El Capitan Land & Cattle Co. of N.M.. v. Lees.

• Decision Date: 02 March 1906
• Citation: 86 P. 924,13 N.M. 407
• Court: New Mexico Supreme Court
• Parties: EL CAPITAN LAND & CATTLE CO. OF NEW MEXICO.v.LEES.

13 N.M. 407

86 P. 924

EL CAPITAN LAND & CATTLE CO. OF NEW MEXICO.

v.LEES.

Supreme Court of the Territory of New Mexico.

March 2, 1906.Rehearing Denied Aug. 28, 1906.

Error to District Court, Lincoln County; before Justices Mann and Pope.

Action by F. H. Lees against the El Capitan Land & Cattle Company of New Mexico. From a judgment for plaintiff, defendant brings error. Affirmed.

This is a suit upon a judgment recovered by the defendant in error against the plaintiff in error, in the name of El Capitan Land & Cattle Company, for the sum of $2,442. This judgment was recovered in the district court in and for the county of Reno, in the state of Kansas, on the 9th day of April, 1901, and was afterwards affirmed by the Supreme Court of that state.

The complaint, to which is attached, as “Exhibit A,” an exemplification of the judgment roll of the courts of the state of Kansas, containing all of the proceedings in the courts of that state relating to the recovery of said judgment, was filed in the district court of Lincoln county, N. M., September 18, 1903. A demurrer was interposed by the plaintiff in error upon the ground that the Kansas judgment was a nullity for the reason that the complaint disclosed the fact that the judgment was not rendered against the defendant in the lower court, plaintiff in error here. The demurrer was overruled by the court June 30, 1904, with leave to answer within 30 days. The plaintiff in error filed its answer in the court below, July 21, 1904, to which answer the defendant in error interposed a demurrer, denying the sufficiency of the answer, in that it fails to set up a counterclaim or defense in law. The county of Lincoln having been transferred from the Fifth to the Sixth judicial district, the demurrer was heard by Associate Justice Mann, presiding judge of the Sixth judicial district, and, on the 12th day of December, 1904, the demurrer was sustained by the court, and 20 days were allowed for the amendment of the answer. The plaintiff in error elected to stand by its answer. Judgment was rendered for the defendant in error for $2,733.81, the balance found due.

The case is now in this court upon writ of error.

Code Civ.Proc.Kan. Sec. 575, permitting a direct attack upon a judgment within two years after the rendition thereof does not entitle the judgment debtor, when sued on the judgment in this Territory to avail himself of the defense of fraud alleged to consist in perjured testimony.

Geo. W. Prichard, for plaintiff in error.

Geo. B. Barber and Vanderveer & Martin, for defendant in error.

McFIE, J.

The first and second assignments of error are based upon the first six paragraphs of the answer which seeks to set up a misnomer in the Kansas Case as a defense in the present suit. The plaintiff in error denies that the Kansas judgment was rendered against it, because that judgment was rendered against the “El Capitan Land & Cattle Company” instead of the “El Capitan Land & Cattle Company of New Mexico.”

The complaint in the present case contains an allegation that the corporation sued in this case is the identical one sued and against which the judgment was obtained in the Kansas court, therefore, the case of the Lafayette Ins. Co. v. French, 18 How. 404, 15 L. Ed. 451, a leading case upon this subject, seems to be decisive of these assignments of error. In that case the court said: “If the judgment was recovered in Ohio against the company by an erroneous name but the suit upon the judgment was brought in Indiana against the company using its charter name correctly, accompanied by an averment that it was the same company, this mistake is no ground of error; it could only be taken advantage of by a plea in abatement in the suit in which the first judgment was recovered.”

This matter was considered by Mr. Justice Pope of the Fifth judicial district upon demurrer to the complaint. The court held that there was no plea in abatement interposed in the Kansas court so as to take the case out of the purview of the case above referred to and therefore overruled the demurrer. In sustaining the demurrer to the answer, the court below, Mr. Justice Mann, concurred in the views expressed by Mr. Justice Pope, upon this branch of the case, and upon the authority, also, of the case of the Lafayette Ins. Co. v. French, supra. The ruling of the court below was correct as this issue could only be raised in the Kansas court. 1 Freeman on Judgments (4th Ed.) 279; Wilson & Co. v. Baker (Iowa) 5 N. W. 481; Pape v. Capitol Bank, 20 Kan. 440, 27 Am. Rep. 183; Minot v. Curtis, 7 Mass. 441; Walrath v. Campbell, 28 Mich. 111; McCreery v. Everding, 54 Cal. 168.

The remaining three assignments of error may be considered together as they relate to the subject of the remaining paragraphs of the answer, which are that the judgment in the Kansas court was obtained by fraud.

The answer substantially alleges that the account sued on in the Kansas court, and upon which judgment was rendered, was assigned to the defendant in error by one J. M. Hockett; that prior to the assignment the company had fully “settled, liquidated, and discharged all the indebtedness owing by the defendant to said Hockett, *** including in said settlement the items of said account for $2,440. It is further alleged that upon the trial of the cause in the Kansas court, Hockett testified falsely to the correctness of the account, and that at the time Hockett so testified both he and the defendant in error, Lees, knew that all of that portion of the account, of date prior to March 1, 1899, had been fully settled and liquidated, and that to that extent the testimony of Hockett was false. It is further alleged that this settlement was made by the treasurer of the company and Hockett, and that the company had no knowledge thereof until long after the trial and judgment in the Kansas court, by reason of the death of said treasurer.

Counsel for plaintiff in error contends, first, that an equitable defense may be interposed in an action at law; and, second, that the defense of fraud may be set up in an action upon a foreign judgment. These propositions of law may be conceded to be correct, in a proper case, but the question still remains whether or not the case at bar is one in which the relief sought can be granted upon the facts above stated.

The plaintiff in error seeks to attack collaterally the judgment of a sister state upon the ground of fraud which is alleged to consist in the false and perjured testimony of the witness Hockett. Black on Judgments, vol. 1, 296, lays down the following rule: “It is the unquestioned doctrine of the case that a party to a judgment cannot impeach it collaterally on the ground that...