Oppman v. Steinbrenner , 17 Mont. 369 ( 1895 )

De Witt, J.

The demurrer to the first paragraph of the answer was properly sustained. It was pleaded by the complaint, and not denied, that judgment was rendered upon the note by a court of general jurisdiction in the state of Ohio. That judgment adjudicated upon the said note and the indebtedness thereunder. It was a judgment by a court of general and competent jurisdiction of a sister state, and such judgment cannot now be attacked by denying simply the giving of the note upon which the judgment was rendered. (Black on Judgments, § 857, and cases cited.)

The second paragraph of the answer was properly stricken out as sham. The appellant defended this paragraph upon the ground that the statute of limitations had run against the original judgment entered in 1874. But the point of the case is this : Plaintiff, Oppman, was a .surety of Steinbrenner, and he had no cause of action against Steinbrenner until he had paid the note in 1894. (Wood on Limitations, § 145; Brandt on Suretyship, § 230.) This did not occur until 1894, and it is clear that the statute of limitations had not run against this plaintiff since that time.

We are also of opinion that the third paragraph in the answer was ambiguous. Defendant sought to allege that, when the. judgment was rendered in Ohio, he was absent from that state, and his appearance was fraudulently entered. But it was not clear whether he means the original judgment, in 1874, or the judgment of revivor, in 1894. Counsel claim that the revivor was an order and not a judgment. Plaintiff pleads it as a judgment in his complaint. It would have been a very simple matter for defendant to amend, and clearly indicate by his answer which judgment or order, if it is to be called an order, he referred to in his third paragraph of the answer.

The district court, upon sustaining the demurrer to the answer, and the motion to strike out, rendered judgment for the plaintiff. Defendant appeals from the judgment, which brings up for review the orders upon the demurrer and motion. Having determined that the district court was correct as to the motion and demurrer, the judgment is therefore affirmed.

Affirmed.

Pemberton, C. J., concurs. Hunt, J., having tried this case as district judge, does not participate in this decision.