Poll v. Hicks

• Decision Date: 06 June 1903
• Docket Number: 12,937
• Parties: JOHN A. POLL v. W. A. HICKS, as Trustee
• Court: Kansas Supreme Court

72 P. 847

67 Kan. 191

JOHN A. POLL v. W. A. HICKS, as Trustee

No. 12,937

Supreme Court of Kansas

June 6, 1903

Decided January, 1903.

Error from Butler district court; C. W. SHINN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FOREIGN JUDGMENT -- Appeal Pending -- Presumption of Law. In an action in this state on a judgment rendered in one of the circuit courts of Ohio, the defendant pleaded that he had given a supersedeas bond and appealed the case to the supreme court of Ohio, where it was still pending The Ohio statutes respecting the effect of such appeal were not introduced in evidence. Held, that it will be presumed that the laws of Ohio are like our own, and that the appeal stayed the execution only, and was not an obstacle in the way of an action on the judgment.

2. CIRCUIT COURTS OF OHIO -- Jurisdiction. Circuit courts in Ohio are vested by the constitution of that state with judicial power. They are presumed to be courts of general jurisdiction.

3. CIRCUIT COURTS OF OHIO -- Status of Trustee. A circuit court of Ohio rendered a judgment and ordered the defendant to pay the amount thereof to a trustee to be thereafter appointed by a designated insolvency court. Held, that the trustee so appointed will be regarded as a functionary of the circuit court, and an instrument of the latter to give effect to its judgment.

H. W Schumacher, and Redden & Kramer, for plaintiff in error.

Hamilton & Leydig, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

This was an action on a judgment originally rendered in favor of one John P. Erdhouse against John A. Poll and others, in the court of common pleas of Hamilton county, Ohio, and appealed by the latter to the circuit court, where judgment was again rendered against him. The journal entry of the circuit court recites--

"that the defendant, John A. Poll, pay the sum of seventy-five hundred dollars ($ 7500), . . . for which he is found liable to account herein, to the trustee hereafter appointed by the court of insolvency of Hamilton county, Ohio, to administer the trust herein found. And, on failure to so pay said trustee, within ten days from his appointment, then execution shall issue therefor upon said trustee's filing his praecipe for such execution with the clerk of this court."

Attached to the amended petition was a certificate of the judge and ex officio clerk of the court of insolvency, stating in general terms that W. A. Hicks was on March 28, 1898, appointed trustee of John P. Erdhouse for the benefit of the latter's creditors; that he duly qualified and gave bond. Defendant below moved to strike this certificate from the petition. The motion was overruled. If this ruling was erroneous it was not prejudicial to defendant below, for the reason that the journal entry of Hicks's appointment was afterward introduced on the trial, showing the proceedings in full.

The answer filed by Poll in the court below contained a verified denial of the right, power or authority of the plaintiff, W. A. Hicks, to maintain the action. It also set forth that after the judgment had been rendered in the common pleas court Poll filed his appeal bond and perfected his appeal to the circuit court. It further alleged that if any judgment was rendered in the circuit court it had been duly and legally appealed to the supreme court of the state of Ohio, where it was still pending; that the defendant below filed a supersedeas bond to stay proceedings in the circuit court, which was duly approved. These allegations respecting the stay of proceedings in the circuit court were stricken from the answer as irrelevant and redundant matter, on motion of plaintiff below. We think there was no error in this. The Ohio statutes were not introduced in evidence. We can only presume that they are like our own. (K. P. Rly. Co. v. Cutter, 16 Kan. 568; Rogers v. Coates, 38 id. 232, 16 P. 463; Railroad Co. v. Johnson, 61 id. 417,59 P. 1063.) Under our practice a supersedeas bond given in proceedings in error serves the purpose of staying the execution of the judgment only. ( McDonald v. Symns, 64 Kan. 529, 67 P. 1111; Heizer v. Pawsey, 47 id. 33, 27 P. 125; C. B. U. P. Rld. Co. v. Andrews, Adm'r, 34 id. 563, 9 P. 213.) A stay of execution is no obstacle in the way of another action on the judgment. (Gaumer v. Terrel, 65 Kan. 15, 68 P. 1071; Willard v. Ostrander, 51 id. 481, 32 P. 1092, 37 Am. St. Rep. 294. See, also, 11 Encyc. of Pl. & Pr. 1104, 1105, and cases cited).

The discussion of the contention by counsel for plaintiff in error that the cause of action was merged in the judgment is foreign to the matter in hand....