Butler v. Kopplin, 28461
| Decision Date | 16 December 1952 |
| Docket Number | No. 28461,28461 |
| Citation | 253 S.W.2d 514 |
| Parties | BUTLER et al. v. KOPPLIN. |
| Court | Missouri Court of Appeals |
Neuhoff, Tremayne & Schaefer, Bertram W. Tremayne, Jr., and Ralph R. Neuhoff, Jr., all of St. Louis, for appellant.
Franklin H. O'Leary and F. J. O'Leary, both of Kansas City, and Samuel J. Kevrick, of St. Louis, for respondents.
This is an action in the Circuit Court of St. Louis County upon a judgment rendered by the Circuit Court of Eau Claire County, Wisconsin.
The plaintiffs, P. H. Butler and E. V. Gould, are the judgment creditors, while defendant, Karl J. Kopplin, is the judgment debtor.
Plaintiffs are residents of Wisconsin and are engaged in the collection business in that state, while defendant is a resident of St. Louis County, Missouri.
The Wisconsin action was on a promissory note executed by defendant to the order of the Iron River Bank of Iron River, Wisconsin, and thereafter allegedly assigned to plaintiffs along with the indebtedness which it evidenced.
Among the provisions of the note was one authorizing any attorney to appear in court for the maker of the note and confess judgment, without process, in favor of the holder of the note for any amount due and unpaid including attorney's fees.
In their petition in the Wisconsin action, the contents of which were verified by the affidavit of one of their attorneys, the plaintiffs, Butler and Gould, alleged that they were the owners and holders of the note.
Along with the petition was filed the answer of the defendant, Kopplin, in which his attorney, Kaiser, acting upon the authority of the warrant of attorney contained in the note, waived service of process upon defendant; entered defendant's appearance to the action; and confessed judgment in plaintiffs' favor for the amount named in the petition. The court thereupon entered judgment for the plaintiffs, and against the defendant, for the aggregate amount of $1,003.51.
In the local action on the judgment plaintiffs set up the entry of the judgment which had not been satisfied either in whole or in part, and then alleged that the Wisconsin court had possessed jurisdiction of both the parties and the subject matter.
In his answer defendant controverted the jurisdiction of the Wisconsin court upon the primary ground that plaintiffs had not at any time been holders of the note, and that in the absence of such status on their part the Wisconsin court had not been entitled to assume and exercise jurisdiction over defendant upon an entry of appearance and confession of judgment founded upon the warrant of attorney contained in the note.
The case was heard before the court without a jury, and at the conclusion of the hearing the court rendered judgment in favor of plaintiffs, and against defendant, for the aggregate amount of $1,329.64, representing the face amount of the Wisconsin judgment with interest.
Following an unavailing motion to set aside the judgment and dismiss the case or else to grant defendant a new trial, defendant gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.
Our code provides that in pleading a judgment either domestic or foreign, it is sufficient to aver the judgment without setting forth the matter to show the jurisdiction of the court to render it, but that if the court's jurisdiction be questioned, the party asserting it shall then establish, on the trial, the facts conferring jurisdiction. Section 509.190, RSMo 1949, V.A.M.S.; 1 Carr, Missouri Civil Procedure, Sec. 179.
On this appeal, the jurisdiction of the Wisconsin court having been controverted, the only question is whether plaintiffs may be said to have sustained the burden thus imposed of showing that the warrant of attorney under which the Wisconsin court had purported to assume jurisdiction over defendant had been legally exercised in their favor.
In other words, the actual...
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