St. Rep. 282, 36 Pac. 344; Ritter v. Hoffman, 35 Kan. 215, 10 Pac. 576; Crafts v. Clark, 38 Iowa, 237; Nicholas v. Farwell, 24 Neb. 180, 38 N. W. 820; Snyder v. Critchfield, 44 Neb. 66, 62 N. W. 306; Sipes v. Whitney, 30 Ohio St. 69.

"The question whether the note upon which the judgment sued on was barred by limitation in Missouri is not open to review here. The suit is upon the judgment, and that is not barred by limitation.

"It follows that the trial court erred in giving the instruction quoted, and also that neither the answer nor the evidence shows any defense to the suit. The trial court should have directed a verdict for the plaintiff, and the judgment of that court is reversed, and the cause remanded to be proceeded with in accordance herewith."

Upon motion, the cause was transferred to court in Bank, upon the dissent of Valliant, J. The case has again been fully argued and further briefed by counsel.

In addition to what is said in the divisional opinion, it 556 is proper to say that the cases of D'Arcy v. Ketchum, 11 How. 165, and Pennoyer v. Neff, 95 U. S. 714, are not applicable to the case at bar; the first, because there was no service of any kind upon the partner who lived in Louisiana, and, therefore, the personal judgment of the New York court against him was void; and the second, because the service was by publicationconstructive—and, therefore, it would not support a personal judgment, while in the case at bar the defendant was in court by his own voluntary act when the judgment was rendered against him.

Counsel for defendant, in a supplemental brief, has referred to the following cases as authority for the contention that the decision in this case and that in Randolph v. Keiler, 21 Mo. 557, are not in harmony with the rule and policy in this state: Overstreet v. Shannon, 1 Mo. 529; Sallee v. Hays, 3 Mo. 116; Smith v. Ross, 7 Mo. 464; Gillett v. Camp, 23 Mo. 375; Miles v. Jones, 28 Mo. 87; Foote v. Newell, 29 Mo. 400; Latimer v. Union Pac. Ry. Co., 43 Mo. 105, 97 Am. Dec. 378; Sevier v. Roddie, 51 Mo. 580; Gilbreath v. Bunce, 65 Mo. 349.

A careful examination of these cases shows, however, that they have no application to the case at bar. Thus, in Overstreet. Shannon, 1 Mo. 375 (529), it appeared that the defendant had not been served in any manner in the foreign state. In Sallee v. Hays, 3 Mo. 116, the judgment was against the defendants, who were nonresidents of the foreign state, without

any service whatever, upon a covenant of their ancestor, and the decree charged the assets descended with the debt of the ancestor. It was alleged that such a decree was conclusive upon the parties in Kentucky. This court held that the judgment was not valid here because the defendants had not been brought into court in any manner whatever. In Gillett v. Camp, 23 Mo. 375, and Latimer v. Union Pac. Ry. Co., 43 Mo. 105, 97 Am. Dec. 378, the judgment was based solely upon constructive service, by publication. 557 In Smith v. Ross, 7 Mo. 464, the action was upon a foreign judgment against Smith, who was served, and Haniman, as to whom the return to process was "not found," the judgment was held to be void as to Haniman, because he was never brought into court. In Miles v. Jones, 28 Mo. 87, the defendant was personally served, but the judgment was attacked, and set aside, because it was procured by fraud. In Foote v. Newell, 29 Mo. 400, it appeared that a judgment was rendered against the defendant in Indiana (it does not appear from the statement of facts whether the defendant was in court or not, but it seems to be assumed that he was; at any rate, that question was not involved in the case), and that the sheriff had levied upon the property, and that by virtue of a statute of that state, the defendant replevied the property levied on and obtained a stay of execution according to the law of that state, by giving a bond to pay the judgment. The statute provided: "And such bond, from the date of its execution, shall be taken as, and have the force and effect of, a judgment confessed in a court of record against the person or persons executing the same and against their estates, and execution may issue therein accordingly." The judgment was not paid, and the bond was sued on in this state as a judgment of the state of Indiana. It was held that such a bond had "no affinity" to a judgment, and was not such a judgment as is contemplated by the act of Congress. All of which is undoubtedly right, for such a bond is no more a judgment than is any contract or power of attorney authorizing a confession of a judgment. It is the act of the parties, and is not the judgment of a court. In Sevier v. Roddie, 51 Mo. 580, the action was upon a Tennessee judgment. It appeared that a third person had obtained a judgment against the defendant as principal, and the plaintiffs as his sureties. The sureties paid the judgment, and under the laws of Tennessee obtained a summary judgment, without 558 notice, against the principal, and the suit was upon this judgment. It was properly held that the judgment was not such a judgment as

the act of Congress contemplated, because the defendant not being in court, the proceeding was void. In State v. Bunce, 65 Mo. 349, it appeared that under the laws of Arkansas, the plaintiff, a minor, had been relieved of the disability of infancy "so far as to authorize him to demand, sue for, and receive all moneys belonging to him in the state of Missouri, in the hands of his curator," etc. Thereupon he sued the defendant, the curator of his estate in Missouri, upon his bond as such curator, to recover the estate in his hands. It was held that the minor could not maintain the suit, as under the laws of Missouri a minor can only appear by guardian, and that the legislature of Arkansas could not pass a law which would have the effect of giving a nonresident minor of this state a different status in the courts of this state from that of a resident minor in this state, when seeking the aid of the courts of this state. This decision is right, but it is not perceived how it applies to the case at bar, nor how the act of Congress has any bearing on it, for the action was not for the enforcement of a judgment of a foreign state, but was simply an attempt to make the minor of age when he came into the Missouri courts, contrary to the laws of this state. It did not remove his disabilities absolutely or at all in Arkansas, but only "so far as to authorize him to demand, sue for, and recover all moneys belonging to him in the state of Missouri, in the hands of his curator," etc. This was simply a bungling attempt by the lawmakers of Arkansas to control judicial proceedings in Missouri, and is without precedent in law that we are aware of.

The defendant strenuously contends that the case of Grover etc. Sewing Machine Co. v. Radcliffe, 137 U. S. 287, 11 Sup. Ct. Rep. 92, is "on all-fours" with the case at bar. In that case

appeared that: "B. a citizen of Maryland, having execu ted a bond, containing a warrant authorizing any attorney of any court of record in the state of New York, or any other state, to confess judgment for the penalty, and judgment having been entered against him in Pennsylvania by a prothonotary, without service of process, or appearance in person or by attorney, under a local law permitting that to be done, held: 1. That in a suit upon this judgment in Maryland, the courts of Maryland were not bound to hold the judgment as obligatory either on the ground of comity or of duty, contrary to the laws and policy of their own state; 2. B. could not properly be presumptively held to knowledge and acceptance of particular laws of Pennsylvania or of all the states other than his own, allow

ing that to be done which was not authorized by the terms of the instrument he had executed." It was pointed out that a judgment of a sister state was required to be observed in another state only when: 1. The defendant was served with process, or voluntarily entered his appearance, "or that he had in some manner authorized the proceeding"; 2. That an instrument authorizing a confession of judgment must be strictly followed, and its terms could not be enlarged by reading into it the laws of another state, of which he is not charged with knowledge, and hence, if the power to confess judgment was conferred upon any attorney of any court of record, its terms could not be enlarged so as to authorize a prothonotary to confess judgment, even if the laws of the state where the judgment was rendered expressly permitted a prothonotary to act whenever any attorney was authorized to do so.

This case is "on all-fours" with the case at bar, and is ample support for the decision herein, so far as it holds that where the defendant has "authorized the proceeding," he is bound by the judgment, and the courts of other states must give force and effect to the judgment of the sister state, whenever 560 the authority has been strictly pursued, as is the case here, but it is unlike the case at bar in this, in that case the authority for the proceeding, conferred by the act of the defendant, was not strictly pursued, while here it was done. That judgment was held void in a sister state because a prothonotary does not come within the class of "attorneys of courts of record," and the act of such prothonotary was not, therefore, authorized by the defendant, and the law of the state could not enlarge the authority granted by the defendant. That decision is also valuable as showing plainly the principle upon which D'Arcy v. Ketchum, 11 How. 165, and Pennoyer v. Neff, 95 U. S. 714, both of which are referred to in that case, rested, to wit, that in neither case had the defendant been served with process or voluntarily appeared, or in any manner authorized the proceeding. It also accentuates the proposition that if the judgment is rendered against a party who is in court in any one of the three ways specified, it is valid, not only in the state where it is rendered, but, under the act of Congress, in all sister states.

We subscribe and adhere to all the cases cited and herein reviewed, but the rules there announced are not contravened by anything that is decided in the case at bar. On the contrary, those were all cases where the party sought to be charged had

Am. St. Rep., Vol. LXXXV-34

not been brought into court by personal service, and had not voluntarily entered his appearance and had not authorized the proceeding against him, while in the case at bar the defendant had expressly authorized the exact proceeding that was had against him in Ohio.

For these reasons the opinion heretofore rendered in Division One is adopted as the opinion of the court in Bank, and the judgment of the circuit court is reversed and the case remanded to be proceeded with in accordance herewith.

Burgess, C. J., and Sherwood, Brace, and Gantt, JJ., concur.

Mr. Justice Valliant and Mr. Justice Robinson Dissented, maintaining, on the authority of Pennoyer v. Neff, 95 U. S. 714, that a judgment valid in the state where it is rendered is not required by the national law to be accorded full faith and credit in the courts of another state, if such judgment was ob tained without actual service of process or actual entry of ap pearance by the defendant, and would be without authority if thus rendered by the courts of the latter state.

Parol Evidence to Vary a Contract in writing is considered in the monographic note to Harris v. Murphy, 56 Am. St. Rep. 659-672.

A Judgment Merges the cause of action into the judgment: Tourville v. Wabash R. R. Co., 148 Mo. 614, 71 Am. St. Rep. 650, 50 S. W. 300; Ryan v. Southern etc. Assn., 50 S. C. 185, 62 Am. St. Rep. 831, 27 S. E. 618; Russell v. McCall, 141 N. Y. 437, 38 Am. St. Rep. 807, 36 N. E. 498. A judgment of a court in any state is a merger of the cause of action in every part of the Union: Gray v. Richmond Bicycle Co., 167 N. Y. 348, 82 Am. St. Rep. 720, 60 N. E. 663. Contra, Eastern etc. Bank v. Beebe, 53 Vt. 177, 38 Am. Rep. 665.

A Judgment by Consent of the Parties should be accorded the same force as other judgments: Short v. Taylor, 137 Mo. 517, 59 Am. St. Rep. 508, 38 S. W. 952; Adler v. Van Kirk Land etc. Co., 114 Ala. 551, 62 Am. St. Rep. 133, 21 South. 490. A judgment by confession rendered in one state must be given full faith and credit in another: Kingman v. Paulson, 126 Ind. 507, 22 Am. St. Rep. 611, 26 N. E. 393.