Groo v. Sanderson

• Decision Date: 05 December 1921
• Citation: 235 S.W. 177,208 Mo.App. 623
• Parties: SCOTT GROO, Appellant, v. W. E. SANDERSON, Respondent
• Court: Missouri Court of Appeals

235 S.W. 177

208 Mo.App. 623

SCOTT GROO, Appellant, v. W. E. SANDERSON, Respondent

Court of Appeals of Missouri, Springfield

December 5, 1921

Appeal from Circuit Court of Jasper County.--Hon. O. S. Barton Special Judge.

AFFIRMED.

Judgment affirmed.

B. H Esterly for appellant.

(1) Where a pleading is amended in a matter of substance, a continuance should be granted, and if refused by the court such refusal will be grounds for reversing the judgment. Tungstall v. Hamilton, 8 Mo. 500; Risher v. Thomas, 1 Mo. 529, second Edit; McLane v. Harrison, 1 Mo. 501, Second Edit.; Riggs v. Fenton, 3 Mo. 28; Moore & Porter v. McCulloch, 6 Mo. 444. (2) It is the duty of the court to grant a change of venue if an application is in substantial compliance with the requirements of the statutes. The duty is imperative and not discretionary. Douglas v. White, 134 Mo. 234. (3) Under the constitution and laws of the United States, each State is bound to give full faith and credit to the judgments of the courts of other States of the Union. U. S. Constitution, art. 4, sec. 1; U. S. Comp. Statutes (1901), page 6671. (4.) This obliges the courts of this State to give such judgments equal recognition and effect as a matter of pleading and evidence with that accorded to similar judgments of the courts of this State; and this without inquiring whether the domestic courts would or could have rendered such a judgment on such a cause of action, whether such a judgment would have been valid under the local laws, whether the court rendering the judgment was right or wrong in the interpretation and application of the laws of its own State, or even in its reading and application of the laws of the State where the judgment is brought in question. 23 Cyc., page 1545; Barney v. White, 46 Mo. 137; Smith v. Kander, 58 Mo.App. 61. (5) The records and judicial proceedings of the courts of Record of a sister State are admissible in evidence in the courts of this State when properly authenticated as provided in section 5387 of the Revised Statutes of Missouri, 1919. R. S. 1919, sec. 5387; Seymour v. Newman, 77 Mo.App. 578-582; Campbell, et al. v. Wolf, et al., 33 Mo. 459; Grover v. Grover, 30 Mo. 400.

J. W. Halliburton & Son for respondent.

(1) Judge BARTON was the special judge who tried the case at the November, 1920, term, and granted to plaintiff leave to file his bill of exceptions on or before the 3rd day of the next regular term (being the February, 1921, term). At the February, 1921, term, plaintiff applied to the court, Judge PERKINS presiding, for an extension of time to file the bill of exceptions and was granted until the 3rd day of the June, 1921, term, to file the same. Judge PERKINS had no jurisdiction to make said order. Judge BARTON is the only person who could have made the order and he was not asked to do so. The bill of exceptions was not filed in the time required by the law and the order of the court. State v. Bobbitt, 215 Mo. 29; Bank v. Bank, 244 Mo. 573-4; Bower v. Daniel, 198 Mo. 315; Mengel v. Leach, 226 S.W. 883. (2) The alleged abstract of record is a commingling of a statement of the case, an abstract of the pleadings, a statement of the proceedings on the day of trial, and a statement of various things, some of which should be in the record proper, and some in the bill of exceptions. There is no showing that a bill of exceptions was ever filed, and no showing as to which of his statements appear in the record proper and which in the bill of exceptions. From this statement, you would not have any idea that there was a bill of exceptions except for the last clause and the alleged signatures of the judges. The whole pamphlet entitled, Abstract of Record, seems to be appellant's statement of what took place in the case. Under the rules of the court and the decisions, this alleged abstract of record cannot be considered, and there being no assignment or error as to the pleadings and record proper, the judgment should be affirmed.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

--Judgment was rendered for the defendant by the trial court in a suit which was brought on a judgment purporting to have been rendered by the City Court of Salt Lake, Salt Lake County, Utah. When the cause came on for trial in the circuit court of Jasper county, the plaintiff announced ready for trial, whereupon the defendant asked leave to amend an answer which had been filed and which denied that a judgment had been entered in said city court, denied that the defendant had appeared, and alleged that the judgment was invalid. It further alleged that the pretended judgment was entered without summons or notice to the defendant and that said city court never had jurisdiction of the defendant. The amended answer which was permitted to be filed simply added the following clause: "Defendant further answering alleged that the city court of Salt Lake City is a court of limited jurisdiction similar to that of a justice of the peace."

The record shows that upon the filing of the amended answer the plaintiff demanded a jury for the trial but immediately thereafter asked the court for time to read the amended answer and after doing so then orally sought a continuance on the ground of surprise, charging that the amendment was a ground therefor. At this point the defendant's attorney admitted that the Salt Lake City Court had jurisdiction to try cases to the amount of $ 500, it being more than the amount involved in this case, whereupon the trial court denied the oral request for a continuance. When this ruling was made the plaintiff's attorney filed an application for a change of venue, which was denied by the court. Immediately thereafter the plaintiff filed another application for a change of venue, which was also denied.

The appellant then went to trial and introduced in evidence a duly authenticated transcript of the judgment roll of the City Court of Salt Lake City in the case entitled Scott Groo v. W. E. Sanderson. In this connection, it appears from the record introduced that the summons in that case was served on the defendant in a county other than that in which Salt Lake City is located; that such summons was served on the defendant on November 25, 1914, and that a default was entered of record in June 1917; that a few days after that,...