Thomas v. Pendleton

• Decision Date: 25 June 1890
• Court: South Dakota Supreme Court
• Parties: Thomas v. Pendleton et al.

1 S.D. 150

46 N.W. 180

Thomas

v.Pendleton et al.

Supreme Court of South Dakota.

June 25, 1890.

Syllabus by the Court.

1. A. complaint upon a judgment alleged to have been recovered in the state of Pennsylvania, which contained a copy of the note and warrant of attorney upon which the same was rendered, and from which it appears the judgment was rendered before the maturity of the note, in the absence of any allegation in the complaint of any law of that state authorizing the rendition of such a judgment, held to be insufficient to sustain an attachment issued upon an affidavit stating no grounds of the claim, except by referring to such complaint for the grounds of the same.

2. The exemplified copy of a record of a judgment rendered in a Pennsylvania court of common pleas was as follows: “Copy of continuance docket entry, Feby. term, 1889. [Title.] By virtue of a power of attorney, C. W. Tyler confesses judgment against them in favor of plaintiff for the sum of five hundred and seventy-seven and 50-100 dollars, with costs of suit, release of errors, and waiving exemptions and inquisition. Debt, $577.50. Interest from June 11, 1889. Judgment. A. B. Edson, Pro. Due June 11, 1889. Filed and entered May 8, 1889. A. B. Edson, Pro.,”-with declaration and judgment docket entry of names of the parties, date, and amount of judgment. Held, that such a record, in the absence of proof of any law of Pennsylvania authorizing an entry of judgment on a note before due, and explaining the meaning of such a record, is insufficient to maintain an action on such alleged judgment, and therefore it does not show the grounds of plaintiff's claim to be sufficient to sustain an attachment issued in the case.

3. Held that, in the absence of any allegation or proof on the subject, this court will presume that the laws of the state of Pennsylvania are the same as the laws of this state.

Appeal from district court, Sully county; James Spencer, Judge.Henry Hoffman, for appellant. Loring E. Gaffy, for respondent Henry F. Pendleton.

CORSON, P. J.

This is an appeal from an order of the court vacating and setting aside attachment proceedings in this action. The warrant of attachment was issued upon an affidavit, the part of which material to a determination of the question involved in this case is as follows: “That a cause of action exists in favor of said plaintiff, and against said defendants, the grounds of which are fully set forth in the complaint hereto annexed, which is on file in this action, the statements contained in which are true; that the defendants are not residents of this territory. ***” A motion was made by defendant Pendleton to vacate and set aside the attachment upon the following grounds: “Because the same was irregularly issued in this: First, the grounds of the cause of action, if any there be, are not stated and set forth as by law required in the affidavit for attachment; second, the affidavit does not state that this is an action on contract, for the payment of money only; third, the attachment was improvidently issued in this, that defendant Henry F. Pendleton is not, and was not, a non-resident of this territory. This motion is made upon all the papers filed in this case, and upon the affidavit of Henry F. Pendleton, served herein.” It will be observed that the amount of plaintiff's claim is stated in his affidavit, but not the grounds thereof, except by reference to the complaint annexed thereto. It therefore becomes necessary to examine the complaint, to ascertain the grounds of plaintiff's claim, and the sufficiency of the same.

The action is founded upon an alleged judgment in the court of common pleas of Crawford county, in the state of Pennsylvania. Although the complaint sets out the note and warrant of attorney on which the alleged judgment is founded, it is clear that there is only one cause of action set out, and that is upon the judgment. Krower v. Reynolds, 99 N. Y. 248, 1 N. E. Rep. 775. In the complaint the judgment is alleged to have been rendered on the 8th day of May, 1889, upon a note bearing date March 12, 1889, payable 90 days after its date. It therefore appears upon the face of the complaint that the alleged judgment was rendered more than 30 days before the note, by its terms, became due and payable. No law of the state of Pennsylvania is set out or pleaded authorizing a judgment to be entered upon a note before its maturity. In the absence of any allegation as to what the laws of Pennsylvania are on this subject, the court will presume they are the same as our own. The authorities are conflicting on this question, when applied to a judgment purporting to have been rendered by a court of...