Harn v. Cole

• Decision Date: 25 March 1908
• Parties: HARN v. COLE.
• Court: Oklahoma Supreme Court

95 P. 415

20 Okla. 553, 1908 OK 44

HARN v. COLE.

Supreme Court of Oklahoma

March 25, 1908

Syllabus by the Court.

Where the question arises as to what laws are in force in another state or territory, and the same are neither pleaded nor proved, it will be presumed that such laws are the same as those of our domicile.

[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 101.]

Under sections 4592, 4594, Wilson's Rev. & Ann. St. 1903 judgment where there has not been any previous process or proceeding, upon confession by an attorney, can be entered only when authorized to that end by warrant of attorney acknowledged or proved as conveyance of lands, the defendant having previously filed before the court his affidavit stating concisely the facts on which the indebtedness arose and the amount of indebtedness justly due and owing by the defendant.

Where judgment is sought upon the transcript of a judgment rendered in another state, and it affirmatively appears therefrom that the proceedings were not had in accordance with said sections (4592, 4594, Wilson's Rev. & Ann. St. 1903), there being no proof that the laws of the other state were different from those in force in Oklahoma Territory, no recovery can be had upon such judgment.

Error from Probate Court, Oklahoma County.

Action by Luella Cole against W. F. Harn. Judgment for plaintiff and defendant brings error. Reversed and remanded.

On March 17, 1904, in the probate court of Oklahoma county, Okl. T., Luella Cole, as plaintiff, instituted an action against W. F. Harn, as defendant, on a transcript of judgment rendered in the court of common pleas for the county of Richland, state of Ohio, on a note bearing date of August 1, 1890, due 60 days thereafter, purporting to be signed by George U. Harn and W. F. Harn as makers. Said note was in words and figures as follows: "$130.11 Mansfield, Ohio, August 1, 1890. Sixty days after date, for value received, we promise to pay to the order of Luella Cole one hundred and thirty and eleven one hundredths dollars, with interest at the rate of eight per cent. per annum, at Mansfield, Ohio; and we authorize any attorney at law to appear in any court of record in the United States, after the above obligation becomes due, and waive the issuance and service of process and confess a judgment against us in favor of the holder hereof, for the amount then appearing due, together with cost of suit, and thereupon release all errors and waive a right of appeal. George U. Harn. [Seal] W. F. Harn [Seal]." Said instrument, if it be treated as constituting a warrant of attorney, was neither acknowledged nor proved as conveyance of land. Said transcript shows that suit on said note was filed in said court on the 8th day of February, 1904; that W. S. Kerr, an attorney, acting under the alleged power of attorney in said note, filed answer, in the absence of both defendants, confessing judgment in favor of said plaintiff against said defendants on said note for the sum of $270.80, recited in said answer (being the amount herein due for principal and interest and also for costs of suit taxed and to be taxed), and without summoning the appearance of either defendant, and judgment was rendered the same day against both makers jointly. In the answer so filed by said attorney he releases and waives all exceptions, errors, and right of appeal, and the judgment entry in accordance with the recitals in said answer. In the original transcript the word "we" was omitted before the word "promise" in the first line of said alleged note, and the word "appear" after the word "law," and the words "to appear" after the words "attorney at law." Afterwards, by permission of the court, this transcript was withdrawn, and what purported to be a corrected transcript, duly certified, was filed in lieu thereof. Afterwards defendant moved to strike the same from the files, which was overruled, and exception duly saved. There is no allegation in the petition as to why George U. Harn, the joint maker with the defendant in said note and the joint defendant in said transcript, is not joined in the present action. Defendant in the court below demurred on the grounds of want of jurisdiction of the court rendering judgment in Ohio and consequently in the probate court, and defects in parties defendant, that the petition did not state facts sufficient to constitute a cause of action, and the action is barred by the statute of limitation. The Ohio judgment was rendered on the 4th day of February, 1904, and the action begun in the court below on the 18th day of March following.

The petition filed by plaintiff in the court of common pleas of Richland county, Ohio, on February 8, 1904, is in words and figures as follows: "The defendants, on the 1st day of August, A. D. 1890, executed and delivered to plaintiff their promissory note of that date, with the warrant of attorney annexed, which warrant and note, with all the endorsements thereon, are hereto attached, marked 'Exhibit A,' and made a part of this petition. Said note is unpaid, except as shown by said indorsements, and there is now due the plaintiff on said note the sum of one hundred and thirty dollars and...