McCarthy v. Troll

• Decision Date: 19 April 1909
• Citation: 118 S.W. 416
• Parties: McCARTHY et al. v. TROLL.
• Court: Arkansas Supreme Court

Page 416

118 S.W. 416

McCARTHY et al. v. TROLL.

Supreme Court of Arkansas.

April 19, 1909.

Appeal from Circuit Court, Garland County; W. H. Evans, Judge.

Action by Henry Troll, public administrator of Don C. Thatcher, deceased, against P. J. McCarthy and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action by Henry Troll, public administrator in charge of the estate of Don C. Thatcher, deceased, of St. Louis, Mo., upon a judgment which, it was alleged, one William C. Richardson, who was then public administrator of the city of St. Louis, in the state of Missouri, and who, as such administrator, was in charge of the estate of said Don C. Thatcher, deceased, had recovered against the said P. J. McCarthy and Nellie McCarthy, on the 7th day of May, 1900, in the circuit court of the city of St. Louis, within and for the state of Missouri. The judgment was for the sum of $8,000. The defendants demurred to the complaint because it did not state facts sufficient to constitute a cause of action, and also filed an answer denying the allegations of the complaint. Subsequently they filed an amendment to their answer, in which they denied that plaintiff had the legal right or authority to prosecute this suit. There was a trial by jury, and a verdict for $8,000, with 6 per cent. interest from May 12, 1900. Judgment was entered upon the verdict, and the defendants have duly prosecuted an appeal. The facts are sufficiently stated in the opinion.

Wood & Henderson, for appellants.

HART, J. (after stating the facts as above).

In the case of Hallum v. Dickinson, 47 Ark. 120, 14 S. W. 477, it was held that: "To maintain an action on a judgment against a plea of nul tiel record, a certified copy of the judgment is not sufficient, but all the pleadings and proceedings on which the judgment is founded, and to which as matter of record it necessarily refers, must be produced." See, also, Hall v. Roulston, 70 Ark. 343, 68 S. W. 24; Swing v. St. Louis Refrigerator & Wooden Gutter Co., 78 Ark. 246, 93 S. W. 978, 115 Am. St. Rep. 38. Counsel for appellants contend that this requirement was not complied with in the present case. This action was commenced on the 4th day of January, 1908, and a copy of the judgment sued on, duly certified by the clerk of the court in which it was rendered, and his certificate, duly authenticated by the judge of said court, was filed with the complaint as an exhibit, and was introduced in evidence in the case. Copies of the complaint, summons, with the return showing service, and the answer of the defendants, P. J. and Nellie McCarthy, separately certified by the clerk and authenticated by the judge of said court, were also introduced in evidence.

Counsel for appellants contends that there was no evidence to show that the complaint and judgment were parts of the same action, and that therefore the complaint and judgment, being authenticated by separate certificates of exemplification bearing different dates, were insufficient proof to sustain the judgment now in question. The record shows that all the proceedings were, in a case in the circuit court of the city of St. Louis, within and for the city of St. Louis and state of Missouri, styled "William C. Richardson, Public Administrator in Charge of the Estate of Don C. Thatcher, Deceased, v. William H. Stevenson, J. Brooks Johnson, Albert Thatcher, Thatcher Restaurant Company, a corporation, Edward Ketchum, Patrick J. McCarthy and Nellie McCarthy, Howard Realty Company." The record also shows that the complaint in that case was filed May 25, 1898, and...