Thompson v. Cook

| Iowa | Oct 16, 1866

Dillon, J.

1. judgment: entry. I. The first question made by the defendant is, that the judgment declared on ivas not rendered by the court but by the cleric, thereof, and it is claimed that this is shown upon the face of exemplified record.

We have examined the record with care, and do not find this objection sustained in point of fact. The entry, after giving the name of the court, the title of the cause, reciting the service upon the defendant and his failure to appear or plead, proceeds:

“Now, on motion of T. M. W., plaintiff’s attorney, it is hereby adjudged that William Langs, the plaintiff, do recover of Wm. E. Cook, the said defendant, the sum of, &c. (Indorsed) W. N., Cleric.”

The petition alleged that the judgment in suit was duly rendered by the said court, and nothing in the copy of the record of the proceedings (made part of the petition) negatived or disproved this allegation, and hence this ground of demurrer was properly overruled.

2. piBADiiis: assignment, II. The judgment declared on was rendered in favor of one William Langs. The present action is brought by Alexander Thompson and Marion H. Webber, petition alleges in due form the recovery of judgment by the said Langs, its amount, the name of tbe court, that it remains in full force and unpaid; and then follows this allegation: “Which said judgment has now become the property of your petitioners. Wherefore they ask judgment,” &c. There is no written assignment of the judgment from Langs to the present plaintiff in the exemplified copy of the New York judgment, and no such assignment is alleged.

One ground of demurrer to the petition was, that said New York “record shows no right in plaintiffs to bring this, action.”

The allegation that the judgment had become the property of the plaintiffs was the allegation of a legal conclusion rather than of a fact. Upon motion the plaintiffs could have been compelled to state how they became the owners of the judgment; that is, to plead the facts which in law made them the owners of the judgment. But a defect of this character could not be reached by demurrer. Rev., § 2876; Cole v. Cottle, ante.

The other objections taken by the' demurrer are not insisted upon by the appellant in his argument, and therefore we do not deem it necessary to notice them.

Affirmed.