25 Colo. App. 496 | Colo. Ct. App. | 1914
In May, 1909, J. M. Bnrnell, assignor of appellee herein, recovered judgment in the district court of Es
In the proceedings in Nevada, appellant was duly served with process, and retained Mullins & Byrne, Esq’rs, as his attorneys, who appeared for him, obtained a stipulation in writing from plaintiff’s attorneys for additional time in which to plead, and subsequently filed an answer to the complaint, and the record of the court shows that, something like fifteen months afterward, the case was set for trial, and later tried without the presence of appellant or his attorneys.
In his amended answer filed to the complaint in the Denver district court, appellant admits the suit and judgment in Nevada; that said judgment has not been satisfied in whole or part; that the court in which it was rendered is a court of record; but denies the jurisdiction of said court, and that the judgment was legally assigned, ■ and alleges, on information and belief, that the trial resulting in said judgment was had without notice to him or his attorneys, and that the plaintiff therein and his attorneys knew when said judgment was obtained that he, the appellant, was not indebted as claimed lay them. At the trial in the Denver district court, appellee introduced in evidence the record of the original action properly certified and authenticated, showing that the court there had jurisdiction of the person of the appellant, and of the subject matter, and that a trial was had and judgment rendered in favor, of the assignor of the appellee for $750.00 with costs, and that the same remains unpaid, not appealed from, and in full force and effect. Appellant admits the service, appearance, non
Appellant contends that his answer in the original action contained, in effect, a set-off, which is new matter, and thát no replication was filed thereto. On the strength of this, his counsel, assuming that the code, and statutes of Nevada are similar to those of Colorado, argues that the claim of set-off was not’ controverted, and infers that the same is therefore admitted. There does not seem to be any such presumption of law as counsel assumes. — Loveland v. Kearney, 14 Colo. App., 468, 469, 60 Pac., 584; Sullivan v. Bank, 18 Colo. App., 99, 103, 104, 70 Pac., 162; Wolf v. Burke, 18 Colo., 264, 268, 32 Pac., 427, 19 L. R. A., 792; Wells v. Schuster-Hax National Bank, 23 Colo., 534, 536, 537, 48 Pac., 809; Baxter v. Beckwith, ante 322, 137 Pac., 901.
Under the conditions .of the record before us, we have the right to invoke the aid of the decisions of the highest court of the state of Nevada, and, from those, it seems that new matter is presumed to be denied by operation of law, and that the filing of a replication is unnecessary. — Cahill v. Hirschman, 6 Nev., 57, 60; Love-land v. Kearney, 14 Colo. App., 468, 469, 60 Pac., 584; Sullivan v. Bank, 18 Colo. App., 99, 103, 104, 70 Pac., 162; Wells v. Schuster-Hax National Bank, 23 Colo., 534, 536, 537, 48 Pac., 809; Baxter v. Beckwith, ante 322, 137 Pac., 901.
Counsel insists that the Nevada judgment is only 'prima facie evidence of the debt, and that nul tiel record is an inappropriate plea to suits upon foreign judgments, inasmuch as they do not create a merger, and are
“We can perceive no rational interpretation of the act of congress, unless it declare a judgment conclusive when a court of the particular state where it is rendered would pronounce the same decision.” — Mills v. Duryee, 7 Cranch, 481, 3 L. Ed., 411; 2 Black, supra, sec. 856.
In the Mills-Duryee case, supra, Justice Story, speaking for the court, also said:
. “Were the construction contended for by the plaintiff in error to prevail, that judgments of the state courts ought to be considered prima facie evidence only, this clause in the constitution would be utterly unimportant and illusory. The common law would give such judgments precisely the same effect. It is manifest, however, that thg constitution contemplated a power in congress to give a conclusive effect to such judgments,” and held that,
“If it be a record, conclusive between the parties, it cannot be denied but by the plea of nul tiel record.”
This holding by the court, however, has been confined to the general issue, and was never intended to exclude such plea as a denial of the jurisdiction. The Mills-Duryee case is a leading authority for the proposition that a judgment of a sister state is conclusive on the merits; that, for purposes of pleading and evidence, it is entitled to the full dignity of a record; .and that the defendant is not at liberty, when sued on the judgment, to deny the indebtedness, which it ascertains and establishes, or to impeach its justice or deny its obligation.— 2 Black, supra, sec. 856.
Counsel for appellant cites many decisions perti-
“The decisions of this court have clearly recognized that judgments of a foreign state are prima facie evidence only, and that but for these constitutional and legislative provisions, judgments of a state of the Union, when sued upon in another state, would have no greater effect.”
However, the modern tendency of the decisions, in this country, is toward holding foreign judgments in personam, rendered by courts having jurisdiction, to be conclusive on the merits. — 2 Black, supra, sec. 829, and authorities cited.
There is no sufficient pleading or tender of proof in the record tending to show that the original judgment was obtained by such fraud as would entitle appellant to relief in the Denver district court. In Hanley v. Donoghue, 116 U. S., 146, 29 L. Ed., 535, 6 Sup. Ct., 242, the court drew the distinction between foreign judgments and judgments of sister states, and, in connection therewith, on the question of fraud, said:
’ “Judgments recovered in one state of the Union, when proved in the courts of another, differ from judg*502 ments recovered in a foreign country in no other respect than that of hot being re-examinable upon the merits, nor impeachable for fraud in obtaining them, if rendered by a court having jurisdiction of the cause and of the parties.”
Under the foregoing rule, the injured party is required to resort to the court that rendered the judgment, except in cases where the original court would itself allow the defense of fraud in an action upon the judgment. — Wyoming Mfg. Co. v. Mohler (Pa.), 17 Atl., 31; 2 Black, supra, sec. 917.
The general rule, subject to the exception above stated, was expressed in the case of Wyoming Mfg. Co. v. Mohler, supra, in the following language:
“If the judgment was rendered in West Virginia by fraud or collusion, the court in which it was entered is the proper one to redress the wrong. It is a matter with which we have nothing to do.”
There are other minor questions presented by counsel for appellant, which we have examined, and, from the condition of the record and otherwise, found untenable and insufficient to reverse the judgment; therefore, the judgment is hereby affirmed.
Affirmed.