Randolph v. Keiler

• Decision Date: 31 October 1855
• Citation: Randolph v. Keiler, 21 Mo. 557 (Mo. 1855)
• Parties: RANDOLPH et al., Respondents, v. KEILER, Appellant.
• Court: Missouri Supreme Court

21 Mo. 557

RANDOLPH et al., Respondents,

v.KEILER, Appellant.

Supreme Court of Missouri.

October Term, 1855.

1. Where, in a suit on a judgment of a sister state, it is alleged in the petition that the plaintiffs, J. F. R. and C. R., recovered the said judgment against the defendant, and it appears from the transcript offered in evidence that the judgment was in favor of J. F. R. and C. F. R.: held, that this is an immaterial variance.

2. Where the judgment declared on is a judgment of the “Inferior Court of Common Pleas, in and for the county of Sussex, and state of New Jersey,” held, that the petition is supported by producing a transcript of a judgment certified by the clerk and judge of the “Inferior Court of Common Pleas, in and for the county of Sussex,” &c., although in the body of the transcript the court in which the proceedings were had is styled the “Sussex Common Pleas,” & c., and the “Sussex County Court of Common Pleas,” &c.

3. Where, in suit on a judgment of a court of the state of New Jersey, it appears from a transcript of such judgment, that the same was entered and rendered, as confessed, (in pursuance of the law of the state of New Jersey,) by virtue of and in pursuance of a warrant of attorney, dated at Easton, Penn., empowering “any attorney of any court of record in the United States, to confess judgment against” the defendant and in favor of the plaintiffs: held, that such judgment, being valid in the state of New Jersey, by virtue of the laws thereof, is entitled to “full faith and credit,” within the meaning of section 1, of article 4, of the constitution of the United States, and that, too, although it does not appear that either the plaintiff or the defendant were, at the date of said judgment, citizens of the state of New Jersey, or had ever been within the said state. (SCOTT, J., dissenting, holding that, in order that a judgment of a sister state may be binding under the constitution, it must be rendered in pursuance of the law of the state in which it is rendered operating on her resident citizens; which does not appear to have been the case here; and that the warrant of attorney was not pursued in this, that it does not appear that the judgment was confessed by an attorney of a court of record, but by a private agent of the plaintiffs.)

Appeal from St. Louis Court of Common Pleas.

This was an action brought by James F. Randolph and Carman Randolph against the defendant, Keiler, on a transcript of a judgment, alleged in the petition to be a judgment of the “Inferior Court of Common Pleas, in and for the county of Sussex, state of New Jersey.” It is alleged in the petition “that on the 11th day of November, A. D. 1845, before Lewis Howell, then judge of the Inferior Court of Common Pleas n and for the county of Sussex, state of New Jersey, and in the said Inferior Court of Common Pleas, in and for the said county of Sussex, in the said state of New Jersey, the said plaintiffs, by the consideration and judgment of said court, recovered against the said defendant the sum of $502 51 debt,” and four dollars costs. Plaintiffs admit in petition a payment on said judgment of $149 28, on November 12th, 1845, and claim judgment for the balance, $353 23, with interest from November, 1845. The answer of defendant is fully set forth in the opinion of the court. The cause was submitted to the court without a jury, and on the trial the plaintiffs offered in evidence the revised code of New Jersey, and the following exemplification of a judgment:

Exhibit “ A,” filed with and referred to in Petition.

“James F. Randolph & Carman F. Randolph vs. Raphael Keiler. Sussex Common Pleas--New Jersey. Sussex county, ss. Herman S. Heckman, of full age, being duly sworn upon his oath, saith that deponent is the agent of James F. Randolph and Carman F. Randolph, partners in trade, under the name and style of James F. Randolph & Co., who are out of this state, to-wit, at Easton, Pennsylvania, and that the true consideration of a judgment obligation given by one Raphael Keiler, to the said James F. Randolph & Co., for the sum of $498 93, one day after date, and dated the 27th day of September, 1845, upon which judgment is about to be entered up in the Court of Common Pleas of the county of Sussex, consisted in goods, wares and merchandise, sold and delivered by the said James F. Randolph and Carman F. Randolph to him, said Raphael Keiler, and that said debt is justly and honestly due and owing from said Raphael, and that said judgment is not confessed to answer any fraudulent intent or purpose, or to protect the property of said defendant from his creditors. (Signed) H. S. Heckman. Sworn to and subscribed this eleventh day of November, 1845, before me, Lewis Howell, Judge of Common Pleas.”

[ Copy of Note.]

“$498 93.

EASTON, September 27th, 1845.

One day after date, I promise to pay to order of James F. Randolph & Co., four hundred and ninety-eight dollars and ninety-three cents, without defalcation, for value received.

And further, I do hereby empower any attorney of any court of record in the United States, to enter and confess judgment against me for the above sum of $498 93 debt and costs of suit, release of errors, &c. Witness my hand and seal, the day and date aforesaid. Raphael Keiler, (seal.) Witness present, H. S. Heckman.”

“Sussex County Court of Common Pleas, of the term of November, 1845. James F. Randolph & Carman F. Randolph vs. Raphael Keiler. In debt on obligation and warrant of attorney.

The defendant's appearance to this action is entered, and judgment confessed to the plaintiff for the sum mentioned in the above obligation, by virtue of the warrant of attorney thereto annexed, and pursuant to the direction of an act entitled ‘an act directing the mode of entering judgments on bonds with warrants of attorney to confess judgments.’ Whereupon, it is considered that the said James F. Randolph and Carman F. Randolph do recover against the said Raphael Keiler the sum of $502 51 debt, and four dollars costs of suit. Judgment signed this 11th day of November, 1845. Lewis Howell, Judge of Common Pleas.”

“I do certify that, at the time of confessing said judgment, the plaintiff therein produced before me an affidavit of the true consideration of the obligation for which said judgment was confessed, &c., and of the other requirements of the statute in such case made and provided. Lewis Howell, Judge, &c. November 11th, 1845.”

“New Jersey, Sussex county, ss. I, Thomas J. Ludlum, clerk of the Inferior Court of Common Pleas in and for said county, do hereby certify that the above copy of the judgment of James F. Randolph and Carman F. Randolph vs. Raphael Keiler, is a true copy of the same, as the same remains a record in my office. Judgment entered and recorded in book X, of judgments, p. 619, &c. In witness whereof, I have hereunto set my hand and seal of office at Newton, this thirteenth day of April, A. D. 1853. Thos. J. Ludlum, clerk.” (Seal.)

“I, Moses Dunning, Presiding Judge of the within named court, do certify that the within attestation is in due form of law, and made by the proper officer to make the same. Witness my hand and seal, this 14th day of April, A. D. 1853. Moses Dunning.” (Seal.)

The above comprises the whole of the transcript offered in evidence. To the introduction of this transcript, the defendant at the time objected, and among other reasons assigned specially, that said exemplification was not sufficiently authenticated either by the clerk or the judge of the court from which the same purports to come. The court overruled defendant's objection, and received the said exemplification in evidence. Defendant excepted. The finding of the court is fully set forth in the opinion of the court.

Hill, Grover & Hill, for appellant.

1. There is a variance between the judgment declared on and that offered in evidence. The judgment declared upon is a judgment of the “Inferior Court of Common Pleas, in and for the county of Sussex, state of New Jersey.” The judgment offered in evidence, as clearly appears from the heading of the judgment entry, and also from the certificate of the judge before whom the same was rendered, is a judgment of “the Sussex County Court of Common Pleas.” See the heading of the affidavit. The clerk certifying the judgment does not certify that he is clerk of the court in which the judgment was rendered, but of “the Inferior Court of Common Pleas of Sussex county.” There is nothing to identify him as clerk of the court which rendered the judgment. The clerk and judge are clerk and judge of “the Inferior Court of Common Pleas.” The judgment attempted to be certified is a judgment of “the Court of Common Pleas.” It is not stated in the certificate that the judgment is a judgment of the ““Inferior Court of Common Pleas,” but that “the same is a copy of the judgment which remains of record in his office.” How it became a record in that office, does not appear. The authentication must come from the clerk and judge of the court in which the judgment was rendered. It cannot be presumed that the courts are the same. This must appear from the record itself. The certificate is dated about eight years after the judgment. If the name of the court had been changed, or if the record had been transferred to another court, so that there was a legal succession, that fact must appear. There is also a variance in the name of one of the plaintiffs. The case in 8 Mo. 428, was decided upon facts unlike those in the present case. 2. The judgment offered in evidence was entered upon without authority. The power in warrant of attorney was exceeded; in that, judgment was given for $502 51 and costs, while the power of attorney only authorized a confession for $498 93 and costs. It appears that the proceedings were summary, and that the judgment was entered up in the absence of defendants under the warrant of attorney. 3. The answer having, by denying the execution of the power, put the same in...