Etz v. Wheeler, 23 Mo. App. 449

Etz v. Wheeler

23 Mo. App. 449 | Mo. Ct. App. | 1886

Thompson, J.,

delivered the opinion of the court.

'This was an action upon a judgment of a justice of 'the peace of the state of Ohio. The plaintiff had a verdict and judgment. Two points are made by the defendant.

1. The first is that the justice’s judgment was not authenticated according to the act of congress, but was proved by the depositions of witnesses according to the •common law. No authority is cited in support of the position that the act of congress excludes the common law mode of proving a foreign judgment, and we see no reason for so holding.

2. The other point is that the statute of Ohio conferring jurisdiction upon the justice was not pleaded, and decisions are cited from other jurisdictions to show that in an action upon the judgment of a court of limited or special jurisdiction it is not only necessary to aver that the court had jurisdiction to render the judgment sued on, but also to set forth the statute conferring the jurisdiction. This rule of pleading never had any sense in it, since the essential fact which the plaintiff takes upon himself the burden of proving is that the tribunal had jurisdiction. This, in the case of a tribunal of special and limited powers such as a justice of the peace, he must aver and prove, because he is not aided by any presumption of jurisdiction, such as obtains in the case of a court of general jurisdiction, which presumption would operate to shift the burden to the defendant of showing a want of jurisdiction. But while the plaintiff has always been rightfully required to aver and prove jurisdiction in the case where he claims the right under the judgment of a court of limited or special jurisdiction, there never was any sense in requiring him to plead the statute conferring the jurisdiction, since such a statute 'is merely evidence of the jurisdiction, and the pleading of it would be merely the pleading of evidential matter. •Our code of procedure has repealed the old rule and *451settled the law in accordance with common sense by providing (sect. 3551, Rev. Stat.) that, “in pleading a judgment or other determination of a court or officer of Special jurisdiction, it shall not be necessary to state the facts conferring the jurisdiction, but such judgment or determination may be stated to have been duly given or made.” See also Wickersham v. Johnson, 51 Mo. 313.

The judgment of the circuit court will be affirmed. It is so ordered.

All the judges concur.