Roberts v. Leutzke

• Decision Date: 03 October 1906
• Docket Number: 5,815
• Citation: 78 N.E. 635,39 Ind.App. 577
• Parties: ROBERTS v. LEUTZKE ET AL
• Court: Indiana Appellate Court

78 N.E. 635

39 Ind.App. 577

ROBERTS v. LEUTZKE ET AL

No. 5,815

Court of Appeals of Indiana

October 3, 1906

Rehearing denied February 27, 1907.

From Hamilton Circuit Court; Ira W. Christian, Judge.

Action by Charles Leutzke and others against Austin Roberts. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Gavin & Davis and W. S. Christian, for appellant.

Shirts & Fertig, for appellees.

OPINION

MYERS, J.

The complaint in this case is in one paragraph, and is founded upon a judgment rendered in favor of appellees and against appellant in the circuit court of Manitowoc county Wisconsin. The overruling of a demurrer to the complaint is assigned as error.

Appellant contends that the complaint is defective for the reason that it does not disclose the cause of action or subject-matter in controversy before the Wisconsin court. According to appellant's theory, in order to make this complaint good, it should contain copies of the pleadings, or at least allegations showing that the judgment declared on was responsive to the issues. The complaint now under consideration shows that in an action commenced by appellees against appellant in the circuit court of Manitowoc county, Wisconsin, appellant entered a full appearance, and upon a trial of that cause the judgment herein sued on was rendered; that the Wisconsin court is a court of general jurisdiction. Upon the authority of Gates v. Newman (1897), 18 Ind.App. 392, 46 N.E. 654, the complaint in the case at bar is sufficient to require an answer.

The second and only other error assigned by appellant is the overruling of his motion for a new trial. Considering the reasons assigned by appellant for a new trial, in the order by him discussed, our attention is called (1) to the ruling of the court in admitting in evidence, over his objection, the transcript of the judgment of the Wisconsin court.

This transcript does not contain the pleadings and issues tendered in that court, and upon that ground appellant bases his objection. That the transcript is properly authenticated under §§ 458, 479 Burns 1901, §§ 454, 472 R. S. 1881, and exhibits an entry of a personal judgment given by the circuit court of Manitowoc county, Wisconsin, in favor of appellees and against appellant for $ 3,884.85, is unquestioned. This being true, it was properly admitted in evidence (Lieb v. Lichtenstein [1890], 121 Ind. 483, 490, 23 N.E. 284; Bailey v. Martin [1888], 119 Ind. 103, 21 N.E. 346), and was prima facie evidence of the debt herein sued on. Holt v. Alloway (1827), 2 Blackf. 108.

The second reason discussed by appellant in support of his motion for a new trial is that the decision of the trial court is not sustained by sufficient evidence and is contrary to law.

It is a familiar rule of law that all presumptions and intendments are to be indulged in favor of the regularity of all the acts and proceedings of courts of general jurisdiction, that they have jurisdiction to give the judgments they render, and that such judgments are according to the laws of the state where had. In the case at bar it sufficiently appears from the transcript that the judgment declared on was rendered by a court of record, and, being a court of record, it is presumed to be a court of general jurisdiction. (American, etc., Ins. Co. v. Mason [1902], 159 Ind. 15, 64 N.E. 525); and, applying the rule just stated, it is presumed to have jurisdiction of the subject-matter of the action of the parties interested (American, etc., Ins. Co. v. Mason, supra; Gates v. Newman, supra), and rightfully to have given the judgment sued on. Runner v. Scott (1898), 150 Ind. 441, 50 N.E. 479; Galpin v. Page (1873), 18 Wall. 350, 21 L.Ed. 959.

While jurisdiction may be presumed, it is nevertheless a subject open to inquiry, and may be attacked in a collateral proceeding. Grover, etc., Mach. Co. v. Radcliffe (1890), 137 U.S. 287, 11 S.Ct. 92, 34 L.Ed. 670; Thormann v. Frame (1900), 176 U.S. 350, 20 S.Ct. 446, 44 L.Ed. 500; Pennoyer v. Neff (1877), 95 U.S. 714, 24 L.Ed. 565; American, etc., Ins. Co. v. Mason, supra; Long v. Ruch (1897), 148 Ind. 74, 47 N.E. 156; Runner v. Scott, supra; Gates v. Newman, supra.

The Wisconsin judgment is fair on its face, and the burden of showing a want of jurisdiction in the court rendering it was upon appellant. By his affirmative paragraph of answer to the complaint herein he challenges the validity of the judgment in suit, upon the theory that no pleading or issue before the Wisconsin court authorized a personal judgment against him, and therefore the finding and judgment of the court in that respect was not only irregular but coram non judice and void. The settled law in this State is that a "judgment is conclusive upon all questions which were or might have been litigated and determined within the issues before the court." Maynard v. Waidlich (1901), 156 Ind. 562, 60 N.E. 348, and cases cited. But where the judgment is not responsive to the issues and not the adjudication of a subject included in them, it will be considered irregular and void. McFadden v. Ross (1886), 108 Ind. 512, 8 N.E. 161, and cases cited; Hutts v. Martin (1893), 134 Ind. 587, 33 N.E. 676; Whitney v. Marshall (1894), 138 Ind. 472, 37 N.E. 964; Bremmerman v. Jennings (1885), 101 Ind. 253, 257; Reynolds v. Stockton (1891), 140 U.S. 254, 11 S.Ct. 773, 35 L.Ed. 464; Pray v. Hegeman (1885), 98 N.Y. 351.

Appellant introduced in evidence a transcript of all the pleadings, proceedings and judgment in the Wisconsin court. From this transcript we learn that on June 22, 1903, appellees commenced a suit in equity in the circuit court of Manitowoc county, Wisconsin, wherein appellant and others were defendants. The complaint alleges in substance that a certain firm of lawyers, residents of Manitowoc county, and parties to the action, have in their possession, as agents of the firm of which appellant was a member, three notes for $ 1,000 each; that appellees' signatures were obtained to said notes through false and fraudulent representations made to them separately and individually by appellant's agent, O'Connell, and upon an agreement with O'Connell that said notes would not be delivered to his principal and have validity until each had been signed by all the parties subscribing for stock in a company being formed for the purpose of purchasing a stallion, property of the firm of which appellant was a member, and then in the possession of said O'Connell; that unless said notes were signed by all the parties aforesaid they were to be returned to the subscribers and destroyed; that a number of the subscribers for stock in said proposed horse company refused to sign, and never did sign said notes; that on March 5, 1903, O'Connell delivered said stallion to one of the appellees, to be held by him for all who had subscribed for stock, and upon condition that all who had subscribed for stock should join in the execution of said notes; that said O'Connell, contrary to the agreement and conditions upon which appellees signed said notes, delivered the same to his principal, who took possession thereof, and who, on and after March 6, 1903, claimed to be the owners and holders thereof, and that the same were legal and valid claims against appellees, and were attempting to sell and negotiate the same to innocent third persons so as to cut off, if possible, appellees' defense thereto.

The complaint also contains allegations relative to said agent's representations as to the soundness of said horse and as to his being free from disease at the time he was delivered to one of the appellees, and as to his unsoundness and diseased condition at that time, and as to certain subscriptions for stock being fraudulent, which were by said agent represented to be bona fide; also allegations relative to appellees' demand upon appellant for the return of said notes and their offer to surrender said stallion, and claiming expense for his keep, and closes with the following prayer: (1) That said firm of attorneys, naming them, also the members of appellant's firm "be each perpetually restrained and enjoined from selling, negotiating or otherwise transferring said notes, or any one of them; (2) that said notes and each of them be surrendered into court and canceled; (3) that a temporary injunction be issued, restraining and enjoining said defendants * * * from selling, negotiating, transferring or parting with the possession of said notes or any of them during the pendency of this action, and until the further order of the court; (4) for their damages in the sum of $ 300, and for the...