38 Wash. 376 | Wash. | 1905
In 1885, while respondents were residing as husband and wife, in the state of Montana, the husband borrowed from assignors of appellants the sum of $1,270, giving his promissory note therefor, secured by mortgage upon the property which he bought with the money, and used as a home for himself and wife; Subsequently they changed their residence to this state, and turned over the possession of the mortgaged property to appellants, who collected the rents, paid therefrom taxes and incidental expenses, and applied the balance as payment upon the note. In 1899, appellants foreclosed the mortgage, and applied the proceeds of the sale of the property upon the note. No deficiency judgment was taken, no personal service having been had upon respondents. Appellants brought the present action to recover the balance due upon said note. This case has been appealed here by these same appellants twice heretofore. 29 Wash. 215, 69 Pac. 736; 31 Wash. 323, 75 Pac. 866.
Some of the questions involved in the present appeal appear to have been decided in the former decisions, and we have no disposition to change the conclusions therein announced. In the trial from which the present appeal
The question of the wife’s liability is again presented upon this appeal. As to whether or not she was liable in any way for this debt must depend upon the law of Montana, as it existed at the time the indebtedness was created. In the absence of a showing as to what the law of Montana was, regarding this matter, it must be presumed to have been the same as the law of this state. Clarke v. Eltinge, 29 Wash. 215, 69 Pac. 736; Gunderson v. Gunderson, 25 Wash. 459, 65 Pac. 791. It was held by this court, when state, this debt would be a community debt. As to this this case was here before, that, under the laws of the question of her separate property being liable for this obligation, under the statutes of that state, this court, in 34 Wash. 323, 75 Pac. 866, said:
“Whether that fact brings this debt within the classification of the husband’s liabilities for which the wife’s separate property is not exempt, we apprehend must depend upon the construction placed upon the statute by the courts of Montana, and resort must be h'ad to such construction, as a fact, to determine the force of the statute when applied to the facts here.”
In view of this holding, respondents, in the last trial, placed upon the witness stand an attorney of many years experience in the practice in the state of Montana, and sought to show by him “the consensus of opinion of the bench and bar of Montana as to the meaning of that section”—referring to a section of the Montana statutes relating to exemptions of a wife’s property. We do not believe this is a proper method of ascertaining the construction to be placed upon the statutes of a sister state. Doubtless the general rule is that a person, learned in the law. of a foreign state or country, may give evidence as to what the law of that state or country is. When the law in ques
Respondents contend that the foreclosure decree of the circuit court of Silver Bow county, Montana, is not, as to the fact of foreclosure, conclusive upon the court here, her cause that proceeding was commenced by service of summons by publication, and the record does not show that the
“Where a domestic record is put in issue by the plea, the. question is tried by the court, notwithstanding it is a question of fact. And the judgment of a court of record of a sister state in the Union, is considered for this purpose, as a domestic judgment.”
Upon the question of the conclusiveness of the judgment of the Montana court, see, Galpin v. Page, 85 U. S. 371, 21 L. Ed. 959; Quarl v. Abbett, 102 Ind. 233, 1 N. E. 476, 52 Am. Rep. 662; 1 Freeman, Judgments (4th
As to the effect of a statute of exemptions, we may say that, if the obligation, when it was created, constituted a liability against the wife, then the only exemptions which she is entitled to are those provided by the statutes of the state where she resides and is sued. In the case of La Selle v. Woolery, 14 Wash. 70, 44 Pac. 115, 53 Am. St. 855, 32 L. R. A. 73, this court said:
“The settled rule is that the law of the' place where the contract was made must govern in determining the character, construction and validity of such contract; while the law of the place where suit is instituted upon the contract governs as to' The nature, extent and form of the remedy, . . . whether arrest of the person or attachment of the property may be allowed; whether a debt is or is not discharged by operation of law, as insolvent laws, or barred by statutes of limitation; rights of set-off; the admissibility and effect of evidence; the modes of proceeding and the forms of judgment and execution.’ 2 Abbott’3 Law Dictionary, p. 36.”
In the case of Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102, 21 L. Ed. 104, the supreme court of the United States used the following language:
“The rule deduced by Mr. Wharton, in his Conflict of Laws [§401], as best harmonizing the authorities and effecting the most judicious result, and which was cited approvingly by Mr. Justice Hunt in Scudder v. Union National Bank, 91 U. S. 406, is, that ‘obligations in respect to the mode of their solemnization are subject to the rule locus regit actum; in respect to
In 22 Am. & Eng. Ency. Law (2d ed.), 1383, the author says: “The lex fori governs in all matters relating to the remedy and the course of procedure.” In Willard v. Wood, 135 U. S. 309, 10 Sup. Ct. 831, 34 L. Ed. 210, it was said:
“Assuming that the mortgagee has acquired by the law of New York a right to enforce such an agreement against a grantee of the mortgagor, the form of his remedy, whether it must be in covenant or in assumpsit, at law or in equity, is governed by the lex fori, the law of the District of Columbia, where the action was brought. Dixon v. Ramsay, 3 Cranch 319, 324; United Stales Bank v. Donnally, 8 Pet. 361; Wilcox v. Hunt, 13 Pet. 378; Leroy v. Beard, 8 How. 451; Pritchard v. Norton, 106 U. S. 124, 130, 133.”
These authorities show that the liability of a person upon a note or other obligation is fixed and determined by the law of the place where such obligation is created, but that all matters appertaining to the enforcement of the remedy are controlled by the law of the forum.
Eor the reasons hereinbefore set forth, the judgment •of the honorable superior court, is reversed, and the cause remanded for further proceedings, not inconsistent with