Manning v. Hogan

• Decision Date: 31 March 1858
• Citation: Manning v. Hogan, 26 Mo. 570 (Mo. 1858)
• Parties: MANNING, Respondent, v. HOGAN, Appellant.
• Court: Missouri Supreme Court

26 Mo. 570

MANNING, Respondent,

v.HOGAN, Appellant.

Supreme Court of Missouri.

March Term, 1858.

1. A. instituted an action against B. on a judgment of a sister state. From the transcript offered in evidence it appeared that the clerk certifying the same was clerk of a court other and different from that in which the judgment was rendered. It appeared also from his certificate that the record of the cause had been transferred by law to the court of which he was clerk, and from the record itself it appeared that two several executions had been issued by said clerk upon said judgment, and levies and execution sales made thereunder. Held, that the transcript was admissible in evidence although no law authorizing the transfer was produced.

2. Under the revised code of 1845 no lapse of time short of twenty years from the time of the rendition of a judgment of this or a sister state would bar a right of action on such judgment.

Appeal from St. Louis Court of Common Pleas.

This was an action (commenced February 18, 1856) against John Hogan on a judgment rendered in a municipal court of the city of Alton, in the state of Illinois, in the month of October, 1838, against said Hogan and one W. G. Pinckard. The defendant put in issue the rendition of the judgment, and further pleaded that he had resided in the state of Missouri more than ten years next preceding the commencement of this suit and that the cause of action did not accrue within ten years next before the commencement of this suit.

The plaintiff adduced in evidence a transcript of the judgment sued on, certified as stated below in the opinion of the court. The court received the same in evidence against the objection of defendant. The defendant introduced evidence to show that he came to St. Louis to reside about April, 1845.

The defendant asked the court to instruct the jury as follows: “If the jury find from the evidence that the defendant has resided in the state of Missouri ever since the 10th day of April, 1845, and that the judgment, the transcript of which has been offered in evidence by the plaintiff, was rendered as early as the 4th day of October, 1845, then the plaintiff is not entitled to recover.”

The court refused to so instruct, but, of its own motion, gave the following: “The fact that the defendant has lived in this state continuously for more than ten years next before the commencement of this suit is no bar to this action.”

The jury found for plaintiff.

T. Polk, for appellant.

I. The transcript of the judgment was improperly admitted in evidence. The judgment was rendered by the municipal court of the city of Alton. The attestation is by the clerk of the circuit court of Madison county. There was no proof of any transfer. But granting that there was such a transfer still the authentication was insufficient. The certificate was not competent to prove the judgment. It is not such certificate as is required by the act of congress. That requires the certificate of the clerk of the court rendering the judgment. If not authenticated as required by said act of congress, it must be proved just as if the act had never been passed.

II. The action was barred by the statute of limitations. The statutory limitation of five years applies to the case. (R. C. 1845, p. 716, § 2.) The case is not within the exception of the act. This is a judgment of a sister state. (Harness v. Green, 20 Mo. 316; R. C. 1845, p. 90; 13 Pick. 325; 4 McCord, 378.) If the second section is not applicable then the first section is. The first section of article 4 does not qualify the operation of section 2 of article 2.

M. L. Gray, for respondent.

I. The transcript was admissible in evidence. The statute of limitation was no bar.

RICHARDSON, Judge, delivered the opinion of the court.

This suit was commenced in February, 1856, on the record of a judgment recovered in October, 1838, in the municipal court of the city of Alton, in Madison county, in the state of Illinois, against the defendant and William G. Pinckard. The transcript is certified, under the act of congress, by the clerk of the circuit court of Madison county, Illinois; and the presiding judge certifies that the attestation of the clerk is in due form. No objection is taken to the form of the certificates, but to the want of power in the clerk of the circuit court to certify to the exemplification of the record of another court. The caption to the transcript is in these words: “Pleas of record in the circuit court of Madison county, state of Illinois, the same having been transferred to said circuit court from the late municipal court of the city of Alton in pursuance of law in that case made and provided. Then follows the declaration, summons and return of service, default, final...