Marr v. Wetzel

• Decision Date: 01 February 1876
• Citation: 3 Colo. 2
• Parties: MARR v. WETZEL.
• Court: Colorado Supreme Court

3 Colo. 2

MARR v. WETZEL.

Supreme Court of Colorado

February, 1876

Error to the Probate Court of Arapahoe County.

ACTION of debt brought in the probate court of Arapahoe county, upon a judgment recovered in the circuit court of St. Louis county, State of Missouri, by August Wetzel against James Marr. In the court below, Marr, the plaintiff in error, moved to suppress the deposition of Louis Swain, a non-resident witness, because it did not appear by the certificate or caption that the commissioner to whom the dedimus was directed was qualified or authorized by law to take depositions to be used in the trial of causes in the courts of Colorado. Also that it did not appear by the caption or certificate that said commissioner was authorized or qualified by the laws of Missouri, where the deposition was taken, to administer oaths or take depositions. Objection was also made to the following interrogatory propounded to said witness, on the grounds of irrelevancy and incompetency:

4th Interrogatory: 'If in answer to the third interrogatory above, you say that you were acquainted with the defendant James Marr, between the 19th day of May, A. D. 1868, and the 16th day of January, A. D. 1871, state whether or not you saw the said defendant during said time? And if yea, state when and where you saw the said defendant and give the time, place and circumstances with particularity.'

Objection was also made to the answer, which was as follows:

'I did see the defendant, James Marr, between the 19th day of May, 1868, and the 16th day of January, 1871, several times the particular days when, and places where, I saw him in the city of St. Louis between the dates named in the interrogatory, I have no means of fixing now with certainty except that in the month of November, 1868, I was acting as deputy sheriff for John McNeil, then sheriff of the county of St. Louis, and recollect that as sheriff, he had a summons to serve on James Marr, the defendant, and I was looking for him for the sheriff, and on the 25th day of November, 1868, I found him at or near the north-west corner of Pine and Fifth streets, in the city of St. Louis, where, according to the best of my recollection, service of the writ was made on him.'

The grounds of objection urged being that the answer was irrelevant and incompetent, and also that all of the answer commencing at the word 'except,' to and including the words 'service of the writ on him,' was not responsive to the interrogatory. Objection was also made to the deposition upon the ground that the notice was given and the dedimus issued to take the deposition of Lewis Swain, while the deposition returned was that of Louis Swain.

Objection was made also to the introduction in evidence of the transcript of the record of the judgment of Wetzel against Marr, upon the ground of variance. The declaration consisted of one count, and alleged a recovery of 'four hundred and seventy-nine and fifty one-hundredths of dollars,' also that the judgment was 'by reason of the nonperformance by the said defendant of certain promises and undertakings.' * * * The judgment offered and received in evidence was for the definite sum of 'four hundred and seventy-nine and 50/100 dollars,' and also that 'the defendant is indebted to the plaintiff * * * on account of the instrument in writing on which this action is founded. It is therefore considered by the court that the plaintiff recover of the defendant aforesaid the debt aforesaid, in form aforesaid.' * * *

The plaintiff contended that entire accuracy is necessary in describing a record. That if any amount was alleged in the declaration as having been recovered, it was a different amount from that disclosed by the transcript of the judgment offered in evidence. That the declaration described a judgment in assumpsit, but that the judgment offered in evidence was not a judgment in that form of action, and that if the judgment was in some form of action unknown to the common law, it should have been described according to that form, and that such description was necessary to its identity. The objections were all overruled and judgment rendered in favor of Wetzel. The other matterial facts in the case are sufficiently set forth in the opinion of the court.

Messrs. FRANCE & ROGERS, for plaintiff in error.

Messrs. HORNER & HARMAN, and Mr. V. A. ELLIOTT, for defendant in error.

HALLETT C. J.

This action was founded upon the record of a judgment recovered in the State of Missouri. The defendant pleaded nul tiel record, nil debet, and a special plea denying that the court in Missouri had jurisdiction of his person at the date of rendering the judgment. A demurrer to the plea of nil debet was sustained, and it is contended that this ruling was erroneous. Of this, however, there is some doubt, for it was held in Mills v. Duryee, 7 Cranch, 481, that this plea could not be admitted in actions of this kind.

Later cases affirm the doctrine that the jurisdiction of the court in which the judgment was rendered as to the person of the defendant and the subject-matter of the controversy,...