Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13. Page: 78
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155-156 SUPREME COURT.
Harper v. Nichol.
lemunrrers to the petition. Had the demurrer been merely a general one, the
Court might possibly have been right in overruling it. But the special cause
of demurrer was [155] well assigned. The special cause of exception was
that tile petition alleged simply that the plaintiff, Nichol, was a resident citizen
of the State of Tennessee. without pointing out the county or municipal divisiol
of the State in which he did reside. This, I conceive, was not sufficiently
certain as required by our statute. (Hart. Dig., Art. 671.) The object of the
statute in requiring the plaintiff's residence to be stated in the petition was,
dollltless, that the defendant might have full knowledge of the plaintiff's particular
place of abode, and thus enable a defendant to enforce any judgment
he might obtain against the plaintiff, either for costs or for balance of debt upon
a plea of set-off or in reconvention. The fact that a plaintiff is a resident of
Telnessee would not show a defendant to what particular part of that State
he should send such a judgment in order that it might be enforced. A petition
alleging that the plaintiff is a resident of the State of Texas would be bad on
general demurrer, and it is not to be supposed that our Courts will require more,
particularity in pleading from our own citizens than is required of the citizens
of the other States.
The third error assigned is, that the Court below erred in admitting the transcript
of the judgment as evidence before the jury. The objections to the transcript
are twofold:
1st. It is not properly authenticated; and
2nd. The'Court rendering the judgment had no jurisdiction of the cause
determined by it.
As to the first objection. The transcript purports, of itself, to be the tran-.
script of a judgment rendered at a Term of the law side of the Common Law
and Chancery Court of the city of Memphis holden for the 5th, 13th, and 14th
Civil Districts of the county of Shelby, State of Tennessee. The certificates
of the Clerk and Judge show only that they are, respectively; the Clerk and
Judge of the Common Law and Chancery Court of the city of Memphis, without
showing that they are in anyvise connected with the Court for the 5th,
13th and 14th Civil Districts of Shelby county. Neither of those certificates
[1 5(6] shows that the Common Law and Chancery Court of the city of Memphis
is the Court from which the judgment comes, to wit: The Court having
jurisdiction in and for the 5th, 13th, and 14th Civil Districts of Shelby county,
Tennessee. The certificate of the Judge does not even show that the city of
M'emphis is either ill Shelby county or in the State of Tennessee; nor does the
fact tlat Memphis is ill Tennessee or in Shelby county appear from the Clerk's
certificate, although the certificate is headed, "State of Tennessee, Shelby
county." The defects I have pointed out are fatal to these certificates. The
certificate of the Judrge must show that lie is the presidilng officer of the Court
rendering tlhe jlludgment. The certificate oughlt to contain intrinsic evidence
of the official capacity of the person who certifies; that is, it must show within
itself that lie is the person appointed by the law to make it; in other words, the
certificate must show of itself tliat it is male by the Clerk or presiding Judge of
thle Court in which the judgment is rendered. (Kirkland v. Smith, 7 Mart. R.,
252; Stevenson v. Bennett, 3 Bibb.R., 309.)
' The certificate of thle Clerk is also defective in this, that it does not show
within itself thle particular cause in which the judgment was rendered or the
parties to the cause. Upon tile whole it is clear that the certificates, neither of
them, come lip to the rule laid down in the cases cited.
The second objection, viz: That the Court rendering the judgment had no
jurisdiction of the cause, I consider well taken. If that Court did not have
jurisdiction, then the judgment was a nullity and afforded no good cause of
action to the plaintiff ill tlc case at bar. It is clear that this objection can be
taken advantage of, as was attempted on the trial in the Court below. See the
cases of Pawling v. Bird's Executor, 13 Johns. R., 190; Taylor v. Bryden, 8.
Johns. R., 173; McElmoyle v. Cohen, 13 Pet., 312; and Briggs v. Bissell, 8
MIass. R., 462, before cited.
78 .
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13., book, 1876; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28561/m1/86/: accessed April 20, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .