Angle v. Manchester

• Decision Date: 01 July 1902
• Citation: 3 Neb. [Unof.] 252,91 N.W. 501
• Parties: ANGLE v. MANCHESTER.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 252

91 N.W. 501

ANGLE

v.MANCHESTER.

Supreme Court of Nebraska.

July 1, 1902.

Commissioners' opinion. Department No. 2. Error to district court, Valley county; Letton, Judge.

“Not to be officially reported.”

Action by Elmer M. Angle against Iram Manchester. Judgment for defendant, and plaintiff brings error. Reversed.O. A. Abbott and H. E. Olson, for plaintiff in error.

Babcock & Babcock, Hall & Johnson, and Clements Bros., for defendant in error.

OLDHAM, C.

This was an action to recover a balance alleged to have been due on a judgment entered, by the prothonotary of the court of common pleas of the state of Pennsylvania, on what is known to the laws of that state as a judgment note. The note was dated April 20, 1889, for $3,000, and was due in five years, and was payable to S. A. Wheaton, and was executed and delivered to him, for borrowed money, by the defendant, Iram Manchester. The day after the note was delivered, the payee filed the same with the prothonotary (or clerk) of the court of common pleas of Bradford county, Pa., who entered judgment on the note, apparently, in conformity with the laws and rules of practice of the courts of that state. This judgment appears to have been revived on the 23d day of March, 1894, by what is known to the laws of that state as an “amicable scire facias.” On March 26, 1897, this judgment was assigned to the plaintiff in this cause of action in the court below, and who is also the plaintiff in error in this court. On March 29, 1897, an execution appears to have been issued on this judgment, and certain lands owned by defendant, Manchester, situated in Bradford county, Pa., appear to have been sold under the execution, and the proceeds of such sale, amounting to $1,800, were applied upon the judgment and costs in the Pennsylvania court. Plaintiff's cause of action was instituted to recover the balance claimed to be due on this alleged judgment.

In the petition, the laws of the state of Pennsylvania authorizing a judgment procured in the manner herein set forth are properly pleaded. Defendant, in his answer to plaintiff's petition, admitted the execution of the note on which the judgment was claimed to have been rendered, but denied that any valid judgment had been rendered on said note by any court having competent jurisdiction either of the subject-matter of the controversy or of the person of the defendant. Defendant then proceeded, by way of counterclaim, to allege various causes of action against plaintiff in connection with this transaction, the substance of which seemed to be that the defendant had appointed the plaintiff his agent to pay off the judgment, or, according to his theory, the note which S. A. Wheaton held against defendant in Pennsylvania, and that defendant relied upon the plaintiff to faithfully perform his agency, but that, instead of doing this, plaintiff had the pretended judgment assigned to himself, and wrongfully caused an execution to issue, against defendant's property in Pennsylvania, of the value of $5,000, and caused the same to be sacrificed at forced sale for the pittance of $1,800. The other cause of action attempted to be set up in defendant's counterclaim was for the alleged injury to plaintiff's business reputation by false and slanderous reports, said to have been circulated by plaintiff, affecting the financial solvency of defendant among his old friends and business associates in the state of Pennsylvania. For all these injuries, defendant prayed judgment against the plaintiff in the sum of $7,100. Plaintiff replied to the new matter in defendant's answer by a general denial. Trial was had to a jury; there was a verdict for the defendant for $2,820.30. The lower court found this verdict to be excessive, and directed a remittitur of $1,865.80 of said amount, and, the defendant having offered in open court to remit said sum, such remittitur was accordingly entered, and judgment was rendered in favor of defendant, and against plaintiff, for the sum of $945.55, and plaintiff brings error to this court.

To arrive at a correct solution of the numerous and confused propositions presented for our consideration in this record, we must determine, if possible, the proper standing of each of the litigants under the issues presented by his pleadings, and the proof offered in support of his allegations. Plaintiff relies on an interstate judgment procured in a manner unknown to the laws and rules of practice of the courts of the state of Nebraska. In his petition, however, he alleges the laws of the state of Pennsylvania, which authorize and validate his judgment, but in the record before us he utterly fails to introduce any proof of any kind tending to show the laws of Pennsylvania on which he must rely to support the validity of his judgment. In the case of Snyder v. Critchfield, 44 Neb. 66, 62 N. W. 306, this court, in discussing a judgment rendered on the power of attorney contained in a judgment note in the state of Pennsylvania, says: “It must be remembered that judgments on notes of this character are not known to the jurisprudence of our state, and that, the notes having been made in Pennsylvania and the judgment there rendered, the effect and validity of the contract must be determined by the law of Pennsylvania. What that law is, was a fact to be established by the evidence in this case.” See, also, Freem. Judgm. § 571; Thomas v. Pendleton (S. D.) 46 N. W. 180, 36 Am. St. Rep. 726;Teel v. Yost (Sup.) 5 N. Y. Supp. 5.

It might be suggested that, even if there is no proof in the record of the laws of Pennsylvania which authorize the judgment sued upon, there is still a good cause of action alleged in the petition on the note on which the judgment is claimed to have been rendered, and that, as the execution and delivery of the note are admitted by the defendant, plaintiff has established a good cause of action on the note, independent of the judgment. The answer to this is that plaintiff's petition contains but one count, and a single cause of action, and that cause of action is the alleged judgment rendered by the Pennsylvania court. While, in the description of the judgment, the note on which such judgment is claimed to have been based is fully set out in the petition, the petition further sets out the laws of Pennsylvania necessary to make the judgment a valid one, and further discloses the fact that an execution had been issued on this Pennsylvania judgment, and some of the defendant's property had been sold under such execution, and the proceeds thereof...