Etz v. Wheeler

• Citation: 23 Mo.App. 449
• Parties: JOHN B. ETZ, Respondent, v. R. T. WHEELER, Appellant.
• Decision Date: 23 November 1886
• Court: Missouri Court of Appeals

23 Mo.App. 449

JOHN B. ETZ, Respondent, v. R. T. WHEELER, Appellant.

Court of Appeals of Missouri, St. Louis.

November 23, 1886

APPEAL from the St. Louis Circuit Court, AMOS. M. THAYER, Judge.

Affirmed.

DYER LEE & ELLIS, for the appellant: Foreign statutes must be pleaded in actions where a recovery is based upon them. Banchor v. Gregory, 9 Mo.App. 102; Bliss on Code Pleading, 183; Sheldon v. Hopkins, 7 Wendell 435; 1 Greenleaf on Evidence, par. 488; Wharton on Evidence, par 300 to 311.

JOHN D POPE and JOHN A. LEWIS, for the respondent: When the judgment is rendered in a sister state, the cause of action is merged, and a suit here must be brought on the judgment. Freeman on Judg., sect. 221; Henderson v. Staniford, 105 Mass. 504; Bigelow on Estoppel, 251; Eldred v. Bank, 17 Wall. 545. The copy of the docket of a justice can not be certified under the act of congress, though the judgment itself is conclusive. 1 Wharton on Evidence, sect. 99; 2 Id., sect. 808; 1 Greenleaf on Evidence, sect. 505; Pelton v. Planter, supra; Silver Lake Bank v. A. H. Harding, supra.

OPINION

THOMPSON J.

This was an action upon a judgment of a justice of the peace of the state of Ohio. The plaintiff had a verdict and judgment. Two points are made by the defendant.

1. The first is that the justice's judgment was not authenticated according to the act of congress, but was proved by the depositions of witnesses according to the common law. No authority is cited in support of the position that the act of congress excludes the common law mode of proving a foreign judgment, and we see no reason for so holding.

2. The other point is that the statute of Ohio conferring jurisdiction upon the justice was not pleaded, and decisions are cited from other jurisdictions to show that in an action upon the judgment of a court of limited or special jurisdiction it is not only necessary to aver that the court had jurisdiction to render the judgment sued on, but also to set forth the statute conferring the jurisdiction. This rule of pleading never had any sense in it, since the essential fact which the plaintiff takes upon himself the burden of proving is that the tribunal had jurisdiction. This, in the case of a tribunal of special and limited powers such as a justice of the peace, he must aver and prove, because he is not aided by any presumption of jurisdiction, such as obtains in the case of a court of general jurisdiction,...