Nichols v. Farwell

• Citation: 24 Neb. 180,38 N.W. 820
• Parties: NICHOLS v. FARWELL ET AL.
• Decision Date: 03 July 1888
• Court: Supreme Court of Nebraska

24 Neb. 180

38 N.W. 820

NICHOLS

v.FARWELL ET AL.

Supreme Court of Nebraska.

July 3, 1888.

Syllabus by the Court.

A judgment duly entered in a circuit court of the state of Illinois, e. g., upon a judgment note and cognovit, and duly transcripted to this state, constitutes a cause of action as against a general demurrer.

The title “circuit court,” when used in ordinary pleading, implies a court of general jurisdiction.

A judgment was rendered against N., in the state of Illinois, on May 15, 1878. At that date N. had ceased to be a resident of the state of Illinois, and was a resident of the state of Iowa. He continued to reside in the state of Iowa for the period of five years and six months, and no more, when he became a resident of this state. Held, that an action upon the said judgment is not barred by the statute of limitations until N. has completed five years' residence in this state.

Error to district court, Red Willow county; GASLIN, Judge.

S. R. Smith, for plaintiff.

R. M. Snavely, for defendant.

COBB, J.

John V. Farwell et al., who sue in the name and style of John V. Farwell & Co., brought their suit in the district court of Red Willow county against George W. Nichols, defendant. The cause of action, as set out in the petition, is a judgment in favor of the plaintiffs against the defendant, rendered in and by the circuit court of Stark county, in the state of Illinois, on the 15th day of May, 1878. It is further alleged in and by the said petition: “(3) That the said defendant has resided in the states of Iowa and Nebraska all the time since the rendition of said judgment, and has not resided in any other state or territory of the United States during said time. (4) That said defendant resided in said state of Iowa for the space of five years and six months only, after the rendition of said judgment herein sued upon; and under the statute of said state of Iowa * * * it is provided that actions founded on foreign judgments rendered by courts of record are not barred until the expiration of twenty years after such judgment was rendered. (5) That the Revised Statutes of Illinois * * * provides that an action of debt may be brought on judgment in any court of record in said state of Illinois, within 20 years next after the date of such judgment. (6) That defendant has resided in the state of Nebraska since the rendition of said judgment, and prior to the commencement of this action, for the space of two years and six months only. (7) That said judgment has not been paid, nor any part thereof, and there is now due from the defendant to the plaintiffs thereon the sum of $420.64, and interest from the 15th day of May, 1878. (8) That a complete transcript of the records and proceedings had in said case in said court, duly attested and certified, is attached to the original petition herein, and made a part thereof, with prayer for judgment,” etc. The defendant demurred to the petition, and assigned the following grounds of demurrer: “(1) That the petition does not show nor state facts sufficient to constitute a cause of action. (2) That the petition does not show nor state that the circuit court of Stark county, Ill., had jurisdiction of the subject-matter of the said judgment; nor does it state that the said court had jurisdiction of the person of the defendant. (3) That the petition shows on its face that at the time of rendering the said judgment by the circuit court of Illinois the defendant was a non-resident of the state of Illinois; defendant was a resident of another state, and that by reason of such non-residence the said court had no jurisdiction of the person of the defendant. Said petition further shows that no notice of the pendency of said action in said court was ever issued and served on the defendant, or published as required by the statutes of the state of Illinois, and that a personal judgment cannot be obtained against a non-resident except upon notice in some of the manners provided by statute, and upon strict compliance with all the provisions of the same. (4) The warrant of attorney in this case is void and insufficient to bind the defendant and insufficient to give the court jurisdiction over the person of the defendant-- First. Because the said warrant was not properly executed, as by the statute of Illinois provided. Second. Because the said warrant was not properly proved to have been executed by the defendant sufficient to give the court jurisdiction of the defendant'sperson to enter judgment against him; that said warrant was not executed and proved, as by the statute of the state of Illinois provided. (5) That said petition, as amended, shows upon its face and its exhibits that the statute of limitations has run on said judgment, and that the said statute is now a complete bar to any recovery in this case because-- First. Said judgment was rendered on the 15th day of May, 1878,--a period of over eight years prior to the commencement of this action. Second. That no execution issued on said judgment within one year from the rendition of the same. Third. No execution issued on said judgment within seven years from the rendition of the same, and no execution has ever issued on said judgment. [ Fourth omitted in record.] Fifth. That said judgment was dead over one year prior to the commencement of this action. Sixth. No action to revive said judgment was ever instituted; therefore the statute of limitations of the state of Illinois bars recovery in this action.” The demurrer was overruled; and, the defendant refusing to answer or further plead to said petition, there was a finding and judgment for the plaintiffs. The cause is brought to this court on error by the defendant, who assigns error as follows: “ First. The court erred in admitting in evidence the judgment of the circuit court of Stark county, Ill., because the said judgment and petition nowhere states that the court pronouncing said judgment had jurisdiction of the subject-matter, nor of the person of the defendant therein, plaintiff herein. Second. The court erred in overruling the demurrer to the petition in the case.”

There having been no trial of issues of fact, there was, of course, no bill of exceptions to the reception or rejection of evidence. No question, therefore, arises under the first assignment. Disposed of, as the case was, on demurrer, the record of the proceedings and judgment of the circuit court of Stark county, Ill., will be regarded as a part of the petition, and not as evidence.

Upon the second point counsel for plaintiff in error cites numerous cases where judgment has been rendered in actions commenced by summons and by attachment, but where no service has been made upon the defendant, whose liability upon the judgment was then called in question; but they cite no case where judgment has been rendered by confession upon cognovit. The method of taking judgment by confession on...