Spielman v. Molitor

Dibell,, J. This is an action to recover upon a judgment of $154 entered on July 25, 1924, in the municipal court of Barron county, Wisconsin, in favor of the plaintiff against John Molitor. The defendant denies such judgment, and counterclaims for damages in the sum of $1,400, the amount of the note for the interest on which for two years the *281 judgment was entered, and, if that be denied, for tbe surrender of tbe note. There were findings for tbe plaintiff. Tbe evidence proffered by tbe defendant in support of bis counterclaim was rejected. Tbe defendant appeals from tbe order denying bis motion for a new trial. There are three questions: (1) Whether tbe evidence sustains tbe finding that tbe defendant was tbe defendant in tbe Wisconsin suit and served with process. (2) Whether tbe defendant could recover on bis counterclaim for tbe amount of tbe note. (3) Whether tbe Wisconsin judgment was properly proved by certified copy. In tbe action in tbe municipal court of Barron county John Molitor was named defendant. John Molitor was tbe father of tbe defendant John N. Molitor. Tbe evidence sustains tbe finding of tbe court that tbe process in tbe Wisconsin action was served on tbe defendant here, John N. Molitor. It is not important that bis middle initial was omitted. Willard v. Marr, 121 Minn. 23, 139 N. W. 1066; D’Autremont v. Anderson Iron Co. 104 Minn. 165, 116 N. W. 357, 17 L. R. A. (N. S.) 236; Dun. Dig. §§ 6912-6913. If be was tbe defendant actually served be is bound by tbe judgment. It is only a question of identity. It appears from tbe evidence that both John and John N. Molitor were in Barron county on tbe day of tbe service. Tbe officer went first to John Molitor with process, and was informed in effect that bis son was tbe one wanted. Later in tbe day be served on tbe son. At tbe time of tbe default bearing tbe pleading and process, though it does not seem important, was amended so as to read John N. Molitor. Tbe judgment was for two years’ interest at 5 per cent upon a note of $1,400 given by tbe defendant on May 7, 1920, due in 5 years, with interest at 5 per cent, to bis sister, by way of a family settlement, made at tbe time, in which bis father, John Molitor, deeded him a tract of land. Afterwards tbe transaction was rescinded and tbe land was deeded to tbe father and tbe note was canceled. Tbe defendant alleges that tbe plaintiff in some way but without *282 right got possession of the note and secured judgment, that in suit, for two years’ interest. The defendant cannot recover the $1,400 by way of counterclaim. He did not pay the note and it is not in the hands of an innocent purchaser. On his own theory he has a defense to it. We say nothing of the question of res adjudicata. The municipal court of Barron county is a court of record, of limited civil jurisdiction at law, of limited criminal jurisdiction, and with jurisdiction like that exercised by justices of the peace as committing magistrates. Its practice is so far as practicable that of justices’ courts, its judgments are filed and docketed with the clerk of the circuit court, and appeals lie as from justices’ courts. The municipal judge certified to the proceedings had before him and to the records of his court. The clerk of the circuit court of Barron county certified to the signature and official character of the municipal judge and the credit to be given his acts. The judgment was proved whether it be considered as properly proved under G. S. 1923, § 9851, relating to records of courts of other states, or G. S. 1923, § 9885, relating to judgments of justices of the peace of another state. Smith v. Petrie, 70 Minn. 433, 73 N. W. 155; In re Ellis’ Estate, 55 Minn. 401, 56 N. W. 1056, 23 L. R. A. 287, 43 Am. St. 514; Bowman v. Hekla Fire Ins. Co. 58 Minn. 173, 59 N. W. 943. Order affirmed.