Smith v. Kander

58 Mo. App. 61 | Mo. Ct. App. | 1894

Smith, P. J.

This is a suit on a duly authenticated . copy of a judgment rendered by a court of general jurisdiction within the state of Wisconsin. The plaintiff’s petition set forth the judgment, which is as follows: “This action being at issue and having tried on the issues of fact before the Honorable David W. Small, judge of this court, and a jury on the twenty-fourth and twenty-fifth days of February, A. D. 1881, and the verdict of the jury having been entered whereby they find for the plaintiff, and that the plaintiff is the owner of and entitled to the possession of the property described in the complaint, ¿nd that the defendant unlawfully withheld and still withholds the same from the plaintiff, and assess plaintiff’s damages at the sum of $190, and find the value of said property to be one hundred and ninety ($190) dollars.

“Now upon motion of Geo. W. and Charles W. Lakin, attorneys for plaintiff, it is hereby adjudged that Jesse W. Walker, the plaintiff, do have and recover of the defendant the possession of the said property described in the complaint, if delivery thereof can be had; and in case a delivery thereof can not be had, then that said plaintiff recover of said' defendant the value thereof, to wit: The sum of $190, together with the aforesaid sum of $190 damages, together with the sum of $92.31 costs and disbursements, amounting in the. whole to the sum of $472.31.”

The answer of the defendant denied there was a record of the judgment.

At the trial the plaintiff offered in evidence a duly authenticated copy of the record of the proceedings and judgment together with section 2888, chapter 128 of the Revised Statutes of Wisconsin, 1878, page 765. To the introduction of which defendant objected on the ground that the petition did not state facts sufficient to constitute a cause of action and on the further ground that the judgment was in the alternative. This objection being by the court sustained plaintiff asked leave to amend his petition by striking out that part as to the return of the property so as to limit his recovery to the damages and costs which the record showed were adjudged to him by the Wisconsin court. This request was by the court refused. The judgment was for defendant and plaintiff has appealed.

The act of congress in relation to the authentication of records provides the manner in which the judicial records and proceedings of the courts of any state shall be proved or admitted in any other court within the United States and when so authenticated they shall have such faith and credit given them in every court within the United States as they have by law or usage in the courts of the state whence the said records shall be taken. Kincaid v. Storz, 52 Mo. App. 564.

The judgment was rendered in conformity with the express requirements of the statute of Wisconsin (R. S. (Wis.), section 2888), and is unexceptionable in form and substance. Heeron v. Beckwith, 1 Wis. 17; Smith v. Phelps, 7 Wis. 211; Rose v. Tolley, 15 Wis. 443. Judgments are revived in that state by civil action, instead of by scire facias. R. S. Wis. 1878, secs. 2916, 3463; Ingraham v. Champeon, 54 N. W. Rep. 398. If an action could be brought on the judgment in the-state where rendered, then manifestly it could be-brought here where there is jurisdiction of the person of the defendant.

The proper action on a foreign judgment at law for the sum awarded by it, is that of debt. Brisbane v. Dobson, 50 Mo. App. 170. But it is contended by the defendant that the judgment sued on is in the alternative and therefore it will not support an action of debt. The Wisconsin statute, like that of our own state, does not require that the judgment of return of the property shall fix a time in which it is to.be made and if not complied with, the money judgment to become operative. Cobby on Replevin, ch. 35, sec. 1122, p. 641, and 37, sec. 1188, p. 678; Wells on Replevin, ch. 24, sec. 778, p. 418; McClelland v. Marshall, 19 Iowa, 562. The true rule no doubt there as here is, that the time for the return of the property adjudged is fixed by the law to be a reasonable time under all the circumstances. What is a reasonable time would depend upon the particular circumstances of any particular case; such as, for example, the kind and situation of the property, and the like. A court would be warranted in declaring as a-matter of law that where a judgment had been rendered more than ten years before the commencement of suit on it in another jurisdiction that the reasonable time accorded to defendant to exercise the alternative right to return the property under it had expired. Skeen v. S. E. & T. Co., 34 Mo. App. 485; Gammon v. Abram, 53 Wis. 323; Williams v. Porter, 40 Wis. 423. After the expiration of a reasonable time in which the defendant may return the property the money judgment for the value of the property becomes absolute and certain. It would be absurd to say that where a suit is brought on a statutory judgment in replevin for the entire amount of damages adjudged by it, that the defendant who has neither returned the property nor paid the value thereof can be heard, ten years after its rendition, to defend on the ground that the judgment is in the alternative and that he may still return the property.

On the face of the judgment after such a period it must be conclusively presumed that return of the property can not be had, and that, therefore, it must be regarded as only a money judgment which, of course, will support the action of debt. The alternative feature in such case is as if it had never been.

In Thorner v. Batory, 41 Md. 593, it was held that a judgment which had been rendered by a court of .the state of Tennessee to the effect “that the plaintiff return said goods to the defendants, and if he failed to do so, that the defendants recover of plaintiff andH. C. Jackson, his security, in the replevin bond, the value of the goods as found by the jury,” was not such as one of the courts of that state could carry into effect by a like judgment there. The grounds upon which this decision was placed were, that the action was debt, and to render a judgment for a certain sum of money, the only judgment that could be rendered would take away from the defendant the right he had under the Tennessee judgment to satisfy it by returning the property, and to that extent would work an unauthorized change ■of the rights of the parties.

But whatever may be the rule in respect to alternative and conditional judgments, it can have no application to the judgment on which this action is based, for upon its very face the alternative, that possibly would otherwise render it not actionable, is shown to have expired by lapse of time, or in other words the right to return the property, which was stated to exist in the Maryland case just referred to, can not be invoked by defendant in this case on account of the great length of time that has elapsed since its rendition.

The petition stated a good cause of action, and no valid reason is perceived why the record of the judgment offered in evidence was not admitted to prove the ■cause of action plaintiff alleged.

The judgment will be reversed and the cause remanded.

All concur.