JOSEPH E. FORSYTH et al.

V.

J. D. BARNES, Receiver.

Opinion filed June 19, 1907-Rehearing denied October 9, 1907.

1. CONFLICT OF LAWS-law of place where the contract is made controls capacity of parties. As between the law of the place where a note and warrant of attorney signed by a married woman is made and the law of the married woman's domicile, the questions of the validity of the note and warrant of attorney and the capacity of the married woman to make them are governed by the law of the place of the contract.

2. SAME―common law is presumed to prevail in another State. In the absence of proof to the contrary, it will be presumed by the courts of this State that the common law prevails in another State.

3. CONSTITUTIONAL LAW-court may inquire into jurisdiction of courts of another State. The provision of the Federal constitution that full faith and credit shall be given to the judicial proceedings of each State in every other State does not prevent a court of one State from inquiring into the jurisdiction of a court of another State to render a judgment, notwithstanding there is a recital of jurisdictional facts in the record of the foreign judgment.

4. MARRIED WOMEN-at common law a married woman's contract is void. At common law all contracts of a married woman are absolutely void, and the disability in that respect cannot be overcome by any form of acknowledgment or mode of execution or by uniting with the husband in making the contract.

5. SAME―when judgment by confession is void. At common law a judgment entered by confession and without notice upon a note and warrant of attorney executed by a married woman during coverture is void, and can be attacked directly or collaterally.

6. PLEADING-coverture may be proved under plea of nul tiel record. In an action of debt on a judgment by confession on a note signed by a married woman the coverture of the defendant may be proved under the plea of nul tiel record, though not specifically put in issue by the pleadings.

APPEAL from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. AXEL CHYTRAUS, Judge, presiding.

This is an appeal from the judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county in an action of debt.

To support his action in the trial court appellee offered in evidence a transcript of the judgment entered by confession against appellants in the court of common pleas of Auglaize county, Ohio, on a note and warrant of attorney executed by both of the appellants and payable in Ohio. The note was dated Sidney, Ohio, November 9, 1892, for $1637.98, payable eighteen months after date. The warrant for confession of judgment authorized any attorney at law to appear, after the note became due, for the signers, or either of them, in any court of record in the State and confess judgment. Several payments of interest were endorsed, the last one being January 1, 1897. John W. Loree confessed judgment on said note, as attorney for said defendants, on January 2, 1905. Appellant Anna M. Forsyth testified that she was and had been the wife of Joseph E. Forsyth, the other appellant, since their marriage, in 1876; that she did not know and had never heard of John W. Loree; that she had never communicated with him, either directly or indirectly, in speech or writing.

Trial was had before the court with a jury. Appellants moved at the close of the plaintiff's testimony, and again at the close of all the evidence, to instruct the jury to find in favor of each defendant, separate motions being offered for each, with appropriate instructions. The motions were overruled, and on motion of appellee the court instructed the jury, in writing, to find the issues in appellee's favor in the amount of $2558.10 for the debt and $117.55 for damages, and the jury thereupon returned a verdict for these amounts. Motions for new trial and in arrest of judgment. were overruled and an appeal taken to the Appellate Court. That court affirmed the judgment of the lower court, and this appeal was thereupon prayed.

ROSENTHAL & HAMILL, and CHARLES GOODMAN, for appellants:

The note and warrant of attorney appearing to have been executed in Ohio and the note being payable in that State, all questions regarding their validity and the capacity of the makers to execute them are determined by the laws of Ohio. Pope v. Hanke, 52 Ill. App. 453; Evans v. Anderson, 78 Ill. 558; Anstedt v. Sutter, 30 id. 164; Milliken v. Pratt, 125 Mass. 374; Nichols & Shepard Co. v. Marshall, 108 Iowa, 518; Nixon v. Halley, 78 Ill. 611; Story on Conflict of Laws, (7th ed.) sec. 103; I Wharton on Conflict of Laws, (3d ed.) sec. 118.

The courts of Illinois do not take judicial notice of the laws of any other State, and in the absence of proof to the contrary the presumption must be indulged that the common law is in force in Ohio. Tinkler v. Cox, 68 Ill. 119; Dalton v. Taliaferro, 101 Ill. App. 592; Schlee v. Guckenheimer, 179 id. 593.

At common law the contract of a married woman is void. Taylor v. Boardman, 92 Ill. 566; Thomas v. Lowy, 60 id. 512; McLean v. Griswold, 22 id. 218; Garretson v. Strawn, 54 id. 402; Caldwell v. Walters, 18 Pa. St. 79; Graham v. Long, 65 id. 383.

The warrant of attorney executed by the appellant Anna M. Forsyth being void, the Ohio court acquired no jurisdiction over her, and its judgment, as to her, was void. White v. Jones, 38 Ill. 159; Bannon v. People, 1 Ill. App. 496; Baldwin v. Freydendall, 10 id. 106; Dorrance v. Scott, 3 Whart. 309; Higgins v. Peltzer, 49 Mo. 152; Griffith v. Clarke, 18 Md. 457; Cary v. Dixon, 51 Miss. 593.

Where a court has no jurisdiction over the person of a defendant its judgment against that defendant will be an absolute nullity, and it may be attacked at any time and in any proceeding. Swift v. Allen, 55 Ill. 303; People v. Seelye, 146 id. 189; Dickey v. Chicago, 152 id. 468; Demilly v. Grosrenaud, 201 id. 272; Field v. Field, 215 id. 496.

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The constitutional provision that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State, does not prevent an inquiry into the jurisdiction of the court which rendered the judgment sued upon and offered in evidence. Thompson v. Whitman, 18 Wall. 457; Simmons v. Saul, 138 U. S. 439; Reynolds v. Stockton, 140 id. 254; Bank v. Wiley, 195 id. 257; Olson v. Fireproofing Co. 116 Ill. App. 573; Field v. Field, 215 Ill. 496.

JOHN W. CREEKMUR, and RUFUS COPE, for appellee:

The record of a judgment is presumptive evidence of its own validity and of the authority of the court to act. Famous Manf. Co. v. Wilcox, 180 Ill. 249; Thompson v. Emmett, 15 id. 415; Whittaker v. Murray, 15 id. 293; Gillen v. Ellison, 13 Ohio, 447.

A court will take judicial notice of important historical facts and of those things that are matters of common knowledge. McCoy v. World's Columbian Exposition, 186 Ill. 356; Harmon v. Chicago, 110 id. 400; People v. Maxwell, 84 N. Y. S. 947; DeCeles v. United States, 13 Ct. Cl. 117; Cross v. Sabin, 13 Fed. Rep. 308; Humphrey v. Burnside, 67 Ky. 218.

While courts, in the absence of proof, in many cases have entertained the presumption that the common law was in force in a sister State, in very many cases courts have adopted the presumption that the law of a sister State was the same as the law of the forum. Worthington v. Hanna, 23 Mich. 530; Rape v. Heaton, 9 Wis. 329; Walsh v. Dart, 12 id. 635; Juilliard & Co. v. May, 130 Ill. 97; Strauss v. Bank, 72 Ill. App. 318; Drago v. Graham, 9 Ind. 212.

There is a presumption in favor of the validity of a contract made in a sister State and not in conflict with the law of Illinois that can be overcome only by proof to the contrary. No presumption will be entertained that invalidates such a contract. Hakes v. Bank, 164 Ill. 274; Chumasero

v. Gilbert, 24 id. 293; Roosa v. Crist, 17 id. 293; Miller v. Wilson, 146 id. 523; Strauss v. Bank, 72 Ill. App. 318; Juilliard & Co. v. May, 130 Ill. 87.

In an action on a judgment rendered in a sister State, judicial notice will be taken of the laws of that State so far as necessary to ascertain the faith and credit to be given to the judgment. Rae v. Hulbert, 17 Ill. 572; Rendleman v. Rendleman, 118 id. 257; VanMatre v. Sankey, 148 id. 537; Hull v. Webb, 78 Ill. App. 617; Welsh v. Sykes, 3 Gilm. 119.

A judgment against a married woman who is subject to the disability of coverture is not void but voidable only, and she must make her defense as any other defendant. Work v. Cowhick, 81 Ill. 319; Vick v. Pope, 81 N. C. 22; Glove v. Moon, 60 Ga. 189; Washburn v. George, 61 id. 512; Burke v. Hill, 55 Ind. 419.

The want of ability to contract is a personal disability affecting feme coverts domiciled within the jurisdiction of the laws of the State by which such disability is attached to coverture. The operation of such law is limited to contracts made within the State of the domicile of the party. Gardner v. Poydras, 13 La. 79; Hill v. Bank, 45 N. H. 300; Armstrong v. Best, 112 N. C. 59.

Mr. JUSTICE CARTER delivered the opinion of the court:

The record does not disclose where appellants resided when the note was executed, but the fact that the note was dated at Sidney, Ohio, and payable at the German-American Bank of that city, would indicate that the contract was made and to be performed in Ohio. In view of the fact that appellants were sued in Cook county and there is nothing in the record to indicate that their domicile is elsewhere, it must be presumed that Cook county is the domicile of Anna M. Forsyth. The general rule of law is, that as between the law of the place where a contract is made and of the place where the married woman is domiciled, her capacity