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Vol. IV.1

Pennywit v. Foote.

(No. 3.

2. The record of a judgment rendered in another state may be contradicted, as to the

facts necessary to give the court jurisdiction, and if it be shown that such facts did

not exist, the record will be a nullity, notwithstanding it may recite that they did exist. 3. Such want of jurisdiction may be shown either as to the subject matter, the person, or

in proceedings in rem as to the thing. 4. The ordinance of secession of the State of Arkansas, the Constitution adopted March,

1861, and the several steps taken by that state, by which it was attempted to secede from the United States and join the Confederate States, were null and void, being in violation of the Constitution of the United States, and the existing Constitution of

the state. 5. The state government founded on such new Constitution, and maintained by armed re

bellion, was an insurrectionary and unlawful government, and not the legal representative of the state as one of the United States, and its acts and judicial proceedings in violation of the Constitution of the United States, or in derogation of the rights of

its citizens, were null and void. 6. The provision of such Constitution, “ Schedule, Sec. 1. That no inconvenience may

arise from this change of government, we declare that all writs, actions, prosecutions, judgments, claims, and contracts of individuals and bodies corporate, shall continue as if no change had taken place in the Constitution or government of this state ; and all process which may have been issued under the authority of this state previous to this time shall be as valid as if issued after the adoption of this Constitution," did not operate during the war to transfer to the courts of the usurping government the jurisdiction previously acquired by the court under the former state government over

persons resident in the adhering states. 7. The circuit courts of that usurped government were a constituent part thereof. Their

judicial proceedings, within their military lines and during the war, are not such as are, under art. 4, sec. 1, of the Constitution of the United States and the act of Congress,

entitled to full faith and credit. 8. As between parties residing in the State of Arkansas and within the rebel lines, and

a citizen of Ohio, resident within the Union lines, between whom the war made intercourse impossible, there could be no jurisdiction in such court, by which the rights of

non-residents could be injuriously affected. 9. Neither could such jurisdiction be acquired by the consent or waiver of an attorney

practising in said court, who was employed and appeared for the non-resident defendants before the war commenced. His general authority as an attorney, before the war, though not revoked by the clients, did not authorize him to waive any of their rights, nor could such consent or waiver confer on the court jurisdiction over the case, or over the person of defendants.

ERROR to the superior court of Cincinnati.

This was an action brought by the plaintiffs against John T. Foote, impleaded with Sheldon Kellogg, late partners, to recover on a judgment rendered against said Kellogg & Foote, in the circuit court of Crawford County, in the State of Arkansas, on the 16th of November, 1861.

The petition contains an averment that said court was a court of record and general jurisdiction ; that the action was commenced in that court in October, 1857, and that at the July term of said court, in 1859, the defendants duly appeared by their attorney and filed their plea to the action, on which such proceedings were had ; that at the November term of said court, in 1861, a judgment was rendered for plaintiffs for $960 damages, and for costs.

To this petition John T. Foote answered (Kellogg not being served) that the pretended judgment was rendered in the State of Arkansas, whose people, and the so-called government of the state, were at the time, and for a long time had been, in armed rebellion against the authority and government of the United States, and by a pretended court, acting under the pretended authority of a so-called government, which

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was in rebellion, and engaged in making war upon the United States, wherefore it is claimed there is not any record of such a judgment.

To this answer a demurrer was filed, and upon the question thus raised the case was reserved for decision of the court in general term. This demurrer was sustained, and cause remanded to special term, where the following amended answer was filed :

“The defendant, John T. Foote, for answer to the petition of the plaintiffs, says that on the twenty-sixth (26th) day of October (1857), eighteen hundred and fifty-seven, he, the said defendant, was a citizen and resident of the State of Ohio, and had before been, and up to the month of June (1863), eighteen hundred and sixty-three, continued to be a citizen and resident of said state ; that in said month of June, 1863, he removed his residence to the State of New York, of which state he continued to be a citizen and resident for the three (3) years next following the month of June, 1863; that he then, in the year 1866, removed to the State of New Jersey, of which last named state he has ever since continued to be, and now is, a citizen and resident. Defendant further says that the circuit court of Crawford County, in the State of Arkansas, was, on the 26th day of October, 1857, a court of the State of Arkansas, under the government and jurisdiction of the United States of America, and in peaceable relations therewith; and he, the said defendant, then had both in law and in fact all the privileges and immunities of a citizen of the United States, and of the State of Arkansas, in prosecuting and defending actions at law in said court; and as such citizen of the United States he employed counsel and appeared in said case, for the purpose of setting up and maintaining a just and good defence which he had to said action, as shown by the proceedings therein.

“The said defendant further states that afterward, and prior to the rebellion hereinafter stated, and prior to the sixteenth (16th) day of November, eighteen hundred and sixty-one (1861), the persons and bodies of persons holding the chief executive and the legislative offices in the State of Arkansas, combining and confederating with the persons and bodies of persons holding the chief executive and the legislative offices in the States of South Carolina, Georgia, Florida, Alabama, Louisiana, Texas, North Carolina, Tennessee, and Virginia, such persons being all the persons holding chief executive offices and a large majority of all the persons constituting legislative bodies, or any, in each and all said states, including the said State of Arkansas, rebelled against the authority of the United States of America ; and by means of a pretended confederate government, known and called the Confederate States of America, levied and waged a war against the United States of America, which said war was raging and continued to rage before and after the said sixteenth (16th) day of November (1861), eighteen hundred and sixty-one.

" And the defendant further avers that the residents of the said State of Arkansas, on, before, and after the said 16th day of November, 1861, including the pretended judges and officers of said circuit court of Crawford County, the said plaintiffs, and the said attorney who had been employed by this defendant, became and were the enemies of the United States, engaged in open rebellion and war against the United States. And the defendant avers that the pretended judge and officers of the said

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Vol. IV.]

PENNYWIT v. Foote.

(No. 3.

circuit court were not, on said 16th of November, 1861, acting, or assuming to act, under the authority and jurisdiction of the United States of America, or under the authority of any government existing or established in the said State of Arkansas connected with the government of the United States of America ; but under a usurped and illegal government of the said State of Arkansas, and under the said usurped and illegal government known and called the Confederate States of America. And the defendant avers that the pretended judge of the said circuit court of Crawford County, who rendered the said pretended judgment of said court (so-called) on the said 16th day of November, 1861, against the defendant, was not, on said 16th day of November, 1861, and never had been, a judge of the said State of Arkansas, deriving authority from any government of said state as one of the United States of America ; but was a person acting and assuming to act under authority derived from the said usurped and illegal governments of the said State of Arkansas, and the said Confederate States of America.

“And the said defendant further avers that on and before the said sixteenth (16th) day of November, 1861, and for a long time thereafter, in the territory between the State of Ohio (of which state defendant was a citizen and resident, until June, 1863, as herein above stated) and in the territory between the States of New York and New Jersey (of which states defendant was subsequently a citizen and resident as herein aforesaid), and the said State of Arkansas, the armies of the United States of America and the armies of the said usurped illegal government of the Confederate States of America were arrayed against each other, and lines were established and maintained, which he, the said defendant, was not at liberty to pass ; and communication was cut off and rendered impracticable between the said States of Ohio, New York, and New Jersey, and the citizens thereof, and the said State of Arkansas and the people and inhabitants thereof; all which was well known to the said plaintiffs and to the said pretended judge and officers of the said pretended court. And the said defendant avers that on and before the said 16th day of November, 1861, under an act of Congress of the United States, for that purpose enacted, all commercial intercourse between the citizens of said States of Ohio, New York, and New Jersey, and the residents of the said State of Arkansas, was by proclamation of the President of the United States, prohibited.

" And the said defendant avers that on the said 16th day of November, 1861, he, the said defendant, had not within the said State of Arkansas the free and peaceable exercise of the privileges and immunities of a citizen of the United States, or of the State of Arkansas, as one of the United States of America ; but was illegally and forcibly deprived thereof by the acts of the said plaintiffs and the judge and officers of the said pretended court, and others combining and confederating with them, as herein before set forth. And the said defendant insists that said pretended judgment was and is fraudulent and void.”

To this was the following reply: –

“ The plaintiffs, for reply to the amended answer of the defendants, say that the circuit court of Crawford County, in the State of Arkansas, in and by which the said judgment in the petition mentioned was rendered, Vol. IV.]

Pennywit v. FoOTE.

No. 3.

was and is the same court in which said suit by the plaintiffs against the defendants, in the petition mentioned, was instituted on the 26th day of October, 1857, and in which the said defendants appeared and pleaded their pretended defence, mentioned in their said amended answer, and was not another or different court, as pretended in said answer, and was, at the commencement of said suit, and thence continually until and at the time of rendering said judgment, a court of general jurisdiction in law and equity, lawfully established and proceeding under and by virtue of the Constitution and laws of the said State of Arkansas, and that the judge of said court, who rendered said judgment, was, at the time when he rendered the same, duly appointed, qualified, and acting as such, under and by virtue of the Constitution and laws of the said State of Arkansas. And plaintiffs aver that, by the law and usage of the said State of Arkansas, the said judgment of said court now is and ever since the rendering thereof has been of full force and effect, and that the same, at and ever since the commencement of this action, had and now has absolute verity, faith, and credit in all the courts of said state, and remains wholly unreversed; and they deny each and all averments in said answer to the contrary.”

The case was again reserved to general term, and then submitted to court on the pleadings and the following agreed statement of facts:

- This action coming on to be heard, the parties waived the intervention of a jury, and submitted the same for trial by the court, upon the pleadings and the following agreed statement of testimony:

- The plaintiffs offered and read in evidence the transcript of the record of proceedings and judgment in their action against said defendants in the circuit court of Crawford County, in the State of Arkansas, November term, in the year 1861, and the authentication thereof, which is hereto annexed, and marked Exhibit 1; also the transcript of section 4, article 6, of the Constitution of said State of Arkansas, and the authentication thereof, which is hereto annexed and marked Exhibit 2; also the decision of the supreme court of said State of Arkansas, being the highest court of judicature in and of said state, rendered at the December term, in the year 1866, in three causes, reported in volume 24 of a book styled Arkansas Reports, being the official and authorized report of the cases adjudged in said court, viz., the decision in Hawkins v. Filkins, reported at page 286, and in Beller v. Page, reported at page 363, and in Belding v. Goodwin, reported at page 486, which reports and decisions so referred to are made part hereof as though herein fully set forth, and were offered and read by plaintiffs as evidence tending to show the credit and effect due by the law of said State of Arkansas to the said judgment and proceedings in said circuit court of Crawford County.

“ And the plaintiffs thereupon rested their case.

" Said defendants then offered testimony that on the 16th day of January, 1861, the legislature of said State of Arkansas passed what was styled a convention bill. That on February 18th delegates to such convention were elected, and that on March 4th the convention met, and on the 6th of May it again met and adopted an ordinance, whereby Arkansas was declared to be a separate and sovereign state ; and the ordinance or compact, by which she became one of the United States, thereby repealed, abrogated, and set aside, and the union subsisting between said state and Vol. IV.]

Pennywit v. FOOTE.

No. 3.

the United States forever dissolved, and her people and citizens absolved from all allegiance to the United States, or the government thereof, and also authorized the transfer to the so-called Confederate States of America (through its delegates to the Provisional Congress of said Confederate government, which Congress first met and organized February 18th, A. D. 1861), of the arsenal at Little Rock and the hospital at Napoleon, the same belonging to the said United States of America; and that in the month of May, 1861, said Arkansas was formally admitted into the Confederate States of America, and through its delegates gave its adhesion to the Provisional Constitution of said confederation. .

“ That on the said 4th day of March, 1861, a convention in Arkansas assembled, ordained and established what purported to be a state Constitution, a transcript of which was introduced by defendant, and is hereto attached and marked Exhibit 3 ; that the same was adopted June 1, 1861, by a convention of delegates assembled, claiming to represent the State of Arkansas, as a member of the so-called Confederate States of America, and that said judgment was rendered by a court whose judges and officers were acting under the authority of the Constitution adopted as aforesaid.

" That the defendant, John T. Foote, on the 26th day of October (1857), eighteen hundred and fifty-seven, was a citizen and resident of the State of Ohio, and continued to be up to the month of June (1863), eighteen hundred and sixty-three, and that from said date last named till June, 1866, he was a resident of the State of New York, and that from June, 1866, till the present time, he was and has been a resident of the State of New Jersey. That afterward, and prior to the 16th day of November, 1861, the said State of Arkansas, combining and confederating with the States of South Carolina, Georgia, Florida, Alabama, Louisiana, Texas, North Carolina, Tennessee, and Virginia, under the pretended authority of the so-called Confederate States of America, levied and waged war against the United States of America, and so continued to do before and after the said 16th day of November, 1861, and that the residents of the said State of Arkansas were engaged in open rebellion and war against the said United States of America.

66 And that on and before the said 16th day of November, 1861, and for a long time thereafter, the armies of the United States of America and of said Confederate government were arrayed against each other, and lines were established and continued between the State of Arkansas and the States of Ohio and New Jersey, and all intercourse was prohibited and rendered impracticable between said states.

" And, thereupon, it is certified that the foregoing being all the testimony offered on either part, each of said parties excepted to the competency of the testimony offered by the other to maintain the issue. And it was ordered that the action be reserved for the decision of the court in the general term, upon the pleadings and the testimony aforesaid.

“In witness whereof the judge at special term has hereunto set his hand and seal.

M. B. Hagans. [Seal.] ” Exhibit No. 1, referred to, is a copy of the record of the Arkansas judgment authenticated in due form.

It shows that proceedings by attachment were begun in 1856, and at

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