The plaintiff, as administrator of W., had brought a suit in the
District Court of the United States for the Western District of
Pennsylvania and recovered a judgment. He instituted a suit in the
District Court of the United States of the State of Mississippi
against the defendant in the original suit. The defendant pleaded
that by the Orphans' Court of Adams County in the State of
Mississippi, where the defendant resided, he had been appointed the
administrator of W. and had continued to act in that capacity.
Held that the debt due upon the judgment obtained in
Pennsylvania by the plaintiff as administrator of W. was due to him
in his personal capacity, and it was immaterial whether the
defendant was or was not administrator of W. in the State of
Mississippi. That would not in any manner affect the rights of the
plaintiff, and the plea tenders an immaterial issue, and is bad on
demurrer.
Where the court in which judgment is rendered has not
jurisdiction over the subject matter of the suit, or where the
judgment upon which suit is brought is absolutely void, this may be
pleaded in bar or may in some cases be given in evidence under the
general issue in an action brought upon the judgment.
The general rule is that there can be no averment in pleading
against the validity of a record, though there may be against its
operation, and it is upon this ground that no matter of defense can
be pleaded in such case to a suit on a judgment which existed
anterior to the judgment.
It has become a settled practice in declaring in an action upon
a judgment not, as formerly, to set out in the declaration the
whole of the proceedings in the original suit, but only to allege
generally that the plaintiff, by the consideration and judgment of
that court, recovered the sum mentioned therein, the original cause
of action having passed
in rem judicatam.
In an action upon a judgment recovered in favor of an
administrator, the plaintiff is not bound to make a profert of the
letters of administration. That it is not necessary in actions upon
such judgments that the plaintiff name himself as administrator
follows from his not being bound to make profert of the letters of
administration, and when he does so name himself, it may be
rejected as surplusage.
After judgment recovered in a suit by an administrator, the debt
is due to the plaintiff in his personal capacity, and he may
declare that the debt is due to himself.
This was an action of debt brought in the court below upon a
judgment obtained by the plaintiff as administrator against the
defendant in the District Court of the United States for
Page 26 U. S. 687
the Western District of Pennsylvania. The declaration was in the
common form, averring the recovery by plaintiff as administrator,
&c.
The defendant pleaded three pleas in bar. 1.
Ne unques
administrator. 2. That in January, 1817, in the Orphans' Court
of the County of Adams in the State of Mississippi, the defendant
was duly appointed sole administrator, and has continued to act in
that capacity. 3. That the judgment was obtained
per
fraudem. The plaintiff replied to the third plea, on which
issue was joined, and demurred specially to the first and second,
assigning as causes of demurrer:
1. The said pleas set up matter which, if true, existed anterior
to the judgment on which the suit was brought, and might have been
urged, if effectual at all, against the original recovery.
2. The said matters should have been pleaded in abatement, and
not in bar.
3. They contain averments against the record.
4. That the matters therein contained are immaterial, and could
not be set up after judgment to avoid its effect in the state from
which the record came.
5. They are in other respects uncertain, informal, and
insufficient.
Joinder in demurrer. The judgment of the district court was in
favor of the defendant, sustaining both pleas as sufficient.
Page 26 U. S. 690
MR. JUSTICE THOMPSON delivered the opinion of the Court.:
The action in the court below was founded upon a judgment
obtained in the District Court of the United States for the Western
District of Pennsylvania in the term of October, in the year 1823,
for the sum of $32,957.34. The declaration is in the usual form of
an action of debt on a judgment.
The defendant pleads in bar:
1. That the plaintiff is not, and never was, administrator of
John Wilkins, deceased.
2. That at the January Term in the year 1817 of the Orphans'
court for the County of Adams and State (then Territory) of
Mississippi, he, the defendant, was duly appointed sole
administrator of John Wilkins, deceased, and entered into bond with
security and took the oath prescribed in such case according to
the
Page 26 U. S. 691
statute in such case made and provided, and that he took upon
himself the duty and office of administrator, and has continued to
act as such administrator ever since.
3. That the judgment in the declaration mentioned was obtained
by fraud.
To the two first pleas a special demurrer was interposed and
issue to the country taken upon the third, and judgment rendered
for the defendant upon the demurrer, to reverse which the present
writ of error has been brought.
The first plea of
ne unques administrator has been
abandoned as altogether untenable, and the counsel on the part of
the defendant in error have rested their argument entirely on the
validity of the second plea, and have treated this as a plea in bar
to the jurisdiction of the court in which the judgment was
rendered. It is a little difficult to discover what is the true
character of this plea. It can in substance amount to nothing more
than an allegation that the plaintiff was not the lawful
administrator of John Wilkins. And in that respect, is but a
repetition of the same matter set up in the first plea, and that
too in a more exceptionable form. For the conclusion is drawn
argumentatively from the fact set up in the plea that he, the
defendant, was duly appointed sole administrator of John Wilkins,
in the Orphans' Court of the County of Adams in the State of
Mississippi, and thence to infer that the plaintiff could not be
the lawful administrator in Pennsylvania. Such a plea will not
stand the test of a special demurrer. If it was intended by this
plea to set up that the defendant was the first and only rightful
administrator of John Wilkins, and that the debt due from him
thereby became assets in his hands, the plea is defective in not
alleging when administration was granted to the plaintiff. The
declaration alleges that John Wilkins died a citizen of
Pennsylvania, and from anything that appears to the contrary,
administration might have been granted to the plaintiff before it
was to the defendant.
The simple fact that administration had been granted to the
defendant in Mississippi would not raise any question with respect
to the jurisdiction of the court, and if it furnished any matter of
defense on the merits against the recovery on the ground that it
was taking out of his hands assets the administration of which
belonged to him, it should have been set up in the original action.
Nothing appears to invalidate the judgment upon which the present
action is founded. The cause of action does not appear, and we
cannot say that the subject matter was not within the jurisdiction
of the court when it was rendered, or that there was any disability
in the plaintiff to sue in that court, or that the judgment was
void for any cause whatever. When the court in which the judgment
is
Page 26 U. S. 692
rendered has not jurisdiction over the subject matter of the
suit, or when the judgment is absolutely void, this may be pleaded
in bar or may in some cases be given in evidence under the general
issue. But the general rule is that there can be no averment in
pleading against the validity of a record, though there may be
against its operation. And it is upon this ground that no matter of
defense can be pleaded in such case which existed anterior to the
judgment. Chitty Plead. 481. Hence it has become a settled practice
in declaring, in an action upon a judgment, not (as formerly) to
set out in the declaration the whole of the proceedings in the
former suit, but only to allege generally that the plaintiff, by
the consideration and judgment of that court, recovered the sum
mentioned therein. Chitty 354.
The original cause of action having passed
in rem
judicatam, how far the circumstance that the defendant had
taken out letters of administration in Mississippi would have
availed as a defense against a recovery of the original judgment
cannot now be inquired into. It should have been set up in the
former suit. But if the first administrator acquired a right to
this debt as assets, and that matter was now open to inquiry, there
is nothing appearing on this record to show that the defendant had
acquired any such priority. When letters of administration were
taken out by the plaintiff does not appear, nor was he bound to
show that in his declaration. He was not bound to make profert of
the letters of administration. This was so decided in the case of
Crawford v. Whitall, Doug. 4, note a. It was an action of
indebitatus assumpsit upon a judgment recovered by the
plaintiff as administrator against the defendant in the Mayor's
Court at Calcutta. And the declaration alleged that the defendant
was indebted to the plaintiff as administrator in the sum therein
mentioned, which had been adjudged to him as administrator, &c.
The defendant demurred specially and showed for cause that there
was no profert of letters of administration. But the court said
this was unnecessary, because in this action (upon the judgment)
the plaintiff had no occasion to describe himself as administrator.
If then it was a fact and of any importance in deciding the legal
rights of the parties in this case that administration had been
first granted to the defendant in Mississippi, that should have
been alleged in the plea, and no objection can be taken to the
declaration as containing the first fault in pleading.
That it is not necessary, in cases like the present, for the
plaintiff to name himself as administrator follows as matter of
course from his not being bound to make profert of his
Page 26 U. S. 693
letters of administration, and that when he does so name himself
it may be rejected as surplusage, is well settled by numerous
authorities. In the case of
Bonafous v. Walker, 2 Term
126, it was objected that the action ought to have been brought by
the plaintiff as administratrix, because the judgment on which the
party had been committed in execution had been obtained by her as
administratrix of her husband. But the court said that was
unnecessary, for the instant the plaintiff recovered the judgment,
it became a debt due her on record, and was assets in her hands for
which it was not necessary for her to declare as administratrix.
See also Hob. 301, L. Ray. 1215. The case of
Tallmadge
v. Chappel, 16 Mass. 71, decided in the Supreme Judicial Court
of Massachusetts, is very full and explicit on this point. The
plaintiff declared as administrator, &c., in debt upon a
judgment recovered by him as administrator, in a court of common
pleas in the State of New York. The defendant pleaded in bar that
the parties at the time of rendering the judgment were all
inhabitants of the State of New York, and that the plaintiff was
appointed administrator in that state, and had not been so
appointed in Massachusetts. To which plea there was a demurrer and
joinder, and the court held the plea bad. That the action, being on
a judgment already recovered by the plaintiff, it might have been
brought by him in his own name, and not as administrator. For the
debt was due to him, he being answerable for it to the estate of
the intestate, and it ought to be considered as so brought, his
style of administrator being merely descriptive, and not essential
to his right of recovery. That it was important to the purposes of
justice that it should be so, for an administrator appointed in
Massachusetts could not maintain an action upon this judgment, not
being privy to it, nor could he maintain an action upon the
original contract, for the defendants might plead in bar the
judgment recovered against them in New York. The debt sued for is
in truth due to the plaintiff in his personal capacity, and he may
well declare that the debt is due to himself.
If in the case before us the judgment is considered a debt due
to the plaintiff in his personal capacity, it is totally immaterial
whether the defendant was or was not administrator of John Wilkins
in the State of Mississippi. That could not in any manner affect
the rights of the plaintiff. The plea therefore tenders an
immaterial issue, and is bad on demurrer.
In whatever light, therefore, we consider this plea, whether as
to the matter itself set up or to the manner in which it is
pleaded, it cannot be sustained as a bar to the present action.
We are accordingly of opinion that the judgment of the court
Page 26 U. S. 694
below must be
Reversed and the cause sent back with directions to allow
the defendant to plead de novo if he shall elect so to do.
This cause came on, &c., on consideration whereof it is
adjudged and ordered by this Court that the judgment of the
district court in this cause be and the same is hereby reversed and
annulled, and it is further ordered that the cause be remanded to
the said district court with directions to permit the defendant to
plead
de novo if he elect so to do.
