Mcnair v. Underwood
Decision Date | 15 February 1916 |
Docket Number | Case Number: 6197 |
Citation | 55 Okla. 585,1916 OK 185,155 P. 553 |
Parties | McNAIR v. UNDERWOOD. |
Court | Oklahoma Supreme Court |
¶0 1. EVIDENCE--Laws of Another State--Presumption. Where the question arises as to what laws are in force in another state, and the same are neither pleaded nor proved, it will be presumed that such laws are the same as those of the forum.
2. JUDGMENT--Action on Foreign Judgment-- Judgment on Confession of Attorney. Under sections 5132 and 5134, Rev. Laws 1910, where there has not been previous process or proceeding, a judgment upon confession by an attorney can be entered only when authorized to that end by a warrant of attorney acknowledged or proved as conveyances of lands; the defendant having previously filed before the court his affidavit stating concisely the facts on which the indebtedness arose, and the amount thereof justly due and owing by such defendant.
3. SAME. Where recovery is sought upon a transcript of a judgment rendered in another state, and it affirmatively appears therefrom that the proceedings were not had in accordance with said sections (5132 and 5134, Rev. Laws 1910), there being no proof that the laws of such other state were different from those in force in this state, recovery cannot be had upon the judgment.
B. W. Griffith and Walter, Hilprit & Callihan, for plaintiff in error.
Oliver C. Black, for defendant in error.
¶1 This action was commenced in the district court of Oklahoma county by C. E. Underwood, as plaintiff, against O. P. McNair and F. M. McNair, on a duly authenticated transcript of a judgment rendered by the circuit court of Kane county, State of Illinois. Service herein was had alone upon O. P. McNair, who answered, alleging that at the time of the commencement of the action and the rendition of the judgment in the Illinois court he was not a citizen or resident of that state; that said judgment was obtained without the service of process upon him or his codefendant therein, but upon a confession of judgment by virtue of a purported warrant of attorney contained in a promissory note, which warrant of attorney was null and void, and that the court by which said judgment was rendered was without jurisdiction. Upon the trial the transcript of such judgment was admitted in evidence as follows:
¶2 Indorsed on back of said note:
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Allen v. Allen
...state within whose jurisdiction it was pronounced." ¶14 This rule is supported by Harn v. Cole, 20 Okla. 553, 95 P. 415; McNair v. Underwood, 55 Okla. 585, 155 P. 553; 34 C.J. 1115, 1129, §§ 1585, 1603, and 50 C.J.S. 475, § 889. ¶15 Under the rule announced by the above authorities, which i......
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Ray v. Ridpath
...default on his obligation. ¶13 Plaintiff, in support of this contention, cites Harn v. Cole, 20 Okla. 553, 95 P. 415, and McNair v. Underwood, 55 Okla. 585, 155 P. 553. In each of these cases, suit was filed, and without service of summons appearance was made by attorney under the purported......