9 Ind. 212 | Ind. | 1857
Suit upon the transcript of a judgment of a justice of the peace of Ohio.
The complaint reads thus:
“Francis Graham complains of Frederick Draggoo, and says that on the 10th day of April, 1840, before William Denin, a justice of the peace duly commissioned and qualified, of the township of Montgomery, then in the county of Richland, now Ashland, and state of Ohio, he recovered judgment against the said Frederick Draggoo for the sum of 33 dollars and 65 cents, besides costs of suit taxed at 22 cents, a copy of which said judgment and proceedings,*213 duly certified, is filed herewith; which said judgment still remains in full force and unsatisfied. The plaintiff, therefore, demands judgment for the sum of 80 dollars.”
This complaint was, perhaps, subject to demurrer at common law, for not stating facts showing the jurisdiction of the justice. Note to Cone v. Cotton, 2 Blackf. 85. See, also, Martin v. Kennard, 3 id. 430; Parker v. Henderson, 1 Ind. R. 62, on p. 64. But no demurrer was filed, and had there been, it would have been unavailing, as by statute the complaint was sufficient. 2 R. S. p. 45, s. 83.
There was an answer, consisting of several paragraphs, but none of them denied that the township of Montgomery had been changed from Richland to Ashland county, and that fact was, hence, admitted. One of the paragraphs denied the existence of the judgment.
Replications were filed, taking issue upon the paragraphs, severally, of the answer. Jury trial, and judgment for the plaintiff. New trial denied.
The transcript upon which the suit was brought, and which constituted all the evidence in the cause, was as follows:
“Francis Graham v. Frederick Draggoo. Action of debt by S. Robbins. Cognovit, dated December 17, 1839, given for 33 dollars and 5 cents. Interest, 60 cents. Demand, 33 dollars and 65 cents.
“April 10, 1840. Came S. Robbins, with a power of attorney to confess judgment. Whereupon the said defendant, by his attorney aforesaid, waived the issuing and service of process, and confessed judgment for the above demand; and it is therefore considered that the plaintiff recover of the defendant the sum of 33 dollars and 65 cents, debt, and costs of suit taxed at 22 and one-half cents.
“December 30, 1840, execution issued to W. Drum, constable. Debt 33 dollars and 65 cents. Judgment 12½. C. D. 10. Ex. 25.
“State of Ohio, Ashland county, formerly Richland county, ss. I, William Millington, a justice of the peace within and for the township of Montgomery, in said Ashland*214 county, formerly Richland county, Ohio, do hereby certify that the foregoing is a full and true copy in the above entitled cause from the docket of William Renin, late justice of the peace within and for said township, and county aforesaid, of which said docket I have the legal custody.
“Witness my hand and seal this 14th day of November, 1853. (Signed,) William Millington, [seal], a justice of the peace.”
Then follows the certificate of the clerk of the Common Pleas Court of Ashland county, to the official character, &c., of justice Millington; and succeeding that is a like certificate of the clerk of the Court of Common Pleas of Richland county, to the official character of Renin, at the time of the rendition of the judgment, &c., reciting the transfer of Montgomery township, &c. There is no certificate of any judge of any Court, attached to the transcript, in accordance with the provision of the act of Congress touching the authentication of judgments of Courts of record of the different states, when used as evidence out of that in which they were rendered; and which provision has been substantially incorporated into our code. 2 R. S. p. 93, s. 286. But the fact is unimportant—
1. Because the transcript was not objected to on that ground.
2. Perhaps, for the reason that it was not shown that the Court of a justice of the peace is, in Ohio, a Court of record. Such Court is a Court of record in this state. Hooker et al. v. The State, 7 Blackf. 272.—2 R. S. p. 453, s. 18. And though the provision of the United States constitution, requiring full faith to be given to judgments, &c., of other states, applies to Courts not of record, the act of Congress as to the authentication of transcripts of them does not (2 Blackf. 109); and transcripts not within the statute are admitted on general principles of evidence, without the certificate of a judge. Pelton v. Platner, 13 Ohio R. 209. Perhaps we should not presume that the Court of a justice is a Court of record in Ohio, where a transcript of such Court comes from that state not certified as required in case of a Court of record. If a party ob
The objections made in this case were, that the name of justice Denin did not appear with the judgment, and that it did not appear that the defendant had notice of the suit. The judgment was not drawn up with that fullness and precision which might have characterized it; but we do not think it void. At present, the statute of this state requires the justice to sign his judgments (2 R. S. supra); but it did not, at the date of the judgment in question. The judgment of a Michigan justice, involved in the case in 13 Ohio, supra, was not signed; and, though the case was warmly contested, no objection was made on that ground. The certificate of the justice to the transcript, and of the clerk to the official character of such justice, may, perhaps, in the absence of a statutory requirement, be sufficient to authenticate the judgment. And in the absence of proof of the law of Ohio, at the date of the judgment, we might have to presume it to be the same as our own. 13 Ohio, supra, and Shaw et al. v. Wood et al., 8 Ind. R. 518. Though it has been recently decided by the Supreme Court of Pennsylvania, in The State v. Hinchman, 5 Am. Law Reg. 424, that in suits upon judgment records of other states than that in which the suit is brought, the Court should take notice of the laws of the state in which the judgment was rendered — this being necessary under the constitutional requirement, to give full faith, &c., to judgments of the several states.
But this point is not material to the decision of the present case. By section 83 of the statute above cited, it is enacted that where the existence of a judgment of a Court of special jurisdiction, sued on or pleaded, is denied, the facts conferring jurisdiction upon the tribunal must be proved. This statute was held in Willey v. Strickland, 8 Ind. R. 453, to apply to Courts of justices of the peace. So applied, the statute seems unreasonable; but it must,
Such proof was not made in this case. No law of Ohio, showing the jurisdiction of justices, was given in evidence. The motion for a new trial should have been sustained.
The judgment is reversed with costs. Cause remanded, &c.