34 Mo. 172 (Mo. 1863), Baker v. Stonebraker

Citation:34 Mo. 172
Opinion Judge:BATES, Judge,
Party Name:JOHN BAKER, Plaintiff in Error, v. JOHN STONEBRAKER et al., ADM'RS OF JOHN S. STONEBRAKER, Defendants in Error.
Attorney:Lewis and Alexander, for plaintiff in error. Krekel and Orrick, for defendants in error.
Court:Supreme Court of Missouri
 
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Page 172

34 Mo. 172 (Mo. 1863)

JOHN BAKER, Plaintiff in Error,

v.

JOHN STONEBRAKER et al., ADM'RS OF JOHN S. STONEBRAKER, Defendants in Error.

Supreme Court of Missouri.

October Term, 1863

Error to St. Charles Circuit Court.

Lewis and Alexander, for plaintiff in error.

I. The written assignment of the judgment by Fowler and Rogers to plaintiff was valid, and sufficient to authorize plaintiff to sue thereupon. It is not affected by the statute of this State, R. C. 1855, p. 907, § 38. That statute was first enacted Dec. 1, 1855; the assignment bears date Oct. 27, 1848. Nor is it affected by the statute of Maryland. That statute is to compel assignments of judgments in a certain class of cases; it has no reference to voluntary assignments of them in any other sort of cases. The assignability of the judgment, like that of any other chose in action, being thus left as at common law, in the shape of an equitable transfer of the right to control it, there remains no tenable objection to the sufficiency of the instrument offered in evidence with the proof of its execution. ( Laughlin v. Fairbanks, 8 Mo. 367; Love v. Fairchild, 13 Mo. 300, 305; Garland v. Harrison, 17 Mo. 282, 284; Ford v. Stewart, 19 Johns 342; Clark v. Moss, 11 Ark. 736; Weir v. Pennington, 11 Ark. 745; Becton v. Ferguson, 22 Ala. 599.) The competency as a witness of Fowler, the assignor, to prove the assignment itself, is unquestionable. ( Caldwell v. Garner, 31 Mo. 131, 136.) The assignment of the judgment being established, it was necessary under our practice for the assignee to sue thereon in his own name. (R. C. 1855, p. 1217, § 1; Walker v. Mauro, 18 Mo. 564; Smith v. Scheibel, 19 Mo. 140; Van Doren v. Relfe, 20 Mo. 455; Burson v. Blair, 12 Ind. 371, 373.)

II. The entry in the record of defendant's appearance by attorney is sufficient prima facie to show that the court had jurisdiction of his person. This is all that is required in the present case, since the defendant offered no proof whatever to rebut the presumption. There is some conflict among the authorities as to whether such an entry is conclusive and may not be disproved, or whether it may be met by the defendant with proof to the contrary. But all agree, that, if not disproved, it is conclusive of the court's jurisdiction over the person of the defendant. ( Warren v. Lusk, 16 Mo. 102; Field v. Gibbs, 1 Pet. C. C. R. 155; Newcomb v. Brown, 17 Vt. 302...

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