Osborn v. Blackburn

• Citation: 78 Wis. 209,47 N.W. 175
• Parties: OSBORN v. BLACKBURN ET AL.
• Decision Date: 25 November 1890
• Court: Wisconsin Supreme Court

78 Wis. 209

47 N.W. 175

OSBORN

v.BLACKBURN ET AL.

Supreme Court of Wisconsin.

Nov. 25, 1890.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.Bashford & Disney and Fayette Marsh, for appellants.

Lamoreux, Gleason, Shea & Wright, for respondent.

COLE, C. J.

This is a suit upon a replevin bond which was executed by the defendants in an action brought in the district court of Minnesota. The bond was given to enable the defendant in that action to retain possession of the property in controversy, and was conditioned that the obligors should pay any sum which the plaintiff might recover. A judgment for $1,653.70 was recovered in the Minnesota court, which has not been paid, and, hence, this suit upon the bond. Some technical objections are taken to the Minnesota judgment, as that it has not been perfected by the taxation of the costs, and disbursements being inserted therein, and that the judgment was not in the form prescribed by the Minnesota statute. No proof was made as to what the law of Minnesota was upon the subject. The learned counsel for the defendants contends that the courts of this state will take judicial notice of what the laws of Minnesota are, without proof. If this contention of counsel is not sustained, it is practically admitted that the judgment from which this appeal is taken must be affirmed. In the case of Rape v. Heaton, 9 Wis. 329, the law upon this question was thus laid down: “The act of congress requiring such faith and credit to be given to judgments, as they would have in the states where rendered, does not profess to determine in what manner the courts shall ascertain such effect, and cannot be construed as making it imperative on them to take judicial cognizance of the laws of other states. There are many cases where the courts are bound to decide upon contracts according to the laws of other states, where they were made, or are to be performed, but it has never been held that in such cases they were bound to take judicial notice of those laws. So here, the constitution and act of congress require the effect and credit of judgments to be determined according to the law of the state where rendered, but leave the manner in which courts shall ascertain those laws to be determined by the general principles of pleading and proof applicable to the subject. The act of congress does not undertake to determine this, and, even if it did, it is very doubtful whether it would be competent for congress to provide in what manner the laws of one state should be proved in another.” Page 339. And the opinion proceeds to state the decision of this court on the point in this language: “The true rule is that in such cases courts are not bound to take actual notice of the laws of other states, in the absence of all proof, but may presume them to be in accordance with their own. So that whenever any difference is relied on, it is incumbent on the party relying on it, to prove such difference for the information of the court.” The doctrine of Rape v. Heaton was followed in Walsh v. Dart, 12 Wis. 635;Hull v. Augustine, 23 Wis. 383;Pierce v. Railway Co., 36 Wis. 283;Horn v. Railway Co., 38 Wis. 463; Kellam v. Toms, Id. 592. But the question is so fully and ably considered by Mr. Justice PAINE, in Rape v. Heaton, both upon principle and authority, that it is unnecessary to extend the discussion here, or to attempt to fortify the reasoning which led the court to the conclusion so arrived at. We are well aware that there are conflicting decisions upon the question, but we think Rape v. Heaton lays down the better rule and is sustained by the greater weight of authority. It is claimed that the supreme court of the United States, in Carpenter v....