Clark v. Wesendorf
| Decision Date | 25 March 1929 |
| Docket Number | Civil 2769 |
| Citation | 275 P. 925,35 Ariz. 172 |
| Parties | W. H. CLARK, Appellant, v. W. O. WESENDORF, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Navajo. J. E. Crosby, Judge. Judgment affirmed.
Mr. W E. Ferguson, for Appellant.
Messrs Sapp & White, for Appellee.
In November, 1925, W. O. Wesendorf recovered judgment against W H. Clark in the superior court of Los Angeles county, state of California, and on December 29th, 1927, the judgment being unpaid, he filed suit thereon in the superior court of Navajo county, this state, and served the defendant personally in that county. No appearance having been made by the defendant, his default was entered and judgment rendered against him for the full amount due under the California decree, $414.03, the same day, January 21st, 1928. On May 14th following he gave notice of appeal from this judgment and filed his bond.
The complaint alleges that the superior court of Los Angeles county, California, which rendered the judgment sued on, was a court of general jurisdiction, duly created and organized under the laws of that state; that suit was filed in November, 1925, by plaintiff; that the defendant was served personally with summons; that the matter was heard in open court, and that judgment was rendered. Attached to the complaint as an exhibit and by reference made a part thereof is a copy of the judgment docket authenticated by the clerk of the superior court of Los Angeles county, California, and it discloses the names of the judgment debtor and the judgment creditor, the amount of the judgment, including interest and attorney's fee, and the date on which it was docketed.
The only assignment is that the court erred in rendering judgment against appellant upon a complaint that does not state facts sufficient to constitute a cause of action. It is deficient, it is urged, in two important particulars, the first being that it neither alleges that the judgment upon which this action is based was "duly" rendered or entered, nor sets up the proceedings in that action from which jurisdiction might be inferred, and, the second, that it fails to allege that a copy of the complaint in the California case was ever served upon the appellant as required by the law of that state but merely the summons.
The contention that the complaint is insufficient because it does not allege that the judgment was "duly" rendered is based upon paragraph 430, Revised Statutes of 1913, reading as follows:
This statute prescribes the method by which a judgment of a court or officer of special jurisdiction is plead and does not refer to the manner in which judgments of courts of general jurisdiction are made to appear. Under it a judgment of a court of special jurisdiction may be plead either by alleging that it was "duly" given or made, or by setting up the facts conferring jurisdiction. But in pleading the judgment of a court of general jurisdiction neither course is required, the allegation that the judgment was rendered by such a court being sufficient because, this fact appearing, jurisdiction of both the person and the subject matter is presumed. "Jurisdictional facts respecting either the person or subject matter," says Freeman on Judgments (5th ed.), volume 3, paragraph 1459, "need not be alleged if the judgment be that of a court of general jurisdiction, since jurisdiction is presumed in such cases." See, also, pars. 1106, 1107 of vol. 2, same edition; Bancroft's Code Pleading, vol. 3, par. 1648; Bruckman v. Taussig, 7 Colo. 561, 5 P. 152; State ex rel. Nipp v. District Court, 46 Mont. 425, Ann. Cas. 1916B 256, 128 P. 590.
This principle disposes of the second ground urged by appellant to show a lack of jurisdiction in the California court. The statute there, it is true, does require that a copy of the complaint be served and jurisdiction does not attach until this has been done, unless the defendant make an appearance notwithstanding, but there is nothing here disclosing that this was not done, and in the absence of a showing to this effect the presumption that the proceedings leading to the judgment were regular in all respects prevails, since the superior court of Los Angeles county is one of general jurisdiction and its record of the judgment docket in the case is duly authenticated by its clerk. The allegation that a summons was served upon the defendant is not an averment that a copy of the complaint was not served, though, if it were, the presumption of the regularity of the proceedings of that court could not be overcome by a mere implication. Such a result follows only when the jurisdictional defect expressly appears. In 34 C.J. 1140, is found the following statement:
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State v. Yuriar
...other states, so long as such requirements are not more stringent than the act of Congress.' As authority Udall cites Clark v. Wesendorf, 35 Ariz. 172, 275 P. 925 (1929). Clark recognizes that Arizona may establish its own rules on authentication of the records of a sister state so long as ......