Greenzweig v. Strelinger

De Haven, J. This is an action to recover money alleged to be due upon a judgment recovered against [279]defendant in one of the courts of general jurisdiction of the state of Illinois. The complaint is unverified, and the answer contains a general denial.

The plaintiff obtained judgment in the superior court, from which and an order denying her motion for a new trial defendant appeals.

The record shows that the defendant was sworn as a witness in her own behalf upon the trial, and was asked whether any summons was served upon her in the action in which the judgment sued upon was rendered. The court sustained an objection to this question upon the ground “that the judgment on which this suit was brought could not be attacked collaterally; that it could only be attacked in a supplemental proceeding in the suit itself in the court in which it was rendered, or by suit in equity directly aimed to set aside the judgment; that all evidence of defendant tending to show the want of service of such process or summons, or to contradict the return of the sheriff of Cook county, Illinois, as to such service, was inadmissible, and should be excluded on that ground.” This ruling was erroneous. In the Estate of James, 99 Cal. 374, 37 Am. St. Rep. 60, we said that it was competent to collaterally impeach a judgment rendered in another state by extrinsic evidence showing want of jurisdiction in the court pronouncing the judgment, and this, too, notwithstanding the record of the judgment sought to be impeached might contain a recital of the existence of such jurisdictional facts. See, also, as sustaining this rule the following cases, which were cited in that opinion: Thompson v. Whitman, 18 Wall. 457; Grover etc. Machine Co. v. Radcliffe, 137 U. S. 287; Starbuck v. Murray, 5 Wend. 148; 21 Am. Dec. 172; Eager v. Stover, 59 Mo. 87.

There was no error in sustaining the objection to the other question in relation to the omission of the sheriff to read to the witness the writ of attachment and summons issued in the action resulting in the judgment sued upon.

[280]Judgment and order reversed.

Fitzgerald, J., and McFarland, J., concurred.