Hunt v. Monroe
Decision Date | 29 June 1907 |
Docket Number | 1839 |
Citation | 91 P. 269,32 Utah 428 |
Court | Utah Supreme Court |
Parties | HUNT v. MONROE |
APPEAL from District Court, Salt Lake County; M. L. Ritchie, Judge.
Action by Herbert L. Hunt against Charles H. Monroe on a foreign decree for maintenance rendered in a divorce suit. From a judgment for plaintiff, defendant appeals.
REVERSED, WITH DIRECTIONS TO SUSTAIN THE DEMURRER TO THE COMPLAINT.
W. W Little and M. E. Wilson for appellant.
APPELLANT'S POINTS.
The plaintiff is a mere officer or agent of a court of a foreign state; a quasi guardian. As such he has no capacity to sue in his own name in the courts of this state. He is not a trustee of an express trust. As an illustration of his capacity: Ex parte Gordon (Cal.), 30 P. 516; Simpson v. Simpson, 80 Cal. 237, 22 P. 167. He cannot sue in a foreign state Mining & Mfgr. Co. v. Harris, 198 U.S. 561; Curtis v. Smith, 6 Blatch. (U.S.), 537, 6 F. Cases 3505.
There is no allegation in the complaint that the judgment or decree ordering money to be paid by the defendant to the plaintiff, for the use and benefit of the children is not subject to revision or modification by the court in which it was rendered; therefore said judgment or decree is not final and cannot constitute the basis of an action in the courts of this state. (Page v. Page [1905], 189 Mass. 85, 75 N.E. 92, 4 A. E. Am. Cases, 296; Lynde v. Lynde [1901], 181 U.S. 183, 45 L.Ed. 810; Lynde v. Lynde [1900], 162 N.Y. 405; 48 L. R. A. 679.)
The Colorado judgment upon which this action is based is void for the reason that it was rendered in favor of a stranger to the action between Charles H. Monroe and Mary L. Monroe. (Sharon v. Sharon, 75 Cal. 38, 16 P. 345; Jensen v. Hyde [Colo. App.], 44 P. 760; Dunlap v. Sutherlin, 63 Tex. 38.) If any cause of action is stated in the complaint, it is one in favor of Mary L. Monroe, and not in favor of the plaintiff, Herbert L. Hunt. (Page v. Page, 189 Mass. 85, 75 N.E. 92, 4 A. E. Ann. Cases, 296; Jensen v. Hyde, 44 P. 760; Ex parte Gordon [Cal.], 30 P. 516.) This court must presume that the law of Colorado is the same as our own. (Leather Co. v. Bank, 9 Utah 87; Dignan v. Nelson, 26 Utah 186.) It cannot take judicial notice of that law. (Hanley v. Donoghue, 116 U.S. 29 L.Ed. 535; Railroad v. Wiggins, 119 U.S. 615, 30 L.Ed. 519.)
Whether we are guided by the general character of such decrees; or by the law of Utah; or even by the law of Colorado; it is undoubtedly true that they are subject to revision or modification by the court of rendition. (Read v. Read, 28 Utah 297; Whitmore v. Harden, 3 Utah 121; Stevens v. Stevens [Colo.], 72 P. 1061; Page v. Page, 189 Mass. 85, 4 A. E. Ann. 296.)
If he is an agent then of course he cannot sue, we need not discuss this subject. If, however, he is either a guardian or quasi receiver in either event his capacity is that which was vested in him by a foreign court. This certainly affirmatively appears that he does not rely upon any domestic authority. but affirmatively relies upon the authority given him by the court of a foreign state. Under such circumstances the demurrer is certainly sufficient. (D'Auxy v. Porter, 41 F. 68; Black v. Allen, 42 F. 618; Railroad v. Brantly, 96 Ky. 287; Rhorer v. Land Co., 103 Ky. 146; Swing v. Lumber Co., 65 N.W. 174; Land Co. v. Hoag, 62 P. 189; Beach on Receivers, sec. 698; Bliss on Code Pleading, sec. 261, et seq.)
Goodwin & Van Pelt for respondent.
RESPONDENT'S POINTS.
A demurrer for want of capacity to sue, must be directed to some disability of plaintiff appearing upon the face of the complaint. It does not appear that plaintiff is an infant, an alien enemy, that he sues as a corporation without charter or as an executor without letters. (Pomeroy on Code Remedies, sec. 208; Bliss on Code Pleading, sec. 407; Miller v. Luco, 22 P. [Cal.], 195; District No. 110 v. Feck, 60 Cal. 405.)
"A demurrer to a complaint on the ground that the plaintiff has no legal capacity to sue has reference only to some legal disability and not to the fact that the complaint does not show a right of action in the plaintiff." (Campbell v. Campbell, 121 Ind. 178, 23 N.E. 81.
Under a general demurrer, a defect of parties cannot be considered. If defendant wished to attack the complaint upon that ground, he should have demurred specially upon the fourth statutory ground of demurrer. Not doing so he has waived the objection. (Bliss on Code Pleading, sec. 411; Henderson v. Turngren, 9 Utah 432.)
There is however, no defect of parties. At common law the action upon a judgment is either assumpsit or debt. The judgment in Colorado must be deemed a contract made for the benefit of the children in the name of Hunt. (
The plaintiff, respondent in this court, filed his complaint in the district court of Salt Lake county, in which the following facts are alleged:
Upon the foregoing allegations respondent prayed judgment for the amount of alimony that had accrued up to the time of filing the complaint, and for such additional sum as would become due under the terms of the decree before final judgment in the action, and for costs. To this complaint the defendant, appellant in this court, appeared and filed a demurrer, basing it upon two grounds, to wit: (1) That it appears from the complaint that the plaintiff has not legal capacity to sue, for the reason that upon the face of the complaint it appears that the plaintiff is not the real party in interest; and (2) that the complaint fails to state sufficient facts to constitute a cause of action. The demurrer was overruled, and, the appellant electing to stand thereon and declining to plead further, the court, upon proper proof being made, found that there was due and unpaid of the alimony sued for the sum of $ 708, and entered judgment in favor of respondent and against appellant for said sum and for costs, from which judgment this appeal is taken.
Two questions are presented by the appeal: (1) Did the respondent have the legal right to maintain the action in his own name? and (2) is the judgment or order sued on a final judgment on which an action can be maintained?
As to the first proposition the fact is palpable that the respondent was neither a party, a beneficiary, nor assignee of the judgment sued on. He was not in any way related to nor interested in the subject-matter of the original action, but was connected, with the result thereof merely by being made the recipient of the money as the same was ordered to be paid for the...
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