with summons by publication to defend after judgment, etc., by its express terms does not affect the title to land acquired by a bona fide purchaser of land at a sale therein decreed. Lawrence v. Hardy, 123.
3. Other States-Estoppel.-By virtue of the Constitution of the United States and Acts of Congress in pursuance thereof, the judgments of the courts of other States are put upon the same footing as domestic judgments. Therefore, a judgment of such other courts, standing unreversed, in the absence of fraud or lack of jurisdiction, bars a recovery of the same cause of action subsequently brought in the courts of this State. Marsh v. Railroad, 160.
4. Other States- Pleadings- Demurrer— Merits— Estoppel.— A general demurrer to the merits of the cause of action alleged in the complaint is an admission of all matters of fact well pleaded, and a judgment of a court of competent jurisdiction of another State sustaining such a demurrer, in the absence of fraud, will bar recovery for the same cause of action brought in the courts of this State. Ibid.
5. Same-Additional. Allegations.-When a former judgment of a court, standing unimpeached, sustaining a demurrer to a complaint, is pleaded in bar of recovery, and it appears that every phase and essential feature of the controversy has been set out, that the cause and the parties are the same, a position that certain material facts stated in the pending action were not set out in the former one, cannot be sus- tained. Ibid.
6. Other States-Jurisdiction-Parties-Subject Matter.-In an action on a judgment recovered in a sister State, it is open to defendant to allege and show a want of jurisdiction in the court rendering the judgment, either of the subject matter or the parties litigant, and this is allowable, though the judgment sued on may recite jurisdictional facts. Mottu v. Davis, 237.
7. Another State- Non-Residence-Summons-Service-Proof.— A lack of jurisdiction of the person is not established by showing, without more, that process was personally served on a non-resident defendant while he was temporarily and of his own volition within the jurisdiction of the court render- ing the judgment. Ibid.
8. Other States-Fraud-Proof. In an action in the courts of this State on a judgment rendered in a sister State it is open to defendant to allege and prove fraud in the procurement of the judgment, and the term fraud in this connection in- cludes all such circumstances of fraud or imposition in pro- curing the judgment as would induce and authorize the courts of the original forum to interfere to prevent the enforcement of an unconscionable recovery. Ibid.
9. Same Pleadings.-This defense of fraud involves an issue of fact, and in order to be available it is not sufficient to aver in general terms that a judgment was procured by fraud, but the alleged facts must be set forth with sufficient fullness and accuracy to indicate the fraud charged and to apprise
the offending party of what he will be called on to answer. Ibid.
10. Contracts, Impairment of—Legislation Constitutional Law.— While judgments are sometimes spoken of as contracts of record, they are not in realty contracts, and are never so considered in reference to the clause in the Federal Consti- tution which forbids that contracts should be impaired by State legislation. Ibid.
11. Gaming Contracts - Legislation - Other States
Conflict of Laws-Res Judicata-Constitutional Law-"Full Faith and Credit."-Where, in an action pending in the courts of this State to recover on a judgment in a sister State, the Legis- lature amended our statute on gaming by adding thereto : "Nor shall the courts of this State have any jurisdiction to entertain any suit or action brought upon a judgment based upon any such contract," there can be no valid objection to such legislation on the ground that same impairs the obliga- tion of contracts, and it would seem that no such objection can be made under Art. IV, secs. 1 and 2 of the Federal Con- stitution, "the full faith and credit clause," etc., if it is ad- mitted or clearly appears that the judgment sued on was rendered on a transaction expressly forbidden by our statutes on gaming, and that the question was not raised, investigated or determined in the courts of the State in which the judg- ment was originally rendered. Ibid.
On the facts indicated, if it appeared that the court of the sister State rendering the judgment had jurisdiction of the cause and the parties, and that the question whether the transaction sued on was a gaming transaction had been ex- pressly raised and determined adversely in that court, in such case under Art. IV, sec. 1, the judgment of the sister State would conclude the parties, the terms and very purpose of the article being to prevent all question in the courts of one State of the Union as to the validity of a cause of action which had been presented and decided in the courts of another. Ibid. 13. Same-Issues Fraud-Jurisdiction. In the present case, be- ing an action to recover on a judgment rendered in favor of plaintiff and against defendant in the State of Virginia, it appearing that personal service of process on defendant was had in the State of Virginia, and that said defendant appeared and by proper pleas raised the question whether the claim declared on arose on a gaming transaction and on inquiry duly had the question resolved against defendant, the parties are thereby concluded as to such question; and it appearing, fur- ther, that the plea of fraud is not sufficiently averred, the only remaining issue arising on the pleadings is on the jurisdic- tion of the court, and the cause is sent back for the proper decision of such issue. Ibid.
14. Justice's Court-Appeal-Docketing-Laches-Void Appeal.— An appeal from a judgment of a justice of the peace must be docketed at the next ensuing term of the Superior Court com- mencing ten days after the notice of appeal, and an attempted docketing at a latter term is a nullity. Revisal, 307-8. Mac- Kenzie v. Development Co., 276.
15. Verdict Non Obstante-Pleadings.—While the common law rule has been relaxed so that a judgment non obstante veredicto may sometimes be granted the defendant, it is only when the pleadings entitle him to it irrespective of the verdict. Shires v. Cotton Mills, 290.
16. Verdict Non Obstante — Discretionary Power - Appeal and Error.-When the trial judge has erroneously held that the defendant is entitled to judgment non obstante veredicto, he has exercised no discretionary power, and judgment upon the verdict in plaintiff's favor will be rendered in the Supreme Court. Ibid.
17. Issues, Material — Issues Set Aside - -Discretion- Appeal and Error. The setting aside of material issues found by the jury in favor of a plaintiff, which, in connection with the other issues, would entitle him to recover, and giving judgment on the verdict as it then stood for defendant, does not involve matters resting within the sound discretion of the trial judge. but those of "law or legal inference," from which an appeal lies; and error in setting aside the issues being found by the Supreme Court a judgment for plaintiff will be ordered. Drewry v. Daris, 295.
18. Appeal and Error-Sureties-Contribution-Procedure-Final. -Ordinarily, a court is not permitted to determine the rights to contribution between the sureties on a bond until there has been payment made in excess of the rightful proportion; but as the matter presented in this appeal was the lower court directing execution on a judgment theretofore obtained against the principal and sureties on his bond, the order of the lower court sufficiently partakes of the nature of a final judgment for the Supreme Court to express its opinion. Com- missioners v. Dorsett, 307.
19. Irregular-Irregular Process-Justice of the Peace-Procedure, -To set aside a judgment of a justice of the peace by de- fault for irregularity upon the ground of irregular service of summons, the complaining party must proceed in due time to move before the justice to that end. Billings v. Joines, 363. 20. Executions-Lands-Purchase Price-Homestead Exemption.— A judgment debtor cannot claim his homestead exemption in lands upon which execution has been issued under a valid judgment on his note given for their purchase price and so certified in the transcript docketed in the Superior Court. Ibid.
Fraud Allegations Necessary.― To invalidate a judgment for fraud it is necessary to allege the facts consti- tuting the fraud with sufficient certainty and fullness to apprise the opposing party of what he is called upon to answer; and in an action fo restrain an execution issued thereunder, the mere allegations that the judgment is fraud- ulent, illegal and void, and that the transcript, execution and levy and all other proceedings are illegal, are insufficient. Ibid.
22. Issues, Inconsistent-Verdict.-The exception by appellant to a judgment rendered on the verdict in favor of appellee, on the ground of inconsistent issues, cannot be sustained when it
appears that appellee was entitled to his verdict on the answer of the jury as to each. Stern v. Benbow, 460.
23. Evidence-Findings by Court—Irreconcilable_ Findings-Appeal and Error-Procedure.-When the judge, in the trial court, who by agreement of the parties was to have found the facts, sets out certain evidence which is conflicting and irreconcil- able, finds it all to be true and renders judgment thereon, it is reversible error, and the judgment will be set aside. Guy v. Casualty Co., 465.
24. Same-Insurance-Health Policy-Notice of Sickness.—When the defense to an action to recover an indemnity for sickness under a health insurance policy is that notice was not given as required by the policy, and the judge, under an agreement of the parties, in finding the facts sets out evidence tending to show that plaintiff was incapacitated by the sickness to notify the defendant, or cause it to be notified, and evidencé per contra, the court on appeal will set aside his judgment in favor of defendant on the evidence, and order a new trial. Ibid.
25. Public Schools.-A public schoolhouse cannot be sold under execution, except with legislative authority, and a judgment in favor of a sub-contractor, or those furnishing materials for its construction, would be in vain, and the courts will there- fore not render such a judgment. Hardware Co. v. Schools, 507.
26. Lands-Levy-Quieting Title-Injunction. The plaintiff show- ing title to lands by deed expressing a valuable consideration, made and recorded prior to an attachment levied thereon by a judgment debtor of his grantor, may maintain his action to quiet title under the provisions of chap. 763, Publie Laws of 1903, amending chap. 6, sec. 1, Public Laws 1893, now Revisal (Pell's), sec. 1589; and when defendant has answered alleg- ing fraud of plaintiff in the procurement of his deed, an in- junction will lie restraining the sale under the levy until the issue of title can be determined. Crockett v. Bray, 615. 27. Suspended-Reasonable Period-Power of Court.-The power of a court having jurisdiction of a cause to suspend judgment temporarily on conviction of a criminal for some special pur- pose or for some determinate and reasonable period of time was recognized at common law and ordinarily obtains at the present day in courts of general jurisdiction and holding terms at stated periods. State v. Hilton, 687.
28. Same--Consent of Defendant Implied.--The power of the courts to suspend judgment in criminal cases should only be upheld when sanctioned by usage, and where the consent of the de- fendant was expressly given or would be implied from the fact that the order was made in defendant's presence with- out his objection, and that its evident purpose was to save defendant from a more grievous penalty permitted or required by law. Revisal, secs. 1293, 1294. The history and reason for the power of the court to suspend judgment, and its present application, discussed by HOKE, J. Ibid.
29. Suspended-Terms-Compliance-Discharge-Subsequent Sen- tence-Power of Court.-When it appears that defendant had
pleaded guilty to the offense charged in the indictment and the judgment was suspended upon his payment of costs and his giving bond to appear at court from term to term to show good behavior, sentence may not be imposed after an indefi- nite suspension of judgment, when every condition attached to the order has been complied with, the fine and costs paid, the defendant discharged by order of court and the cause removed from the docket. Ibid.
30. Same-Discontinuance.--In this case it appeared that defend- ant was charged with unlawfully selling spirituous liquor without a license under three separate indictments and pleaded guilty as to each; he was sentenced under one to pay a fine and costs; in the second, judgment was suspended upon payment of costs; in the third, prayer for judgment was con- tinued and he was required to appear from term to term to show good behavior. The defendant, having complied with the orders made in each case, was eventually discharged by the order of court, and the causes went off the docket. Held, this, in substance, if not technically, amounted to a discontin- uance, without power of the court to subsequently impose the sentence appealed from; and a judgment imposing such sen- tence, being without warrant of law, is void, and will be arrested and the prisoner discharged. Ibid. 31. Spirituous Liquors-Motion to Arrest-General Law-Result of Election Judicial Notice-Indictment.-A motion in arrest of judgment after conviction by defendant of violating the State prohibition laws, chap. 71, Public Laws 1908, extra session, for that the bill failed to charge that the election provided for had been held and resulted in favor of prohibi- tion, will not be sustained. The courts take cognizance of an election of this general character, and also of the proclama- tion of the Governor which, under the provisions of the act, had the effect of determining the result of the election. State v. Swink, 726.
JUDICIAL NOTICE. See Statutes, 28.
JUDICIAL POWERS. See Corporation Commission, 9.
JUDICIAL SALES. See Sales, 7, 9, 17, 18, 19.
JURISDICTION. See Sales, 7, 9; Equity, 12: Judgments; Corpora- tion Commission, 7, 8; Removal of Causes, 1.
1. Superior Courts-Parol Trusts-Equity.-When it is alleged that plaintiff's deceased father had created a parol trust under a deed in her favor in certain of his real and personal property, and that he had subsequently executed a paper writing declaring the trusts, which defendants had destroyed. the action is properly cognizable in the Superior Court, to enforce the trusts declared, whether the writing be a deed or a will, and it can give relief in its equity jurisdiction; and leave given the plaintiff to probate the paper as a deed, or will, under penalty of dismissal, is erroneous. Ricks v. Wil- son, 46.
2. Executors and Administrators-Fiduciary Capacity-Sale to Make Assets-Suit of Creditors.-It is a fiduciary duty of the
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