170 N.W. 320 | S.D. | 1919
Lead Opinion
One Sherwood procured a judgment against defendant Sheafe and others in the circuit court of -Cook county, 111. Claiming to be the assignee of such judgment, plaintiff 'brought this action thereon in the circuit court of Codington county, S. D., the place of residence of defendant 'Sheafe. Verdict and judgment were for defendant. From such judgment, and an order denying a new trial, this appeal was taken.
In the answer there was a plea that the judgment sued upon was procured by fraud, and another that the plaintiff was and is-an attorney at law and 'bought the judgment sued on in this action with intent to bring suit thereon in violation of the provisions of section 198 of the Penal Code of this state. We are unable to determine from the record whether it was upon one or both of these defenses the verdict was based, but it is clear that it was based on one or the other of such defenses.
“An examination of the cases leads to the conclusion that the right to resist in one state, on the ground of fraud, a judgment rendered in another state, is no longer disputed, but that only frauds of certain kinds are adequate to make resistance effective. The frauds which hitherto have been recognized as sufficient to impeach judgments of sister states have been such as (1) went to the jurisdiction (either with respect of the subject-matter or of the person) of the court to render the questioned judgment; or (2) constituted a fraud upon the law of the forum; or (3) operated to deprive the party against whom the judgment was rendered of an opportunity to defend the suit when he had a meritorious-defense to it. Frauds, no matter how gross (forgery and perjury for examples), in the conduct of the litigation, or fabrication of the cause of action, which the defendant might have met and counteracted, are unavailable.”
It would serve no useful purpose for us to set forth the evi
“Every attorney who, either directly or indirectly, buys or is interested in buying any evidence of debt, or thing in action, with intent to bring suit thereon, is guilty of a misdemeanor.”
“Nothing in the four preceding sections shall be construed to prohibit the receiving in payment of any evidence of debt or thing in action for any estate, real or personal, or for any services of any attorney actually rendered, or for a debt antecedently contracted, or the buying or receiving any evidence of debt or thing in action for the purpose, of remittance, and without any intent to violate the preceding section.”
The assignment itself disclosed no illegal purpose in the transfer of the judgment, but no party to a champertous agreement can be heard to say that a court cannot go outside of the writing to determine the true nature of the agreement. As said in Stewart v. Welch, 41 Ohio St. 483:
“Courts are not so helpless that they can be rendered powerless by the easy diange of words in the contract, or the shifting*483 of parts in a play of champerty. Such tribunals, when not shackled by statute, look through words and form to substance; deal with things, rather than names; look at what was intended, more than at what was said, or written, in all cases where evidence, legally admissible, establishes the actual facts.”
“For the reason that there is no evidence before the court upon which the jury can make any finding as to champerty -and for the further reason that it appears b)f the undisputed testimony that the assignment' of the judgment, which assignment is' claimed to be champertous, was made to assign an Illinois judgment, and made in the state of Illinois, and to take effect there, and that such an assignment is not prohibited under the laws of the state of Illinois, and for the further reason that the evidence shows that the plaintiff herein is not an attorney licensed to practice in the state of .South Dakota, and that he has never practiced herein as an attorney, and that he is a resident and citizen of the state of Illinois.”
It will be noted that such exception in no way challenges the correctness of such instruction as an abstract proposition of law under our statute, but simply challenges the sufficiency of the facts to warrant submitting this question to the jury. There 'was evidence from which the jury was warranted in finding that plaintiff purchased the judgment with the intent and expectation of suing thereon. That, in case the laws of this state apply, the burden was upon plaintiff to bring himself under the exception provided for by section 202, supra, is too clear for doubt. The only evidence that he took such judgment in payment of attorney’s fees, or for a debt then owing him, is his own uncorrobo
. This court has so held in several cases, some of them being cases where the testimony offered presented -a situation quite analogous to that presented in this case. McGill v. Young, 16 S. D. 360, 92 N. W. 1066; Iowa Nat. Bk. v. Sherman, 19 S. D. 238, 103 N. W. 19, 117 Am. St. Rep. 941. We are bound, therefore, to assume that, if the jury found with defendant on this defense of champerty, it so found because it rejected as false plaintiff’s testimony whereby, he sought to bring himself under the provisions of section 202, supra, and did find that he purchased this judgment — “evidence of debt” — with intent to bring suit thereon.
“If the champertous agreement is not collateral- to the claim sued on but is the foundation thereof, the action must fail, although defendant in the suit is a stranger to the champertous contract. * * * If an action is brought by an assignee in his own name, and the assignment is shown to be champertous, the court will treat it as void for all purposes and refuse on grounds of public policy to enforce it.” 5 R. C. L. § 14, “Champerty”; Miles v. Mutual Reserve Fund Life Ass’n, 108 Wis. 421, 84 N. W. 159.
“It thus appears that champerty was an offense at the common 'law, and our General Assembly having adopted the common law of England as the rule of decision, so far as applicable to our condition, until modified or repealed this must be regarded*486 as in force in this state, as affecting all such contracts, and as being opposed to sound public policy.” ,
“Foreign laws are not enforced where they conflict with our own regulations, our local policies, or do violence to our views of religion or public morals.”
That such is the established law is beyond question. 12 C. J. 439; 5 R. C. L. “Conflict of Laws,” § 5; 2 Elliott on Contracts, § 1112; Carstens Packing Co. v. Southern Pac. R. Co. 58 Wash. 239, 108 Pac. 613, 27 L. R. A. (N. S.) 975; Parker v. Moore, 115 Fed. 799, 53 C. C. A. 369; Hamilton v. Chicago, B. & Q. Ry. Co., 145 Iowa, 431, 124 N. W. 363; Fox v. Postal Cable Co., 138 Wis. 648, 120 N. W. 399, 28 L. R. A. (N. S.) 490. And even if we should limit the cases, where we would refuse to apply the rule of comity, as was done in International Harvester Co. v. McAdam, 142 Wis. 114, 124, N. W. 1042, 26 L. R. A. (N. S.) 774, 20 Ann. Cas. 614, it would avail plaintiff nothing. It was held in that case that foreign contracts, valid where made, should be enforced, except where such contracts are pernicious or inherently harmful in character. As before noted, we must assume that the jui'y found plaintiff to have been guilty of that
There are xio other assignments of error which we feel called upon to discuss. What we have said herein disposes of the merits ■of this appeal.
The judgment and order appealed from are affirmed.
Concurrence Opinion
(concurring specially). I concur in the result reached by xny majority Associates, for the reason that I am of the view that the evidence is sufficient to sustain the defense of extrinsic fraud in the proceeding by which the judgment sued on was procured in the Illinois court. The judgment, having been procured by extrinsic fraud, is void. The merits of the plaintiff’s cause of action ax-e not in issue in this action on the jud'gmexit. Nothing appears in the record before us to disclose whether the verdict was founded on the defense of fraud, or the defense of champerty. It appears to be the view of -the majority of my Associates that when a party, by proper -motion, request for directed verdict, or a request for an exception to instructions, ■has questioned one of two defexrses, and has been overruled, he can show the insufficiency of the evidence to sustain that particular defense, and unless it is clear that the verdict does not rest upon that particular defense, the verdict cannot stand. Of course, the verdict must rest upon evidence sustaining a good defense; but when the question arises whether the verdict was founded xxpon one or the other of two defenses, and the evidence is sufficient to sustain one of the two, the burden is upon the appellant to ■show affirmatively that the verdict rests upon the defense not ■sustained by evidence. If he fails to show this affirmatively, he has failed to show prejudicial error. Under our practice, appellant is required affirmatively to show prejudice resulting from alleged error. We should adhere to the rule in this.case. This, of course, would not be the rule under the old practice, which pre
In the case of Big Three Min. & Mill. Co. v. Hamilton, 157 Cal. 130, 107 Pac. 301, 137 Ann. St. Rep. 118, where two distinct defenses were pleaded, the court said:
“If, then, either was sustained by the evidence, and was not affected by any error, the want of evidence to sustain the finding on the other defense, or any errors committed in regard to it, could not have- been prejudicial” — citing Crosett v. Whelan, 44 Cal. 200; Verdelli v. Gray’s Harbor Comm. Co., 115 Cal. 517, 47 Pac. 364, 778.
The verdict in this case is a general one, and is favorable to defendant on all issues, and, unless it affirmatively'appears that the verdict was founded upon a defense not sustained by the evidence, the presumption of nonprejudice prevails, and we should presume that it was founded upon that defense which is properly pleaded and is sustained by evidence. Parker v. Naylor (Tex. Civ. App.) 151 S. W. 1096; Indianapolis, etc., Ry. Co. v. Ott, 11 Ind. App. 564, 38 N. E. 842, 39 N. E. 529; Blizzard v. Applegate, 77 Ind. 516; Gates v. Bowker, 18 Vt. 23.
Section 198 of our Penal Code is identical with the' New York statute. The courts of that state have construed their statute in a number of cases, in which it is held, as stated in 11 Corpus Juris, 239. par. 17:
“The object of the statute is to prevent 'attorne3>-s from buying claims to obtain costs iby the prosecution thereof, and to constitute the offense the purchase must be for the very purpose of bringing suit and no other. The intent to bring a suit must not be merely incidental and contingent, and it must be brought for the attorney’s benefit. It does not apply * * * to the purchase of a demand with the intent of prosecuting it * * * in the courts of another state or to the purchase of a judgment for the purpose of collecting it by execution”-citing De Forest v. Andrews, 27 Misc. Rep. 145., 58 N. Y. Supp. 358; Moses v. McDivitt, 88 N. Y. 62; Wightman v. Catlin, 113 App. Div. 24, 98 N. Y. Supp. 1071; Creteau v. Foote Glass Co., 40 App. Div. 215, 57 N. Y. Supp.
And in Oldmixon v. Severance, 119 App. Div. 821, 104 N. Y. Supp. 1042, it was held' not error to refuse to submit the defense of champerty to the jury, where an attorney had no interest in the claim sued on, other than the legal title, taken for the purpose of bringing suit for the benefit of others. ' A discussion of the defense of champerty, as affected, by the doctrine of comity between states, would add nothing to what has already been said, for the reason that the only question here involved is the correct interpretation of this particular statutory inhibition against the purchase of claims w-ith intent to sue thereon.
I am of the opinion that the instruction of the trial court upon this statute, -duly excepted to and assigned as error, was misleading and erroneous, in that it did not limit the application of the statute to the class of cases which it was intended to cover, under the interpretation given it iiythe New York cases; but, the separate defense of extrinsic fraud being sustained, the error was not prejudicial.
We all "agree that the defense of extrinsic fraud is sustained by the evidence, and I therefore deem- it unnecessary to consider further the defense of champerty. I concur' specially, for the reason that I do not concur in the views of the majority on the question of champerty as applied to the facts in this case.