Specklemeyer v. Dailey

• Decision Date: 06 January 1888
• Citation: 36 N.W. 356,23 Neb. 101
• Parties: LEVI J. SPECKLEMEYER, PLAINTIFF IN ERROR, v. MARCUS C. DAILEY AND SAMUEL S. DAILEY, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

36 N.W. 356

23 Neb. 101

LEVI J. SPECKLEMEYER, PLAINTIFF IN ERROR, v. MARCUS C. DAILEY AND SAMUEL S. DAILEY, DEFENDANTS IN ERROR

Supreme Court of Nebraska

January 6, 1888

ERROR to the district court for Webster county. Tried below before GASLIN, J.

AFFIRMED.

J. N Rickards and D. P. Newcomer, for plaintiff in error, cited Tessier v. Englehart & Co., 18 Neb. 173.

Agee & Stevenson, for defendants in error, cited: Shotwell v Harrison, 22 Mich. 414. Butcher v. Bank, 2 Kan. 70.

OPINION

REESE, CH. J.

This action was commenced in the district court of Webster county, by defendants in error against plaintiff in error, and was founded upon a judgment rendered by the circuit court of Boone county, Indiana. The petition is in the usual form, with the exception hereafter referred to, for declaring upon judgments rendered by the courts of general jurisdiction in other states.

Plaintiff in error filed a general demurrer, which was overruled, and failing to answer further, a judgment was rendered for the amount due upon the judgment record referred to in the petition. Upon the overruling of the demurrer plaintiff in error excepted, and now prosecutes error in this court, assigning for error the ruling of the district court upon such demurrer.

That part of the petition to which our attention is especially directed is as follows: "The said plaintiffs complain of the said defendant, for that on the 22d day of February, 1878, the said plaintiffs recovered a judgment against said defendant as administrator of the estate of Stephen Specklemeyer, then deceased, and also against said defendant in his own right and person, in the Boone county circuit court, in the state of Indiana, in the sum of $ 1,146.66, and $ 12.95 costs of suit, in an action then pending in said court, wherein the said Marcus C. Dailey and Samuel S. Dailey were plaintiffs, and the said Levi J. Specklemeyer, as administrator of Stephen Specklemeyer, deceased, and said Levi J. Specklemeyer was defendant. Said judgment has not been paid, nor any part thereof, except the sum of $ 126.49, which was paid on said judgment on the 1st day of December, 1884, * * * wherefore said plaintiffs pray judgment," etc.

The question presented is, as to the sufficiency of the petition in not alleging in direct terms that the circuit court of Boone county, of Indiana, is a court of general jurisdiction, nor was it alleged jurisdiction was acquired by personal service of summons, nor that judgment or determination was duly made or given as required by Sec. 127 of the civil code.

This contention is based upon a decision of this court in Tessier v. Lockwood, 18 Neb. 167. In that case the judgment declared on in the answer had been rendered by the superior court of Cook county, Illinois. In writing the opinion, the then chief justice, COBB, uses the following language: "This defense was demurrable in not alleging either that the superior court of Cook county, Illinois, is a court of general jurisdiction, or that it had jurisdiction of the subject-matter of the judgment or of the person of said defendant. Said court being a foreign tribunal in the sense of the law and authorities, such allegation was necessary and its absence could be taken advantage of, either by demurrer or...