Barlow v. Steel

• Decision Date: 31 October 1877
• Citation: 65 Mo. 611
• Parties: BARLOW v. STEEL, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 611

BARLOW

v.STEEL, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Cooper Circuit Court.--HON. GEORGE W. MILLER, Judge.

Draffen & Williams for appellant.

I. The court erred in admitting in evidence the transcript of the record of the supreme court of Cattaraugus county, New York. It was not properly authenticatad, as there was no certificate of the judge, chief justice, or presiding magistrate of said court that the attestation of the clerk was in due form, and in the absence of anything showing that Cattaraugus county was in the fourth judicial department, the certificate to the record was insufficient.

II. The court erred in refusing to declare that the judgment sued on had been in full force for more than twenty years before the institution of this suit and was conclusively presumed to be paid. The judgment of the supreme court of Cattaraugus county admitted in evidence took effect from the date of the verdict of the jury, and the order for judgment thereon, to wit: February, 1852, and the subsequent entry in full of said judgment, in March, 1863, must necessarily have been a nunc pro tunc entry, and related back to and took effect as of the date of the rendition of said verdict. Groner v. Smith, 49 Mo. p. 318; Freem. Judgm. 20, § 38, p. 22 § 40; Gray v. Palmer, 22 Cal. 416; Genella v. Relyea, 32 Cal. 159; Fleet v. Youngs, 11 Wend. 522; Lee v. Tillotson, 4 Hill 29; Lex. and St. Louis R. R. Co. v. Mockbee, 63 Mo. 348.

III. This suit was not commenced until after the expiration of twenty years from the day of the rendition of said alleged judgment by the supreme court of Cattaraugus county, New York, and is presumed to be paid, and no action can be maintained thereon. 2 W. S. 921, § 31.

John Cosgrove for respondent.

I. The judgment record was properly certified and exemplified. “The attestation is in due form.” W. S. 1872, p. 1383, § 1; W. S. p. 598, § 51. The words “ in due form,” are conclusive. Grover v. Grover, 30 Mo. 403; Simons v. Cook, 29 Iowa, 324.

II. The court found as a matter of fact that the appellant was personally served with process, and appeared by attorney in the suit in the supreme court of New York for Cattaraugus county. The judgment record upon which this suit was brought, was entitled to “full faith and credit as to all of its findings.” Freem. Judgm. pp. 348 to 350, § 411-414. Blair v. Caldwell, 3 Mo. 354; Rennick v. Chloe, 7 Mo. 202; Warren v. Lusk, 16 Mo. 102; Marx v. Fore, 51 Mo. 69, 77; Edmonds v. Montgomery, 1 Iowa 143; Freem. Judg. 470, § 565.

III. The objection to the exemplification of the judgment record, that it did not appear “that Joseph Mullin was the judge, chief justice, or presiding magistrate of the supreme court of Cattaraugus county, New York,” is not well taken; there is no such court, in point of law, as the supreme court of Cattaraugus county. It is the Supreme Court of the State of New York, which holds its terms in Cattaraugus county, according to law. Joseph Mullin is the presiding justice of the 4th judicial department of the State of New York, and Cattaraugus county is a part of the fourth judicial department; this appears from the record. Laws of N. Y. 1870, Chap. 408, § 2 and 3. Revised Statutes N. Y. 6 Ed. Vol. 1, pp. 371 and 372, § 1 and 2. Constitution of New York, Art. 6, § 7.

IV. The entry of judgment in the supreme court of New York, March 24th, 1863, is not a nunc pro tunc entry. There is nothing in the record showing it to be such. To be a nunc pro tunc entry, it must appear as such on the face of the judgment. If so intended it should have been entered for the amount of the verdict, at the date it was found by the jury, and by omission of some kind not written out. Freem. Judgm. pp. 34, 96, 115.

V. The depositions read by respondent were in rebuttal of evidence of appellant. Davidson v. Peck, 4 Mo. 438; Gay v. Lloyd, 1 G. Greene, (Iowa) 78.

SHERWOOD, C. J.

Action on judgment alleged to have been recovered in the supreme court of Cattaraugus county in the State of New York, in March, 1863. Answer, general denial, and plea of nul tiel record; also that defendant had been a resident of the State of Missouri since 1850, and that no writ or process had ever been served on him, nor had he ever authorized an appearance to be entered for him, &c. Plaintiff replied.

The transcript offered in evidence is as follows:

People of the State of New York, by the grace of God [Seal] free and independent, to all to whom these presents shall come or may concern, Greeting:

Know ye that we having examined the records and files in the office of the clerk of Cattaraugus county, and clerk of the supreme court of said State for said county, do find a certain judgment roll there remaining in words and figures following, to-wit:

SUPREME COURT--COUNTY OF CATTARAUGUS:

Lorenzo Barlow,

)

against

)

Daniel C. Steel and

)

George W. Robinson.

)

The plaintiff desires the trial of this action, if any there be, to be had in the county of Cattaraugus.

To Daniel C. Steel and George W. Robinson, defendants: You are hereby summoned to answer the complaint of Lorenzo Barlow, plaintiff in this action, a copy of which you are herewith served, and to serve a copy of your answer on the subscriber at Randolph, Cattaraugus county, within twenty days after service of this summons, exclusive of the day of service; and if said defendants fail to answer said complaint as hereby required, the plaintiff will take judgment against said defendants for two hundred and sixty dollars and forty-two cents, with interest thereon from the 8th day of March, 1842, besides costs.

R. OWEN, Jr., Plaintiff's Attorney,

Randolph, Cattaraugus Co.

Here follows in said transcript copy of complaint in said original suit, and then follows copy of answer of said Steel, signed by J. E. Weeden as his attorney; then the following notice: Take notice that I am the attorney for the defendant Daniel C. Steel in the above entitled action. Dated Aug. 1, 1851. Yours, &c.,

TO R. OWEN, Jr.,

J. E. WEEDEN,

Plaintiff's Attorney.

Att'y for Def't Steel.

Here follows copy of the plaintiff's replication to the answer of said Steel; and then the following entries: At a special term of the supreme court and a circuit court held at the court house in the village of Ellicottville, in and for the county of Cattaraugus on the fourth Monday of September, 1852--present Hon. James Mullin, Justice,

Lorenzo Barlow,

)

against

)

Daniel C. Steel and

)

George W. Robinson.

)

On motion of R. Owen, Jr., of counsel for plaintiff, ordered: that a jury be empaneled in this cause and that the same proceed to trial. The jury, without leaving their seats, under the direction of the court say that they find for the plaintiff against the defendant Daniel C. Steel for four hundred and fifty-two dollars seventy-three cents, and that they find for defendant Robinson. On motion of R. Owen, Jr., ordered judgment accordingly.

SUPREME COURT,

Lorenzo Barlow,

)

against

)

Daniel C. Steel.

)

Stipulated that the plaintiff may take judgment upon the verdict in this action without further notice.

J. E. WEEDEN, Def't Att'y.

SUPREME COURT,

Lorenzo Barlow,

)

against

)

)

Judgment signed March 24, 1863.

Daniel C. Steel and

)

George W. Robinson.

)

This cause having been reached in its order on the calendar at the term of this court held at the court house in Ellicottville, Cattaraugus county, commencing on the fourth Monday of September, 1852, and the issues of the fact therein having been tried by a jury, and the jury having found a verdict for the plaintiff against the defendant Daniel C. Steel for the sum of four hundred and fifty-two dollars and seventy-three cents, and on reading and filing stipulation of defendant's attorney, on motion of Henderson & Wentworth, plaintiff's attorneys, it is adjudged by the court that the plaintiff Lorenzo Barlow recover of the defendant Daniel C. Steel, the sum of four hundred and fifty-two dollars and seventy-three cents, the amount of said verdict, together with interest thereon from the time of the rendering of said verdict to this date, being the sum of three hundred and thirty-two dollars and seventy-five cents; amounting in the whole to the sum of seven hundred and eighty-five dollars and forty-eight cents.

THOMAS A. E. LYMAN, Clerk.

All of which we have caused by these presents to be exemplified and the seal of our supreme court to be hereunto affixed.

Witness Hon. Joseph Mullin, presiding justice of the fourth judicial department, this 4th day of November, 1874, and of our independence the ninety-eighth.

A. E. NASH, Clerk.

I, Joseph Mullin, presiding justice of the fourth judicial department of the supreme court of the State of New York, do hereby certify that E. A. Nash, whose name is subscribed to the preceding exemplification is the clerk of said county of Cattarraugus, and clerk of said supreme court for said county, duly elected and sworn, and that full faith and credit are due to his official acts. I further certify that the seal affixed to the exemplification is the seal of our said supreme court, and that the attestation thereof is in due form.

J. MULLIN,

Presiding Justice, Fourth Judicial Department of the Supreme Court of the State of New York.

Dated, Nov. 13, 1874.

State of New York,

)

)

SS

Cattaraugus County.

)

I, Eugene A. Nash, clerk of the supreme court of said State, in and for the county of Cattaraugus, do hereby certify that Joseph Mullin, whose name is subscribed to the preceding certificate, is presiding justice of the fourth judicial department of the supreme court of the State of New York, duly elected and sworn, and that the signature of said justice to said certificate is genuine.

In testimony whereof, I have hereunto set my hand and [Seal.] affixed the seal of said court this 18th day of November, 1874.

EUGENE A. NASH, Clerk.

The defendant objected to the same as incompetent and not properly certified, and for the reason that it was not authenticated or proved as required by law; and there was no legal evidence that it...