely to enable it to deter-
mine conflicting claims of others to his custody. Where
such is the case, the principle of res judicata applies, and
the determination by the court of the issues presented is
conclusive upon the real contestants. The father of a
minor procured the issuing of a writ of habeas corpus,
and when he was brought into court in response to the
writ, it was claimed that the officer against whom the
writ had issued had the right to detain him in custody
as a soldier enlisted in the service of the United States.
The claim was overruled, and the prisoner discharged
from custody. Being again taken into custody by the
military authorities, he obtained a writ of habeas corpus on
his own application, and insisted that his former discharge
was conclusive in his favor. In sustaining this claim the
court said: "The decision upon that writ, after notice and
full hearing, discharging him from the custody of Captain
^ In the Matter of Perkins, 2 Cal. Judge, 5 Ala. 130; Ex parte Reynolds,
429; Matter of Edward Ring, 28 Cal. 6 Parker, 276.
247; Ex parte Kaine, 3 Blatchf. 1; In ' Ex parte Jilz, 64 Mo. 205; 27 Am.
re Blair, 4 Wis. 522; Bell v. State, 4 Rep. 218; Yates v. People, 6 Johns.
Gill, 301; 45 Am. Dec. 130; Wade v. 337.
687 THE JUDGMENT AS AN ESTOPPEL. § 324
Wheaton, was an adjudication that he was not liable to
be held as an enlisted soldier, and a conclusive determi-
nation of all questions of law and fact necessarily involved
in that result. Any facts which the respondent deemed
material upon that issue should have been proved at that
hearing, and any ruling in matter of law with which he
was dissatisfied should have been then reserved. The
judicial discharge of a prisoner upon habeas corpus con-
clusively settles that he was not liable to be held in cus-
tody upon the then existing state of facts. Neither the
eflfect of his having been previously registered and ordered
into custody as a deserter, nor either of the other ques-
tions discussed at the bar, — whether his oath that he was
of age should be deemed conclusive upon that point, or
whether a minor more than eighteen years old could be
lawfully enlisted without the consent of his parent or
guardian, — is therefore now open for consideration. Nor
is it material that the petition for the first writ was made
by the prisoner's father, and that for the present writ by
himself. Neither the form of the writ nor the effect of
the discharge is varied by the name on which the petition
is presented."'
The principle of res judicata is also applicable to pro-
ceedings on habeas corpus, so far at least as they involve
an inquiry into and a determination of the rights of con-
flicting claimants to the custody of minor children. The
decision on a former writ is conclusive in a subsequent
application, unless some new fact has occurred which has
altered the state of the case or the relative claims of the
parents or other contestants to the custody of the child in
some material respect. The principles of public policy
requiring the application of the doctrines of estoppel to
judicial proceedings, in order to secure the repose of
society, are as imperatively demanded in the cases of
private individuals contesting private rights under the
1 McConologue's Case, 197 Mass. 170; Spalding v. People, 7 Hill, 301; Betty's
citing Ex parte Milburn, 9 Pet. 704; Case, 20 L. Rep. 455.
§ 325 THE JUDGMENT AS AN ESTOPPEL. 588
form of proceedings in habeas corpus as if the litigation
were conducted in any other form. Otherwise, as is well
stated in the opinion of Senator Paige, "such unhappy
controversies as these may endure until the entire im-
poverishment or the death of the parties jenders their
further continuance impracticable. If a final adjudication
upon a habeas corpus is not to be deemed res adjudicata, the
consequence will be lamentable. This favored writ will
become an engine of oppression, instead of a writ of
liberty." ^ " The question of the custody of a minor child,
once properly and finally adjudicated, whether in a habeas
corpus proceeding or otherwise, is settled for all time, un-
less there be an appeal, and the judgment rendered is
impregnable as against a collateral assault."^
§325. Motions and Orders. — "The principle of res
adjudicata which prevents a matter being twice litigated
has no application to a mere interlocutory motion."^
The decision of a motion is never regarded in the light
of res adjudicata.* Such aire the general declarations
made in divers cases. If conceded to be technically cor-
rect, they are not well calculated to convey to the reader
an accurate conception of the effect of the decision of a
motion upon subsequent proceedings in the same case.
The decision of a motion will be considered, — 1. With
regard to its effect in other cases; and 2. With regard
to its effect upon motions involving similar questions
in the same case. As a general rule, the decision of
a motion or of a summary application "will not be so
far conclusive upon the parties as to prevent their draw-
ing the same matters in question again in the more regu-
1 Mercien v. People, 25 Wend. 99; ^ Bei,nont v. Erie R. R. Co., 52
35 Am Dec. 653; Mercien v. People, Barb. 637; Van Rensselaer v. Shenfif,
3 Hill 399- 38 Am. Dec. 644; State v. 1 Cow. 501; Simson v. Hart, 14 Johns.
Bechdel 37 Minn. 360; 5 Am. St. Rep. 75; Akerly v. Vilas, 16 Int. Rev. Rec.
854 154; 5 Chic. L. N. 73; 3 Biss. 332.
2 Brooke V. Logan, 112 Ind. 183; 2 'Snyder v. White, 6 How Pr.
Am. St. Rep. 177; Dubois v. Johnson, 321 ; Easton v. PickersgiU, 75 N. Y.
96 lud. 6. 6^9-
589 THE JUDGMENT AS AN ESTOPPEL. § 325
lar form of a suit either in law or equity."^ The reasons
for holding such decisions not to be conclusive in a regu-
lar suit were in an early case in New York stated to be
because "it is a fact well known that such motions do not
admit of that grave discussion and consideration as ques-
tions arising on demurrer, in arrest of judgment, or for a
new trial. Again, decisions on summary application can
never be thrown into the shape of a record, and become
the subject of review in any other court. '"* A statute of
Kansas provided that a court may either reject or confirm
a sale made under execution. It was held that while the
court might, on hearing the motion for confirmation, in-
quire into the fraudulent conduct of the officers conduct-
ing the sale, or of the bidders attending it, yet that the
decision of the motion would not affect the ultimate rights
of the parties in a regular suit involving the same issues.
It will be seen that the reasoning of the court in the case
of Simson v. Hart, 14 Johns. 75, which seems to be a lead-
ing American case upon the subject, is inapplicable to
those motions which admit of "grave discussion and de-
liberation," and are capable of " being thrown into the
shape of a record," and being the " subject of review in
another court."
In New York the decision of a motion, notwithstanding
the general declarations to the contrary frequently made,
may be res judicata. This is proved by the case of Dwight
V. St. John, 25 N. Y. 203. Upon the trial of that case,
the plaintiff gave in evidence the papers, upon a motion
made by the defendant in the supreme court, to have the
judgments canceled and discharged of record as satisfied.
Upon the motion being made, the court directed a refer-
ence to inquire and report as to the facts set up by the
parties, which were substantially the same as those averred
by them in the second action. Upon the coming in of
^ Dickenson v. Gilliland, 1 Cow. 495; Minneapolis etc. R. E. Co., 33 Minn.
Watson V. Jackson, 24 Kan. 442; 419; Easton v. Pickersgill, 75 N. Y.
Sanderson v. Daily, 83 N. C. 67; Proc- 599; Ashton's Appeal, 73 Pa. St. 153.
tor V. Cole, 104 lud. 373; Kanue v. * Sinisou v. Hart, 14 Johns. 75.
§ 325 THE JUDGMENT AS AN ESTOPPEL. 590
the referee's report, the court denied the motion to satisfy
the judgments. In the second action the decision of this
motion was claimed as res judicata. In allowing this
claim the court of appeals said: *' Upon this point it is to
be observed that some decisions (made before the exist-
ence of the code), especially that of Sirnson v. Hart, in the
court of errors, 14 Johns. 63, are chiefly based upon the
ground that such summary proceedings as they passed
upon were then heard without full proofs, and were not
reviewable, whereas in the case before us the hearing was
upon full proofs; and the code has entirely taken away
the other ground by making the proceeding liable to re-
view. Since, then, a full hearing, with the right of appeal,
was open to the defendant on that motion, how is he to
avoid the binding eflFect of that decision, so far as it covers
what was actually and necessarily tried on that reference? "
After specifying the issues which, in its judgment, were
involved in the motion in the former action, and were
then determined against the defendant, the court adds:
"To this extent, therefore, the defendant should be held
concluded by that adjudication," and "so much, then, is
finally adjudicated against the defendant; and this court
has now no power to interfere with that decision." From
this decision we may infer that in New York, if not in
other states, the decision of a motion is as final and con-
clusive as the decision of a trial, if the proceedings permit
of a full hearing upon the merits, and the order made is
liable to review in some appellate court.^ In Georgia the
denial of a motion to set aside a judgment was assumed
to estop the applicant from prosecuting a subsequent
motion for the same purpose.'^ The question whetlier an
issue has or has not become res judicata because litigated
and determined in a summary proceeding is one upon
which, in view of the more recent decisions, it must be
very difficult to decide. The tendency of these decisions
1 Petition of Livingston, 34 N. Y. 555. ^ Grier v. Jones, 54 Ga. 154.
See Eastou v. Pickersgill, 75 N. Y. 599.
591 THE JUDGMENT AS AN ESTOPPEL. § 325
is to disregard the form or time of an adjudication, and
to inquire whether the question really arose and was or
might have been contested on the merits, and was neces-
sarily decided by the court. If so, it will generally be
regarded as conclusively and finally settled, though such
decision disposed of a motion, rather than of an indepen-
dent action or proceeding, and especially if the action of
the court was subject to review by some appropriate ap-
pellate proceeding/
We now come to consider the question whether the
granting or denying of a motion during the progress of a
cause, or even after the rendition of a judgment, amounts
to a prohibition of a subsequent motion involving the
same issues which have been considered and determined
on the former application. " Courts, to prevent vexatious
and repeated applications on the same point, have ]-ules
which preclude the reagitation of the same question on
the same state of facts. These rules are for the orderly
conduct of business, and are not founded on the principle
of res judicata. It is not uncommon, in courts of law, to
deny a motion one day and on another to grant it on a
more enlarged state of facts." ^ The rules here referred
to seem to require that leave of the court must first be ob-
tained before a motion can be renewed upon- substantially
the same grounds as those upon which the court has
already passed. " It is entirely in the discretion of a
court to hear a renewal of a motion or not. They can, as
they deem advisable, hear it on precisely the same papers.
This, of course, will be rarely allowed; it would be pro-
ductive of the most serious inconvenience; but still there
may be occasions which would render it essential to jus-
tice." ^ The reasons assigned for investing courts with a
discretionary power in rehearing matters decided upon
* See citations at end of section 326. Dollfus v. Frosch, 5 Hill, 493; 40 Am.
' Siinson v. Hart, 14 Johns. 63; Bel- Dec. 3GS; Smith v. Spalding, 3 Rob.
mont V. Erie E,. R. Co., 52 Barb. (N. Y.) 6J5; Katz v. Auf^ust, cited in
637. B.-lmout v. Erie R. R. Co., 52 Bark
» VV^hite a. Munroe, 33 Barb. 650; 637.
§ 326 THE JUDGMENT AS AN ESTOPPEL. 692
motion are applicable only to those proceedings from
which no redress can be obtained by appeal. " In motions,
such as these, not appealable, a grievous wrong may be
committed by some misapprehension or inadvertence of
the judge, for which there would be no redress if this
power did not exist." ^ A motion may be renewed with-
out leave upon new matter; but '"the new matter' which
will alone justify the renewal of a motion without leave
must be something which has happened, or for the first
time come to the knowledge of the party moving, since
the decision of the former motion."^ "Affidavits which
merely present additional or cumulative evidence on the
points before presented are not to be considered as show-
ing new grounds for a motion."^
§ 326. Rules Applied to Motions. — It will be seen from
an examination of the cases, both English and American,
that while the doctrine of res adjudicata is in general said
not to be strictly applicable to motions, yet that the courts
have in its place adopted rules, which, in the prevention
of the reagitation of the same matter, operate substan-
tially like the rules of res judicata, so far, at least, that the
decision of a motion heard upon the merits is conclusive of
a subsequent motion in the same case proceeding upon
the same grounds.* The court will rarely use its discre-
tionary powers to allow the renewal of a motion, unless
"in the circumstances of the opposition there is some-
thing to excite suspicion of unfairness, or a belief that
' Same cases named in preceding * does not apply to such motions made
citation. in the course of practice, and the coui-t
^ Willettv. Fayerweather, 1 Barb. 72. may, upon a proper showing, allow a
* Ray V. Connor, 3 Edw. Ch. 478. renewal of a motion of this kind once
* Davies v. Cottle, .3 Term Rep. 405; decided. But this leave will rarely be
Mitchell V. Allen, 12 Wend. 290; Dodd given upon the ground that the mov-
V. Astor, 2 Barb. Ch. 395; Bascom v. ing party can produce additional evi-
Feazler, 2 How. Pr. 16; Greathead v. dence in support of his motion, unless
Bromley, 7 Term Rep. 455; Benjamin it also appears that a new state of
V. Wilson, 6 L. C. Jur. 246; Smith v. facts has arisen since the former hear-
Coe, 1 Sweeny, 385. Speaking of mo- ing, or that the then existing facts
tions for an alias writ of possession, were not presented by reason of the
the supreme court of California at Oc- surprise or excusable neglect of the
tober term, 1872, says: "The doctrine moving party": Ford v. Doyle, 44 Cal.
of res adjudicata, in its strict sense, 635.
593 THE JUDGMENT AS AN ESTOPPEL. § 326
the party moving is taken by surprise, or if the motion
be denied because of some defect in the moving papers,
arising from ignorance of the practice. So a party may
obtain leave to renew, on falsifying the affidavit used in
opposition, or showing that the facts stated in it are ex-
plainable so as not to amount to a denial of the grounds
of the motion. A motion will sometimes be opened on
the question being changed by new materials discovered
or arising afterwards." ^ The same degree of diligence
will be required of a party in sustaining his motion as
■would be sufficient to free him from the imputation of
laches, if he were engaged in the trial of the case. If he
makes his application, and from his own neglect supports
it by insufficient materials, and the rule is on that ground
discharged, he cannot be afterwards allowed to supply the
deficiency and renew the application.^ Upon motions, as
upon trials, public policy and courts of justice unite in
requiring that there shall be an end to litigation. "And
if a party will not be vigilant in prosecution or defense,
and will suffer the time to go by for the production of his
proofs without a sufficient excuse, he must not afterwards
complain."* In England, it is a general rule, believed to
be applicable to all the courts, that after an application
has been made and has failed on account of defective
materials, they will not allow any further inquiry. An
exception exists when the affidavits have been wrongly
entitled, or there has been some defect in the jurat. None
of the cases, however, go to the extent of holding that
under no circumstances can an application be made on
fresh materials.* If a party fails in his motion on the
ground of any formal defect in his papers, or from any
cause not affecting the merits of his application, he should
ask leave to renew the motion, or that it be denied with-
^ Note to DoUfus v. Frosch, 5 Hill, v. Hammer, 4.3 Minn. 195; Easton v.
49.3; 40 Am. Dec. 368; Claggett v. Pickersgill, 75 N. Y. 599.
Simes, 25 N. H. 402; Chichester v. '■' Regina v. Inhabitants of Barton 9
Cande, 3 Cow. 89; 15 Am. Dec. 238; Dowl. Pr. 1021.
Greenwood v. Marvin, 111 N. Y. 423; ^ Ray v. Connor, 3 Edw. Ch. 478.
Wings V. Hooper, 98 N. C. 428; Weller * Dodgsou v. Scott, 2 Ex. 457.
JUDQ. I. —38
§ 327 THE JUDGMENT AS AN ESTOPPEL. 594
out prejudice to another motion. If his request is granted,
it should be so stated in the order. If his motion is de-
nied generally, it is necessary to obtain leave to renew it,
though it failed on account of some informality.^ In
Wisconsin, the denial of a motion to vacate a judgment
is a bar to a writ of error coram nobis?
The tendency of the recent adjudications is to inquire
whether an issue or question has been in fact presented
for decision and necessarily decided, and if so, to treat it
as res judicata, though the decision is the determination
of a motion or summary proceeding, and not of an inde-
pendent action. This is especially true when the decision
did not involve a mere question of the proper form or
time of proceeding, but was the determination of a sub-
stantial matter of right, upon which the parties interested
had a right to be heard upon issues of law or fact, or both,
and these issues, or some of them, were necessarily de-
cided by the court as the basis of the order which it finally
entered granting or denying the relief sought.'
§ 327. Proceedings Supplementary to Judgment. —
Proceedings taken for the purpose of obtaining possession
of land by the aid of a writ of assistance, though upon
due notice, and after a contest on the merits, are not, in
a subsequent action, conclusive of any of the matters in-
volved in the decision of the motion. Thus where, upon
application of a purchaser under a decree of foreclosure,
a writ issued, under which C was dispossessed of certain
premises, and C afterwards, upon application to the court,
procured an order restoring him to possession, on the
ground that the land from which he had been removed
was not included in that described in the deed, such order
1 Dollfus V. Frosch, 5 Hill, 493; 40 missioners, 30 Kan. 234; Hawk v.
Am. Dec. 368. Evans, 76 Iowa, 593; 14 Am. St. Rep.
2 Second Ward Bank v. Upman, 14 247; Johnson v. Latta, 84 Mo. 139;
Wis 596. Obear v. Gray, 73 Ga. 455; Gordmier 3
3 Page w. Esty, 54 Me. 319; Reeves Appeal, 89 Pa. St. 528; Warran v.
V Plough, 46 Ind. 350; Trescott v. Simon, 16 S. C. 362; RouUiac v.
Lewis, 12 La. Ann. 197; State v. Brown, 87 N. C. 1; Mabry v. Henry,
Booth, 68 Mo. 546; Wilson v. Com- 83 N. C. 293.
595 THE JUDGMENT AS AN ESTOPPEL. § 327
being obtained after a full trial upon the merits of the
issue involved in the application for restoration, it was
decided that the question whether the deed did include
the same premises was not res judicata, because the
estoppel of a former adjudication can only arise *4n a
cause regularly tried on its merits upon issues duly joined
by proper pleadings between the same parties or their
privies," and because the motions and orders in the for-
mer cause, "although the parties to the second action
appeared in and were interested in the result of such
motions, were in no sense judgments in an action between
these parties upon issues joined in a cause pending be-
tween them." ^
Where money resulting from a sale of property is in
court, and the application of a claimant is, upon motion
in his behalf, heard, considered, and denied, his claim
becomes res judicata, and he cannot maintain assumpsit
for the same money.^ Proceedings supplementary to
execution under the code of California, requiring the
judgment debtor to appear before a court or referee " to
answer concerning his property, are but a substitute for
a creditor's bill at common law. It is only a summary
method of purging the debtor's conscience, and compel-
ling the disclosure of any property he may have which is
subject to execution. The proceeding was intended to be
summary and effectual, and affords the widest scope for
inquiry concerning the property and business affairs of
the judgment debtor. It is true, there are no formal
issues framed; for in the very nature of the proceedings
it would generally be impossible to frame specific issues
in advance of the examination of the judgment debtor.
Nevertheless, witnesses may be called and examined on
either side; and after hearing the case the court or referee
is to decide what property, if any, the judgment debtor
has which is subject to be applied to the satisfaction of
» Boggs V. Clark, 37 Cal. 236. For » Langdon v. Raiford, 20 Ala. 532;
similar views, see Carter v. Clarke, 7 Noble v. Cope, 50 Pa. St. 17.
Rob. (N. Y.)43.
§§ 327 a, 328 the judgment as an estoppel. 596
the judgment, and to direct its application accordingly.
The proceeding is purely judicial, involving an examina-
tion into the facts upon sworn testimony, and the decis-
ion of questions of law arising on the facts proved. The
judgment creditor and debtor are parties to the proceed-
ing, and each is at liberty to call and examine witnesses
in respect to any contested fact which may be brought in
issue in the course of the proceeding. If the parties to
such a proceeding, as between themselves and privies, are-
not estopped from again litigating the same matters in
another form of action, the whole proceeding would be
but a judicial farce, accomplishing no useful end." It is
too plain for argument that after an adjudication in such
a proceeding, in reference to the liability of property to
be applied to the satisfaction of the execution, the only
remedy left either of the parties is by taking an appeal,
and that while the adjudication remains in force both
parties are estopped from litigating the same question in
any other case or by any other form of proceeding.^
§ 327 a. The Identity of the Defendant may be so es-
tablished by the judgment against him as to become res
judicata. This is the case when he unsuccessfully defends
an action on the ground that he is not the person intended
to be named in a writing or judgment produced and sought
to be asserted against him.^
§ 328. Effect of Appeal. — When an appeal is taken
from a judgment, it is evident that the appellant cannot
have the full benefit of his appeal if, during the time
necessary to procure a decision in the appellate court, the
judgment may be used against him to the same extent as
if no appeal had been taken. The mere issuing and en-
forcement of the execution may be stayed by the giving
of an appropriate bond, but there is no provision in the
statutes whereby the force of a judgment as evidence or
. ^Verneuil«. Harper, 28 La. Ann. 893. » McCuUough v. Clark, 41 CaL 298.
597 THE JUDGMENT AS AN ESTOPPEL. § 328
as an estoppel may be avoided by the giving of any bond
or other security. In perhaps a majority of the states the
perfecting of an appeal suspends the operation of a judg-
ment as an estoppel, and renders it no longer admissible
as evidence in any controversy between the parties/ The
chief objection to this line of decisions is, that it enables
one against whom a judgment is entered to avoid its
force for a considerable period of time merely by taking
an appeal. During that time he may carry on other con-
troversies wdth the same parties, involving the same is-
sues, and obtain decisions contrary to that from which
the appeal w^as taken, and which could not have been
obtained had the former judgment been admissible as
evidence against him; and when it is finally determined
that such judgment was free from error, there may be no
mode of retrieving the loss resulting from its suspension
by the appeal. Probably this consideration has been the
most potent in procuring the numerous decisions main-
taining that the effect of an appeal, with proper bond to
stay proceedings, is, merely that it suspends the right to
execution, but leaves the judgment, until annulled or re-
versed, binding upon the parties as to every question
directly decided.^ The evil resulting from this rule is,
that though the judgment is erroneous, and for that rea-
son is reversed, yet before the reversal it may be used as
evidence, and thereby lead to another judgment, which
cannot in turn be reversed, because the action of the trial
court in receiving and giving effect to the former judg-
1 Souter V. Baymore, 7 Pa. St. 415; ^ Sage v. Harpending, 49 Barb. 1(56;
47 Am. Dec. 518; State v. Mclntire, Harris v. Hammonfl, 18 How. Pr. 123;
1 Jones, 1; 59 Am. Dec. 566; Wood- Burton v. Burton, 28 Ind. 342; Nill v.
bury V. Bowman, 13 Cal. 634; Haynes Comparet, 16 Ind. 107; 79 Am. Dec.
V. Ordway, 52 N. H. 284; Byrne v. 407; Allen v. The Major, 9 Ga. 286;
Prather, 14 La. Ann. 653; Glenn v. Planters' Bank v. Calvit, 3 Smedes &
Brush 3 Col. 26; Sherman v. Dilley, M. 143; 41 Am. Dec. 616; Parkhurst
3 Nev. 21; Small v. Haskins, 26 Vt. v. Berdell, 110 N. Y. .386; 6 Am. St.
209- Sharon v. Hill, 26 Fed. Rep. 337; Rep. 384; Scheible v. Slagle, 89 Ind.
Green v. United States, 18 Ct. of CI. 328; Rogers w. Hatch, 8 Nev. 35; Faber
93- De Camp v. Miller, 44 N. J. L. v. Hovey, 117 Mass. 108; 19 Am. Rep.
617; Atkins »;. Wymau, 45 Me. 399; 398; Thompson w. Griffin, 69 Tex. 139;
Ket'chum v. Thatcher, 12 Mo. App. Moore d. Williams, 132 111. 589.
185; Day v. De Yoage, 66 Mich. 550.
§ 329 THE JUDGMENT AS AN ESTOPPEL. 598
merit was correct, and does not become erroneous when
such judgment is subsequently reversed.^ In Connecticut,
the operation of an appeal depends upon the character of
the jurisdiction of the appellate court. If the latter court
has authorit}'^ to try the cause de novo, and to settle the
controversy b)' a judgment of its own, and to enforce such
judgment by its own process, then it is plain that by the
appeal the judgment of the inferior court is not merely
suspended, it is vacated and set aside, and can no longer
have effect as an estoppel. But if the appeal is in the
nature of a writ of error, conferring power on the appel-
late court to determine such errors as may have occurred
at the trial or in the decision of the cause, and giving the
court, upon such determination, no other authority than
that of reversing, modifying, or affirming the judgment
of the inferior court and of remitting the case back to the
tribunal whence it came, that such tribunal may conform
its judgments and proceedings to the views of its superior,
then the judgment appealed, from does not, until vacated
or reversed, cease to operate as a merger and a bar.^ The
effect of a judgment is not limited by the fact that on
appeal it was affirmed on an equal division of the judges.'
The mere pendency of a motion for a new trial neither
destroys nor suspends the effect of a judgment;* but the
granting of such motion vacates the judgment and the
verdict or findings upon which it rested, and neither can
any longer be respected as res judicata.^
§ 329. After-acquired Rights. — From the rule that an
adjudication affects no claims which the parties had no
opportunity to litigate, it results that no judgment or de-
cree can prejudice rights which had not accrued to either
> Parkhurst v. Berdell, 110 N. Y. * Youn^ v. Brehi, 19 Nev. 379; 3
386; 6 Am. St. Rep. 384. Am. St. Rep. 892.
2 Bank of N. A. v. Wheeler, 28 * Edwards v. Edwards, 21 El. 121 ;
Conn. 433; 73 Am. Dec. 683; Curtis Sheldon v. Van Vleck, 106 111. 45;
V. Beardsley, 15 Conn. 518; Caiu v. Gulf etc. R. R. Co. v. James, 73 Tex.
Williams, 16 Nev. 426. 12; 15 Am. St. Rep. 743; Winona v.
^ Lyon V. Ingham Circuit, 37 Mich. Minnesota etc. Co., 27 Minn. 415.
377; Durant v. Essex Co., 7 Wall. 107.
599 THE JUDGMENT AS AN ESTOPPEL. § 329
of the parties at the time of its rendition. A decision
that a right exists, or that a wrongful act has heen com-
mitted, leaves the party at liberty to show at a future
time that since the decision was pronounced the right
has expired or the wrong has been abated.^ Intervening
events affecting the issue may be shown to prevent a
former judgment from being conclusive, even where the
title has been tried in a writ of entry .^ While a judg-
ment of a court on the application of a parent for the
custody of a child is, in New York, res judicata as long as
the circumstances continue the same, it ceases to be so
whenever any change takes place in those circumstances.'
Under no circumstances will a judgment or decree take
effect upon rights not then existing." If an action is
brought to recover possession of real or personal property,
the judgment therein cannot estop either of the parties
from asserting title subsequently acquired.^ If a decree
is entered quieting title and enjoining the defendant
from making any further contest against the plaintiff's
title, this general language will be confined to rights in
issue, and will not prevent the plaintiff from asserting a
subsequently acquired title.^ But a judgment is conclu-
sive upon every right and title which the parties might
have asserted, and does not become less final because the
losing party afterward receives another and more formal
evidence of title. If defendant has made proof and pay-
ment under the pre-emption laws before judgment against
him, and afterward procures a patent, this is not a "new
title" upon which he may make another contest. "It is
merely a formal assurance of the estate which he had
^McKissickr. McKissick, 6 Humph. ' People v. Mercein, 3 Hill, 416; 38
75; Gluckauf v. Reed, 22 Cal. 468; Am. Dec. 644.
Parker v. Standish, 3 Pick. 288; ♦ Jones v. Petaluma, 36 Cal. 230.
Dwyer v. Goran, 29 Iowa, 126; Nea- * Hawley v. Simons, 102 111. 115;
fie V. Neafie, 7 Johns. Ch. 1; 11 Am. Barrows v. Kindred, 4 Wall. 399;
Dec. 380; Mitchell v. French, 100 Ind. Woodbridge v. Banning, 14 Ohio St.
334; Mound City L. A. v. Philip, 64 328; Mann v. Rogers, 35 Cal. 316;
Cal. 493; Tarleton v. Johnson, 25 Ala. Thrift v. Delaney, 69 Cal. 188; Browa
300; GO Am. Dec. 515. v. Roberts, 24 N. H. 131; Merrymaa
■^ Perkins v. Parker, 10 Allen, 22; v. Bourne, 9 Wall. 592.
Morse v. Marshall, 97 Mass. 519. * Reed d. Calderwood, 32 Cal, 109.
§ 329 THE JUDGMENT AS AN ESTOPPEL. 600'
already acquired by proof and payment."^ The correct-
ness of this decision is not free from doubt, and if it be
accepted as correct, it must be restricted in its operation
to those cases in which the non-issuance of the patent
could not have constituted. any impediment to the main-
tenance of the action or defense on the part of him to
whom it subsequently issued. A claimant of a Mexican
grant who has commenced proceedings for its confirma-
tion, and against whom a judgment is recovered during
their j^endency, is, upon the final confirmation of the
grant and the issuing to him of a patent in pursuance
thereof, regarded as having acquired a title not in issue
in the former action, and which may therefore be asserted
notwithstanding the former judgment.^
The question has not yet been sufiiciently discussed to
enable one to foresee upon which side the weight of au-
thorities will be finally ranged, as to whether a title may
be regarded as an after-acquired one, when its acquisition,
though after the commencement of the action, was j^rior
to the rendition of the judgment therein. It is well settled
that the issues in a case ordinarily refer to the begin-
ning of the suit, and that matters occurring during its pen-
dency are not in issue, and cannot be received in evidence,
unless under some supplemental pleading filed by permis-
sion of the court. So far as the plaintiff is concerned, no
doubt he is not estopped from asserting any title acquired
after the commencement of the action, because he must
generally recover upon the cause of action held by him
at that time, and cannot be aided by rights of action aris-
ing afterwards. A defendant will, however, ordinarily be
permitted by the court to plead that he has acquired a
defense, or that plaintiff's cause of action has terminated
pendente lite; and acting upon the rule that whatever may
be presented as a defense to an action must be so pre-
sented, some of the courts have held that a title acquired
^ Byers v. Neal, 43 Cal. 210. INTerryinaa v. Bourue, 9 Wall.
2 Aiiiesti V. Castro, 49 Cal. 325; 59i.
601 THE JUDGMENT AS AN ESTOPPEL. § 330
by a defendant after the commencement of an action
must be asserted by supplemental pleading therein, and
not being so asserted, is forever lost to him.' But, in our
judgment, the defendant is under no obligation to enlarge
the issues presented by the plaintifiF's complaint, or in
other words, to tender an issue respecting a matter which
he claims to have occurred pendente lite, and if he does
not plead title acquired after the commencement of the
action, is not estopped from asserting it in any subse-
quent controversy, though it is with the party who pre-
vailed in the former action.^
§830. Defaults and Admissions. — A judgment may
result wholly or partly from the concessions of the parties;
or in other words, from the fact that one of them has
made allegations which the other has not denied, and
which the court has therefore had no occasioai to investi-
gate. Hence the question arises whether the rules of res
judicata apply to matters so conceded, or only to those upon
which parties have taken issue, and which the court has
on that account been compelled to decide. Upon princi-
ple, we think that the denial of a fact subsequently judi-
cially established ought not to impart to an adjudication
any greater effect than if all the parties had expressly or
impliedly admitted the fact to be beyond controversy
when such adjudication was made; and this is the view
taken by the greater portion of the American courts.^
The rule that a judgment is conclusive of every fact
» Reed v. Dousrlas, 74 Iowa, 244; 7 Marks v. Sigler, 3 Ohio St. 358; Mc-
Am. St. Rep. 476. Creery v. Fuller, 63 Cal. 30; Nashville
« McLane v. Bovee, 35 Wis. 27; Peo- etc. R. R. Co. v. U. S., 113 U. S. 261;
pie's S. B. >;. Hodgdon, 64 Cal. 95; Brownzj. Sprague, 5 Denio, 545; Greeu-
People V. Holladay, OS Cal. 439; Hem- wood v. New Orleans, 12 La. Ann. 426;
mingway v. Drew, 47 Mich. 554. Oregonian R'y Co. v. Oregon R'y &
3 Garrard v. Dollar, 4 Jones, 175; 67 Nav. Co., 28 Fedv Rep. 505; Ebersole
Am. Dec. 271; Green v. Hamilton, 16 v. Lattimer, 65 Iowa, 164; Orr v.
Md. 317; 77 Am. Dec. 295; Alabama IMercer County Mut. Fire Ins. Co.,
G. S. R. R. Co. V. South etc. R. R. Co., 114 Pa. St. 387; Braddee v. Brownfield,
84 Ala. 570; 5 Am. St. Rep. 401 ; Mc- 4 Watts, 474; Sacrist v. Zimmerman,
Curdy v. Baughman, 43 Ohio St. 78; 55 Pa. St. 446; GoflFr. Dahbs, 4 Baxt.
McCalley v. Wilburn, 77 Ala. 549; 300; Twogood r. Pence, 22 Iowa, 543;
Ligon V. Troplett, 12 B. Mon. 283; Barton v. Anderson, 104 lud. 578.
§ 330 THE JUDGMENT AS AN ESTOPPEL. 602
necessary to uphold it admits of no exceptions, and is
equally applicable, whether the final adjudication resulted
from the most tedious and stubborn litigation, or from a
suit in which no obstacle was presented to defeat or delay
plaintiff's recovery.' A judgment by default is " attended
with the same legal consequences as if there had been a
verdict for the plaintiff. There exists no solid distinction
between a title confessed and one tried and determined.'"'
A stipulation between the parties that a particular kind
of judgment may be entered, while it ought to regulate
the entry, has no subsequent effect. It does not alter the
character of the judgment actually entered, even if the
entry be different from that provided for in the stipula-
tion.^ In cases where no default is entered, the admis-
sions made by either of the parties, whether in direct
terms or by failure to traverse material allegations when
called upon to do so, are as conclusive and as available as
a bar as if they were proved by witnesses. An admission
by way of a demurrer to a pleading is just as effective in
favor of the opposite party as though made ore tenus before
a jury.* If the tenant, in a writ of entry, pleads non-
tenure, and the plea is admitted by the plaintiff, it oper-
ates as an estoppel of record in the same manner and to
the same extent as if found by a jury.^ Also, if the de-
fendant interposes a good plea in bar, to which plaintiff
makes no reply, and the court on that account orders
^ Judgment by default or consent is essential to plaintiff's recovery. Wad-
binding as res judicata: Ellis v. Mills, hams v. Gay, 73 111. 415, shows an in-
28 Tex. 584; Fletcher v. Holmes, 25 clination on the part of the courts of
Ind. 458; Dunn v. Pipes, 20 La. Ann. that state to follow the English de-
276; Derby v. Jacques, 1 Cliff. 425; cisions, and to deny that res judicata
Newton v. Hook, 48 N. Y. 676; Brown can arise except when a court after
V. Mayor, 66 N. Y. 385; Jarvis v. argument and consideration comes to
Driggs, 69 N. Y. 143; Doyle v. Hallam, the decision of a contested matter.
21 Minn. 515; Van Valkenburgh v. * Bradford v. Bradford, 5 Conn. 127;
Milwaukee, 43 Wis. 574; Blair v. Gates v. Preston, 41 N. Y. 113; Green
Bartlett, 75 N. Y. 150; 31 Am. Rep. v. Hamilton, 16 Md. 317; 77 Am. Dec.
455. In the case last cited the court 295; note 270 to Phillipps on E\d-
emphasizes the fact that while the dence; Gates v. Preston, 3 L. T. Rep.
former judgment was by default, yet 221.
the court was, notwithstanding such ^ Semple v. Wright, 32 Cal. 659.
default, required to take testimony * Bouchaud r. D'as, 3 Denio, 243.
and to have proof of all the allegations » Hotchkiss v. Hunt, 56 Me. 252.
603 THE JUDGMENT AS AN ESTOPPEL. § 331
judgment to be entered that the case be dismissed, such
judgment, though informal, is good as a plea in bar.^
What is here said with reference to the effect as res judi-
cata of a judgment entered by consent or upon default
must be considered in connection with the limitations
expressed and the authorities heretofore cited,^ showing
that where the subject-matter of the two actions are dif-
ferent, nothing is res judicata which was not in fact pre-
sented to the court and determined in the former action.'
Irrespective of its effect as res judicata, a judgment by
consent is regarded as in the nature of a contract or bind-
ing obligation between the parties thereto, which neither,
in the absence of fraud or mistake, has the right to set
aside or disregard, and which as against each is a waiver
of errors and irregularities;^ and when such consent judg-
ment embraces matters or extends to relief not involved
within nor responsive to the issues in the case, it, with
respect to such matters and relief, no doubt partakes more
of the character of a voluntary agreement between the
parties than of a judgment of the court determining a
controversy between real litigants.^
§ 331. English Cases. — The decisions in England are,
no doubt, somewhat at variance with those in this country
in regard to the effect of declining to traverse a material
issue tendered by the opposite party. The tendency there
is to confine the estoppel to matters disputed.® "A party
is estopped from saying that any issue was improperly
decided, but he is not estopped in a future action by an
admission on the record. He is not to be estopped by any
matter not in dispute, and upon which the jury never gave
1 Campbell v. Mayhugh, 15 B. Mon. Manks, 1 Cow. 709; Bradish v. Gee,
145. Amb. 229.
'^ See sec. 253. * Vermont etc. R. R. Co. v. Ver-
» Adams v. Adams, 25 Minn. 72; mont etc. R. R. Co., 50 Vt. 500.
Colwell V. Bleadley, 1 Abb. App. 400. Consent judgments do not bind tliird
♦ Jones V. Webb, 8 S. C. 202; Man- persons: Carroll v. Hamilton, 30 La.
nion V. Fahy, 11 W. Va. 482; Collins Ann. 520.
V. Rose, 59 Ind. 33; Allen r. Richard- * Jenkins v. Roberton, L. R. 1 H. L.
son, 9 Rich. Eq. 53; French v. Shot- S. 177. See also (ioucher v. Clayton,
well, 5 Johns. Ch. 504; Atkinson v. 11 Jur., N. S., 107.
§ 331 a THE JUDGMENT AS AN ESTOPPEL. 604
judgment." ' A lessee was sued upon a lease, and made
an ineffectual defense. Afterward, being sued for subse-
quently accruing. rent under the same lease, he answered
that, prior to the former action, the lease had been an-
nulled by an agreement between the parties substituting
another and different lease in its stead. This defense was
not suggested in the prior suit, though as available in
that as in the second. The former judgment was decided
to be no bar to this defense. The grounds of this decision
were, that a default or an admission by neglect to traverse
in an action upon any contract admits nothing but the
execution of the contract, and leaves the defendant at
liberty to show, in a future action, any defense arising
under the contract since its execution, and that "nobody
ever heard of a defendant being precluded from setting
up a defense in a second action because he did not avail
himself of the opportunity of setting it up in the first
action." We submit, however, that this position is clearly
untenable. The judgment in the first action, being for
rent upon a lease, could only be supported by a valid
lease existing in full force until and including the latest
period of time for which rent was allowed. The judgment
for defendant in the second action could only be upheld,
under the issues made in that action, on the ground that
the lease was inoperative during the time for which rent
was recovered on it in the first action. It is impossible
that the second judgment was not in utter disregard of
the first, when the facts necessary to uphold the one are
irreconcilable with the facts necessary to uphold the other.
§ 331 a. Disclaimer. — The defendant in a real action
or an action to recover possession of or to determine con-
flicting claims to real property may, instead of permitting
judgment to be entered against him by default, file a dis-
claimer. Such disclaimer does not operate as a convey-
' Carter v. James, 2 Dowl. & L. 236. See, coritra, Boileau v. Rutlin, 2 Ex.
665, 681.
605 THE JUDGMENT AS AN ESTOPPEL. § 332
ance from him to the plaintiff so as to transfer his title
to the latter and to. enable him thereupon to recover of
another defendant upon the title of the defendant who
has disclaimed/ At the common law, no judgment what-
ever could be entered after the tenant had disclaimed.
Under the present practice, if the defendant did not at
the commencement of the action claim any interest in
the property, nor hold possession of any part thereof, he
is generally entitled to judgment for his costs, while,
on the other hand, if he did in fact make such adverse
claim, or withhold from plaintiff any part of the property,
the plaintiff is entitled to judgment for the relief prayed
for in his complaint and costs. But whether the action
is terminated by the disclaimer, or results in a judgment
in favor of the defendant for his costs, founded upon his
having filed such disclaimer, the defendant is estopped
from asserting title to any part of the land held by him
at the commencement of the action in which he dis-
claimed.2 -pj^^g result appears to follow the filing of the
disclaimer and to exist anterior to the entry of judgment.
Hence where the defendant disclaimed as to part of the
land sued for and defended as to the residue, and in
making his defense proved that the conveyance of the
whole tract to plaintiff was forged, it was held that the
plaintiff was entitled to judgment and to a writ of posses-
sion against defendant for -the land disclaimed.'
§ 332. Last Judgment Prevails. — Rights acquired by
virtue of a judgment or decree are liable to be terminated
in the same manner. Thus if two Mexican grants are so
confirmed at different dates that the same land is included
in both decrees, and the confirmee of the first grant, being
a party to the second confirmation, fails to assert the
former decree in his favor as a bar, his rights will be
> Currier v. Esty, 116 Mass. 577; Wonters t. Hall, 67 Tex. 513; Jordan
Oakham u Hall, 112 Mass. 535. v. Stevens, 55 Mo. 361; Dodge v.
2 Hamilton v. Elliott, 4 N. H. 182.; Richardson, 70 Tex. 209.
Prescott V. Hutchinson, 13 Mass. 439; » Dodge v. Richardson, 70 Tex. 209.
§ 333 THE JUDGMENT AS AN ESTOPPEL. 606
divested by the second decree.^ So where A foreclosed a
mortgage, making B a party to the suit as a subsequent
encumbrancer, and obtained a decree against B as such,
and B afterwards foreclosed his mortgage, making A a
party as a subsequent encumbrancer, and also obtained a
decree, it was decided that if A wished to avail himself
of his decree, he should have set it up in the second ac-
tion, and that, not having done so, his rights under it
were lost.^ Upon the same principle, it has been held
that one released from his debts by the operation of a
discharge in bankruptcy cannot urge such discharge
against a judgment entered in an action in which the
discharge might have been presented as a defense.^
The principle that as betw^een two conflicting adjudica-
tions the last must control must be limited to cases in
which the court had authority to pronounce it. Where,
for instance, the state and national courts have concur-
rent jurisdiction of a controversy, and the latter are re-
sorted to first, they have the right to continue to exercise
their jurisdiction to final judgment, and such judgment
when recovered is probably paramount to any judgment
subsequently recovered in a state court determining the
same controversy.*
§ 333. Reversal. — The reversal of a judgment is a
complete extinguishment of the estoppel. It may still
have effect as a muniment of title in favor of a purchaser
under it; but this benefit does not extend to any collateral
fact found by the verdict or judgment.^ A judgment va-
cated or set aside is no longer a bar,® and if a decree of
divorce is annulled, the marital rights, obligations, and
status of the parties are revived, although one of them
has in the mean time married and borne children of the
last marriage.^
J Semple v. Wright, 32 Cal. 659; * Wood v. Jackson, 8 Wend. 9; 22
Semple v. Ware, 4i2 Cal. 619. Am. Dec. 603.
2 Cooley V. Brayton, 16 Iowa, 10. « Taylor v. Smith, 4 Ga. 133.
» Rahm v. Minis, 40 Cal. 421; Marsh " Comstock v. Adams, 12 Chic. L. N.
V. Mandeville, 28 Miss. 122. 359.
* Sharon v. Sharon, 84 Cal. 424.
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