Smith v. First Nat. Bank of Eldorado

• Decision Date: 25 September 1934
• Docket Number: Case Number: 23385
• Citation: 169 Okla. 90,36 P.2d 27,1934 OK 478
• Parties: SMITH v. FIRST NAT. BANK OF ELDORADO, ARK.
• Court: Oklahoma Supreme Court

1934 OK 478

36 P.2d 27

169 Okla. 90

SMITH v. FIRST NAT. BANK OF ELDORADO, ARK.

Case Number: 23385

Supreme Court of Oklahoma

Decided: September 25, 1934

Syllabus

¶0 1. Judgment--Action on Foreign Judgment --Copy Should Be Attached and Filed With Pleadings.

Judgments obtained in one state are in another state in the nature of contract debts and do not have the force and effect of domestic judgments except for evidentiary purposes, and a suit on a foreign judgment is a suit founded on a "written instrument as evidence of indebtedness and a copy thereof should be attached and filed with the pleadings as required by section 230, O. S. 1931.

2. Same--Purported Journal Entry. of Judgment not Properly Authenticated--Objection Properly Urged by Motion and not by Demurrer.

Where a purported journal entry of a foreign judgment neither bears the signature of the judge or clerk, nor any filing mark and is not certified or otherwise authenticated, the neglect to attach and file a proper exhibit must be taken advantage of by motion and cannot be reached by demurrer.

3. Same--Failure to Actually Attach Authenticated Record to Petition Held not Error.

Where, in a suit on a foreign judgment, a demurrer is overruled, conditioned upon the plaintiff filing a full and complete copy of the judgment roll, duly authenticated, and where the answer of the defendant admits that a certified record of said proceedings was filed by the attorneys for plaintiff, although it was not attached to the petition, nor made a part of the record on appeal, and where the answer further admits that a judgment by default was rendered by the foreign court, the failure to actually attach the certified and authenticated record to the petition is not error.

4. Pleading--Judgment on Pleadings for Plaintiff Proper Where Answer Sets up no Legal Defense.

Where a petition states a cause of action and the answer fails to set up a legal defense, judgment on the pleadings for plaintiff may properly be rendered.

5. Bills and Notes--Action Against One Indorser Alone Permissible Under Laws of Arkansas and Oklahoma.

Both under the laws of Arkansas, where the foreign judgment was rendered, and under the laws of Oklahoma, the holder of a promissory note, may, at his option, maintain an action against an indorser without joining the other indorsers as parties defendant.

6. Judgment--Validity not Dependent on Formal Signature of Judge to Journal Entry.

The validity of a judgment does not depend upon the formal signature of the judge to the journal entry.

7. Judgment--Action on Foreign Judgment --Rendition of Judgment on Pleadings for Plaintiff Held not Error.

The answer in the instant case did not state a defense, and with the admissions contained therein, the court did not err in rendering judgment on the pleadings.

Appeal from District Court, Tulsa County; J. S. Clendenning, Judge.

Action by the First National Bank of Eldorado, Arkansas, against Victor H. Smith. Judgment for plaintiff, and defendant brings error. Affirmed.

Louis W. Pratt and James Harrington, for plaintiff in error.

Alvin Richards and Floyd A. Calvert, for defendant in error.

PER CURIAM.

¶1 This was a suit upon a foreign judgment, resulting in a judgment upon the pleadings in favor of plaintiff bank. The petition alleged that on the 23rd day of January, 1929, by the consideration of the circuit court of Union county, 2nd division, of the state of Arkansas, in a cause therein pending, in which the said First National Bank of Eldorado was plaintiff and the said Victor H. Smith was defendant, at a regular term of said court at Eldorado, Ark., which said court had full jurisdiction of the subject-matter and persons of the parties, the plaintiff recovered a judgment against the said Victor H. Smith for the sum of $ 3,999.34, together with certain costs and interest, and that the judgment still remains in that court in full force and effect, in no wise reversed, annulled, satisfied or set aside, and that the judgment remains unpaid, and a copy of said judgment was attached to the petition as an exhibit and made a part thereof. The purported copy of judgment so attached did not bear the signature of the trial judge, nor signature of clerk or any filing mark, nor was it certified, or otherwise authenticated.

¶2 The copy of the judgment attached, after reciting appearances, set forth that on June 10, 1926, Tarrant & Miles, by F. W. Miles, made, executed, and delivered to plaintiff their certain promissory note of that date in the sum of $ 5,000, due September 10, 1926, with interest at 8 per cent. per annum from date, and that before the delivery of the note it had been duly indorsed by F. W. Miles, G. E. Black, H. W. McHenry, adm'r, and the defendant, Victor H. Smith, and that the makers and indorsers of said note had severally waived presentment for payment, notice of nonpayment, notice of protest and consented that the time of payment might be extended without notice thereof, and after reciting certain credits, ordered and adjudged recovery in favor of the bank against the defendant, Smith, in the sum first above mentioned, with interest and costs.

¶3 The defendant filed a general demurrer to the petition in the trial court, and upon the presentation of the demurrer the plaintiff asked permission of the court to attach to the petition a certified copy of the entire record made in the case in the circuit court of Union county, Ark., and the permission was granted and the demurrer overruled, to which action the defendant excepted.

¶4 The defendant answered in substance by a general denial, and pleaded that the judgment of the Arkansas court was never a valid, subsisting, binding judgment against him, but was fraudulently obtained. The defendant admitted that he signed the note sued on as an accommodation indorser, and that time of payment had been extended from time to time without his knowledge or consent, and that thereby he was released and discharged from liability. Further, that he had frequently requested that proceedings be had by the bank against the makers and prior indorsers who were at the time in funds and able to pay, and that such remedies were available to the holder, but were not pursued, and that defendant was thereby injured and damaged to the extent of the amount of his liability arising from his indorsement of the note, if it be held he was not discharged by the unauthorized extensions. He further admitted that he had been sued in the Arkansas court and set forth, in part, the answer he had filed in such suit, including a request that the court bring in all of the makers and indorsers of the note as parties, which was ruled as prayed, and he further alleged that the additional parties were brought in, and that each of them failed to answer, and alleged a conspiracy was formed and entered into by the bank and the other parties who were brought in, to avoid the efforts of the defendant Smith, to obtain a trial on the merits in that he was entitled to 20 days after answer to file reply and cross-petition, and that his attorney, believing that the other defendants would each answer, and thereafter he could cross-petition or reply, departed from the state, and, pursuant to the conspiracy, the judgment was by the court rendered in said cause against Smith alone, and the cause continued as to all the other defendants, none of whom had answered, and that the plaintiff was obliged, under such circumstances, to have taken a default personal judgment against each of the other defendants, fixing the liability of defendant as secondary only, in the event it should be held that he was not discharged by virtue of the unauthorized extensions of time of payment. He further asserted that by reason of such facts the Arkansas judgment was void pleaded that he was unaware of its rendition for such period of time as prevented him from presenting the facts and matters involved to the court rendering the judgment, in an effort to obtain the vacation thereof, all of which he would have done, had he been apprised of the action of plaintiff and of the court in due time, and that he had lost his right to require plaintiff to pursue its remedy against the other defendants, or to protect himself as a defendant secondarily liable. A demurrer to such answer was sustained and an amended answer was filed, which amplified the allegations of the original answer and specifically pleaded the filing of the suit in Arkansas, describing same with particularity and referring to the answer filed by him in such suit, and especially to that part demanding that the other parties be brought in and that the rule was made and entered as prayed requiring those primarily liable to be brought in as parties defendant, and that the makers of the note and all previous indorsers were served with summons which required them to answer on December 3, 1928, and "that according to a purported certified record of said proceedings filed herein by the attorneys for plaintiff, no answer was filed by either of said defendants to the merits of said action," and that the plaintiff and the other defendants entered into a plan and scheme to avoid the efforts of the defendant to obtain a trial on the merits and obtain relief over against those primarily liable, if he should be adjudged to be secondarily liable and not released, and that the plan was in effect that neither of the defendants would answer, but, notwithstanding their default, plaintiff would not take judgment against any of them, but would seek judgment against Smith alone, and that his attorney, anticipating the answers and awaiting same, before filing reply or cross-petition, left the state of Arkansas.

"That on the 23rd day of January, 1929, the purported judgment by default was by the court rendered in said cause against this defendant alone."

¶5 A general and special demurrer was filed to the amended answer and was overruled. Issue was joined by reply, which challenged the sufficiency of...