Sammis v. Wightman

• Decision Date: 15 February 1893
• Citation: 31 Fla. 10,12 So. 526
• Parties: SAMMIS v. WIGHTMAN.
• Court: Florida Supreme Court

12 So. 526

31 Fla. 10

SAMMIS v. WIGHTMAN.

Florida Supreme Court

February 15, 1893

Error to circuit court, Duval county; James M. Baker, Judge.

Action by James S. Wightman, for the use of James Marcher and another, against Egbert C. Sammis, administrator of John S Sammis, deceased, on a foreign judgment recovered against deceased. There was judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. A demurrer to pleas to a declaration was filed, and two days after a new count was added to the declaration, and seven days later the demurrer was heard. Held, that the pleas stood to the new count, and that the demurrer was applicable to them as standing in that relation. Section 98, p. 834 McClel. Dig.

2. Where a final judgment has been recovered in a court of one of the states of the Union, and an action is brought thereon in a court of a sister state, the question of the former is open to inquiry and adjudication in the latter is open to injury and adjudication in the latter court; but where the former court has acquired jurisdiction of the person of the defendant in judgment, its adjudication of the merits of a controversy of which it also had jurisdiction is conclusive upon the latter court.

3. Where a party sued in one state on judgment obtained against him in a sister state undertakes to question the jurisdiction of the court of the latter state over him, his plea must negative by certain and positive averments every fact upon which such jurisdiction can be legally predicated. If by any reasonable intendment the facts alleged in the plea can exist, and the court rendering the judgment could still have had jurisdiction, the plea is bad.

4. A plea to an action on a judgment obtained in a sister state which sets up that there was no service of summons on the defendant in the action resulting in such judgment, is bad as it does not exclude the idea or fact that he may have appeared in that action. This is not the case, however, where the declaration shows that the court in which the judgment sued on was rendered obtained jurisdiction solely by service of summons.

5. Allegations in a plea that a defendant sued in one state on a judgment obtained in a court of a sister state did not have his day in the latter court, or that the latter court did not have jurisdiction of him, are mere conclusions of law and bad in substance, even though they have the basis of an accompanying allegation that there was no service of summons in the action in which the judgment sued on was rendered.

6. A plea to an action on a judgment of a sister state, which sets up that the defendant was not indebted to the plaintiff therein, or denies the making of the note upon which that recovery was had, presents a matter of the merits of that controversy as to which the judgment is conclusive on the courts of the state where such judgment is sued on.

7. Allegations that no legal judgment has been rendered, and charging fraud, without stating facts evidencing fraud, are mere conclusions of law, and demurrable.

8. A plea that the note upon which a judgment of a court of a sister state was recovered was not produced or filed in the cause in which such judgment was obtained is bad on demurrer. In the absence of an allegation in the plea that the law of the state where the judgment sued on was rendered required the stated filing of the note, the demurrer does not admit that the law of that state required such filing. The same propositions are true of allegations to the effect that the judgment sued on was procured upon proof by affidavit of the service of the summons, and upon a complaint verified by a stated affidavit.

9. The courts of this state do not take judicial notice of the laws of a sister state even in actions brought here on judgments obtained in other states; nor does the supreme court of the United States do so on writ of error to a state's court in such an action unless the state court takes such notice.

10. Error in sustaining a demurrer to a plea is immaterial error where there is another plea of similar effect upon which no issue was taken.

11. Where there is no bill of exceptions, it is conclusively presumed that the evidence sustained the verdict.

12. An averment of the required publication of the notice is essential to a plea of the statute of nonclaim.

13. The fifteenth section of the act prescribing limitations in civil suits (section 15, p. 734, McClel. dig.) does not create an independent or substantive limitation upon any and all causes of action which may exist in favor of or against a testator or intestate at his death, and upon which the statute may have begun to run at such death. The sole purpose and effect of the stated section are to secure, after the grant of administration, the period of six months to executors or administrators, and one year to those having a right of action against the testator or intestate, whereever the cause of action is alive at the death of the testator or intestate, and the statute is running on it, and the period of limitation applicable to it under some other section of the statute has expired before the issue of letters testamentary or of administration, or will expire within less than six months after such issue, when the right of action is in the decedent, or within less than one year when the right of action is against the deceased. It was intended to provide for cases in which a right of action existed in or against the deceased at his death, and the statutory period controlling resort to the courts for enforcing similar causes of action was then running, and might expire either before the grant of administration or after such grant, and within less than 'six months' or 'one year,' according as the cause of action may be in favor of or against a decedent.

14. The general limitations of the statute do not cease to run upon the death of a testator or intestate; on the contrary, they continue to run, and if more than six months of any period applicable to a right of action existing in a testator or intestate at his death, or more than one year where the right of action is against the deceased, remain unexpired at the time of the grant of letters testamentary or of administration, the general limitation controls, and nothing in the fifteenth section has any application or effect. Sanderson's Adm'rs v. Sanderson, 17 Fla. 820, reviewed.

15. Twenty years is the period limiting actions in this state on a judgment recovered in a sister state. A judgment was rendered in New York, against a defendant, on January 10, 1880, and an action thereon was commenced in this state against his administrators more than a year after the grant of letters, and about 4 years after the recovery of such judgment, leaving leaving nearly 16 years of the general limitation of 20 years unexpired. Held, that the provisions of section 15 of the statute of limitations of February 27, 1872, (section 15, p. 734, McClel. Dig.) that if a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his executor or administrator after the expiration of that time, and within one year after the issuing of letters testamentary or administration, did not govern the action on the judgment; but, in the absence of any publication of notice under the statute of nonclaim, the action was controlled solely by the 20-year limitation, and that nearly 16 years remained for bringing suit thereon at the time the action was instituted in this state.

16. The plea of nul tiel record does not present new matter, and the absence of a similiter to it is not ground for setting aside a verdict or arresting judgment.

17. In a declaration in an action brought in the name of W., for the use of J. and L. M., the declaration alleged an assignment of the cause of action by W. to the usees, for a valuable consideration, and defendant pleaded that W. did not assign for a valuable consideration. The plea was bad, and demurrer thereto was properly sustained.

18. An action at law may be maintained on a judgment at law in the name of a judgment creditor for the use of an assignee of the judgment, notwithstanding the act of 1881, (chapter 3241, Laws; section 981, Rev. St.,) allowing the real parties to sue in their own name.

19. The plea of plene administravit is not admissible, in this state, in an action the purpose of which is simply to put a claim in judgment.

20. It is never error to refuse the filing of a plea that is never admissible in the action.

21. The presence in the record of a plea which has been overlooked, and remains undisposed of, is immaterial where the plea is not only without merit, but the subject-matter thereof is covered by other pleas which have been properly disposed of.

22. The trial judge refused an instruction offered by the defendant, and the record, after this showing, reads as follows: 'And the jury, having heard the charge of the court and argument of the counsel, and having considered of their verdict, on their oaths do say.' Then follows the verdict. Held, that the record shows that the judge gave instructions to the jury on the law of the case. Duggan v. State, 9 Fal. 516, distinguished.

23. In the absence from the record of all the evidence, it will be presumed that the judge did not err in refusing to give a requested instruction to the jury.

24. A judgment be bonis intestatoris, in the usual form, is sufficient.

COUNSEL

C. P. & J. C. Cooper, for plaintiff in error.

A. W. Cockrell & Son, for defendant in error.

The other facts fully appear in the following statement by RANEY C.J.:

This action was commenced in Duval...