Price v. Clevenger
| Citation | 74 S.W. 894,99 Mo.App. 536 |
| Parties | FREDERICK E. PRICE, Respondent, v. JOSHUA M. CLEVENGER, Appellant |
| Decision Date | 27 April 1903 |
| Court | Court of Appeals of Kansas |
Rehearing Denied 99 Mo.App. 536 at 545.
Appeal from Johnson Circuit Court.--Hon. W. L. Jarrott, Judge.
AFFIRMED.
Judgment affirmed.
Chas E. Morrow for appellant.
(1) The judgment was not proven. The transcript offered was not and did not purport to be the whole record. The whole record must be offered. Philipson v. Bates, 2 Mo. 77; Dameron v. Williams, 7 Mo. 138; Crone v Dawson, 19 Mo.App. 214; Williams v. Williams, 53 Mo.App. 617; Seymour v. Newman, 77 Mo.App. 578; Gibson v. Robinson, 16 S.E. 969; State v. Misenheimer, 31 S.E. 852; Ashmead v. Wilson, 22 Fla. 255; Black on Judgments, Vol. 2, sec. 877. (2) The transcript was not properly certified. To be admissible the clerk must certify that it is the whole record. Crone v. Dawson, 19 Mo.App. 214. (3) In the absence of proof of the laws of the State of Illinois, where the assignments were made, the common law is presumed to exist. McPike v. McPike, 111 Mo. 216; Houghtaling v. Ball, 19 Mo. 84; Myer v. McCade, 73 Mo. 236; Long v. Long, 79 Mo. 651; Burdict v. Railroad, 123 Mo. 221. (4) Therefore, the alleged assignments must be good in equity as administered at common law. In equity in order to pass title to a chose in action, not subject to actual delivery, it was necessary to give notice of the alleged assignment to the debtor. Clodfelter v. Cox (1 Sneed), 33 Tenn. 330; Richards v. Griggs, 16 Mo. 416; Bartlett v. Eddy, 49 Mo.App. 32; Bispham's Prin. of Equity, p. 175, sec. 168; Murdoch v. Finney, 21 Mo. 138; Tutt v. Couzins, 50 Mo. 152 l. c. 154; 2 Story's Equity Jurisprudence (10 Ed.), sec. 1047; Vanbuskirk v. Ins. Co., 14 Conn. 145; Dearle v. Hall, 3 Russell 1. (5) The answer did not admit the judgment as pleaded or that it was valid. The plaintiff did not so understand it nor treat it at the trial; but undertook to establish it by proof. Even if the judgment as pleaded has been admitted by the answer, yet, if the plaintiff proceeded to put it in evidence and failed in his proof and it is not shown to be valid, the court will treat it as forming no ground for plaintiff's action. Ely v. Cook, 2 Hilt. 406; 9 Abb. Prac. 366; Rosenberger v. Gibson (Mo.), 65 S.W. 237. (6) The certified copy of the alleged assignment of the judgment from Alfred to J. R. Gulick was incompetent. Wonderly v. Lafayette Co., 150 Mo. 635. (7) The copies of the alleged assignments attached as exhibits to the depositions were incompetent. The originals, if identified by the witness, should have been attached. R. S. 1899, sec. 2903. Catlin v. Underhill, 12 Wheaton (U.S.) 515. (8) Costs were not recoverable at common law. Hoover v. Railroad, 115 Mo. 77.
J. W. Suddath for respondent.
(1) A judgment may be assigned by any method competent for assignment of any other chose in action. It need not be under seal or even in writing. Statutory method is only cumulative. Freeman on Judgments, sec. 442; Emory v. Joice, 70 Mo. 537; Wise v. Loring, 54 Mo.App. 259; Knapp v. Standley, 45 Mo.App. 264; Burgess v. Cave, 52 Mo. 43. (2) Secret assignment is good except as to payments made by debtor prior to notice. Freeman on Judgments, sec. 426; Emory v. Joice, 70 Mo. 537; Wise v. Loring, 54 Mo.App. 259. Knapp v. Standley, 45 Mo.App. 264; Burgess v. Cave, 52 Mo. 43-44; Ins. Co. v. Cohen, 9 Mo. 421. (3) Original instrument need not be attached as exhibit to deposition, if original is shown to witness and by him identified. Haggard v. Vickory, 78 Ind. 65; Robinson v. Savage, 124 Ill. 266, (15 N.E. 850); Mabley v. Leophart, 47 Ala. 257; Gunble v. Hufford, 46 Ind. 125; Wright v. Cabot, 89 N.Y. 570. Sworn copies are admissible if original is beyond jurisdiction of the court. Bullitt v. Overfield, 2 Mo. 4; Ins. Co. v. Cohen, 9 Mo. 421. (4) Unless the error complained of materially affects the merits of the action, the Supreme Court shall not reverse the judgment of any court. R. S. 1899, sec. 865. (a) The admission of incompetent evidence will not be cause for reversing a judgment where it appears that such error was harmless. State ex rel. v. Edwards, 78 Mo. 473; Hollenbeck v. Railroad, 141 Mo. 97; sec. 865, R. S. 1899. (b) The admission in evidence of a foreign judgment where the authentication thereof is technically defective, is harmless error. Williams v. Williams, 53 Mo.App. 617.
--The plaintiff sued upon a judgment obtained by one Alfred Gulick against defendant on the 20th day of April, 1878, in the circuit court of Champaign county, Illinois. It is alleged in the petition that said Alfred Gulick in April, 1878, assigned said judgment to Jesse R. Gulick; that said Jesse R. Gulick on the 17th day of July, 1883, assigned the same to Francis M. W. Price; that said Francis M. W. Price on the 12th day of July, 1885, made an assignment thereof to plaintiff, Frederick E. Price; that defendant had notice of all of said assignments, and that said judgment has not been paid.
The parties differ as to what construction should be put upon the answer, which is as follows:
The cause was tried before a jury. The defendant objected to the introduction of the transcript of the judgment of the Illinois court for several reasons, viz.: That it was not attested as required by law, and that it did not show that the court had jurisdiction. There were other objections which will further along be considered. It is claimed by the plaintiff that the admission or rejection of the transcript, so far as it went to establish the fact that a judgment, such as declared upon, had been rendered by a court of competent authority, was immaterial, as that fact was admitted by the defendant's answer. This claim, we think, should be conceded for the answer admits the rendition of a judgment by a court of competent jurisdiction, and the defendant will not be heard to say that his admission only went to the extent of admitting a judgment had been rendered, but not the one declared on, which would be equivalent to no admission. The courts will not tolerate such quibbling. The law presumes that when defendant stated that he was admitting a fact, it was a fact which was in issue, and not the admission of one that was not in the case. And we are further satisfied that the defendant, by his answer, not only admitted that the judgment sued on had been rendered by a court of competent jurisdiction, but that pleaded had been so rendered. That part of the answer pleading the statute of limitations uses these words: "That the cause of action herein sued upon, is a judgment, and that the same accrued more than ten years," etc. If the cause of action sued upon is a judgment, we suppose that it is good for all that is included within its four corners. It was not therefore necessary for the plaintiff to introduce said record to prove the amount of his judgment, as he thought he was compelled to do, and it follows that the admission of such record, whether it was competent evidence or not, was immaterial, as the judgment as pleaded stood confessed by the defendant's answer.
It is next contended by defendant that there was error in the admission of the various assignments, as they were not properly proved. The first assignment was that of Alfred Gulick, the plaintiff in the judgment, to Jesse R. Gulick. To prove said assignment plaintiff offered in evidence a copy of the records of said Illinois court, which is as follows, to-wit:
The assignment shows that it was made on the 19th of April, whereas the judgment was not rendered until the 20th of said month; but it was shown that this was a mistake, as the paper was in fact executed on the day of rendition of the judgment.
The objection made to this paper was that it is not the best evidence; that the law required the production of the original. The answer to this objection was that it was on file in records of the Illinois court, and not in the power of the plaintiff to produce it. As it is conceded that in equity, though not in common law, a judgment may be assigned, the question arises, in what way can such an assignment be proved? In equity, the suit would have to be in the name of the assignor; but under our statute we have no doubt but what the assignee may prosecute the action in his own name. Bartlett v. Eddy, 49 Mo.App. 32.
In the absence of proof of the statutes of Illinois, the presumption is that the common law prevails there. McPike v McPike, 111 Mo. 216, 20 S.W. 12; Roll v. St. Louis Min. Co., 52 Mo.App. 60; Benne v. Schnecko, 100 Mo. 250, 13 S.W. 82; Burdict v. Railroad, 123 Mo. 221. Such being the case, there could have been no common-law assignment of the judgment in question, but under the rule in Bartlett v. Eddy, supra, it had vitality as...
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