Leach v. Linde

24 N.Y.S. 176 | N.Y. Sup. Ct. | 1893

BARRETT, J.

This action is upon a judgment of the superior court of Wake county, N. 0. The pleader took the complaint in the North Carolina action, and embodied it almost in totidem verbis in the complaint here. He then pleaded the judgment, but did not say that it was recovered upon the preceding facts. The only connection which is suggested in the complaint between these preceding facts and the judgment as pleaded is the statement that such judgment was duly given upon certain findings of the jury in the North Carolina action, which findings seem to refer to some of these facts. Comparing the record in the North Carolina action with the facts thus loosely inserted in the' present complaint, there can be no doubt of what the pleader designed. He meant to aver the exact facts upon which judgment was there recovered, and then to plead the judgment as duly recovered upon such facts. Whether he has succeeded in this is immaterial. It is sufficient that he has properly pleaded the judgment, and that he has a' good cause of action, thereon. If the facts which precede the averment of the judgment are to be treated as, in themselves, and apart from the judgment, constituting an independent cause of action, the defendant should have had such cause of action separately stated and numr bered. Such preceding facts do not affect the cause of action upon the judgment. If, however, they are to be treated as mere matter of inducement leading up to the judgment, or as surplusage, the action is still upon the judgment. Krower v. Reynolds, 99 N. Y. 245, 1 N. E. Rep. 775. The question, therefore, is whether the verdict for the amount of the judgment was properly directed.

When the plaintiffs rested, the defendant moved to dismiss the complaint upon two grounds: ‘First, that the cause of action set forth in the complaint had not been proved; second, that the action is brought upon a contract to which Richard B. Lawrence is a party, and that he is not a party to this action, and that a defect of parties defendant is set up in the answer.” There is nothing in the latter point, as the judgment is against Linde alone. As to the first point, the defendant did not contend that the. plaintiffs had averred the fraud and deceit for which the North Carolina judgment was obtained, and that the complaint should be dismissed because of a failure of proof, on that head. We may say, however, that, even if this point had been taken, and it had been conceded that the North Carolina action was founded upon the fraud and deceit averred in the present complaint, the record in that action conclusively establishes the fraud and deceit so averred. The verdict of the jury was specific upon these charges. The sole question, then, is whether the foreign judgment was properly proved. The defendant objected, to the introduction of two printed books which were offered to prove the Code of North Carolina. We think these books purported to have been published by the authority of that state, and were presumptive evidence of its laws. Upon the title page we find a statement to the effect that the volumes were prepared by William T. Dortch, John Manning, and John S. Henderson, under chapters 145 and 315 of the Laws of 1881, and under chapter 191 of the Laws of 1883. The reasonable inference is that these persons were commissioners appointed under the laws so specified, and that these laws were laws of the state of North Carolina. On the page next to the title page are the words: “Copyright, 1883, by William L. Saunders, Secretary of State, for the Benefit of the State of North Carolina.” It is also a reasonable inference that Mr. Saunders was the secretary of state of North Carolina. By section 922 of the Code, thus proved^ the superior court of Wake county was shown to be a court of original jurisdiction in all civil actions whereof exclusive jurisdiction was not given to some other court. That proof was suffieient prima facie. It was for the defendant to show that exclusive jurisdiction of such an action as that in question was given to some other court. Jurisdiction having thus been shown, the law -conferring it must be presumed to exist until proved to have been changed. Raynham v. Canton, 3 Pick. 293. But these negative objections were not specifically taken by the defendant at the trial. If they had been, the plaintiffs might have accepted the •burden of showing affirmatively the continued existence of the law, and the fact that exclusive jurisdiction of such actions as that which was brought -against the defendant in the superior court of Wake county had not been given to any other court.

There is also an exception to the exclusion of the defendant’s testimony. This testimony either tended to disprove the fraud and deceit charged in North Carolina, or the fraud and deceit charged in this action. In either case the ruling was, correct. The fraud and deceit charged in North Carolina were conclusively established by the judgment there. If the fraud and deceit charged here are to be deemed the same as charged in the North Carolina action, the like rule applies; but, if not, and if treated independently, there was nothing to disprove, for there was nothing proved. The exceptions should be overruled, and judgment rendered for the plaintiffs, upon the verdict, with costs. All concur.