65 Mo. 611 | Mo. | 1877
Action on judgment alleged to have been recovered in the supreme court of Cattaraugus county in the State of New York, in March, 1863. Answer, general denial, and plea of nul tiel record; also that defendant had been a resident of the State of Missouri since 1850, and that no writ or process had ever been served on him, nor had he ever authorized an appearance to be entered for him, &c. Plaintiff replied.
The transcript offered in evidence is as follows:
People of the State of New York, by the grace of God [Seal] free and independent, to all to whom these presents shall come or may concern, Greeting:
Know ye ’that we having examined the records and files in the office of the clerk of Cattaraugus county, and clerk of the supreme court of said State for said county, do find a certain judgment roll there remaining in words and figures following, to-wit:
Supreme Court—County oe Cattaraugus :
Daniel C. Steel and f George W. Robinson. J Lorenzo Barlow, against ►
this action, if any there be, to be had in the county of Cattaraugus. The plaintiff desires the trial of
To Daniel C. Steel and George W. Robinson, defendants : You are hereby summoned to answer the complaint of Lorenzo Barlow, plaintiff in this action, a copy of which you are herewith served, and to serve a copy of your answer on the subscriber at Randolph, Cattaraugus county,
R. OWEN, Jr:, Plaintiff’s Attorney, Randolph, Cattaraugus Oo.
Here follows in said transcript copy of complaint in said original suit, and then follows copy of answer of said Steel, signed by J. E. Weeden as his attorney; then the following notice': Take notice that I am the attorney for the defendant Daniel C. Steel in the above entitled action. Dated Aug. 1, 1851. Yours, &c.,
To R. Owen, Jr., J. E. WEEDEN, Plaintiff’s Attorney. Att’y for Def’t Steel.
Here follows copy of the plaintiff’s replication to the answer of said Steel; and then the following entries : At a special term of the supreme court and a circuit court held at the court house in the village of Ellicottville, in and for the county of Cattaraugus on the fourth Monday of September, 1852—present Hon. James Mullin, Justice,
Lorenzo Barlow, "j against - I Daniel 0. Steel and f George W. Robinson. J
On motion of R. Owen, Jr., of counsel for plaintiff, ordered : that a jury be empaneled in this cause and that the same proceed to trial. The jury, without leaving their seats, under the direction of the court say that they find for the plaintiff against the defendant Daniel G. Steel for four hundred and fifty-two dollars seventy-three cents, and that they find for defendant Robinson. On motion of R. Owen, Jr., ordered judgment accordingly.
Lorenzo Barlow, "1 against }■ Daniel C. Steel. J
Stipulated that the plaintiff may take judgment upon the verdict in this action without further notice.
J. E. Weeden, Def’t Att’y.
SUPREME COURT,
Lorenzo Barlow, against Daniel C. Steel and George W. Robinson.
> Judgment signed March 24, 1868.
This cause having been reached in its order on the calendar at the term of this court held at the court house in Ellicottville, Cattaraugus county, commencing on the fourth Monday of September, 1852, and the issues of the fact therein having been tried by a jury, and the jury having found a verdict for the plaintiff' against the defendant Daniel 0. Steel for the sum of four hundred and fifty-two dollars and seventy-three cents, and on reading and filing stipulation of defendant’s attorney, on motion of Henderson & Wentworth, plaintiff’s attorneys, it is adjudged by the court that the plaintiff Lorenzo Barlow recover of the defendant Daniel C. Steel, the sum of four hundred and fifty-two dollars and seventy-three cents, tlie amount of said verdict, together with interest thereon from the time of the rendering of said verdict to this date, being the sum of three hundred and thirty-two dollars and seventy-five cents; amounting in the whole to the sum of seven hundred and eighty-five dollars and forty-eight cents.
THOMAS A. E. LYMAN, Clerk.
All of which we have caused by these presents to be exemplified, and the seal of our supreme court to be hereunto affixed. ■
Witness Hon. Joseph Mullin, presiding justice of the
A. E. NASH, Clerk.
I, Joseph Mullin, presiding justice of the fourth judicial department of the supreme court of the State of New York, do hereby certify that E. A. Nash, whose name is subscribed to the preceding exemplification is the clerk of said county of Cattarraugus, and clerk of said supreme court for said county, duly elected and sworn, and that full faith and credit are due to his official acts. I further certify that the seal affixed to the exemplification is the seal of our said supreme coui’t, and that the attestation thereof is in due form. J. MULLIN,
Presiding Justice, Fourth Judicial Department of the Supreme Court of the State of New York.
Dated, Nov. 18, 1874.
State of New York, \ Cattaraugus County. J
I, Eugene A. Nash, clerk of the supreme court of said State, in and for the county of Cattaraugus, do hereby certify that Joseph Mullin, whose name is subscribed to the preceding certificate, is presiding justice of the fourth judicial department of the supreme court of the State of New York, duly elected and sworn, and that the signature of said justice to said certificate is genuine.
In testimony whereof, I have hereunto set my hand and [Seal.] affixed, the seal of said court this 18th day of November, 1874.
EUGENE A. NASH, Clerk..
The defendant objected to the same as incompetent and not properly certified, and for the reason that it was not authenticated or proved as required by law; and there was no legal evidence that it was a transcript of the records of said court; and it did not appear from said certificate that Joseph Mullin was the judge, chief justice or presiding magistrate of the supreme court of Cattaraugus county,
The defendant then introduced evidence tending to show that he was, and had been since 1850, a resident of the State of Missouri, and that he was not served with process in said suit, nor had he employed or authorized any one to appear for him therein. And the plaintiff then gave evidence in rebuttal, tending to show the service of the summons while defendant was temporarily in New York; and also that he had employed an attorney to appear for him therein. The court found for plaintiff, and gave judgment accordingly.
Defendant’s counsel in the court below, as well as in this court, proceeded upon the theory that the entry of the judgment declared on, was an entry nunc pro 0 , , _ tune, and consequently related to the date oi the verdict; but it must be observed that the entry which evidences the signing of the judgment in March, 1863, has none of the elements or attributes of a judgment of that character, since it does not assert that a judgment was rendered on the day of the return of the verdict, but by mistake or misprision of the clerk was not entered, and then proceed to enter a judgment as of the date of the verdict. On the contrary, the judgment signed, is a wholly inde-' pendent entry, and bearing date as of the day on which it was signed. Treating the judgment then as bearing date in March, 1863, it is quite evident' that the present action was not barred, as it was brought in January, 1875.
And if Weeden was really employed by defendant as his attorney in the cause, about which there was conflicting evideuce, it was certainly competent for such attorney to make the stipulation which the record discloses, and this as falling within the general management of the case. R. R. Co. v. Stephens, 36 Mo. 150; and no writ or summons was necessary to give the
Under our more recent adjudications, it is permissible to show in a suit on a judgment from another state, that the court which gave the judgment declared . . ....... on had acquired no jurisdiction over the defendant, and consequently the alleged judgment was no' judgment. (Marx v. Fore, 51 Mo. 69; Eager v. Stover, 59 Mo. 87). If, as has thus been held, it be competent to attack such judgments on the score of lack of jurisdiction, it would doubtless be open to the party suing to show that service of process was actually had on the defendant, or that he had authorized an appearance to be entered for him.
There is one point, however, which must needs prove decisive in this case, and cause a reversal of the judgment which plaintiff obtained; it is this : Theinsufficiency of the certificate to authenticate the transcript offered in evidence. It by no means appears that Cattaraugus county is in the fourth judicial department, or that Joseph Mullin is the presiding justice of the court, whose record is being certified, or of which Nash is clerk; the certificate in these respects neither complying with the act of Congress in this regard (Appendix 2 Wag. Stat. 1383 § 1), nor with our own statute (1 Wag. Stat. 598 § 51). The cases cited by defendant’s counsel are in this respect directly in point. (Paca v. Dutton, 4 Mo. 371; Phelps v. Tilton, 17 Ind. 423). The case of Grover v. Grover, (30 Mo. 400) relied on by counsel for plaintiffs, shows a certificate wherein there is no lack as to the particulars referred to.
Reversed.
