19 Mo. App. 214 | Mo. Ct. App. | 1885
I.
The defendant complains, first, of the action of the trial court in permitting the introduction in evidence of the record offered by plaintiff. The defendant claims that the record was inadmissible for the reason that it does not purport to be a complete record of the proceedings to which it relates, and is not certified as such a. complete record.
The record in this case was authenticated in pursuance of the act of congress in relation to authentication of laws and records. By that “act” the whole record is required to be certified. Abbotts’ Trial Evidence, p. 586. “In proving a judgment had under the new procedure, for the purpose of an action thereon, .whatever is made by law a part of the record or judgment roll should be proved * * *.” Id. 537. “So the whole record, which concerns the matter in question,, ought to be produced.” 4 Comyn’s Digest, Title Evid., 89. “The general rule is, that where a party intends-to avail himself of a decree, as an adjudication upon the subject matter, and not merely to prove collat erally that the decree was made, he must show the proceedings upon which the decree was founded.” 1 Greenleaf on Evidence, . sect. 511. “It is a general rule that records, when used, must be produced entire, but this rule is laid down with some exceptions and limitations. '* * Where a record is used to prove the facts therein contained, the rule well applies * * *.” McGuire v. Koums, 7 Monroe 386, cited in Lee’s Adm’r v. Lee, 21 Mo. 534. Peak says: “The whole record, and not a part only, must be exemplified or copied, in order that the court may be in possession
The objection made by the defendant to the introduction in evidence of the record offered by the plaintiff should have been sustained. It did not purport to be, nor was it certified as the whole record of the proceedings in the case to which it related. This, we understand, to be settled law.
II.
The defendant next complains of the action of the trial court in refusing him permission to introduce, under the general issue, proof of the want of jurisdiction of the person of the defendant by the Illinois court, rendering the judgment upon which this action is based. That action of the court was erroneous.
In Marx. v. Fore (51 Mo. 73), the defence, proof of which the defendant offered, was termed an equitable defence, and as such would, of course, have to be specially pleaded. But in the case of Eager v. Stover (59 Mo. 88), Thompson v. Whitman (18 Wall. 457), is cited and approved. In the latter case, Justice Bradley quotes, with approval, the following language of Chancellor Kent: “ The doctrine in Mills v. Duryes, is to be taken with the qualification that in all instances the jurisdic
In the leading case of Bissell v. Briggs (9 Mars. 469), Parsons, C. J., delivering the opinion concurred in by Parker, J., it is said: “From this reasoning the conclusion is manifest that judgments rendered in any other of the United States are not, when produced here as the foundation of actions, to be considered as foreign judgments, the merits of which are to be enquired into, as well as the -jurisdiction of the courts rendering them. Neither are they to be considered as domestic judgments, rendered in our own courts of record, because the jurisdiction of the courts rendering them is a subject of inquiry. But such judgments, so far as the courts rendering them had jurisdiction, are to have full faith and credit. They may, therefore, be declared on as evidences of debt or promises; and on the general issue, the jurisdiction of the courts rendering them is put in issue, but not the merits of the judgments.”
We hold, then, that the jurisdiction of the Illinois court, rendering the judgment in suit, of the person of the defendant, was put in issue by the general denial. And this is in accordance with reason, for the defendant, by proving that the court rendering the judgment against him had no jurisdiction of his person, would establish the fact that there was no judgment, as alleged in the petition. The petition alleges a judgment. Such proof worild establish that there was no judgment. Greenway v. James, 34 Mo. 328.
III.
Defendant contends that the trial court erred in instructing the jury to allow six per cent, interest on the judgment. Hie laws of Illinois were not in evidence. At common law, judgments do not carry interest. Thompson v. Monrow, 2 Cal. 101. In the absence of evidence of the Illinois laws, we are asked to presume
We cannot take judicial notice of the laws of Illinois. Illinois was never subject to the laws of England, and we cannot presume that the common law is in force there, as no evidence was introduced of the laws of Illinois, and as no presumption that the common law is in force there can be indulged, the law of this state must govern. By that law six per cent, interest runs on judgments, and the court below properly instructed the jury to allow that rate of interest.
Judgment reversed and cause remanded.
