Severson v. Dickinson

• Decision Date: 03 March 1924
• Parties: S. T. SEVERSON, Respondent, v. A. D. DICKINSON, JR., Appellant. *
• Court: Kansas Court of Appeals

259 S.W. 518

216 Mo.App. 572

S. T. SEVERSON, Respondent, v. A. D. DICKINSON, JR., Appellant. *

Court of Appeals of Missouri, Kansas City

March 3, 1924

Appeal from Circuit Court of Jackson County.--Hon. Thad B. Landon Judge.

AFFIRMED.

Judgment affirmed.

Edwin A. Krauthoff, W. S. McClintock and A. L. Quant for respondent.

W. F Zumbrunn for appellant.

OPINION

ARNOLD, J.

This is an action to recover upon a judgment alleged to have been rendered against defendant in the circuit court of Dane County, Wisconsin. The present suit was instituted in the circuit court of Jackson County, Missouri.

Defendant filed an amended answer alleging (a) that the Wisconsin court was without jurisdiction of the subject-matter to render the judgment; (b) that it was without jurisdiction of the person of the defendant for the reason that the court did not have jurisdiction of the subject-matter to render said judgment; (c) that the court in Wisconsin never acquired a valid, personal service upon the defendant, and therefore the defendant never was before the court and the judgment therein rendered was therefore null and void. Plaintiff filed a reply which was a general denial and a matter of affirmative defense, as follows: "Plaintiff alleges that on or shortly prior to June 25, 1919, the plaintiff commenced suit against said defendant in Dane County, Wisconsin," and that his attorneys in Madison, Wis., executed and delivered to the sheriff of Monroe Co., Wis., the following written notice:

"State of Wisconsin, Circuit Court Dane County, S. T. Severson, Plaintiff v. Texas Irrigated Land Company and A. D. Dickinson, Jr., Defendants.

"The State of Wisconsin to said defendants:

"You are hereby summoned to appear within twenty days after service of this summons, exclusive of the day of service, and defend the above entitled action in the court aforesaid; and in case of your failure so to do, judgment will be rendered against you according to the demand of the complaint."

That the sheriff of Monroe County, Wis., by his return certified that on June 25, 1915, he delivered to and left with defendant personally, a true copy of said summons, endorsing the date of the service upon the said copy and signing his name thereto; that he knew the person so served to be the person mentioned and intended as one of the defendants in said action; that on said July 8, 1919, the plaintiff caused said summons and notice and said return of said sheriff to be filed in the circuit court of Dane County, Wis.; that said defendant entered no appearance in said suit and that he was a non-resident of the State of Wisconsin; that on October 4, 1919, plaintiff filed in the circuit court of Dane County his complaint, pursuant to said notice served as aforesaid on defendant, and on the 26th day of February, 1920, the judgment sued on was duly entered and made; that said judgment was a valid judgment in personam against defendant and that it is entitled to full faith and credit within the State of Wisconsin under Article 5, Section 1 of the Constitution of the United States, and the Acts of Congress; that the circuit court of Dane County, Wis., is a court of general jurisdiction, and in said suit had jurisdiction of the subject-matter and of defendant, under and by virtue of the provisions of the Constitution and of the statutes of Wisconsin at said time in full force and effect, and pursuant to which the said court then and there had jurisdiction which provisions of said Constitution and statutes plaintiff sets forth in his reply.

The case was tried to the court without the aid of a jury. Plaintiff introduced evidence tending to support the allegations of the petition and reply. Defendant refused to introduce any evidence. The finding of the court on the issues was for plaintiff in the sum of $ 4639.44. Defendant filed a motion for a new trial and therein, for the first time, raised a constitutional question. The said motion for new trial and a motion in arrest were overruled and defendant perfected his appeal to the Supreme Court of Missouri. That court held the constitutional question was not timely raised, and as the amount involved is within the jurisdiction of this court, the cause was accordingly transferred to this court for review.

As a first assignment of error, defendant urges that his objection to the introduction of the Wisconsin statutes should have been sustained because "the same were not pleaded in chief as a part of plaintiff's cause of action--being improper to plead that fact by way of replication."

Section 1261, Revised Statutes 1919, provides: "It shall not be necessary, in any pleading, to set forth any statute, public or private, or any special matter thereof; but it shall be sufficient for the party to allege therein that the act was done by the authority of such statute, or contrary to the provisions thereof, naming the subject-matter of such statute, or referring thereto, in some general terms, with convenient certainty." In construing this statute, it has been held that where a cause of action or defense rests on the law of another State, the law must be pleaded or proved; but where the foreign law is not the basis of the action, but merely an evidential part thereof, it may be proved without being pleaded. [Banchor v. Gregory, 9 Mo.App. 102; Hazelett v. Woodruff, 150 Mo. 534, 51 S.W. 1048; Steele v. Steele, 161 Mo. 566, 61 S.W. 815.]

The petition herein alleges that the plaintiff, appearing by his attorneys, "for his cause of action alleges that on February 26, 1920, in the circuit court of Dane County, Wisconsin, a court of competent jurisdiction . . . judgment was rendered." We think this allegation is a compliance with the terms of the statute to the effect that "it shall be sufficient for the party to allege. . . . that the act was done by the authority of such statute." ". . . or referring thereto in some general terms, with convenient certainty." It must be presumed that a court of general jurisdiction acted within its proper scope as to jurisdiction. It was held in Wonderly v. Lafayette County, 150 Mo. 635, 646:

"In a suit upon a judgment of a circuit court of the United States it is not necessary to set out in the petition facts to show that that court had jurisdiction. Nor can such a suit be defeated on a plea that at law that the facts required to confer the jurisdiction did not exist. The judgment of that court is not subject to attack in that way. If the facts conferring jurisdiction do not appear on the face of the whole record, the judgment may be reversed on appeal or writ of error, but the proceedings cannot be treated as coram non judice, as would be the case if it were a court not only of limited but also of inferior jurisdiction. The circuit courts of the United States are of limited but not inferior jurisdiction. [Des Moines Nav. Co. v. Iowa Homestead Co., 123 U.S. 552.] The judgment of such courts are entitled to equal rank and presumption of regularity as are judgment of the circuit courts of this State. [Reed v. Vaughan, 15 Mo. 137.]"

Defendant, in his answer, denied the jurisdiction of the circuit court of Dane County, Wis., and in reply plaintiff pleaded the statutes of the State of Wisconsin applicable to the issues and proved the same at the trial. Defendant objected to their introduction, but we hold their introduction was proper under the pleadings.

It is also urged that the court erred in the admission of evidence of the Wisconsin statutes for the reason that the same were not properly authenticated in the manner provided by our law for the introduction in evidence of foreign laws. This charge is without merit for the reason that the record shows the Wisconsin statutes were identified, offered in evidence and received by the court. Defendant fails to suggest wherein the identification of the statutes is lacking and as the record on this point is regular on its face, we rule against appellant on this point.

Defendant also declares the court erred in overruling his objection to the introduction in evidence of a certified copy of the judgment rendered in Wisconsin on the ground that "the same was not filed with the court or the clerk of the court prior to the introduction in evidence." The purport and meaning of this assignment is not clearly understood. If it is meant that the certified copy of the judgment was not filed with the Jackson County circuit court, we must hold that under the laws of this State in cases of this character, such filing is not necessary. The point was not briefed by defendant.

Under the fourth assignment of error, it is charged that the certification of the Wisconsin judgment was not authenticated in the manner provided by Act of Congress. Again we are confronted with a failure on the part of defendant to brief this point, and it will not therefore be necessary to consider it.

Assignments 5, 6 and 7 are statements, each from a different angle, to the effect (a) that the trial court in Wisconsin was without jurisdiction of the person and subject-matter; (b) that the alleged exemplified copy of the judgment introduced in evidence showed that no cause of action was stated in the proceeding in the State of Wisconsin; and (c) the court in Wisconsin having no jurisdiction of the subject-matter, the court in the instant case committed error in rendering judgment...