Dodge v. Coffin

15 Kan. 277

• Court: Supreme Court of Kansas
• Decided: July 15, 1875
• Status: Published

Opinions

The opinion of the court was delivered by

Brewer, J.:

This was an action on a judgment rendered in the circuit court of Kane county, Illinois. Said judgment was rendered in the spring of 1872, upon two notes executed in March 1859. Attached to each note was a warrant of attorney authorizing “ Charles Wheaton, Esq., or any other attorney of any court of record,” to enter appearance, waive process, and confess judgment. Upon these warrants, and without any service of process, or other appearance, judgment was entered in vacation. It is insisted that this judgment having been entered in vacation, was a nullity, and Mifflin v. Stalker, 4 Kas. 283, is cited as authority therefor. But that case simply decides as to the practice in this state, and the authority to enter judgments in our courts at other than the regular terms. ■ And the question here is, not whether such judgment would be valid, if entered in this state, but was it valid in Illinois, where it was entered? French v. Pease, 10 Kas. 54. Now, this court will take judicial knowledge of the constitution of the state of Illinois, so far as this question is involved. Butcher v. Bank of Brownsville, 2 Kas. 70. And by that constitution we find that the circuit court is one of general original jurisdiction. Being a court of general jurisdiction, the presumption, is in favor of the authority which it assumed to exercise. Though the mode of procedure be different from that established in this state, yet it will be presumed to be in accordance with that authorized by the statutes of the state in which it was rendered. In 2 Am. Lead. Cases, 5th ed., p. 647, it is said that, “ it is obviously essential to the effectual operation of the design of the con-; stitution, that the records of the judgments of other states, duly authenticated under the act of congress, should not merely prove themselves, but give rise to a presumption that the court possessed the authority which it assumed to exercise” — and many authorities from different states are cited in support of the proposition. And again it adds: “The presumption, Omnia rite acta, will accordingly hold good until repelled, and the burden of proof is on him by whom a record, duly authenticated, and which appears to be regular, is impugned.” So that in the absence of any evidence to the contrary, the presumption would be that a judgment entered in vacation was valid, according to the laws of Illinois. But we are not left to a presumption. In Dunham v. Brown, 24 Ill. 93, we find such a mode of procedure upheld by the supreme court of that state.

. Again, it is urged that the warrant of attorney authorizes “Charles Wheaton, or any other attorney of any court of record,” to appear and confess. And the record shows that one W. J. Brown appeared and confessed, and that there is no evidence that he was an attorney of any court, and he signes himself, “attorney-in-fact” for defendant. We suppose the designation was correct, for one authorized by such a warrant of attorney is an attorney-in-fact; and in the recital of the judgment, it reads, “that the plaintiff appeared by T. C. Mooi’e his attorney, and the defendant, by W. J. Brown his attorney.” This recital is evidence prima facie at least, that both Moore and Brown were attorneys off the court in which the judgment was entered. But passing these considerations, it was for the defendant, upon the principles heretofore stated, to overthrow the presumption in favor of this judgment by showing if he could that W. J. Brown was not an attorney of a court of record. It is useless to inquire as to the circumstances under which the judgment of the court of a sister state can be impeached, for here there was no testimony tending to impeach it. The testimony of Dodge, that he never employed Brown, or authorized him to appear and confess judgment, that he was never served with process, etc., is wholly immaterial. He does not deny the execution of the warrant of attorney, or question its validity; and all further matters, except perhaps whether Brown was an attorney of a court of record, are questions of law.

One other question remains. Counsel contends that no action can be maintained on this judgment because of § 1 of ch. 87, laws of 1870, which among other things, provides:

“And no action shall be maintained in this state, or any judgment or decree rendered in another state or country against a resident of this state, where the cause of action upon which such judgment or decree was rendered could not have been maintained in this state at the time the action thereon was commenced in such other state or country by reason of lapse of time.”

Of the applicability of this statute there can be no question. The notes were more than twelve years past due, when the proceedings were commenced in the circuit court of Kane county; and the only testimony, that of Dodge himself, showed that he had been a resident of this state for the last thirteen years, and had not been back to Illinois since 1859. But a statute in all essential particulars exactly like this has been before the supreme court of the United States, and declared unconstitutional and void, as conflicting with § 1 of art. 4 of the federal constitution, which ordains that “ full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” The statute which was before that court was a statute of Mississippi, and in these words: “No action shall be maintained on any judgment or decree rendered by any court without this state, against any person who at the time of the commencement of the action in which such judgment or decree was or shall be rendered was or shall be a resident of this state, in any case where the cause of action would have been barred by any act of limitation of this state, if such suit had been brought therein.” Christmas v. Russell, 5 Wall. 290. The similarity of the statutes is obvious, and the.decision of that court conclusive upon the question.

There being no other question in the case, the judgment will be affirmed.

Kingman, C. J., concurring.