Walker v. Sleight 30 Iowa 310

Walker v. Sleight.

1. Foreign judgment: rao tempore judge: evidence. Where it appears from the transcript of a foreign j udgment, upon which suit is brought, that the judgment was not rendered by the regularly commissioned judge of the court, but by an attorney thereof, acting under a temporary appointment from such judge, the statutes of the State where the judgment was rendered are admissible in evidence to show the authority of such appointment.

2. -evidence of assignment. An assignment of a foreign judgment, entered upon the record and duly authenticated by the clerk, ‘ is at least prima facie evidence of the fact of assignment.

3. - SIGNATURE TO ASSIGNMENT: DENIAL OF GENUINENESS. To require proof, on the part of the plaintiff, of the genuineness of a written instrument on which suit is brought, or of any writing which is referred to and set out or copied in the pleading, the denial under oath of the genuineness of the signature, required by the statute (chap. 28, Laws 1862; Rev. § 2967), must be made by the party whose signature it purports to be.

*3034. -rule applied. It was accordingly held that proof of the genuineness of the signature of the judgment creditor to the assignment of a foreign judgment was not required by the sworn answer of the defendant (the judgment debtor), in an action on the judgment, denying the genuineness of the signature.

5. -verity OP judgment : JURISDICTION. The record in the case of a foreign judgment is not admissible for the purpose of contradicting the judgment, by showing that the recovery was for an amount greater than claimed in the declaration. Error in a judgment, whether of law or fact, can only be taken advantage of by appeal, writ of error, or some step taken in the Court rendering it.

6. -stamps. The certificate of the clerk and judge, authenticating the transcript of a foreign judgment, does not require a revenue stamp. Following Simons v. Cook, 29 Iowa, 324.

Appeal from Marshall Circuit Court.

Monday, December 19.

This was an action on two foreign judgments, rendered in the circuit court of Laporte county, in the State of Indiana, one in favor of Edward H. Bunker and the other in favor of Edward H. Bunker and George H. Wheeler against the defendant, and purporting to be assigned to the plaintiff, Henry II. Walker.

The cause was tried by a jury; verdict and judgment for the plaintiff, and defendant appeals. The further facts are stated in the opinion of the court.

Boardman, Brown & Williams for the appellant.

1. There was no evidence of any sufficient appointment of Thomas S. Stanfield, as judge, pro tempore.

2. There was no sufficient evidence of an assignment of the judgment to plaintiff, and the court erred'in the admission of the evidence pertaining to the assignment.

“ Judicial records of a sister State and papers and records authorized to be kept in a public office, may be proved by certified copy.” Rev. §§ 4047, 4058.

*304“ As to matters which the clerk is not bound to record, his certificate, being extra official, is merely the statement of a private person, and must be rejected.” 1 Greenl. on Ev. § 498; O alces v. Hill, 14 Pick. 442,448; United States v. Buford, 3 Pet. 12-29; Wolfe v. Washburn, 6 Cow. 261.

3. No stamp had ever been affixed to the said assignment, nor to ,the certificates annexed to the transcript marked “A.” This was directly in violation of the revenue act, and should have caused the exclusion of the whole transcript. Rev. Law, 1867, p. 127; Rev. Law, May 1, 1869, p. 5.

4. The whole record of a foreign judgment should be produced, and not the finding alone, and appellant objected to any thing less. The importance of this is more manifest, when it is seen hereafter that appellant offered the remainder of the' record to prove that the judgment was palpably unjust, and was double the amount (through some clerical error) that plaintiff in the original suit claimed and was entitled to, but which complete record was excluded. Abell v. Gross, 17 Iowa, 173.

“ A certificate that a certain fact appears of record is not sufficient. The officer must certify a transcript of the entire record relating to the matter.” 1 Greenl. on Ev. p. 623, note; Owen v. Boyle, 3 Shep. 147; Farr v. Swan, 2 Barr, 245.

“ The whole record,” says Chief Baron Comyns, “ which concerns the matter in question, ought to be produced.” 4 Com. Dig. tit. Ev. A, 4; 2 Phill. Ev. 138, 139.

5. The transcript marked “B” and the assignment therein copied, should also have been excluded.

1. For the reasons assigned under the second and fourth paragraphs in division “ A ” which apply equally to this transcript as to. that.

2. The clerk in his certificate does not refer to the assignment, nor give anywhere any official statement that paid assignment was a part of the record.

*3053. The judgment plaintiffs in Indiana were, by the transcript, “ Edward EL. Bunker a/nd Geo. H. Wheeler •as individuals. The pretended assignment was signed simply, “ Wheeler <& B'imker.” This, we claim, in a court of law, was no assignment; it was a nullity on its face, and would not operate in law as an assignment of the interest of either party.

“ Unless a contract is legally assigned, it is not assigned at all.” Slate v. Butterworth, 2 Iowa, 158; Scott v. Granger, 3 id. 447.

Plaintiff sought to overcome this by proof that it was a partnership debt, but the proof signally failed to establish such fact. This is all the evidence on that point.

Says plaintiff: “ They were partners and bankers in Chicago when the judgment was rendered. I do not know whether they were partners or not when the assignment was made.” Page 16.

This court will perceive that this by no means justifies the inference that Wheeler & Bunker were partners at the time the debt was contracted, nor at the time of the assignment, nor that it was ever a partnership debt or asset, nor that “ Wheeler & Bunker ” was the name and style of the supposed firm, nor that they were the only members of the firm. The facts proved would not justify a court of equity in regarding this even as an equitable assignment, but' in a court of law it would be-the assignment of neither party, and would be void in toto.

If some person — once a member of the firm of Jay, Cook & Co. — should assign a judgment standing in the individual names of John Jay and James Cook, by writing, “ Jay <& Cook,” it would be quite extraordinary for a court of law to presume that Jay, Cook & Co. owned the debt; that it was a partnership debt in the beginning and ever after; that Jay and Cook were the true members, and all the members of the firm, and that any one desiring to sign the name of the firm might write promiscuously, *306“ Cook dfc Jay” “ Jay & Cook” “ Cook, Jay & Co.” and that a court of law would take judicial notice of, and presume any number of questionable facts, in order to sustain, tbe assignment.

6. The certified transcript offered by the appellant in evidence should have been admitted.

This was offered in order to show that there was either fraud or a palpable error, in rendering judgment for $523.75, instead oí $279.62, the amount constantly claimed throughout the original papers, it being directly admitted (page 30) that $250 had been paid aftei\ protest. Now here was plain mistake or fraud.

The objections made to the introduction of this transcript were, that the evidence was incompetent and irrelevant; that the court could not correct the error of the foreign tribunal, and that this was not identified as the same suit exhibited by plaintiff, which objections were sustained and excepted to.

Now here was an error which, with interest, amounted to $600, yet defendant was not allowed to show the fact.

As to the relevancy of the evidence, the issue had been made whether the said judgment was duly and legally rendered, which was the only issue admissible. Bev. § 2921.

It was like offering the remainder of a letter or conversation, to explain or overturn that already admitted. Bev. §3992.

It would be singular, if the plaintiff is not required, and the defendant is not permitted, to introduce the remainder of the record.

As to identity, that was for the jury. Wilbur v. Hubbard, 35 Barb. 303; Howard v. Holbrook, 23 How. Pr. 64.

If there was no similarity, then the court could exclude, but if there was a resemblance, the jury should judge. In fact, the two are precisely alike in every particular, verbatim et literatim.”

*307The parties, the court, the date, the sum of money (in the final judgment) and the words are all the same. Either there was something miraculous, or the evidence established identity. Identity can only be proved by these external characteristics — an opinion of any person would not be admitted —prima facie it certainly was sufficient and shifted the onus probandi.

The true reason for excluding this transcript was, no doubt, the opinion of the court, that it was not possible to correct the error or mistake of the Indiana court, and in this the court erred, as the following authorities clearly show:

“Judgments are conclusive upon the defendant in every State, except for such causes as would be suificient to set aside the judgment in the courts oí the State in which it was rendered.” Melmogle v. Cohen, 13 Pet. 312.

“ Where a party has been injured by any flagrant oversight, or injustice committed in the course of judicial proceedings relied on as the cause of action, he should have the right to dispute the judgment of another State, since it may be practically beyond his reach in the State where the judgment was rendered.” 2 Am. Law Cas. 723.

“ The court can take cognizance of any legal defect which would deprive the judgment of faith and credit where it originated.” 2 Am. Law Cas. 728.

“ Any facts -which would be a defense in Indiana to this judgment would be a defense here.” Rogers v. Guin, 21 Iowa, 58; Pearse v. Olney, 2 Conn. 544; Robson v. Pearce, 1 Duer, 144; 12 N. Y. 165.

A foreign judgment may and should be impeached, if void on its face; or founded in palpable mistake or irregularity ; or if mistake is shown, or offered to be shown; oi if it can be proved to have been irregularly or unfairly procured. Lagier v. Westcott, 26 N. Y. 150 ; Monroe v. Rouglass, 4 Sandf. Ch. 126; Story on Conflict of Laws, § 607; Cummings v. Banks, 2 Barb. 601.

*308“ Where in an action upon a judgment the defendant, by his answer, puts in issue the existence of a regular valid and legal judgment, any evidence tending to show the judgment illegal or void is competent.” 2 Am. Law Eeg. Ml; Kinsey v. Ford, 38 Barb.

Henderson, Fro., c& Merriman for the appellee :

A transcript of judgment is merely the proof of a judgment, not of the facts or the issues upon which the judgment was obtained.

Facts sufficient to set aside the judgment cannot be shown in defense to an action on the transcript in a foreign court. 2 West. Jur. 364.

2. In pleading a judgment it is sufficient to state that such judgment was rendered or made, without stating facts conferring jurisdiction. Eev. 1860, § 2921; 12 Iowa, 206, and eases cited.

Besides, circuit courts of a foreign State are presumed to be courts of general jurisdiction. 1 West. Jur. 330.

3. When rendered and properly certified every presumption is in famor of the validity of the proceedings of such courts. Morrow v. Weed, 4 Iowa, 77; 10 id. 517; 16 id. 552.

(a) Therefore the fact that a pro tempore judge was appointed to act vice the judge, will be presumed to have been regular.

(£) Besides, appellee pleads the law of Indiana authorizing it.

(c) The circuit courts of Indiana are courts of legislative creation and not of constitutional. See Laws of Indiana.

(d) The fact that the laws of Iowa provide for no such appointment cannot in any way affect the validity of the proceedings of courts of other States. Otherwise, section one, article four, Constitution IT. S., might be utterly defeated'by the acts of other State courts or legislatures.

(e) Besides, it would not be in consonance with our laws *309and constitution, so to hold, which re-enact the provisions of the constitution 'of the United States on this point.

4. The question of jurisdiction, so far as service of process is concerned, has been passed upon by the jury. Appellant cannot therefore avail himself of any defense on the merits, but is confined to such remedy as is afforded him by the laws of the State of Indiana. 7 Iowa, 86.

(a) Furthermore, the return of the officer cannot be controverted collaterally. Appellant’s remedy is against the officer.

This rule is too well known to require authorities. But see LaMeréll v. Coolc, 1 Iowa, 1.

5. A judgment until reversed is conclusive of every issue that was or should be tried under the pleading. Our courts cannot, of course, reverse the judgments of courts of sister States. 4 Oreen, 551.

(a) Appellant’s pretended amended or supplemental transcript was therefore properly rejected; that was not and is not a part of the judgment, and cannot be made such until done under the requirements,of the laws by the Indiana courts. Appellant may have the best grounds in the world for a new trial, but our courts are powerless to aid him.

(3) This court will hardly say that, because appellant has been guilty of laches in allowing the time for appeal, or for motion for a new trial to pass by without using it, we shall be made to suffer for his disregard of the requirements of the law.

6. Furthermore, the rule of law is well settled that the presumption is that the court in which judgment was rendered had conclusive proof of the facts upon which the judgment was based. 1 Iowa, 564, and authorities cited.

(a) And to show the entire inconsistency which would have to be practiced to permit this supplemental transcript, or ex-official certificate of the Indiana clerk, it is but necessary to examine the certificate he appends, from *310which it appeal's that he does not pretend to certify that he has transmitted all the proofs in the case. "

(b) If this transcript, sought to be introduced by appellant, amounts to any thing, it is evidence to' impeach this, judgment.

“No evidence to impeach a judgment on the merits is admissible.” 6 Wend. 447; 4 Cow. 292; Hatcher v. liochelau, 18 N. Y. 86.

This court cannot inquire into the facts nor the law applied to those facts. Hoco v. Hackett, 2 Bosw. 579.

7. A judgment may be assigned by parol. Moore et al. v. Lowrey, 25 Iowa, 336.

8. Judgment may (not must) be assigned on record, and assignee may maintain action in his own name. 2 B. S. Ind. 1852, p. 6.

(a) In other words, the statute of Indiana provides that an assignment may become part of the record, and that being the case is properly shown by the transcript, and certified to, and has the same operation and effect as though the original record, hearing the assignment, had been introduced.

(b) The witness (plaintiff below) merely proved the genuineness of the assignment, and his testimony on this point was not therefore open to the objections raised by defendant (below). But see 1 Pars, on Cont. 155, 173.

9. But it is claimed that the assignment is void for want of a stamp.

(a) Then, if so, the whole of plaintiff’s testimony in proof of the assignment was relevant and material, in view of the rule above referred to, that an assignment of a judgment may be by parol.

A failure to affix a stamp will not vitiate a contract not within the statute of frauds, and this is not. McAfferty v. Hale, 24 Iowa, 355; Moore v. Lowrey et al., 25 id. 336; Sykes v. Bates, 26 id. 521.

*311(5) Besides, it is not competent for congress to bind State courts in the exercise of their powers, by a declaration of what they'shall or not accept as evidence. Latham v. Smith, 45 111. 30; Ford v. Glinton, 25 Iowr, 157.

10. Admitting the writing to be informal for want of stamp, the question as to the consideration paid for the transfer of the judgment and contract of assignment certainly becomes material and admissible, and the jury having passed upon the question as one of fact, this court will not disturb their verdict.

11. The only objections raised to the testimony, and shown by the bill of exceptions, show their own fallacy, or, like an ill-proportioned bridge, break with their own weight, except such as we now mention.

12. The only questions vital to the case in our mind are

1st. As to whether the assignment is good as from the plaintiff to the action in Indiana ; and,

2d. As to whether the certificate of the clerk certifying the transcript required a stamp.

(N. B.) The certificates of the clerk of the Indiana court and judge to the transcript in case of Bunlcer <& Wheeler v. Sleight were stamvped; those to the transcript in Bxmlcer v. Sleight were not stamped.

13. Ve think the presumption is, that where witness has testified to the fact that certain judgment creditors were partners, and the judgment was partnership assets, and the jury have passed upon the question and given in their verdict under instructions accordingly, this court will hardly sustain the objection of defendant’s counsel, that the judgment not being shown to be in favor of a partnership, the introduction of the transcripts in plaintiff’s favor was error.

Because, first, the evidence did show the fact, and, second, because the presumption was in favor of a partner ship, and the defendant offered no evidence to rebut it.

*312(a) A partnership being shown will not be presumed to have been dissolved until the dissolution is affirmatively shown. 2 Gt. 368; Pars, on Part. 380, and cases cited; 1 Greenl. on Ev., § 41. Insolvency,$>er se, does not dissolve. 1 Pars, on Cont. 171, note (y).

And no attempt to show a dissolution prior _ to the assignment was made.

14. The only remaining objection that we conceive deserves notice is, as to whether the clerk’s certificate, authenticating the judgment, required a stamp.

(a) We contend that the act of congress requiring stamps upon the certificates of officers was repealed by section 154, act of March, 1867, which provided “ that all official instruments, documents and papers issued by * * * the officers of * ' * * county, etc., shall be exempt from taxation. Provided, that it is the intent hereby only to exempt from liability to taxation such * * * counties, and in the exercise only of functions strictly belonging to them in their ordinary governmental and municipal capacity.”

.We believe that this act released from stamp duty the official documents issued by the officers named, in their capacity as such officers, and that this position will hardly be controverted.

(5) The act of March, 1867, struck out of schedule' B, “ legal documents,” leaving them free from taxation.

We can scarcely conceive a more legal document than a transcript of judgment.

(c) But this question has been frequently passed upon by the courts of other States (and once in this State, though the court did not unite in expressing their opinion fully), and it has been uniformly held that the act of congress, requiring stamps upon documentary evidence, is an invasion of a right which the courts will not uphold.

In the case of Latham v. Smith, 45 Ill. - 30, this very *313question arises, and is decided, as has been also done by the supreme courts of Massachusetts, New York, Pennsylvania and California, with which decisions we presume the court is perfectly familiar.

The supreme court of Illinois, in the above case, says: “ That congress cannot prescribe rides of evidence governing State courts, and cannot take away from the States legitimate and long-established rights which they ever exercised, and which, for their own preservation, they must be allowed to exercise without question. The power of congress to tax these instruments can be effectually carried out by the imposition, etc., and the government fully protected, without any encroachment upon the rights of the States to make the instrument valid as evidence in. our own courts.” 4 Wheat. 416.

We refer also again to the case of Ford v. Glvnton, 25 Iowa, 157; TT. 8. Ex. Go. v. Haynes, 48 Ill. 248; Graig v. Dinnock, 47 id. 313.

The court, in that case, reiterated the above opinion, holding that it was not competent for congress to enact that an appeal not perfected in conformity with the laws, though in conformity to those of the State, was void.