Baker v. Stonebraker , 34 Mo. 172 ( 1863 )

Bates, Judge,

delivered the opinion of the court.

This was a suit upon a judgment rendered by a court of record of the State of Maryland. The suit there was docketed in the name of “ George McCullough, use of John Baker, use of Thomas H. Fowler and Samuel J. Rogers,” and judgment given for the plaintiff. Experts in the law and practice of the courts of Maryland proved that such an entry on the docket of a use entitled cestui que use to the ownership and entire control of the judgment. The petition in the present case stated that said judgment had been regularly assigned to plaintiff for good and valuable considerations, and at the trial the plaintiff offered to prove a written assignment of the judgment by Fowler and Rogers to himself, which was excluded by the court; and the court declared the law to be, “ that the assignment, to be valid, must appear of record in the transcript sued on.”

It appeared in the transcript of the judgment in Maryland, that the writ which was issued against the defendant Stonebraker was not returned by the sheriff, “ nor hath he done anything therein : nevertheless, the said defendant voluntarily appears in court here by Chew Schnebley, his attorney, and thereupon the plaintiff declares,” &c.; “ and the said de-. fendant, by his attorney aforesaid, says that he cannot deny the action aforesaid,” &c., and thereupon the judgment was entered.

The defendants in this suit denied that Schnebley was the attorney of John Stonebraker or authorized to enter his appearance ; but at the trial they offered no evidence on that subject, and the court decided that the statement in the transcript that John Stonebraker appeared by attorney did not give the Maryland court jurisdiction of his person so as to render such a judgment as would authorize the court here to render a judgment thereon. Under the instructions given, the plaintiff took a non-suit, and after an effectual motion to set it aside has brought the case to this court by writ of error.

1. As to the assignment of the judgment, the Circuit Court erred in rejecting the evidence of the assignment. The present statute of Missouri in reference to the assignments of judgments refers only to judgments rendered in the courts of this State, and at any rate could have no effect upon the assignment offered in this case, because it was passed since the assignment was executed. So far as shown, the law of Maryland did not require the assignment to be' of record. The plaintiff should have been permitted to prove the assignment, and the witness Fowler was competent for that purpose. When proved, it established that the plaintiff was equitable owner of the judgment, and as such could sue upon it in his own name.

2. As to the jurisdiction of the Maryland court of the person of John Stonebraker, the question is settled beyond doubt by the well considered case of Warren & Dalton v. Lusk, 16 Mo. 102. Not only did the appearance of the defendant by attorney give the court jurisdiction of the person of the defendant, but the defendant will not be permitted in a suit upon a judgment to disprove the authority of the attorney ; the record is conclusive upon him.

Judgment reversed, non-suit set aside, and causeTemanded.

Judges Bay and Dryden concur.