Opinion
No. 34217.
October 28, 1940.
1. JUDGMENT.
Where defendant is sued in foreign state and service is attempted on alleged agent of defendant, defendant can challenge jurisdiction by disregarding suit and raising question whether original court had jurisdiction in subsequent action on judgment in state of his residence, or defendant can appeal specially and in limine challenge jurisdiction, and if jurisdictional issue is ruled against him, proceed on merits and on appeal have a review which will involve jurisdictional question.
2. JUDGMENT.
A defendant sued in foreign jurisdiction and appearing specially and trying case on merits, in event jurisdictional issue is ruled against him, is bound by decision of court of foreign state in absence of fraud, and cannot have jurisdictional question reviewed collaterally in courts of his residence or domicile, where judgment is later sought to be propounded there.
3. JUDGMENT.
A Mississippi partnership sued in Louisiana and appearing specially in Louisiana and excepting to jurisdiction and litigating case on merits after adverse ruling on jurisdictional issue, could not have jurisdictional question reviewed collaterally in Mississippi court when judgment was later sought to be enforced there (Act La. No. 179, sec. 1, subds. 4, 12).
4. APPEARANCE.
Special appearances have but little room for operation in Mississippi and none where parties to judgment have voluntarily appeared and litigated issues to a conclusion on the merits.
5. JUDGMENT.
A Louisiana judgment against partnership and members thereof in solido would not be construed to mean that members were jointly and severally liable by Mississippi court when judgment was sought to be enforced there, where record in Louisiana court showed that Louisiana court disavowed any power or purpose to render any judgment against partners as individuals.
APPEAL from the circuit court of Washington county; HON. S.F. DAVIS, Judge.
Ernest Kellner, of Greenville, for appellants and cross-appellees.
In order to sustain the judgment in this case against the appellants, Finklea Brothers Crop Dusting Corporation and the alleged partnership of Finklea Brothers, the Louisiana judgment, being the only evidence thereof in this record, must affirmatively show that the Louisiana court had jurisdiction over their persons.
Woodville v. Pizzati, 119 Miss. 442.
The full faith and credit provision of the constitution applies to the record and proceedings of courts of other states only so far as they have jurisdiction. Whenever there is a want of jurisdiction of either the subject-matter or the parties, the record is not entitled to credit. The constitutional provision does not preclude inquiry into the facts necessary to give jurisdiction to the court rendering the decree.
Hopkins v. Hopkins, 174 Miss. 643.
It is inconceivable that the judgment sued on in this case, which, by reference to the interlocutory decree, expressly leaves open the question of whether the partnership or the corporation, or either of them, had been served with process, can have any validity against either the partnership or the corporation, and certainly not sufficient validity to sustain the judgment in this case against the appellant corporation and the appellant individuals as an alleged partnership.
Judgments rendered under statutes similar and almost identical with the Louisiana statute under which the judgment was rendered against the alleged partnership in this case have been consistently held by the Supreme Court of the United States to be of no force or effect in suits thereon in another state.
D'Arcy v. Ketchum et al., 11 How. 165; Hall v. Lanning, 91 U.S. 160; Flexner v. Farson, 248 U.S. 289; Aikmann v. Sanderson Porter, 47 So. 600; Victor Cornille DeBlonde v. R.G. Dun Co., 79 So. 855; Bolton v. Rouss, 80 So. 226; Underwood v. Brook Mays Co., 146 So. 503.
The judgment of the Louisiana court sued on in this case is void because: (1) The Louisiana statute under which service of process upon the alleged partnership was sustained violates the due process clause of the Federal Constitution. (2) It affirmatively appears from the judgment sued on that the Louisiana statute under which service of process upon the alleged partnership was sustained was not complied with.
Relying solely on the decision of the Supreme Court of the United States in the case of Baldwin v. Iowa State Traveling Men's Association, 283 U.S. 522, 75 L.Ed. 1244, counsel for appellee contend that under the full faith and credit clause of the Federal Constitution the judgment of the Louisiana court sustaining its jurisdiction is conclusive. The decision relied upon is not in point because: (1) The full faith and credit clause was not involved because neither of the courts concerned was a state court. (2) The judgment sued on in this case is void upon its face as to both appellants and can be attacked anywhere at any time.
Where the record shows on its face that the court rendering the judgment had no jurisdiction, there can be no recognition of the judgment in another state.
34 C.J., sec. 1614 (e) and notes 57, 60 and 61; Theobald v. Deslonde, 93 Miss. 208; Paepcke-Leicht Lbr. Co. v. Savage, 137 Miss. 11; Schwartz Bros. v. Stafford, 166 Miss. 397.
Thomas Cook, of Greenville, for appellee and cross-appellant.
It is the contention of the appellee that Article 4, Section 1 of the Constitution precludes a retrial on all questions determined by the judgment rendered against the appellants in the Louisiana courts, that the full faith and credit clause of the Constitution of the United States requires the courts of the State of Mississippi to give full force and effect to the judgment of courts of other states.
We submit that the question to be determined by this court is whether or not the judgment of the Louisiana court amounts to res judicata on the question of the jurisdiction of that court over the persons of the appellants. It is our contention that it is a matter of no moment that the appearance of the appellants was stated to be a special one expressly saving any submission to the jurisdiction of the court.
Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.
Baldwin v. Iowa State Traveling Men's Assn., 283 U.S. 522, 75 L.Ed. 1244; Am. Surety Co. v. Baldwin, 287 U.S. 155, 77 L.Ed. 231; In re Barber, 51 F.2d 123; Davis v. Davis, 305 U.S. 32, 83 L.Ed. 26; Hall v. Wilder Mfg. Co., 52 A.L.R. 723; Hopkins v. Hopkins, 174 Miss. 643; Ostrander-Seymour Co. v. Grand Rapids Trust Co., 50 F.2d 567; Serpell-Winner-Jordan, Inc., v. Crete Mills, 51 F.2d 1028, 80 A.L.R. 716; So. Pacific Co. v. Van Hoosear, 77 F.2d 903; Stoll v. Gottlieb, 305 U.S. 165, 83 L.Ed. 104; Titus v. Wallick, 306 U.S. 282, 83 A.L.R. 653; Welch v. Kroger Groc. Co., 180 Miss. 89, 177 So. 41; Woodville v. Pizzati, 119 Miss. 442; Alliance Trust Co. v. Armstrong, 185 Miss. 148, 186 So. 633.
Alwine L. Mulhearn, of Tallulah, La., and McHenry, Lamkin Titche, of Monroe, La., for appellee and cross-appellant.
In brief, appellee's view of the case is this: When the declaration was filed in the Chancery Court of Washington County, no plea of jurisdiction was available to defendants, who had previously urged and lost that issue. The sole questions to be contended in Mississippi should have concerned the nature of the judgment to be rendered, predicated upon the Louisiana judgment.
Two ancient platitudes are decisive of the case: "Everyone is entitled to his day in court" and "There must be an end to litigation." Our American system of jurisprudence guarantees a person due process of law and a hearing in court. But one hearing is enough. When defendants were sued in Louisiana, they had a choice of (1) defending the case there, or (2) waiting for the litigation to reach Mississippi and defending in the latter state. They chose the former alternative. In the Louisiana court, defendants fought the citation, the jurisdiction, the merits, the quantum. Nor was it a sham battle. The case was contended vigorously and in detail. Defendant partnership can in this court no more reopen the issue of jurisdiction than it can litigate again the merits of the cause of action. It chose to have its day in court in Louisiana; the points there decided are now and forever settled between these parties.
Once the question of jurisdiction has been raised in a state court and suit is thereafter filed on the judgment rendered in one state court in a second state, the question of jurisdiction cannot again be raised.
Baldwin v. Iowa State Traveling Men's Assn., 283 U.S. 522, 75 L.Ed. 1244; Van Matre v. Sankey, 148 Ill. 536, 23 L.R.A. 665.
The court below, in rendering judgment in favor of the cross-appellant, used the civil law phrase contained in the Louisiana judgment, "in solido," when, as we contend, it should have used the phrase applicable to common law judgments, that is to say, "jointly and severally."
An obligation or debt "in solido" is identical with a debt "jointly and severally."
2 Bouvier's Law Dictionary (8 Ed.), p. 1525; Webster's New International Dictionary (Ref. History Ed. 1927) p. 1117, footnote; George T. Bishop, Inc., v. Jones, 17 La. App. 410, 136 So. 101; Breedlove v. Nicolet (7 Pet.), 413, 8 L.Ed. 731; Art. 2091, La. Rev. Civ. Code, 1870.
Argued orally by S.B. Thomas and Charles Titche, for appellee and cross-appellant.
Suit was instituted by appellee, as plaintiff, in the District Court of the State of Louisiana for the Parish of Tensas, against the Finklea Bros. Crop Dusting Corporation, and Finklea Brothers, a partnership, and J.A. Finklea, J.C. Finklea and Ray Finklea, as individuals, wherein it was charged that the defendants in their crop dusting operations, through the means of airplanes, had negligently destroyed the apiary of the plaintiff, located in said parish. Service was had on the defendants by serving an employe of theirs then present in Louisiana.
The individual defendants appeared specially in the Louisiana court and filed their individual exceptions to the jurisdiction of that court, and showed that the residence of said individual defendants was in Mississippi, that neither of them was, or had been, in Louisiana, and that the attempted service on the alleged agent or employe was insufficient to bring said individual defendants into that court. The exceptions were sustained as to the individuals.
At the same time Finklea Brothers, the partnership, appeared specially in the Louisiana court and excepted to the jurisdiction of that court and averred that the partnership was domiciled in Mississippi, that no one of the partners had been at any time in Louisiana, and that the attempted service on the alleged agent or employe was insufficient to bring the partnership, as such, into that court. The exception of the partnership was disallowed, the court ruling that although the members of the partnership as individuals could not be held, the partnership as a legal entity had been validly brought into court, the Louisiana tribunal, in its interlocutory judgment, which was brought forward and made a part of the final judgment, referring, among other considerations, to Sec. 1, Subds. 4 and 12 of Act 179 of 1918 Louisiana Statutes.
Thereupon the corporation and the partnership, as a partnership entity, filed their answers to the merits, and the cause was fully litigated on the issues of liability on the facts, with the result that a judgment was rendered against the corporation and the partnership in solido for a sum in excess of $3,000.
Within a year appellee filed his declaration in the circuit court of Washington County in this state, the county of the domicile of the corporation and of the partnership, as well as of the individual members of the partnership. The record of the judgment in the Louisiana court was made an exhibit to the declaration, and judgment here was prayed in virtue of the Louisiana judgment, but the demand in the circuit court, apparently, was also that judgment be entered against the individual members of the partnership jointly and severally with the corporate defendant.
The individuals and the partnership defended in the circuit court on the ground that no valid service had been had in Louisiana either on the individuals or on the partnership; and the corporation defended on the ground that the Louisiana judgment being an entirety and being void as to the partnership was void also as to the corporation.
Appellee moved to strike the plea of the individual defendants on the ground that no judgment was being sought against the individual defendants in their individual capacities, and this being stated in open court, the motion was sustained. The defenses of the partnership as such and of the corporation were overruled; the Louisiana judgment was given recognition; and judgment was entered in the circuit court as shall be more particularly hereinafter mentioned.
Dealing now with the corporation and with the partnership as an entity aside from the members of the firms in their individual capacities, and in view of the fact that these two defendants last aforesaid litigated the cause on its merits in Louisiana:
The rule is that when a defendant has been sued in a state other than that of his residence and service has been attempted to be made on an alleged agent of the defendant, the latter may challenge the jurisdiction by one or the other of the following two courses: (1) He may disregard the suit; entirely stay away from the jurisdiction in which it is brought, and upon the attempt thereafter to propound the judgment against him in a court of his residence or domicile, he may then raise, and have an adjudication, in the latter court, on the question whether the original court had jurisdiction. Or (2) he may appear specially, in any of those jurisdictions where a special appearance is allowed, and in limine challenge the jurisdiction; and, if the jurisdictional issue be ruled against him, he may then proceed on the merits and on appeal may have a review which will involve, first, the jurisdictional question.
If he elect to take the second course above outlined, he will, in the absence of real fraud, be bound by the decision of the court in which the case was originally instituted, and he cannot have the jurisdictional question reviewed collaterally in the courts of his residence or domicile when the judgment is later sought to be propounded there. In other words, when he submits the jurisdictional question for the determination of the first tribunal, his only recourse is an appeal within that jurisdiction, and not an appeal by way of a collateral attack in another jurisdiction. Baldwin v. Iowa State etc., Ass'n, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244; Alliance Trust Co. v. Armstrong, 185 Miss. 148, 162, 186 So. 633.
The corporation and the partnership contend, however, that the stated rule cannot be applied here because, as they say, the judgment in the original court was not merely erroneous, but was absolutely void; and they invoke the familiar principle that a void judgment may be attacked anywhere, at any time. They say that the quoted Louisiana statute permitting service on a non-resident partnership, doing business in that state, through an agent or employe of the partnership, the agent or employe being found and served in Louisiana, is a void statute, and a judgment founded upon it is likewise void.
Had the partnership done no more than appear specially in the Louisiana court and there raised the jurisdictional question, we might or might not be disposed to inquire into the contention outlined in the next foregoing paragraph. But it elected to proceed to a full hearing on the merits of the litigation, although first challenging the jurisdiction. In such a situation we prefer to apply the rule as first stated hereinabove without reservation, save as to the reservation of fraud.
Special appearances, as recognized in most jurisdictions, have but little room for operation in this state, and none where the parties to the judgment have voluntarily appeared and litigated the issues to a conclusion on the merits. Our jurisprudence and its policy is, therefore, in complete accord with what was said in the Baldwin case [ 283 U.S. 522, 51 S.Ct. 518, 75 L.Ed. 1244]: "Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case, and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause."
The language of the Louisiana court ordered "that there be a judgment in favor of Chas. E. Powell, plaintiff herein, and against Finklea Bros. Crop Dusting Corporation and Finklea Brothers a partnership composed of J.C. Finklea, J.A. Finklea and Ray Finklea in solido the amounts itemized as follows to wit." The language in our circuit court is "that the plaintiff Chas. E. Powell do have of and recover from the defendants Finklea Bros. Crop Dusting Corporation and J.C. Finklea, J.A. Finklea and Ray Finklea a partnership composing the firm of Finklea Brothers in solido, the sum," etc. Appellee presents a cross-appeal and complains that our court should have translated the Louisiana language "in solido" into what is said to be the equivalent common law term "jointly and severally." If we should allow this substitution in the quoted Mississippi judgment, then, under our law, the judgment could be construed to mean that each member of the firm would be individually liable jointly and severally, whereas the record in the Louisiana court shows that the court there disavowed any power or purpose to render any judgment against the partners as individuals, and, as already mentioned, a like disavowal was entered of record by appellee in the circuit court here. We assume, therefore, that it was competent under Louisiana law to render a judgment which would be effective against a partnership as to partnership property, but which could not be followed out into an individual liability to be enforced against the separate property of the individual members of the firm; but in any event the judgment here cannot be enlarged beyond that which the Louisiana record shows was the judgment intended to be rendered there.
Affirmed on direct and on cross-appeal.