Rigler v. McClure

189 Mo. App. 710 | Mo. Ct. App. | 1915

NORTONI, J.

This is a suit for the reasonable value of the services of a physician and surgeon. Plaintiff recovered, but the court set the verdict aside. From this order plaintiff prosecutes the appeal.

Plaintiff is a practicing physician in the city of St. Louis, and it appears defendant, Mrs. Emma McClure, called him to treat her sister, Daisy Wallis, who •was a married woman too. The evidence tends to prove that Mrs. Wallis, whose husband was a soldier in the Philippines at the time, was quite sick at the home of her sister in St. Louis, and defendant called upon plaintiff to treat her.

There is an abundance of evidence on the part of plaintiff tending to prove that defendant, Mrs. McClue, became personally responsible to him for the reasonable value of the'serviees rendered. On the part of defendant, there is evidence, too, tending to prove that no personal responsibility was assumed, except to pay for the first visit. Among other things, defendant sought to establish that plaintiff did not look to her for his compensation, but rather to Berthel Wallis, the husband of her sister, the patient. To this end, it is asserted that plaintiff instituted a suit in a court of a justice of the peace in East St. Louis, Illinois — that is, in St. Clair county in the latter State —and recovered a judgment against Berthel Wallis for the same services sued for here, in the amount of $200. It was sought to show this by the introduction in evidence of a certified copy of the docket of the justice, but the court excluded it on objection, because not properly authenticated in accordance with the Act of Congress touching foreign judgments. After the document was excluded, defendant’s counsel offered to prove that he was present when the transcript was made and that the transcript is a true copy of the original record in the case, according to the records of the justice, E. P. Williams, East St. Louis, St. Clair county, Illinois, and this offer the court excluded as well. The jury having found the issue for plaintiff, the court sustained defendant’s motion for a new trial and set the verdict aside on the ground, according to the order entered of record, that it erred “in excluding the evidence offered by defendant to prove that plaintiff brought suit and obtained judgment against Berthel Wallis.”

The sole question for consideration relates to the ruling of the court in setting the verdict aside because it excluded the evidence offered by defendant pertaining to the suit and former recovery before a justice of the peace in St. Clair county, Illinois, on what is said to be the identical cause of action involved here. The evidence offered concerning this matter consists of a copy of the entries from the docket of E. P. Williams, who, it is said, is a justice of the peace of St. Clair county, Illinois. The document mentioned is subscribed and certified to by “E. P. Williams, Justice of the Peace” as “a true and correct transcript of the judgment given by me in the above entitled suit, and that the said transcript, and the papers herewith accompanying contain a full and perfect statement of all the proceedings before me, in the above entitled cause.” Accompanying this document and annexed thereto is a certificate of E.. F. Winkler, clerk of the county court in and for St. Clair county, Illinois, which in due form certifies that E. P. Williams, Esquire, whose name is subscribed thereto, is a justice of the peace duly qualified and acting in St. Clair county of that State and was at the time involved here.

There can be no doubt that the court properly excluded the document so offered, and this is true though the purported transcript of the docket entries and judgment of the justice in the case of Rigler v. Wallis was accompanied by the certificate of the clerk of the county court. The judgment of a justice of the peace, it seems, is not within the Act of Congress as to the authentication of records of the courts of the several States, for the reason that snch court is without a clerk and seal. Then, too, the certificate and seal of the clerk of the county court attached to the transcript is without probative force here, for the reason that the courts of this State may not take judicial notice of the signatures of the clerks of the courts of other States nor of their official seals nor receive them as evidence when not proven as the statute requires.

But though such be true, the court evidently set the verdict aside and awarded a new trial because defendant's counsel offered to prove the judgment of the justice otherwise — that is, by the evidence of a witness who had examined the original docket and compared the transcript therewith. It is said the Act of Congress concerning the authentication of records of a foreign jurisdiction to be given in evidence in another State is not exclusive, in that the common-law method of proving a judgment of a justice remains intact. In this view, the judgment of a justice of the peace of another State may be proven by the oath of witnesses who have compared the copy produced in evidence with the original — that is, by the common-law method — as was declared by this court in Etz v. Wheeler, 23 Mo. App. 449. But the common-law method of proof in respect of such matters is not satisfied by the mere showing of the fact that the transcript has been compared with the original docket entries and found to be correct, for the court of a justice of the peace is universally regarded as an inferior tribunal of limited-statutory jurisdiction, in favor of which the usual presumptions do not obtain. Therefore, in order to prove a competent judgment given by such court establishing an indebtedness, it is essential to show, too, that by the laws of the sister State the justice of the peace was possessed of jurisdiction in the premises — that is, over the subject-matter — and also, by other competent evidence, jurisdiction over the person as well. [See Winham v. Kline, 77 Mo. App. 36, 44.] Here, there was not only no evidence given, bnt none offered, tending to prove that service was had on defendant in the alleged justice judgment — -that is, Berthel Wallis — or that the justice of the peace in any wise possessed jurisdiction over his person.- Neither was there evidence given of any character tending to prove that a justice of.the peace in the State of Illinois and according to its laws possesses jurisdiction over the subject-matter of such an action.

Furthermore, if this judgment be received in evidence, it constitutes no defense to the suit here on an actual contract of the present defendant to compensate plaintiff for his services. It is to he inferred from the record that the judgment, if any were recovered against Berthel Wallis, was had on the implied obligation of the husband to compensate for the necessaries of the wife. If this be true, then, of course, the cause of action here sued on — that is, the contract of defendant to pay plaintiff for the services — is not identical in all respects with the implied obligation of the husband. Even if Berthel Wallis, the husband, and the present defendant were joint debtors, as by contract, under our statute the obligation to pay would be joint and several and in such circumstances plaintiff could sue either or both for the debt, as he might elect to do. In event of a recovery on such joint and several contractual obligation against one of the joint debtors, the mere judgment introduced in evidence without showing its satisfaction as well would constitute no defense to a suit against the other joint debtor. The principle is well established and not open to question. [See Armstrong v. Prewitt, 5 Mo. 476; Phoenix Mut. Life Ins. Co. v. Landis, 50 Mo. App. 116; 24 Am. & Eng. Ency. Law (2 Ed.) 763; see, also, Knox County Saving's Bank v. Cottev, 70 Mo. 150.] In the case last cited the plaintiff had obtained a judgment against one of two joint debtors and at his suit against the other joint debtor on the same cause of action it was declared the judgment so recovered was not to be received in evidence in defense. In such, cases, the law is concerned rather with the satisfaction of the debt than with the mere recovery of the judgment therefor. Obviously the principle obtains here as well and no effort whatever was made to show that the alleged judgment agains! Berthel Wallis had been satisfied. This being true, the court erred in granting a new trial and setting the verdict aside in order to receive the evidence offered, for it was insufficient.

The judgment should, therefore, be reversed and the cause remanded with directions to the trial court to reinstate the verdict and enter judgment thereon. It is so ordered.

Reynolds, P. J., and Allen, J., concur.