189 P. 633 | Wyo. | 1920
This suit was brought iu the district court of Fremont county by the plaintiff in error against the defendants in error upon an alleged judgment of the supreme court of New York county, state of New York, in favor of William R. Eidson and against Wyopo Company; said judgment having been assigned to the plaintiff. The cause was tried to the court without a jury. The court found generally in favor of defendant, Billow, as receiver (he being the only defendant appearing and pleading) and against the plaintiff, and rendered judgment accordingly. Plaintiff brings the case to this court by proceedings in error.
The plaintiff in his petition alleged that Wyopo Company is corporation organized and existing under the laws of the state of Maine; alleged the rendition of the judgment in the New York court in favor of Eidson and against the Wyopo company for $13,125.08, and the assignment of the judgment to plaintiff; that the New York murt was a court of general jurisdiction and had jurisdiction of the subject matter of the action and of the person of Jhe Wyopo Company, and that the judgment was wholly unpaid.
Defendant, Billow, in his answer denied that Eidson had obtained judgment against the Wyopo Company as alleged; denied that the New York court had jurisdiction of the subject matter of the causes -of action in favor of Eidson and against said Wyopo Company, or of the person of said Company. Alleged that the Wyopo Company, defendant in this action, is a corporation organized and existing under the laws of the state of Maine, and authorized to carry on business in the state of Wyoming. That it has never been incorporated under the laws of the state of Wyoming. That the corporation named and described in the New York action and judgment was a corporation organized under the laws of the state of Wyoming. That defendant in this action, Wyopo Company had never been
For reply plaintiff denied that the corporation named as defendant in the suit in New York was described in said action as a corporation organized under the laws of Wyoming; and alleged that the only corporation by the name of Wyopo Company authorized to do business in Wyoming was and is Wyopo Company a Maine Corporation; that there never has been any corporation organized under the laws of the state of Wyoming by the name of Wyopo Company. Denied that Eidson was a non-resident of New York.
Counsel for plaintiff in error in their brief state and rely upon the following propositions for a reversal of the judgment.
“I. The trial court did not give the judgment of the New York Supreme Court the full faith and credit it was entitled to under the Federal Constitution. 2. Section 4410 of the Wyoming Compiled Statutes, 1910, does not apply to judgments of this character rendered by the courts of a sister state, for to so hold would render said section unconstitutional as being in conflict with section 1 of Article IV of the constitution of the United States.
We will consider those points so far as we deem necessary to a decision of the case. It must be conceded, and we think counsel do so in their briefs, that the courts of this state are bound to give full faith and credit to the judgments of - a sister state; and that where the transcript of a foreign judgment, sued upon in this state, is introduced in evidence and is silent as to the mhnner of service, or the person or officer served, when defendant is a corporation, the law presumes that the court had jurisdiction, and that presumption prevails until the contrary is shown. “But the presumption, which the law implies in support of the judgments of superior courts of general jurisdiction, only arise With respect to jurisdictional facts concerning which the record is silent. Presumptions are only indulged to supply'the absence of evidence or averments respecting the facts presumed. They have no place for consideration when the evidence is disclosed or the averment made. When, therefore, the record states the evidence or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred. If, for example, it appears from the return of the officer or the proof of service contained in the record, that the summons was served ,at a particular place, and there is no averment of any .other service, it will not be presumed that service was also made at another and different place; or if it appear in like manner that the service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also. Were not this so it would never be possible to
We think the judgment roll on its face shows that the suit in the New York court was against “Wyopo Company, a corporation, organized and doing business under the laws of the State of Wyoming,” that it was the party served and was the party against which the judgment was rendered. The present action is against “Wyopo Company, a corporation, organized and existing under the laws of the State of Maine,” a different party from the one against which the judgment was rendered. The plaintiff alleged in his reply that no corporation by the name of Wyopo Company was ever organized under the laws of Wyoming; but that allegation in the reply is deemed controverted by force of the statute. (Sec. 4401, Comp. Stat. 1910). No evidence was introduced in support of that allegation; and the court does not take judicial notice of what private corporations are or are not organized under the laws of the state. But if it be treated as a mere misnomer of the defendant, we are of the opinion that it was not such a misnomer as might have been cured by amendment in the trial court, where there was no appearance by the defendant, without further service. To entitle plaintiff to .amend'in such case it must appear that the right party had been served, and that the amendment would not substitute a new and different party. In each of the cases we have examined where an amendment was allowed the party had either appeared, or it was shown that the right party had been served although by the wrong name. (First National Bank of Baltimore v. Jaggers, 31 Md. 38; 100 Am. Dec. 53; Southern Pacific Company v. Block Bros. 84 Tex. 21; 19 S. W. 300; Licausi v. Ashworth, 79 N. Y. Supp. 631, 78 App. Div. 486, and cases cited in the opinion; Enewold v. Olsen, 39 Neb. 59, 57 N. W. 765; 22 L. R. A. 573, 42 A. S. R. 557, and notes: Goldstein v. Peter Fox Sons Co., 22 N. D. 636, 40 L. R. A.
We are also of the opinion that the evidence was sufficient to warrant the trial court in finding that Rudd was not the treasurer of the defendant in this action at the time he was served, but that one Myer was such treasurer.
The conclusion we have arrived at on either of the questions discussed must result in an affirmance of the judgment, and for that reason the other questions discussed in the briefs of counsel have not been considered. The judgment of the district court is affirmed.
Affirmed.