DISSENTING OPINION. A personal judgment of a court of record having general jurisdiction in a sister state is entitled to full faith and credit if that court had jurisdiction, but not otherwise. And when suit is brought on such a judgment the question whether or not the defendant had been lawfully served with process, or had voluntarily appeared, or by some other lawful means had submitted to or been made subject to the jurisdiction of the court which gave the judgment at the time it was rendered, is always open to inquiry. Old Wayne Life Assn. v. McDonough (1906),204 U.S. 8, 27 Sup. Ct. 236, 51 L. Ed. 345; Brown v. Fletcher's Estate (1908), 210 U.S. 82, 28 Sup. Ct. 702, 52 L. Ed. 966.
Of course, a contract made in violation of a positive law of the place where it was executed forbidding such contracts to be entered into could not confer authority to do, in the absence of a party to such contract and without his knowledge, acts which would give a court jurisdiction to render a personal judgment against him. Such a contract would be void for all purposes, and could not confer authority to do acts binding upon the maker, whether by appearing for him in a court of another state, or otherwise.
It has been held by this court many times that contracts by which a party agrees in advance to be absolutely bound in case of a future default, without a hearing *Page 58 in a court as to the extent of his liability, are void. Kistler v. Indianapolis, etc., R. Co. (1882), 88 Ind. 460, 464;Louisville, etc., R. Co. v. Donnegan (1887), 111 Ind. 179, 187, 12 N.E. 135; Supreme Council, etc., v. Forsinger (1890),125 Ind. 52, 56, 25 N.E. 129, 9 L.R.A. 501, 21 Am. St. 196;McCoy v. Able (1892), 131 Ind. 417, 423, 30 N.E. 528;Ditton v. Hart (1911), 175 Ind. 181, 193, 93 N.E. 961;Maitland v. Reed (1906), 37 Ind. App. 469, 471, 77 N.E. 290.
And it was held that the law of Indiana forbids the execution of a contract authorizing the confession of judgment as part of a note payable within this state, and that a judgment recovered on a note by authority of such a contract in a court of Illinois was without jurisdiction and void. Irose v. Balla (1914),181 Ind. 491, 104 N.E. 851.
But the majority opinion draws a distinction between such contracts when contained in notes payable in the State of Indiana, and when contained in notes payable in another state where they are recognized as valid, and holds that "we have no statute nor positive law which forbids the making of such a contract as is here involved, or that makes such a contract absolutely void. It is merely unenforceable in this state."
Believing that the law is otherwise, I respectfully dissent.