Crone v. Dawson
Decision Date | 09 November 1885 |
Citation | 19 Mo.App. 214 |
Parties | WILLIAM CRONE, Respondent, v. ISRAEL DAWSON, Appellant. |
Court | Kansas Court of Appeals |
APPEAL from Holt Circuit Court, HON. HENRY S. KELLEY, Judge.
Reversed and remanded.
Statement of case by the court.
This is an action upon a judgment alleged to have been recovered in the circuit court of Stark county, in the state of Illinois. The answer was a general denial.
The plaintiff offered in evidence a certified copy of the judgment sued on. Against the defendant's objection the court permitted its introduction in evidence. The copy of the judgment is as follows:
" Pleas at a circuit court held by the Honorable Sabin D. Puterbaugh, judge of the sixteenth judicial circuit of the state of Illinois, at a term of court held in and for the county of Stark, which is part of said circuit, which term was begun and held at the court house in Tulon, in said county, on the first Monday (being the seventh day of said month), of the month of October, 1872. Present, Hon. Sabin D Puterbaugh, judge aforesaid; Samuel M. Adams, sheriff of said Stark county, and John M. Brown, clerk of said circuit court.
Be it remembered that on the fourteenth day of October, A. D. 1872 being one of the regular days of said term of said court among other things, proceedings were had and entered of record in said court as follows, to-wit:
The above record was certified as follows:
" STATE OF ILLINOIS, )
) ss.
STARK COUNY. )
I, John M. Brown, clerk of the circuit court in and for said county, in the state aforesaid, do hereby certify the foregoing to be a perfect and complete copy of judgment, which was rendered and entered of record in said court on the fourteenth day of October, 1872, as the same appears of record in my office. In testimony, whereof, I have hereunto set my hand and affixed the seal of said court, at my office in Tulon this thirteenth day of December, A. D. 1881.
[Signed] | JOHN M. BROWN, |
Clerk. " |
( | L. S. | ) |
To this is appended the certificate of the judge, in due form.
The defendant offered to prove " that he was never served with process in said suit; that he was not present at the trial, nor did he ever authorize Mr. Shallenberger or any other person to appear for him," etc. This, the court refused to permit defendant to do, upon objection by plaintiff, " for the reason that defendant having answered by general denial, could not show under the general issue that the defendant was not served with process; that he did not appear to the action nor authorize any person to appear for him."
The court instructed the jury to find for plaintiff the amount of the judgment as shown by the transcript, less a credit thereon admitted by plaintiff, with six per cent. interest from the rendition thereof. The case is here on appeal.
T. H. PARRISH, for the appellant.
I. The record does not purport to be a complete record and transcript of the proceedings to which it relates, nor is it certified to as a complete record. Where a record is used to prove the facts therein contained, the whole record must be produced. Lee's Adm'r v. Lee, 21 Mo. 531; Phillipson v. Bates, 2 Mo. 116; 1 Greenl. Evid., sect. 511.
II. If the judgment read in evidence was rendered without notice to, or an appearance by the defendant, it was void ab initio. And the recitals that the defendant appeared, etc., may be contradicted. Roach v. Burnes, 33 Mo. 319; Marx v. Fore, 51 Mo. 69; Edgar v. Stover, 59 Mo. 87.
III. The court erred in refusing to allow defendant to show, under the general issue, that the judgment read in evidence was void. The defendant denied that the judgment was legally rendered. The issue was made on the validity of the judgment, and defendant had the right under the general issues to show that it was void. Corby v. Waddle, 57 Mo. 452; Kersey v. Gaston, 77 Mo. 645; Hill v. Bailey, 76 Mo. 454; Gaff v. Roberts, 72 Mo. 571; Cousins v. R. R., 66 Mo. 572.
IV. The court erred in instructing the jury to allow plaintiff six per cent. interest on the judgment. There was no evidence to show that the laws of Illinois allowed interest on judgments, and the common law will be presumed to prevail there. Thompson v. Morrow, 2 Cal. 99.
No brief on file for the respondent.
The defendant complains, first, of the action of the trial court in permitting the introduction in evidence of the record offered by plaintiff. The defendant claims that the record was inadmissible for the reason that it does not purport to be a complete record of the proceedings to which it relates, and is not certified as such a complete record.
The record in this case was authenticated in pursuance of the act of congress in relation to authentication of laws and records. By that " act" the whole record is required to be certified. Abbotts' Trial Evidence, p 536. " In proving a judgment had under the new procedure, for the purpose of an action thereon, whatever is made by law a part of the record or judgment roll should be proved * * *." Id. 537. " So the whole record, which concerns the matter in question, ought to be produced." 4 Comyn's Digest, Title Evid., 89. " The general rule is, that where a party intends to avail himself of a decree, as an adjudication upon the subject matter, and not merely to prove collat erally that the decree was made, he must show the proceedings upon which the decree was founded." 1 Greenleaf on Evidence, sect. 511. McGuire v. Koums, 7 Monroe 386, cited in Lee's Adm'r v. Lee, 21 Mo. 534. Peak says: Philipson v. Bates, 2 Mo. 120. The " documents" here...
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