Wells-Stone Mercantile Co. v. Truax

• Decision Date: 30 March 1898
• Citation: 29 S.E. 1006,44 W.Va. 531
• Parties: WELLS-STONE MERCANTILE CO. v. TRUAX et al.
• Court: West Virginia Supreme Court

29 S.E. 1006

44 W.Va. 531

WELLS-STONE MERCANTILE CO. v. TRUAX et al.

Supreme Court of Appeals of West Virginia.

March 30, 1898

Submitted January 15, 1898

Syllabus by the Court.

1. The judgment of a sister state must be accorded in this state the same faith and credit which it has in the state where rendered.

2. In a case tried by a court in lieu of a jury, it is not error in the court to hear illegal testimony, the court being fully competent to discard such evidence.

3. A party having it in his power to prove a fact, if it exist which, if proven, would benefit him, his failure to prove it must be taken as conclusive that such fact does not exist.

Error to circuit court, Putnam county; Frank A. Guthrie, Judge.

Action by the Wells-Stone Mercantile Company against Albert H. Truax and others. From a judgment for plaintiff, defendants bring error. Affirmed.

Simms & Enslow, for plaintiffs in error.

Bowyer & Green, for defendant in error.

McWHORTER J.

In the circuit court of Putnam county, the Wells-Stone Mercantile Company, a corporation, brought its action of debt against George W. Fletcher, Harry G. Liadle, and Albert H. Truax, late partners as Fletcher, Liadle & Co. Process was served upon the defendant Truax only. The declaration was filed at July rules, 1894, and is founded on a judgment rendered by the district court of the county of St. Louis, in the state of Minnesota. On the 26th of September, 1894, the defendant Truax appeared, and craved over of the judgment sued on, which was read to him, and demurred to the plaintiff's declaration and record, and tendered plea in writing of nul tiel record, and also a special plea in writing denying that there was any service on him, or notice of the suit in the Eleventh judicial district of Minnesota St. Louis county, in the declaration set out; to the filing of which special plea the plaintiff objected, which objection was overruled, and the plea was filed. To the action of the court in overruling its objections to the filing of the plea and ordering the same filed, the plaintiff excepted, and filed its replications to the plea. On the 29th of May, 1895 by consent of plaintiff and defendant Truax, the court was substituted in lieu of a jury to try the issues joined. The plaintiff, to maintain the issues on its part, introduced in evidence the record of the judgment, to which the defendant objected. The objection was overruled, and the record was read in evidence, to which ruling the defendant excepted, and took his bill of exceptions, which was made part of the record. The plaintiff offered the depositions of witnesses taken in the cause, to the introduction of which as evidence the defendant Truax objected, which objection was overruled and the depositions were admitted in evidence, to which ruling the defendant excepted; whereupon the court found the issues for the plaintiff, and gave judgment accordingly for $1,977.73, with interest from May 29, 1895, and costs. The defendant moved the court to set aside the finding and judgment as being contrary to law and evidence, which motion was overruled, to which ruling the defendant excepted, and obtained a writ of error, and assigned the following errors: "First. The record of the judgment being filed with and made part of the declaration, and upon demurrer to the declaration and oyer of the judgment being craved and the same read, it was apparent that there was no valid and subsisting judgment against the defendant Albert H. Truax, and the demurrer to the declaration should therefore have been sustained. Second. The defendant having pleaded no such record, and also that there was no record of service and that there was no service made on him and the plaintiff having replied and vouched the record to show such service, it was error to admit the deposition on the part of the plaintiff, or in any manner contradicting or changing the recorded judgment or papers as shown. Third. The judgment vouched and shown shows upon its face that there was no service made upon the defendant A. H. Truax of the complaint, or papers necessary to support a judgment under the law of the state of Minnesota; and, while the recitals copied in the record state that service was made on Truax, the record itself shows that such service was not made after the issuing of the paper and the verification of the complaint, but that service was made upon Truax of some paper on the 14th of June, 1892. Fourth. Because the trial court erred in allowing question No. 5 of the examination of Wm. C. White. This question was: 'State what you know about the service of the summons and complaint in that matter on Albert H. Truax?' This question was objected to as incompetent at the time of the taking (See page No. 27 of the record). Also question No. 7, on page No. 28 of the record, was allowed to be asked and answered, which answer sought to show by parol evidence that the summons and complaint were issued on the 14th instead of the 15th of June, 1892, when such evidence was, as to that fact, conclusive. Fifth. Because the entire evidence of all the witnesses set out in their depositions was incompetent, and objected to at the time of the taking of the depositions, as shown by the said depositions filed and read on the trial. Sixth. Because the court below erred in refusing to set aside its findings, and grant a new trial. Seventh. For other errors apparent on the face of the record and in the rulings of the court in regard to the admission of the testimony and decision of the issue."

Upon referring to the statutes of Minnesota, we find that Gen. St 1878, c. 66, tit. 5, § 52. (Gen. St. 1894, § 5193), provides that "civil actions in the several district courts of this state shall be commenced by the service of a summons, as hereinafter provided." Section 53, c. 66, tit. 5, Gen. St. 1878, (section 5194, Gen. St. 1894), provides that "the summons must be subscribed by the plaintiff or his attorney, and directed to the defendant, requiring him to answer the complaint and serve a copy of his answer on the person whose name is subscribed to the summons at a place within the state therein specified in which there is a post-office within twenty days after the service of the summons, exclusive of the day of service." Section 54, c. 66, tit. 5, Gen. St. 1878, (section 5195, Gen. St. 1894), provides that: "The summons shall also contain a notice in substance as follows: First. In an action arising on contract for the payment of money only, that he will take judgment for a sum specified therein, if the defendant fails to answer the complaint. Second. In other actions for the recovery of money only, that he will, upon such failure, have the amount he is entitled to recover ascertained by the court, or under its directions, and take judgment for the amount so ascertained. Third. In other actions, that, if the defendant fails to answer the complaint, the plaintiff will apply to the court for the relief demanded therein." Section 55, c. 66, tit. 5, Gen. St. 1878 (section 5196, Gen. St. 1894), provides: "A copy of the complaint must be served upon the defendant with the summons, unless the complaint itself be filed in the office of the clerk of the district court of the county in which the action is commenced, in which case the service of the copy may be omitted; but the summons in such case must notify the defendant that the complaint has been filed with the clerk of said court." Section 91, c. 66, Gen. St. 1878 (section 5231, Gen. St. 1894),...