Foote v. Newell

29 Mo. 400 | Mo. | 1860

Scott, Judge,

delivered the opinion of the coui't.

This is an action on what is alleged to be a judgment of the court of a sister state. •

The petition states that the plaintiff, at á term of the circuit court for Wayne county, in the state of Indiana, on the 2d day of November, 1840, recovered a judgment in debt for $201.25 against tlie defendants Curtis, Newell and Hiram Morían ; that afterwards, in November, 1840, an execution issued on said judgment against said defendants endorsed by the clerk of said court; that the same was for making the sum therein named with interest therefrom from the 4th of November, 1840, and might be replevied according to law; which said execution was afterwards, to-wit, on the 30th day of January, 1841, returned by the sheriff of the said county of Wayne, endorsed “replevied by taking a replevin bond” and returning the same to the clerk of said court, executed by the defendants Hiram Morían, Charles B. Newell, Joshua Cranor and Harmon Roland, on the 30th day of Jan“uary, 1841, to the plaintiffs in the sum of $419.41, conditioned that should the said obligors, or either of them, well and truly pay to the said plaintiffs the said sum of $201.25, the amount of said judgment, together with the interest and costs accruing and to accrue thereon, at the expiration of the time given by law, the said bond to be null and void ; otherwise to remain in full force; which said bond was duly entered by the clerk of said court on the order book of said court; all of which will more fully appear by a duly and legally certified copy of said judgment and bond, with all the proceedings done and had thereon herewith filed. The petition further alleged that by virtue of an act of the general assembly of the state of Indiana entitled “ An act subjecting real and personal property to execution” approved January 4,1831, and in force at the rendition of the said judgment, of issuing said execution, and of taking, returning and entering said bond on the order book of said court, the said bond, so entered into by the said obligors and so entered on the order book of said court, became, and from the date thereof had the force and effect of, a judgment confessed in said court by the said obligors so executing the said bond and against their estates, and execution might issue thereon accordingly. The petition then recites some payments on the judgment, and states the balance of it to be $61.83 with interest, and that the judgment for the amount is still in force and effect and unreversed and unsatisfied; and that tbe said bond still remains in full force and effect, not reversed, satisfied or otherwise vacated; whereby an action has accrued to the plaintiffs to demand and have of the defendants the sum of $419.41, and therefore ask judgment for that amount.

Two of the defendants answered, Joshua Cranor and Chas. Newell, denying that any action accrued on the bond to the plaintiffs whereby they were bound for the sum claimed in the petition. They deny that they were ever served with any process, and' plead the statute of limitations of ten years. There were motions to strike out the answer and parts of it, which were overruled. The suit was discontinued as to the defendants not answering. By consent the cause was submitted to the court. The record of the Indiana judgment, and the subsequent proceedings thereon as stated in the petition, were read in evidence. The statute of Indiana was also read in evidence, which directed the bond, executed under the circumstances detailed in the petition, to be taken as, and have the force and effect of, a judgment confessed in a court of record against the person or persons executing the same and against their estates. The court refused an instruction, asked by the plaintiffs, that the act of the legislature of the state of Indiana read in evidence gives to the bond in evidence in this cause the force and effect of a judgment confessed in the circuit court of Wayne county, in the state ¿f Indiana, against the parties to said bond, and'said judgment is binding and obligatory on the defendants in the courts of this state, and may be sued upon as a judgment of a court of record, and judgment may be recovered on the same in the courts of this state. There was a judgment for the defendants.

The constitution of the United States prescribes that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. The act of Congress of May 26, 1790, pointed out the nqanner of authenticating the said acts, records and proceedings, and declared that the records and proceedings should have such faith and credit given them in every court within the United States as they have by law and usage in the courts of the state from whence the said records are or shall be taken. The question involved in this cause is not what faith and credit shall be' given to a judicial proceeding of a sister state, but whether the instrument, the foundation of the action, is a judicial proceeding within the meaning of the constitution and the law. Indeed, if this is a judicial proceeding, it is difficult to find a reason why a state may not declare.any contract or undertaking, on being-filed with the clerk of a court of record, a judgment by concession and having the force and effect of a judgment, and thus make it a judicial proceeding within the meaning of the federal constitution. The statute of Indiana itself did not regard the proceedings under the execution as judicial, for if it had been so regarded it would not have been necessary to declare that the bond be taken as, and have the effect of, a judgment confessed in a court of record. It is not usual for a tribunal performing judicial acts to declare the character of the acts; it is sufficiently apparent from the face of the proceedings themselves.

If a state, in carrying out a policy of her own, disapproved or discountenanced in other states, finds it convenient to give to proceedings having no affinity to judicial ones the force and effect of judgments, the other states are not required by the constitution to give to those acts the force and effect they may have in the state by which they were authorized. Comity requires that nations should respect the judicial proceedings of each other. The constitution exacts this comity between the states as a duty and carries it further than the comity among foreign nations extends. Under these circumstances, it would be great perversion to require the states to give to any contract or undertaking, declared by a state to be a judgment for the sake of a speedy remedy,' the force and effect of a judicial proceeding. The bond is a penal one, being for a sum double the amount of the original judgment. We know how to deal with a penal bond; but what is to be done with a penal judgment ? The plaintiffs claim the amount of the penal bond, which they maintain is a judgment within the meaning of the constitution of the United States. We are not informed whether, by the law of Indiana, an execution issues for the entire penalty, or for the amount duo on the original judgment. We may form a conjecture on this subject, but how singular in judicial proceedings is a judgment for a penal sum to be discharged by the payment of a less at a given time, otherwise to remain in full force. The statutory proceedings and judgment on a penal bond furnish no support to such a course. In such cases, the amount of the damages is ascertained for which the execution is awarded. Can this judgment be said to be final and complete at the date of the bond, if its existence or nonexistence is made by its terms to depend on the happening of a future event ? Before the courts here can declare that this is a judgment to be carried into effect under the constitution, must not the court of the state, where it was rendered, have previously determined whether the event had occurred on which its validity is made to depend ? If our courts do this, are they not merely rendering a judgment in the first instance ancillary to the foreign courts, not carrying their judgments into effect, but aiding them in forming the original judgment ? 1/

We do not deem it necessary .to express any opinion in relation to the action of the court below on the answer, nor as to the sufficiency of it, as the plaintiff by his own showing is not entitled to recover.

If the bond is to be regarded as a bond, the ten years’ limitation would bar an action on it, unless the plaintiffs bring themselves within some exception. The cause of action accrued after the 1st of December, 1835, and this action was commenced in 1859, when the limitation act of the code of 1855 was in force. The cause of action on the bond accrued when the act of 1835 was in force; hence by the provisions of the act of 1865 the statute of limitations of the code of 1885 would govern the action. Under this statute, the statute of limitations did not commence running in favor of the defendants until they came into the state. (Thomas v. Black, 22 Mo. 822; Tagart, adm’r of Stone, v. The State of Indiana, 16 Mo. 212.) We do not s.ee how an action could be maintained on the bond as such, unless the original was produced.

If the bond is to be regarded as a judgment, then the limitation act of 1835, so far as it relates to the judgments, would be the law of the case. Affirmed.