150 Minn. 114 | Minn. | 1921
November 19, 1910, L. W. Brewer, as trustee in bankruptcy of the estate of the J. E. Edmunds Company, recovered á judgment against the defendant in the circuit court of La Salle county, a court of record of the state of Illinois. The judgment was founded on a promissory note executed by defendant to J. E. Edmunds, containing authority to any attorney of a court of record to appear in such court in term time or vacation and confess judgment without process in favor of the holder of the note for the amount unpaid thereon “with costs and-dollars
(1) That the judgment was void for the reason that he was not served with process and did not appear in the circuit court of La 'Salle county.
(2) That the note was given in part payment for a stock of goods purchased from Edmunds by the defendant and that in making the sale Edmunds had practiced a fraud upon him in certain respects set out in the answer.
(3) That the judgment as entered included an attorney’s fee of $400 which was not authorized by the terms of the warrant of attorney.
(4) That the statutes of Illinois provide that no action can be maintained on any judgment entered by confession or by virtue of a warrant of attorney or power contained in any promissory note after the expiration of seven years from the rendition of the judgment, unless the judgment has been renewed by a writ of scire facias or an original suit instituted thereon within said period of seven years; that said judgment had not been so renewed and was of no force or effect in the state of Illinois after November 18, 1917, and that any right of action thereon became barred by the statute of limitations of said state on said date.
Plaintiff demurred to each of these defenses separately and collectively on the ground that they did not state facts sufficient to constitute a defense and fathed when taken separately or as a whole to state any equities in defendant’s favor. The demurrer was sustained and defendant appealed.
There may be a statute in Illinois similar to G. S. 1913, § 7708, whereby the running of the statute of limitations is suspended during the absence of the debtor from the state, but if so it is nowhere set out in the pleadings, and, in any event, would not apply to an action on a judgment. Gaines v. Grunewald, 102 Minn. 245, 113 N. W. 450. Defedant having pleaded the statute of limitations as a defense, if the facts bring the case within any exceptions to the statute in force in Illinois,
It is urged that in pleading the Illinois statute it should have been set out in full, or at least so much of it as is material to the defense. A statement to that effect is found in Becht v. Harris, 4 Minn. 394 (504). In Hoyt v. McNeil, 13 Minn. 362 (390), it was said that the “terms” of a foreign statute must be set forth so that the court may determine whether the effect claimed for it is legitimate. This was repeated in Myers v. Chicago, St. P. M. & O. Ry. Co. 69 Minn. 476, 72 N. W. 694; 65 Am. St. 579, and- is in accordance with the general rule that, in pleading the statute of a foreign state, it is not necessary to set it forth in haec verba, and that it is sufficient to state the substance of those portions of the statute that are relied on. 36 Cyc. 1241. Becht v. Harris, supra. Insofar as it intimates that the rale is otherwise it is disapproved. It is also urged that in J. L. Bieder Co. v. Rose, 138 Minn. 121, 164 N. W. 586, this court had before it the Illinois statute of limitations and expressly held an -action on a judgment might -be brought at any time within 20 years of the date of its rendition. In that case the judgment was not one by confession, and, if there is a statute such as defendant pleads here, it would not have been applicable.
Finally it is urged that in fact there is no such statute in effect. If this be true, plaintiffs may move to strike this defense from the answer as sham. G. S. 1913, § 7762.
Insofar as the demurrer goes to the defense of the statute of limitations, it should have been overruled, and sustained only as to the other defenses pleaded. The order sustaining it as to all the defenses pleaded must therefore be and it is hereby reversed.