Judgments in Rem.

In sustaining the challenge to jurisdic- tion in cases involving judgments in personam, the Court in the main was making only a somewhat more extended application of recognized principles. In order to sustain the same kind of challenge in cases involving judgments in rem it has had to make law outright. The leading case is Thompson v. Whitman.44 Thompson, sheriff of Monmouth County, New Jersey, acting under a New Jersey statute, had seized a sloop belonging to Whitman and by a proceeding in rem had obtained its condemnation and forfeiture in a local court. Later, Whitman, a citizen of New York, brought an action for trespass against Thompson in the United States Circuit Court for the Southern District of New York, and Thompson answered by producing a record of the proceedings before the New Jersey tribunal. Whitman thereupon set up the contention that the New Jersey court had acted without jurisdiction, inasmuch as the sloop which was the subject matter of the proceedings had been seized outside the county to which, by the statute under which it had acted, its jurisdiction was confined.

As previously explained, the plea of lack of privity cannot be set up in defense in a sister state against a judgment in rem. In a proceeding in rem, however, the presence of the res within the court’s jurisdiction is a prerequisite, and this, it was urged, had not been the case in Thompson v. Whitman. Could, then, the Court consider this challenge with respect to a judgment which was offered, not as the basis for an action for enforcement through the courts of a sister state but merely as a defense in a collateral action? As the law stood in 1873, it apparently could not.45 All difficulties, nevertheless, to its consideration of the challenge to jurisdiction in the case were brushed aside by the Court. Whenever, it said, the record of a judgment rendered in a state court is offered “in evidence” by either of the parties to an action in another state, it may be contradicted as to the facts necessary to sustain the former court’s jurisdiction; “and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding the claim that they did exist.”46

Footnotes

44
85 U.S. (18 Wall.) 457 (1874). [Back to text]
45
1 H. BLACK, A TREATISE ON THE LAW OF JUDGMENTS § 246 (1891). [Back to text]
46
See also Simmons v. Saul, 138 U.S. 439, 448 (1891). In other words, the challenge to jurisdiction is treated as equivalent to the plea nul tiel record, a plea that was recognized even in Mills v. Duryee as available against an attempted invocation of the full faith and credit clause. What is not pointed out by the Court is that it was also assumed in the earlier case that such a plea could always be rebutted by producing a transcript, properly authenticated in accordance with the act of Congress, of the judgment in the original case. See also Brown v. Fletcher’s Estate, 210 U.S. 82 (1908); German Savings Soc’y v. Dormitzer, 192 U.S. 125, 128 (1904); Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287, 294 (1890). [Back to text]