Rogers v. Hatch

8 Nev. 35 | Nev. | 1872

By the Court,

Whitman, J.:

Appellant first objects to the capacity of respondent to sue, he being a foreign administrator without grant of letters in and for this State. The objection fails in this case, as he sues on a judgment previously obtained, and the suit is in reality one personal. As was said in a like case upon a similar objection: ‘' Here the action is on a judgment already recovered by the plaintiff, and it might have been brought by him in his own name, and not as administrator; for the debt was due to him, he being answerable'for it to the estate of the intestate; and it ought to be considered as so brought, his style of administrator being simply descriptive, and not being essential to his right to recover. It is important to the purposes of justice that it should be so, for an administrator appointed here could not maintain an action upon this judgment, not being privy to it. Nor could he maintain an action upon the original contract; for the defendants might plead in bar the judgment recovered against them in New York. The debt sued for is, in truth, due to the plaintiff in his personal capacity; for he makes himself accountable for it by bringing his action, and he may well declare that the debt is due to himself.” Talmadge, Admr. v. Chapel et al., 16 Mass. 71. See, also, Story’s Conflict of Laws, Sec. 522.

The only other error assigned is the refusal of the district court to admit the record offered to prove the pendency of an appeal to the supreme court in California from the judgment here in suit rendered in one of its district courts. The paper showed on its face that the only bond given upon such appeal was for costs. There is no proof here of the laws of California in such case, so it must be presumed that, as in this State: “ If the appeal be from a judgment or order directing the payment of money it shall not stay the execution of the judgment or order unless a written undertaking .be executed on the part of the appellant. * * * ” Stats. 1869, Sec. 342. And in that view this case will be .considered, which at once reduces the question to the simple proposition, whether a bare appeal from the district court to thé supreme court, under the statute, vacates the judgment, or so suspends its vitality that it cannot be sued on in a foreign country during the pendency of such appeal.

No doubt many cases can be found which, in general terms, support the affirmative of this issue, but upon examination they will in most instances be seen to be founded upon statutes different from that of this State, and which make an appeal an entirely different matter in its effect; or else that the language used is rather dictum than decision, as in Sherman v. Dilley, 3 Nev. 21. The rule is very well stated thus: “ The plaintiffs finally claim that the judgment in New York is set aside or suspended by the appeal from it to the court of appeals of that state, and that it therefore constitutes no defense in this suit. The effect of that appeal depends upon the character of the jurisdiction of that court. If, by the laws of New York, a case carried before it by appeal is to be retried by it as upon original process in that court, and it has jurisdiction to settle the controversy by a judgment of its own, and to enforce that judgment by its own process, the appeal, like an appeal under our statutes from a justice of the peace to the superior court, would vacate the judgment of the inferior tribunal. Curtis v. Beardsley, 15 Conn. 518; Campbell v. Howard, 5 Mass. 376. But if the appeal is in the nature of a writ of error, and only carries up the case to the court of appeals as an appellate court for the correction of errors which may have intervened on the trial of the case below, and for its adjudication upon the question whether the judgment appealed from should be affirmed, reversed, or modified, and that court has no other powers or duties than to affirm, reverse, or modify that judgment, or remit the case to the inferior tribunal that it may conform its judgment to that of the appellate tribunal, then such appeal, like an appeal under our laws, from the probate court to the superior court, does not vacate or suspend the judgment appealed from; and the removal of the case to the appellate court would no more bar an action upon the judgment than the pendency of a writ of error at common law, when that was the proper mode of correcting errors which may have occurred in the inferior tribunal. That such an action would not be barred by the pendency of such a proceeding is well settled. The judgment below is only voidable and stands good until set aside. Case v. Case, Kirby, 284; Sloan's Appeal from Probate, 1 Root, 151; Curtis v. Beardsley, 15 Conn. 523. By a reference to the laws of New York, and the decisions of that state, to which we have been referred, it clearly appears that the appeal now in question did not carry up the matter in controversy, in the case in which it was taken, to be retried in the court of appeals, as upon original process, but only presented the case to that tribunal for its revision, and that it had no jurisdiction except to affirm, reverse, or modify the judgment appealed from, and remit the case to the inferior tribunal. It was accordingly held, and in our opinion correctly, by Judge Nelson, in the United States Circuit Court for this district, at its September term, 1854, in Seeley v. Pritchard, that, under the laws and practice of the state of New York, a judgment was not impaired by an appeal, but that an action of debt was sustainable tbereon while tbe appeal was pending.” Bank of North America v. Wheeler, 28 Conn. 423. See, also, Suydam v. Hoyt, 1 Dutcher N. J. 231; Burton y. Reeds, 20 Ind. 87; Nile v. Compant, 16 Ind. 107.

Tbe Supreme Court of tbis State under our statute, presumably that of California under its, stands on tbe same plane with tbe New York court of appeals as described in tbe citation; and consequently it follows, that tbe appeal to tbe supreme court of California did not impair tbe effect of tbe judgment; and tbat so far as tbat point is concerned, tbe present action could be properly maintained tbereon. Tbe evidence offered then would have been, as objected, immaterial; it could not bave served to prove any matter directly or indirectly defensive; so it was properly rejected.

Tbe judgment and order appealed from are affirmed.

Garber, J., did not participate in tbe foregoing decision.