Bean v. Loryea , 81 Cal. 151 ( 1889 )

Foote, C.

This action was upon a judgment rendered in the supreme court of the state of New York in and for the city and county of New York. Judgment was rendered as prayed for, and from it and an order denying a new trial, the defendant appeals. He makes the point in favor of his demand, that the certificate of the. clerk of the court authenticating the copy of the record of the judgment obtained in New York is not sufficient, because it does not show that the clerk was the legal keeper nor where the legal custody of such records belong, and the certificate of the judge as “presiding justice” is insufficient.

Section 1905 of the Code of Civil Procedure, under which a judicial record such as that now in hand can be proved, provides that “ a judicial record of this state or of the United States may be proved by the production of the original, or of a copy thereof certified by the clerk or other person having the legal custody thereof. That of a sister state may be proved by the attestation of the clerk and the seal of the court annexed, if there be a clerk and seal, together with a certificate of the chief judge or presiding magistrate that the attestation is in due form.”

Here the clerk attested the copy of the judicial record, and annexed the seal of the court. Attached to the certificate is that of the “presiding justice” of the court, which is the equivalent of “chief judge,” or “presiding magistrate” thereof, that the attestation is in due form. This is a full compliance with the law.

The proof of the judgment being sufficient, it remains to be considered whether the certificate of discharge in insolvency, obtained from the proper court in the state of California, was a bar to the recovery of the plaintiff, who is a resident of the state of New York.

The supreme court of the United States held, in Baldwin v. Hale, 1 Wall. 234, that “insolvent laws of one state cannot discharge the contracts of citizens of other states because, they have no extraterritorial operation, and consequently the tribunal sitting under them, unless in cases where a citizen of such other state voluntarily becomes a party to the proceeding, has no jurisdiction in the case. Legal notice cannot be given, and consequently there can be no legal obligation to appear, and of course there can be no legal default.”

In the present case the plaintiff did not become a voluntary party to the insolvency proceedings.

The appellate court of Vermont, in Bedell and Warden v. Scruton, 54 Vt. 493, has followed the rule laid down by the supreme court of the United States, and the appellate court of California takes the same view of the matter in Rhodes v. Borden, 67 Cal. 7.

The appellant seeks to avoid the force of these decisions by claiming that an action upon a judgment is not a suit based upon a contract, and that therefore these cases are not in point. In this position he is not supported, as it has been declared by the court of last resort in this state that suits upon judgments are actions upon contracts. (Stuart v. Lander, 16 Cal. 375; 76 Am. Dec. 538; Reed v. Eldridge, 27 Cal. 348; Wallace v. Eldredge, 27 Cal. 499.)

We do not understand the case of Larrabee v. Baldwin, 35 Cal. 168, to be in conflict with the decisions just referred to. It is there said: “The claim of the respondent that the judgment itself is a contract creating a new debt, within the meaning of the statute [that is, an act authorizing the formation of mining corporations], for which all who were stockholders at the date of the rendition of the judgment are personally responsible, is too absurd to require argument to refute it.. That a judgment is a contract of record, in a certain legal sense, may be conceded, but it creates no such new liability as the statute in question contemplates.”

It has also been held by the same tribunal that a judgment ism debt. (McBride v. Fallon, 65 Cal. 303.) Being a debt, the rights accruing to the plaintiff under it could not be taken away by a court which did not have jurisdiction over him.

We therefore advise that the judgment and order be affirmed.

Belcher, C. 0., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment and order are affirmed.