Cavender v. Guild

4 Cal. 250 | Cal. | 1854

Mr. Ch. J. Murray

delivered the opinion of the Court.

Mr. J. Heydeneeldt concurred.

This action was commenced upon a foreign judgment.

Answer — Nul tiel record and the Statute of Limitations.

To the last plea the plaintiff demurred; demurrer sustained and the cause prosecuted to trial. Judgment for plaintiff.

The errors assigned are: first, the judgment of' the Court below, sustaining the plaintiff’s demurrer; and second, the allowance of interest upon said judgment.

The appellant, to sustain the first ground of error, relies upon the Statute of 1852, entitled “An Act Defining the Time of Commencing Civil Actions in Certain Cases,” which only alters a portion of section 17th, of the Act of April 22d, 1850, but does not change that part of the statute under which this suit was brought. The language of the Act of 1850, unchanged by the subsequent Act of 1852, is, that “An action may be brought within five years upon a judgment or decree of any Court of the United States, or of any State or Territory within■ the United States,” and the Court below properly sustained the plaintiff’s demurrer.

Upon the second point, we are of the opinion there is error. The bill of exceptions purports to set forth “all the evidence introduced upon the trial.” On examination we cannot find that there was any testimony before the Court, showing either the legal rate of interest in the State of Missouri, or the fact that judgments bore any interest whatever, by the laws of that State. This was a matter of proof, like any other independent fact, and could not be taken notice of by the Court. (Thompson v. Monrow, 2 Cal. 99.) It is said the declaration alleges the interest to be due, and that the answer does not deny it. The answer denies not only the existence of the record, but the consequences resulting from it. The judgment of the Court of Missouri, does not call for interest, and in the absence of proof, it will be [254] presumed, under the laws of that * State, that no interest was allowed upon judgments of this character.

The Court below is directed to correct its judgment in this particular, and to enter final judgment for the plaintiff in conformity to this opinion, the respondent paying costs.