Packer v. Thompson

• Decision Date: 06 February 1889
• Citation: 25 Neb. 688,41 N.W. 650
• Parties: PACKER v. THOMPSON.
• Court: Nebraska Supreme Court

25 Neb. 688

41 N.W. 650

PACKER

v.THOMPSON.

Supreme Court of Nebraska.

Feb. 6, 1889.

Syllabus by the Court.

1. A judgment was recovered against one A in the state of Iowa in the year 1866. Afterwards he removed to this state, and, prior to the year 1886, had resided herein eight years. In the latter year, however, he returned to Iowa, where personal service was had upon him to revive the judgment. The judgment was thereupon revived, and an action brought thereon in this state. Held that, as the judgment of revivor had been obtained within five years before bringing the action in this state, it was not barred by our statute of limitations, which requires an action on a foreign judgment to be brought within five years.

2. Where the courts of another state have jurisdiction of the subject-matter and the parties, the merits of the controversy must be tried in such tribunals, and no defense is available in an action on such judgments in this state which could have been interposed in such courts.

Error to district court, Gage county; APPLEGET, Judge.

Action by John Thompson against James Packer on a judgment recovered in Iowa. Judgment for plaintiff, and defendant brings error.E. O. Kretsinger and J. N. Rickards, for plaintiff in error.

Hazlett & Bates, for defendant in error.

MAXWELL, J.

This action was brought in the district court of Gage county on a judgment recovered against the plaintiff in error in the state of Iowa. To this petition the plaintiff in error filed an answer as follows: “That on the 21st day of May, 1866, the defendant herein contriving to cheat and defraud defendant falsely and fraudulently procured to be entered a judgment against this defendant in the district court of Clayton county, Iowa. That said pretended judgment was rendered upon a promissory note alleged to have been given by one James Packer and this defendant. That said note was a forgery, and was not signed by this defendant, or by any other person authorized so to do, but by some person unknown to defendant, and with intent to cheat and defraud defendant. That thereafter the plaintiff, further contriving to cheat, wrong, and defraud this defendant, fraudulently and falsely procured judgment to be entered thereon, which said judgment is and was without jurisdiction, and wholly null and void, and was without any service of notice of summons or otherwise on this defendant, in person or otherwise, and was rendered without the knowledge or consent of defendant, and without any appearance on the part of this defendant in person, by attorney, or in any other way or manner whatsoever, and which said judgment so fraudulently rendered and procured is the judgment hereinbefore referred to. That the pretended judgment mentioned and described in the plaintiff's petition is but a continuation and revivor of said former fraudulent and void judgment, and was entered without any further or different consideration than the judgment herein first mentioned and described. The defendant further says that he has been a resident of Nebraska for more than eight years last past, and during said time resided in said state continuously, which fact was well known to the plaintiff herein, and that duringall of said time the plaintiff made no effort to enforce said...