Ebner v. Steffanson
| Decision Date | 26 April 1919 |
| Citation | 172 N.W. 857,42 N.D. 229 |
| Court | North Dakota Supreme Court |
Action for the recovery upon a money judgment of the Superior Court of Los Angeles County, California, District Court, Burleigh County, Nuessle, J.
From a judgment in favor of plaintiff the defendant appeals.
Modified and affirmed.
Judgment modified in part. Affirmed in part; respondent entitled to the statutory costs on appeal.
Newton Dullam, & Young, for appellant.
"The effect of the judgment of California must be determined by the laws of California." 23 Cyc. 1563; 2 Elliott, Ev § 1535; Mills v. Duryee, 7 Cranch, 411, 3 L.Ed 478; Cole v. Cunningham, 133 U.S. 107; Fox v. Nick, 20 Cal. 599, 129 P. 972; 1 Rose's Notes (U. S.) p. 576.
J. A. Hyland, for respondent.
Where no bond has been given on appeal there can be no stay of execution, and judgment may be sued on in this state. Cal. Code Civ. Proc. § 942; Lonergan v. Lonergan (Neb.) 76 N.W. 641; Bank v. North America v. Wheeler, 73 Am. Dec. 683; 23 Cyc. 1504; McKannay v. Horton, 151 Cal. 711, 13 L.R.A.(N.S.) 661, 121 Am. St. Rep. 146, 91 P. 598; Osborne v. Lindstrom, 9 N.D. 1, 81 N.W. 72; Sweeter v. Fox, 43 Utah 40, 13 P. 599, Ann. Cas. 1916C, 620.
OPINION
This is an appeal from the judgment of the district court of Burleigh county. The judgment was for $ 7,709.61 in favor of plaintiff and against the defendant.
The material facts in the case are as follows:
The plaintiff maintained an action in the superior court of the county of Los Angeles, California, against the West Holleywood Transfer Company, a corporation, C. H. Barck, and P. Steffanson.
On the 19th day of June, 1917, the superior court of the county of Los Angeles duly rendered and gave a judgment in said action in plaintiff's favor for the sum of $ 7,399.99, upon which there was paid $ 358.40, leaving a balance due thereon of $ 7,041.40.
The defendants in said action appealed from that judgment to the supreme court of that state. In taking such appeal, the defendants did not give a supersedeas bond. After the said appeal was duly taken, the plaintiff commenced an action in the district court of Burleigh county, North Dakota, upon the judgment rendered in the superior court of Los Angeles county, California, and recovered a judgment in the district court of Burleigh county, North Dakota, on the 3d day of October, 1918, for the sum of $ 7,041.40 and interest thereon from the 19th day of June 1917, at 7 per cent per annum, together with the costs, amounting in all to $ 7,709.61. In the judgment of the district court of Burleigh county was inserted a condition that no execution issue out of that court on said judgment until the judgment sued upon shall have been affirmed by the supreme court of that state.
Specified errors in this appeal present a single question of law, viz., Can a judgment rendered in the superior court of Los Angeles county, California, from which an appeal has been taken to the supreme court of that state, no supersedeas bond having been filed therein, be made the basis of a cause of action in North Dakota while the action is still pending in California and while the appeal to the supreme court of that state remains undecided?
We are of the opinion that such judgment is a proper basis of a cause of action in the state of North Dakota. The judgment which we are considering is one for money only. In California the statutory requirements on appeal from a judgment of that character from the superior court (which corresponds in jurisdiction to the district court of this state), to the supreme court, are similar to those of this state. In other words, California has by statute provided the time and manner in which an appeal may be taken to their supreme court from a judgment of the character we are considering. An appeal may be taken from the superior court of the state of California to the supreme court, in the manner provided in § 940 of the Code of Civil Procedure of the state of California. It provides the appeal is ineffectual unless, within five days after service of the notice of appeal, an undertaking is filed or a deposit of money is made with the clerk as hereafter provided, or the undertaking be waived by the adverse party in writing. Section 941 of the California Code of Civil Procedure sets forth the character of the bond required on appeal, which is in fact a cost bond and must be of such sum as to secure the payment of all damages and costs not exceeding $ 300.
Under § 940 of the Code of Civil Procedure of California, when a notice of appeal has been filed with the clerk of the superior court and served upon the adverse party, and the undertaking provided in § 941 duly executed and deposited with the clerk of the court in which judgment was entered, such appeal is perfected and the supreme court of the state of California acquires jurisdiction of the action. If the appeal, however, is from a money judgment, it does not stay the execution of the judgment or order, unless, as provided by § 942 of the Code of Civil Procedure of California, a written undertaking is executed by the appellant and two or more sureties in double the amount named in the judgment or order, to the effect that if the judgment or order appealed from or any part thereof be affirmed or the appeal be dismissed, they will pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment or order is affirmed, if affirmed only in part and all damages and costs which may be awarded against appellant, etc. Thus, this section provides for the supersedeas bond.
The foregoing requirements of the California Code of Civil Procedure are practically identical with the requirements contained in the Code of Civil Procedure of the state of North Dakota with reference to appeal from the district courts of this state to the supreme court. It may be conceded that, upon appeal to the supreme court of California from the superior court of that state, that upon the perfection of such appeal the action is pending in the supreme court of that state.
Under § 941a of the Code of Civil Procedure of California, there is provided what is denominated an alternative method of appeal. Under this method, all that is necessary to do to effect an appeal from a superior to the supreme court of California is to file with the clerk of the superior court a notice of appeal as provided by § 941b. Mitchell v. California & O. S. S. Co. 154 Cal. 731, 99 P. 202. This section does not require service of notice of appeal. Potrero Neuvo Land Co. v. All Persons, 155 Cal. 371, 101 P. 12. Under this section no undertaking is essential to the jurisdiction of the appellate court. Union Collection Co. v. Oliver, 162 Cal. 755, 124 P. 435. We are fully convinced that a money judgment of the court of California is a proper basis for a cause of action in this state, and the judgment was properly received in evidence, it being competent evidence of its own existence. The courts of the state of North Dakota will give the same force and effect to the judgments of the courts of California as their courts give to them.
The judgment being one for money only, if the defendant in this case were possessed of property, real or personal, in California subject to a levy of execution under the laws of that state, an execution could be issued upon the judgment of the superior court of California, and such property levied upon, notwithstanding the perfecting of an appeal from the judgment to the supreme court of California, and such property so levied on may be sold on execution sale unless the right to issue such execution and to sell such property on execution sale has been stayed by supersedeas bond.
There is a money judgment in the superior court of Los Angeles county, California, and the remedies to enforce the judgment in that state have in no manner been suspended by the appeal to their supreme court.
In these circumstances the courts of this state will permit the plaintiff to sue upon that judgment, and to procure the entry of the judgment in this state upon the proper procedure having been had to accomplish that purpose; thus in this state give effect to the judgment in the same manner and to the same effect as the courts of the state of California. When an action is maintained in this state and judgment is entered therein on such judgment, this state has then given full faith and credit to the judgment of the court of the state of California.
The principal task presented in this case is to determine what the law of California is relative to the matters under consideration. The original judgment was one entered by the superior court of California. Appeal was taken from such judgment to the supreme court of that state. What the status of the judgment is until the final determination on appeal must be determined, not by the laws of North Dakota or the decisions of this court, but by the laws of California and the decisions of their supreme court.
It is claimed by the appellant that an appeal having been taken from the judgment of the superior court to the supreme court of California, the action is still pending in the courts of California, and therefore is not a final judgment, and for this reason they assert that, under the laws of California and the decisions of the supreme court of that state, the judgment, not being a final one, cannot in the courts of this state be made the basis of an action, and cannot be used as evidence to prove its contents nor any other purpose.
We are of the opinion that the contention of appellants as to the law of California and the...
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