Dow v. Blake

• Decision Date: 26 October 1893
• Citation: 35 N.E. 761,148 Ill. 76
• Parties: DOW v. BLAKE.
• Court: Illinois Supreme Court

148 Ill. 76

35 N.E. 761

DOW

v.BLAKE.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Error to appellate court, first district.

Action by Christine Blake against William C. Dow, administrator of Barnum Blake. Judgment for plaintiff was affirmed by the appellate court, and defendant brings error. Affirmed.

Doolittle, Palmer & Tolman, for plaintiff in error.

Millard & Boyesen and J. A. Eggen, for defendant in error.

MAGRUDER, J.

This was an action of debt, begun on October 12, 1889, by the defendant in error against Barnum Blake, in the circuit court of Cook county. An attachment writ was issued upon the ground of the defendant's nonresidence, and levied upon real estate in Cook county. The declaration counts upon a judgment for $31,000 rendered in favor of the plaintiff, Christine Blake, against Barnum Blake, by the circuit court of Milwaukee county, in the state of Wisconsin, at the October term thereof, held in 1888. On November 23, 1889, Barnum Blake, by his attorney, entered a motion in the present case for stay of proceedings, which was overruled. On December 9, 1889, the death of Barnum Blake was suggested. On September 11, 1890, leave was given the plaintiff to substitute William C. Dow, administrator of the estate of Barnum Blake, deceased, as party defendant. On October 17, 1890, said administrator appeared and filed two pleas,-nul tiel record and payment,-but did not plead to the attachment writ. On March 23, 1892, defendant moved for leave to file additional pleas, which motion was overruled, and default entered of record on the attachment issue. On March 26, 1892, the cause came on for trial. By agreement, both parties were allowed to introduce such portions of the statute of Wisconsin, and such decisions of the supreme court of that state, as they might deem proper, without formal pleadings thereof. Jury was waived, and cause submitted to the court for trial without a jury. The circuit court found in favor of the plaintiff, and, after overruling a motion for a new trial, rendered judgment in favor of plaintiff for $31,000 debt and $7,209 damages against the administrator, to be paid in due course of administration, and for execution against the property attached. This judgment has been affirmed by the appellate court, and is brought here for review by writ of error.

First. It is claimed by plaintiff in error that there was a variance between the judgment declared upon and the judgment offered in evidence, and that therefore the judgment record was improperly admitted. It is said that the declaration set up an absolute judgment for $31,000, rendered on December 24, 1888, but that the judgment introduced was a conditional judgment for $2,000, rendered on May 6, 1882, and subsequently modified. In order to understand this objection it will be necessary to examine the record of the judgment as introduced. The proceedings in Wisconsin, offered in evidence by the plaintiff, showed that in a divorce suit in said circuit court of Milwaukee county, brought by Christine Blake against Barnum Blake, there was entered, on May 6, 1882, the following judgment or decree: ‘It is adjudged and decreed that the marriage contract existing between plaintiff and defendant herein be, and is hereby, dissolved; and it is further adjudged and decreed that the plaintiff, Christine Blake, and said defendant, Barnum Blake, be, and hereby are, forever divorced from the bonds of matrimony, and free from the obligations thereof; and it is further ordered, adjudged, and decreed that the defendant, Barnum Blake, have the care, custody, and education of the minor children, John F. Blake and Arthur O. Blake, mentioned in the complaint herein; and it is further ordered and adjudged that the defendant, Barnum Blake, pay to Christine Blake, the plaintiff herein, the sum of $2,000, upon the execution by her of a release in full of all her dower right that she ever had, now, or at any time may have, in any of the real estate owned by the defendant, Barnum Blake, during the converture; that the plaintiff have the costs in this action, and that she have execution therefor.’ Afterwards, upon petition filed in said court by said Christine in 1886, the court, after finding, in substance, that the former provision was inadequate, and had been made under a mistaken estimate of the pecuniary ability of Barnum Blake, rendered the following judgment therein on December 24, 1888: ‘It is now here ordered and adjudged by this court that Christine Blake, the plaintiff, do have and recover of Barnum Blake, the defendant, the sum of $30,000, and the further sum of $1,000 for attorneys' fees and disbursements in this proceeding, amounting in all to the sum of $31,000, as the full and final share and allowance of the plaintiff in the final division and distribution of the estate and property, real and personal, of the said defendant, Barnum Blake; and it is further ordered and adjudged that, except as it is herein modified or superseded, said original judgment stand and remain in full force and effect.’ The objection on the ground of variance, in description and date, between the judgment as proven and the judgment as declared upon, was not made when the judgment roll was offered, although a number of other objections were made at that time. Not having been made then, it will be regarded as having been waived. The judgment of December, 1888, is something more than a mere modification of, or supplement to, the decree of 1882. That judgment is complete in itself, and answers to the allegation in the declaration. When it was rendered, nothing remained of the decree of 1882 except the provisions annulling the marriage and giving the defendant the custody of the children; all the rest of that decree was merged in the judgment of 1888, which was for a definite and specific sum.

Second. It is claimed that, as the divorce case was carried for review to the supreme court of Wisconsin, the judgment of the latter court was the final one, and that the record of said court was the proper one to be presented in an action on the judgment. The defendant below introduced in evidence the proceedings in the Wisconsin supreme court, showing that the decree of the lower court for $31,000 was affirmed on September 24, 1889, and, on petition for rehearing, the order of affirmance was adhered to, but leave was given to apply for a modification of the judgment as to the time of payment; the following being the judgment of the supreme court of that state: ‘This cause came on to be heard on appeal from the judgment of the circuit court of Milwaukee county, and was argued by counsel. On consideration thereof, it is now here ordered and adjudged by this court that the judgment of the circuit court of Milwaukee county in this cause be, and the same is hereby, affirmed, with costs against the said appellant taxed at the sum of $45.50, and with leave to the said appellant to apply to the trial court for a modification of the judgment as to the time or times for the payment of the same.’ Blake v. Blake, 75 Wis. 339, 43 N. W. 144. Counsel for plaintiff in error take the position that when the continuation of the record was produced, showing that the judgment sued upon had been appealed, it affirmatively appeared that there was no such record as that counted upon, and that therefore the plea of nul tiel record was supported. The constitution of the United States (article 4, § 1) provides that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every state, and that congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Congress has enacted, after providing for the mode of authenticating the acts, records, and judicial proceedings of the state, etc., that the records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence the said records are or shall be taken. Act May 26, 1790, Rev. St. U. S. § 905. Hence, where suit is brought in this state upon a judgment rendered in another state, such judgment will here be given the same force and effect as it has in the state where rendered. If it be shown that, by the law of the state where the judgment was rendered, an appeal has the effect of suspending the judgment appealed from, or of staying the execution thereof, the pendency of such appeal is a material fact to be proven in a suit upon the judgment in this state; but, unless it appear that the appeal or writ of error suspends the judgment in the state where it was rendered, its pendency is no bar to an action in another state on the judgment. Taylor v. Shew, 39 Cal. 536; Suydam v. Hoyt, 25 N. J. Law, 230; Insurance Co. v. De Wolf, 33 Pa. St. 45; Woodward v. Carson, 86 Pa. St. 176; Faber v. Hovey, 117 Mass. 107. It is not, therefore, necessary to declare upon the foreign judgment as disposed of by the appellate court, but only as rendered by the inferior court, especially where, as is the case here, the judgment of the inferior court does not show upon its face that an appeal from it has been taken. The pendency of an appeal which operates as a stay is a matter to be proved as a defense to, or in suspension of, the action. In the present suit, however, the proof introduced by the defendant shows that the appeal was not pending, but had been disposed of by an affirmance of the judgment by the supreme court of Wisconsin. A careful examination of the facts in McLaren v. Kehler, 23 La. Ann. 80, to which counsel refer, will not disclose anything inconsistent with the view here expressed.

Third. It is further objected that the judgment declared upon is not a final judgment. A foreign judgment, or judgment of a sister state, cannot be sued upon unless it is final and conclusive in the country or state where it...