Stavrelis v. Zacharias

• Decision Date: 04 February 1919
• Citation: Stavrelis v. Zacharias, 79 N.H. 146, 106 A. 306 (N.H. 1919)
• Parties: STAVRELIS v. ZACHARIAS.
• Court: New Hampshire Supreme Court

106 A. 306

STAVRELIS

v. ZACHARIAS.

Supreme Court of New Hampshire. Rockingham.

Feb. 4, 1919.

Transferred from Superior Court, Rockingham County; Allen, Judge.

Action by Demetrios Stavrelis against Peter Zacharias. Case was transferred. Case discharged.

Action at law, the declaration containing two counts: (1) For debt on a judgment; and (2) for money paid at the defendant's request. To the first count the defendant pleaded P. S. c. 217, § 4, and to the second count P. S. c. 217, § 3.

The judgment was rendered against the defendant on February 2, 1894, in Greece, on a claim for money borrowed by the defendant in 1880. The plaintiff's assignor was a surety for the defendant on the loan, which was also partly secured by a real estate mortgage. The loan was made in Greece, and the agreed rate of interest of 9 1/2 per cent. was valid. After the judgment, the surety, having notice served on him, made payments at various times until 1900, when he bought the judgment from the judgment creditor, paying for it the full amount then due on it of $420.55.

The defendant came to the United States in 1894, resided in Massachusetts until 1896, and has ever since resided in this state. In 1910 the surety assigned and transferred all his claim to the plaintiff, who brought this action by writ dated September 30, 1914. No demand on the defendant for payment was made by the surety or the plaintiff before the action was brought.

As being of legal importance, the questions whether the plaintiff can recover on either of said counts, and, if so, with what rate of interest and from what date or dates interest is to run, were transferred from the January term, 1918, of the superior court.

Albert R. Hatch and Amos S. Rundlett, both of Portsmouth, for plaintiff.

Samuel W. Emery, of. Portsmouth, for defendant.

PEASLEE, J. The record does not show at what stage the proceedings in the superior court now are. Certain facts are reported, and the question "whether the plaintiff can recover" is transferred. Whether there has been a trial and verdict, whether the facts reported are all those proved, or whether there has been no trial, and this is merely a statement intended to set out the contentions of the parties in advance of a trial, are matters not indicated by the transferred case. No briefs have been filed, and the case stands upon the unexplained and incomplete record. It has not been the practice to pass upon questions so presented. Conn. Valley Lumber Co. v. Monroe, 71 N. H. 473, 474, 52 Atl. 940, and eases cited. But, the questions having been transferred "as of legal importance," it is assumed that their solution will aid the superior court in the final disposition of the case, and they have therefore been considered.

It was early held in this state that the 6-year statute of limitations did not apply to a judgment entered by a justice of the peace in another state. Mahurin v. Bickford, 8 N. H. 54. While this was not a judgment rendered in a foreign country, yet it was in an inferior tribunal, not a court of record. Being of this class, it was held that it did not come within the protection of the Constitution of the United States (article 4, § 1), but had "no greater force than a foreign judgment at common law." Taylor v. Barron, 30 N. H. 78, 90, 64 Am. Dec. 281; Mahurin v. Bickford, 6 N. H. 507. While the theory of these earlier cases as to the effect of a foreign judgment has been materially modified, it has been in the direction of giving greater instead of less effect to the adjudication. MacDonald v. Railway, 71 N. H. 448, 52 Atl. 982, 59 L. R. A. 448, 93 Am. St. Rep. 550. Such changes strengthen the argument for treating foreign judgments as on the same footing as a domestic one in the application of the statutes of limitation.

When Mahurin v. Bickford, 8 N. H. 54, was decided (1835), there was no 20-year statute of limitation in this state. It first appears in the Commissioner's Report of 1842, and applies to "actions of debt founded upon any judgment." Com'rs Rep. R. S. c. 184, § 5. Although it is said by the commissioners to be "of very doubtful propriety," it was enacted as reported. R. S. c. 981, § 5. The adoption of this language seven years after the decision and four years after the publication of Mahurin v. Bickford, supra, makes it evident that the intent was to provide in this section for a limitation of actions upon foreign judgments. The slightly abbreviated form of expression used in the next revision cannot have been intended to limit the application of the statute, for the commissioners make marginal reference to Mahurin v. Bickford, supra. Com'rs Rep. C. S. c. 203, § 4. The case has never been cited by the court, and, so far as known, its applicability and the effect of the statute in a case like the present one have never been questioned....