Kellam v. Toms

Ryan, C. J. I. When this appeal was heard at the last term, we were referred by both parties to sec. 214, ch. 178 of [600] the compiled laws of Michig an of 1871, as the statute governing the Michigan judgment in suit in this cause; and we looked no further for authority for the judgment. In support of the appellant’s motion for rehearing, it was pointed out to us that this was a mistake; that the section to which we had been referred, as it stands in the compilation of 1871, was passed after the recovery of the appellant’s judgment, and is an amendment of a previous provision in a statute of 1857, in force when the appeal in Michigan was taken and the Michigan judgment rendered. Comp. Laws of Michigan, 1857, ch. 117, sec. 214. We accordingly granted a rehearing, and the appeal was again heard at this term. It became apparent on the rehearing, and indeed was not denied, that the statute of 1857 must govern the judgment. On comparison of the two statutes-, it appears that the first' proviso of the statute of 1871, on which our former decision is made to rest, “ that the surety shall not be liable on execution on a judgment rendered on a judgment so entered on motion,” is not found in the statute of 1857: which gives to the appellee, recovering on appeal in the circuit court, a right to judgment against the appellant and his surety, with execution against them jointly, with'the qualification that “in such case the surety shall be discharged from such judgment if no execution be issued thereon within thirty days after the rendition thereof, unless such surety consent to further delay.” It does not appear by the judgment record as pleaded, that the respondent, the surety in the appeal, was discharged from the judgment. On the contrary, it appears by the complaint that execution was issued on the judgment within thirty days after its rendition against the respondent and his principals in the appeal, so that the respondent is without right to be discharged from the judgment, which is thus final and absolute there against him. The validity of such a judgment so rendered against a surety [601] was denied. But that is not an open question either in Michigan or here. Chappee v. Thomas, 5 Mich., 53; Pratt v. Donovan, 10 Wis., 378. See also Smith v. Lockwood, 34 Wis., 72. Some criticisms were made by the respondent’s counsel upon alleged inaccuracies and irregularities in the Michigan record. It may be doubted if any of them would prevail in the supreme court of Michigan, on appeal. They certainly cannot in this court. We cannot review the judgment. It is sufficient here, on this demurrer, if it appear that the circuit court of Michigan had jurisdiction to render the judgment. II. It is objected that the codefendants of the respondent are sued here, as in Michigan, by their surnames only.- Certainly every person is presumed to have two names, one Christian name and one surname (Co. Litt, 3 a; Bacon’s Abr., Misnomer), though the presumption is often disregarded in the records which come here, in which, by a loose and vicious practice, many parties are designated by initials instead of Christian names. Parties should sue and be sued by their Christian and surnames. Seely v. Schenck, Penn. (N. J.), 75. But a plaintiff may not always know the names, Christian or hereditary, of one whom he sues ; and in that case the defendant may be designated by any name. R. S., ch. 125, sec. 39. Here the complaint avers ignorance of the “individual” names of the respondent’s codefendants, and sues them by their surnames. We consider this a sufficient compliance with the statute; and we need not consider whether the point, if well taken, would be good on this demurrer. III. We have hitherto considered the case, as we did on the first hearing, as if the Michigan statute had been pleaded to support the judgment. But on examination of the complaint, we find that it is not. The complaint pleads the statute of that state giving jurisdiction of the original suit to justices of the peace, but not the statute giving jurisdiction to the circuit courts, on appeal, to render judgment against appellants and their sureties. And it is objected that we cannot take judicial [602] cognizance of a statute of Michigan not pleaded. We must hold the objection well taken. It certainly looks rather anomalous that, without pleading or suggestion, we may look into the reports of a sister state to see how her courts construe her statutes, may look into her statutes to compare them with ours, and may be bound by her construction of her statutes subsequently copied here; and yet that we cannot look into her statutes without pleading, to find a statutory jurisdiction of her courts. But so it is decided. Rape v. Heaton, 9 Wis., 328. See also Walsh v. Dart, 12 id., 635. And perhaps the apparent anomaly is explained by the mistake in this case which misled the court, for want of the accuracy of pleading. Certainly jurisdiction to render this judgment against the respondent did not exist at common law. Nor does it exist by statute here, so as to authorize a presumption that it does in Michigan. Rape v. Heaton, Walsh v. Dart, supra. The judgment against an appellant and his surety authorized by sec. 50, ch. 140, R. S., is not in effect a general judgment and would not found a general judgment against the surety. It may be that in such a case as this, it might have been sufficient to have pleaded the judgment generally, and the juris 'diction of the court rendering it generally. But when the facts on which jurisdiction rests are specially pleaded, and the statutory jurisdiction arising upon them is not pleaded, as here, a general averment of jurisdiction is not sufficient. Teetshorn v. Hull, 30 Wis., 162. The defect of the complaint is technical, and may be amended below. But it must prevail here. By the Court. — The order of the court below is affirmed, and the cause remanded for further proceedings.