91 P. 269 (Utah 1907), 1839, Hunt v. Monroe

Docket Nº:1839
Citation:91 P. 269, 32 Utah 428
Opinion Judge:FRICK, J.
Party Name:HUNT v. MONROE
Attorney:W. W. Little and M. E. Wilson for appellant. Goodwin & Van Pelt for respondent.
Judge Panel:FRICK, J. McCARTY, C. J., and STRAUP, J., concur. McCARTY, C. J., and STRAUP, J., concur.
Case Date:June 29, 1907
Court:Supreme Court of Utah

Page 269

91 P. 269 (Utah 1907)

32 Utah 428

HUNT

v.

MONROE

No. 1839

Supreme Court of Utah

June 29, 1907

APPEAL from District Court, Salt Lake County; M. L. Ritchie, Judge.

Action by Herbert L. Hunt against Charles H. Monroe on a foreign decree for maintenance rendered in a divorce suit. From a judgment for plaintiff, defendant appeals.

REVERSED, WITH DIRECTIONS TO SUSTAIN THE DEMURRER TO THE COMPLAINT.

W. W. Little and M. E. Wilson for appellant.

APPELLANT'S POINTS.

The plaintiff is a mere officer or agent of a court of a foreign state; a quasi guardian. As such he has no capacity to sue in his own name in the courts of this state. He is not a trustee of an express trust. As an illustration of his capacity: Ex parte Gordon (Cal.), 30 P. 516; Simpson v. Simpson, 80 Cal. 237, 22 P. 167. He cannot sue in a foreign state: Mining & Mfgr. Co. v. Harris, 198 U.S. 561; Curtis v. Smith, 6 Blatch. (U.S.), 537, 6 F. Cases, 3505.

There is no allegation in the complaint that the judgment or decree ordering money to be paid by the defendant to the plaintiff, for the use and benefit of the children is not subject to revision or modification by the court in which it was rendered; therefore said judgment or decree is not final and cannot constitute the basis of an action in the courts of this state. (Page v. Page [1905], 189 Mass. 85, 75 N.E. 92, 4 A. E. Am. Cases, 296; Lynde v. Lynde [1901], 181 U.S. 183, 45 L.Ed. 810; Lynde v. Lynde [1900], 162 N.Y. 405; 48 L. R. A. 679.)

The Colorado judgment upon which this action is based is void for the reason that it was rendered in favor of a stranger to the action between Charles H. Monroe and Mary L. Monroe. (Sharon v. Sharon, 75 Cal. 38, 16 P. 345; Jensen v. Hyde [Colo. App.], 44 P. 760; Dunlap v. Sutherlin, 63 Tex. 38.) If any cause of action is stated in the complaint, it is one in favor of Mary L. Monroe, and not in favor of the plaintiff, Herbert L. Hunt. (Page v. Page, 189 Mass. 85, 75 N.E. 92, 4 A. E. Ann. Cases, 296; Jensen v. Hyde, 44 P. 760; Ex parte Gordon [Cal.], 30 P. 516.) This court must presume that the law of Colorado is the same as our own. (Leather Co. v. Bank, 9 Utah 87; Dignan v. Nelson, 26 Utah 186.) It cannot take judicial notice of that law. (Hanley v. Donoghue, 116 U.S. 29 L.Ed. 535; Railroad v. Wiggins, 119 U.S. 615, 30 L.Ed. 519.)

Whether we are guided by the general character of such decrees; or by the law of Utah; or even by the law of Colorado; it is undoubtedly true that they are subject to revision or modification by the court of rendition. (Read v. Read, 28 Utah 297; Whitmore v. Harden, 3 Utah 121; Stevens v. Stevens [Colo.], 72 P. 1061; Page v. Page, 189 Mass. 85, 4 A. E. Ann. 296.)

If he is an agent then of course he cannot sue, we need not discuss this subject. If, however, he is either a guardian or quasi receiver in either event his capacity is that which was vested in him by a foreign court. This certainly affirmatively appears that he does not rely upon any domestic authority. but affirmatively relies upon the authority given him by the court of a foreign state. Under such circumstances the demurrer is certainly sufficient. (D'Auxy v. Porter, 41 F. 68; Black v. Allen, 42 F. 618; Railroad v. Brantly, 96 Ky. 287; Rhorer v. Land Co., 103 Ky. 146; Swing v. Lumber Co., 65 N.W. 174; Land Co. v. Hoag, 62 P. 189; Beach on Receivers, sec. 698; Bliss on Code Pleading, sec. 261, et seq.)

Goodwin & Van Pelt for respondent.

RESPONDENT'S POINTS.

A demurrer for want of capacity to sue, must be directed to some disability of plaintiff appearing upon the face of the complaint. It does not appear that plaintiff is an infant, an alien enemy, that he sues as a corporation without charter or as an executor without letters. (Pomeroy on Code Remedies, sec. 208; Bliss on Code Pleading, sec. 407; Miller v. Luco, 22 P. [Cal.], 195; District No. 110 v. Feck, 60 Cal. 405.)

"A demurrer to a complaint on the ground that the plaintiff has no legal capacity to sue has reference only to some legal disability and not to the fact that the complaint does not show a right of action in the plaintiff." (Campbell v. Campbell, 121 Ind. 178, 23 N.E. 81.

Under a general demurrer, a defect of parties cannot be considered. If defendant wished to attack the complaint upon that ground, he should have demurred specially upon the fourth statutory ground of demurrer. Not doing so he has waived the objection. (Bliss on Code Pleading, sec. 411; Henderson v. Turngren, 9 Utah 432.)

There is however, no defect of parties. At common law the action upon a judgment is either assumpsit or debt. The judgment in Colorado must be deemed a contract made for the benefit of the children in the name of Hunt. (Post v. Neafie, 3 Cai. [N.Y.] 22; 3 Bl. Com., 160; Sawyer v. Vilas, 19 Vt. 43; Morse v. Toppan, 3 Gray 411; McGuire v. Gallagher, 2 Sandf. 402; Humphrey v. Persons, 23 Barb. 313; Taylor v. Root, 3 Keys [N.Y.] 344; Johnson v. Butler, 2 Iowa 283; Reed v. Eldredge, 27 Cal. 348; Stuart v. Landers, 10 Cal. 372; Childs v. Harris Man. Co., 68 Wis. 231; Weaver v. Lapsley, 43 Ala. 224; 1 Pars. on Contracts, 7.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

Page 270

[32 Utah 431] FRICK, J.

The plaintiff, respondent in this court, filed his complaint in the district court of Salt Lake county, in which the following facts are alleged: "That at all the times hereinafter mentioned the district court, city and county of Denver, Second [32 Utah 432] judicial district, in and for the state of Colorado, was a court of general jurisdiction, duly created and organized by the laws of that state. That prior to the 27th day of August, 1902, an action for divorce had been duly commenced by Charles H. Monroe (the defendant herein) against one Mary L. Monroe in said court by the personal service of process on the defendant, and thereafter said defendant duly appeared in said cause by her attorney. That thereafter, and on the 27th day of August, 1902, both said parties appeared in open court, and such proceedings were then and there had that a judgment and decree was duly given and made by said court in favor of the plaintiff, dissolving the bonds of matrimony between the said plaintiff, Charles H. Monroe, and the defendant, Mary L. Monroe, and granting to said defendant, Mary L. Monroe, the sole care and custody of the two minor children of said parties, to wit, Edward T. Monroe, aged twelve years, and Mary C. Monroe, aged fifteen years. That in and by the terms of said judgment and decree it was further adjudged and decreed that the said plaintiff, Charles H. Monroe, pay to the plaintiff herein, Herbert L. Hunt, for the use and benefit of said minor children, the sum of $ 10 each per month, payable each and every month, from the date of said decree until each of said children should become of the age of eighteen years. That there became due and payable to said plaintiff, for the use and benefit of said minor Mary C. Monroe, prior to becoming eighteen years of age on the 11th day of November, 1904, the full sum of two hundred and sixty-five dollars ($ 265.00), no part of which has been paid except the sum of thirty dollars, ($ 30.00) paid thereon on or about the month of April, 1903. That there is now due and payable to the plaintiff for the use and benefit of said minor Edward T. Monroe, the full sum of five hundred and three dollars, ($ 503.00), no part of which has been paid, except the sum of thirty dollars ($ 30.00), paid thereon on or about the month of April, 1903. That said minor Edward T. Monroe will not become eighteen years of age until the 21st day of May, 1908. That pursuant to the terms of said judgment and decree said defendant in said action, Mary L. [32 Utah 433] Monroe, took the sole care and custody of said two minor children, and has ever since kept and retained the same, and has by her own labor and effort kept, maintained, and educated the said children without any assistance from the said Charles H. Monroe, except the sum of sixty dollars ($ 60.00), as stated in paragraph No. 3. That said Mary L. Monroe has no property, and is dependent solely upon her own labor for her support, and the support and maintenance of said minor children."

Upon the foregoing allegations respondent prayed judgment for the amount of alimony that had accrued up to the time of filing the complaint, and for such additional sum as would become due under the terms of the decree before final judgment in the action, and for costs. To this complaint the defendant, appellant in this court, appeared and filed a demurrer, basing it upon two grounds, to wit: (1) That it appears from the complaint that the plaintiff has not legal capacity to sue, for the reason that upon the face of the complaint it appears that the plaintiff is not the real party in interest; and (2) that the complaint fails to state sufficient facts to constitute a cause of action. The demurrer was overruled, and, the appellant...

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