Reed v. Hollister, 188 P. 170

Reed v. Hollister

188 P. 170 | Or. | 1920

BURNETT, J.

Relating to judgments of the courts of a sister state, Section 761, L. O. L., reads as follows:

“The effect of a judicial record of a sister state is the same in this state as in the state where it was made, except that it can only be enforced here by an action, suit or proceeding, and except also that the authority of a guardian or committee, or of an executor or administrator, does not extend beyond the jurisdiction of the government under which he was invested with his authority.”

*662On superficial observation it would seem from the title of the cause that the plaintiff is seeking to exercise authority in this state as an administrator, with the possible inference that he was appointed as such by a court of some other state. Except as indicated in the title of the cause, the complaint in the Oregon court says nothing whatever about plaintiff’s being possessed of any representative character. The California complaint merely narrates that he was the duly appointed administrator of the estate of Francis S. Furry, and that he is now such an officer, duly qualified, but does not state the source of his appointment. However that may be, and wherever he may have been appointed, it is not decisive of the case, nor does it bring the issue within the exception limiting the authority of an administrator under Section 761, L. O. L. In Burrell v. Kern, 34 Or. 501(56 Pac. 809), in an opinion by Mr. Chief Justice Wolverton it was held that executors may sue either individually or in their representative capacity, at their option, on causes of action, either in contract or in tort, accruing after the death of the intestate or testator, and that in such cases complaint need not show for whose estate they are executors. That was a suit to foreclose a mortgage, in which the plaintiffs styled themselves in the title of the cause: “Walter F. Burrell and D. P. Thompson, Executors.” They further alleged in the body of the complaint that they were the duly appointed, qualified and acting executors of the will of M. S. Burrell, deceased. They charged that the defendants executed a note to “W. F. Burrell and D. P. Thompson, Executors,” which was secured by the mortgage of the defendants. Failing in their effort to have the complaint made more definite and certain, so as to show the name of the deceased for whom the plaintiffs *663acted as executors, in taking tlie note in the form noted, the defendants demurred on the same ground, claiming that the complaint did not state facts sufficient to constitute a cause of suit. In the course of his discussion of the matter Mr. Chief Justice Wolverton said:

“The prevailing rule seems to be, with possibly some few exceptions, that when the cause of suit or action, whether in contract or in tort, accrues after the death of the testator or intestate, the money, if recovered, will be assets of the estate, and the executor or administrator may sue, at his option, in either his representative or individual capacity. * * The use of the word ‘executors’ in the title of the cause and in the note is a mere descriptio personae, and does not of itself operate to attach to plaintiffs a representative character, * * and may be regarded as surplusage. * * As the note and mortgage in question were made, executed and delivered to the plaintiffs, and not to their testator, they were authorized, under the rule, to sue in either their representative or individual capacity; and it is very apparent that the complaint states a good cause of suit in one or the other capacity, and is amply sufficient as against the test of a general demurrer. ’ ’

Like doctrine was announced in Kitchen v. Holmes, 42 Or. 252 (70 Pac. 830), where the plaintiff was permitted to recover in her individual capacity on a note given to herself as administratrix. Later, in Sears v. Daly, 43 Or. 346 (73 Pac. 5), the same principle was laid down allowing an executor to recover either as an individual or in his representative capacity, at his election, upon a note given to him after the death of his decedent.

In the instant case the plaintiff appears in court to enforce a cause of action upon the judgment of a sister state, which cause of action accrued to him after the death of his decedent. Going further back into the *664California complaint, we find the substance of it to be that tbe defendant here was intrusted by the decedent with her money, to be invested and managed by him in the capacity of a trustee.

1. Manifestly, no cause of suit or action against him could arise until a demand for an accounting and settlement. ‘ This demand was not made, according to the narration in the California case, until after the death of Frances S. Furry. Hence the cause of action accrued not in her favor, but on behalf of her personal representative.

2. Thus, whether we consider it in its original form or in its changed state as embodied in the California judgment, the cause of action accrued after the death of the decedent, so that, under the authority of Burrell v. Kern and other precedents, the plaintiff may sue either in his original capacity or as the personal representative of the decedent. Payment to Reed in Oregon either as an individual or as administrator should discharge that judgment. If he recovers as an individual in this action, he is bound to account to the decedent’s estate for the proceeds of the judgment rendered here. We conclude, then, that the plaintiff may be considered as prosecuting this action in his individual capacity, and is not restricted by the exception in Section 761, L. O. L.

“Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof”: Article IV, Section 1, United States Constitution.

3. It is a principle well grounded in precedent that, given a court of general jurisdiction under the laws of a sister state, having authority over the person of a *665defendant either by regular service of its process upon him or by bis voluntary appearance and submission to tbe jurisdiction, and a suit, action or proceeding so stated in tbe pleadings as to call for tbe exercise of tbe court’s jurisdiction, its judgment rendered in pursuance of and consonant with, that invocation of its authority is final and conclusive when pleaded as a ground of action in another state. This is tbe doctrine laid down in De Vall v. De Vall, 57 Or. 128 (109 Pac. 755, 110 Pac. 705), in an opinion by Mr. Justice Moore. Tbe complaint in tbe instant action is confessed in toto. We have, then, two of tbe necessary conditions admitted, viz.: That there was a court of general jurisdiction of a sister state, that tbe defendant was served with process, and that be appeared in person in tbe action in tbe California court. In other words, it is conceded that tbe California court bad tbe right to entertain and determine tbe bind of a case there involved, thus establishing jurisdiction over tbe subject matter. Further, tbe defendant admits that be was served with tbe process of that court, and afterwards appeared there and personally participated in tbe trial of that action which resulted in tbe judgment of that court. Jurisdiction of tbe person of the defendant in that litigation is thus apparent.

Tbe effort of tbe defendant here seems to be an attach, not upon tbe assumption of jurisdiction by tbe California court in tbe first instance, but upon its subsequent exercise of that authority. In substance, as stated, the suit in California was for an accounting of moneys said to be held by tbe defendant in trust for tbe decedent, Frances S. Furry, upon which tbe general issue was joined. In effect, tbe prayer of the complaint there was that the defendant be required to account to tbe plaintiff for such sum or sums as might be due *666the estate by reason of the transactions between the defendant and the decedent, and for snch further relief as the court might therein deem to be equitable. In other words, the endeavor was to get from the defendant the property of the decedent, in whatever form it had to be taken under his administration. A decree for the direct payment of money was germane to the issues there joined upon the pleadings. It is a matter of frequent occurrence that suits for an accounting are concluded by a decree in favor of the plaintiff for a certain sum of money. We have, therefore, in the instant case a complaint properly calling for the exercise of the authority of the court of a sister state and a judgment in form consonant with that request.

4. It is indeed true, that when an action is brought in this state upon the judgment of a sister state, the defendant is permitted to challenge the jurisdiction of the court, not only of the subject matter, but over his person, and to complain that the judgment was not one authorized by the pleadings. Thus far, the attack may proceed, but no farther, else we would violate the constitutional injunction to give full faith and credit to the judgment of a sister state. For instance, A. institutes an action against B. in a court of general jurisdiction in a sister state, claiming judgment for money due upon a promissory note. Al-thought B. might appear and contest the action, yet, if the court should render judgment requiring bim to convey a tract of land to A., it would not preclude the defendant from resisting an action on such a judgment in Oregon. The reason is that the court there had no authority to render such a judgment. It was not within the scope of the plaintiff’s demand for the exercise of the judicial function. On the other hand, we are not concerned with possible errors committed *667by the court during the trial of the cause, as upon the admission or the construction of writings offered in evidence, or instructions to the jury, or anything of that kind. The opposition to the collection of a judgment of a sister state by an action in this state cannot be carried to the extent of constituting our courts appellate tribunals to correct the possible errors of the California court. No appeal lies from the courts of that state to the courts of Oregon. When the final judgment was rendered there it became final everywhere. It meets the threefold test of: (1) jurisdiction over the subject matter or right to hear and determine the kind of case involved; (2) jurisdiction over the defendant’s person by service of process upon him and his actual personal appearance and participation in the trial of the action; and (3) a judgment pertinent to the issues made by the pleadings in the California litigation. If errors were committed in the trial there, the defendant must find his remedy in his appeal to the courts of that state. We cannot give them attention. The result is that the judgment of the Circuit Court must be reversed and the cause remanded for further proceedings.

Reversed and Remanded. Rehearing Denied.

McBride, C. J.} and Benson and Johns, JJ., concur.