Butcher v. Bank of Brownsville , 2 Kan. 70 ( 1863 )

By the Court,

Kingman, J.

The Bank of Brownsville brought a suit in the District-Court of Atchison County, against the plaintiff in error, on a judgment of the Court of Common Pleas of the State of Pennsylvania.

To the petition, the defendant Butcher interposed a demurrer, an answer and a.motion to strike the case from the files of the Court, all filed at once under a rule of the Court then existing. The motion to-strike the case from the files was first taken up. The grounds of it were that the plaintiff had omitted to insert the word petition after the title of the cause. The plaintiff interposed a motion for leave to amend, which was granted, and the amendment made by inserting the word petition in its appropriate place, after the title of the cause.

This is the statement of the journal entry.

U-The bill of exceptions recites that the amendment was permitted after the motion to strike had been sustained.

The demurrer was then considered and overruled.

The defendant then moved for time to make an amended answer, which was denied, the defendant having at a previous term of the Court had leave to file an amended answer in forty days and had failed to do so.

Defendant then withdrew his answer on file, whereupon plaintiff demanded judgment. Defendant demanded a jury to assess damages, which was refused, and the Court proceeded to render judgment for the debt.

To the various rulings of the Court the defendant excepted, and. brings the case to this 'Court to correct the alleged errors.” ;

We will consider them in their order.

The action of the Court in permitting a party, to amend by inserting the word petition which had been omitted, was so manifestly correct that we need not argue it. By the code it is made necessary that that word shall follow the names of the parties to the suit in the caption. When omitted, the Court should allow' an amendment at any time without delaying the suit, and ought not to sustain a motion to strike it from the files without first at least giving an opportunity to amend. “ Tlie Court in every stage of the action must disregard any error or delect in the pleadings or proceedings which' does not affect the substantial rights of the adverse party, and no judgment shall be reversed or vacated by reason of such defect.” See page 8, Oode. We do not happen to see, how it would affect the substantial rights of the adverse party whether the amendment was made or not.

The next alleged error was in overruling the demurrer. The petition was for the recovery of a debt due by a judgment of the .Court of Common Pleas of the State of Pennsylvania, and did not contain any averment that the Court had jurisdiction either of the person or cause of action. Is such averment necessary ? At common law in suits on foreign judgments, it does not seem to have been necessary to aver jurisdiction in tlie Court rendering the judgment. 2 Chitty’s Plead, p. 414, N. C.; Comyns Digest, Tit. Pleader. 2 W. 12, and P. 18.

Section 130 of the Code which is quoted, has no bearing upon this case, but is confined to cases determined by a Court or officer of special jurisdiction.

A judgment rendered by a Cotu-t having no jurisdiction either of the person or the subject matter is void and a mere nullity, so that when a judgment of a Court, of general jurisdiction is 'stated to have been rendered, it implies that the Court had jurisdiction. If the extent of the jurisdiction of the Court does not appear, it has been held that it will be presumed to have jurisdiction.

In Kentucky the rule has been laid down very broadly, thus : That when the judgment or decree of'a sister State is produced rendered by one of its tribunals, we must presume that tribunal had jurisdiction and authority, and the onus of impleading it is thus thrown on him against whom it is urged. 5 L. M., 350.

It may be doubted if this is not too broad.

The better rule seems to be that laid down in New York and some other States, which is, that in respect to Courts of general jurisdiction, that they are presumed to have had jurisdiction until the contrary clearly appears. 19 Johnson, 33; 3 Wend., 267. “ Every presumption is in favor of the jurisdiction of the Court.” 4 Gowen, 294.

If then the onus of showing that the Court had not jurisdiction is on the party against whom it is set up, it is very appropriate that he should show it in his answer. Eor the very statement in the petition, that a judgment of a Court of general jurisdiction has been rendered, of itself imports jurisdiction.

The point has been expressly decided in the case of Wheeler v. Raymond, 8 Cowen, 314, wherein Savage Ch. J., said that in pleading the judgments of Courts of limited jiuisdiction, it is necessary to state the facts upon which the jurisdiction of such Courts is founded; but with respect to Courts of general jurisdiction, such averments are nqt necessary, and if there was a want of jurisdiction, that fact should come from the other side.”

See Swan’s Pleading and P., pp. 212,290, where the same doctrine is held. Courts will take notice of the constitutions of sister States, (lsi Pennington, 405.) And we find that by the constitution of the State of Pennsylvania, the Com’t of Common Pleas is a common law Court, having important original and appellate jurisdiction, and no doubt can be entertained, but that a judgment obtained in one of these Courts in a regular course of the common law is conclusive.

The Coiut being one of general jiuisdiction we think it was not necessary to aver jurisdiction by the common law, and the code has not changed the law on this point. But if we are wrong in our inference that the Court of Com ■ mon Pleas in that State is one of general jurisdiction, then the case comes under Sec. 130 of the Code, and the statement of the jurisdiction was not necessary.

Iii argument, another cause of demurrer was assigned on account of some peculiarity in the form of the record, but it is the usual form of the judgment on a cognovit rendered in Pennsylvania.

The next alleged error in the Court was the refusal to give further time for filing an amended answer. No showing was made by affidavit or otherwise why an amendment was necessary, and if necessary, why it had not been filed when the time had been previously given.

"We do not propose to comment on the rule of Court requiring demurrers and answers to be filed at the same time. It is manifestly a bad rule, but by conforming to it without excepting, the plaintiff can take no advantage of it, save that it repels the inference that by filing his answer the defendant waives his demurrer. Having once obtained time and failed to file his amended answer, he was certainly not entitled to delay the case longer for time without any showing whatever why it was not ready.

We dismiss the pretext urged that as the petition was amended by inserting in its caption the word petition, it gave defendant a right to file an amended answer without argument, as insufficient:

The demurrer was properly overruled.

The only remaining question to be considered, is, did the Court err in refusing to allow the defendant a jury to assess damages? " ■ *•'

Defendant had withdrawn his answer, and there was no issue to try, neither were there any damages to assess or fact to ascertain.

It was a suit for a sum certain. A debt Eo nomme, and not sounding in damages. There were no values to fix. The Code requires, {Sec. 94,) that “If the recovery of money be demanded, the amount thereof shall be stated, and if interest thereon be claimed the time from which •interest is to be.computed, shall also be stated.”

These being necessary allegations, are to be taken as true unless there are “ allegations of value or of amount of damage.” There being none such in this case, the petition. was to be taken as true, and there was. nothing for a jury to try or to do. Nothing -was left but to give judgment for the amount. Therefore we think a jury was not necessary.

"Wherefore the judgment of the Court below is affirmed with judgment for costs against the plaintiff in error.

All the justices concurring.