Johnson v. Butler

Woodward, J. The errors assigned are: 1. In dismissing the attachment. 2. In sustaining the motion for the production of the paper mentioned in the statement, and rendering judgment against the plaintiffs, upon its non-production. Section 1846 of the Code provides, that, “in an action for 'the recovery of money, the plaintiff may cause property of the defendant ” to be attached, upon filing an affidavit or petition therefor, stating some one of certain facts, one of which is, that the defendant is a non-resident of the state. By section 1849: “If the plaintiffs’ demand is founded on contract, the petition must state that something is due,” &c. By section 1850: “ The amount thus sworn to, is intended as a guide to the sheriff,” &c. By section 1851: “ If the demand is not founded on contract, the original petition must be presented to some judge of the Supreme or District [545] Court, who shall make an allowance thereon of the amount in value of the property, that may be attached.” The provisions of these sections were intended to draw the line between actions ex contractu and ex delicto ? In the act of February 16th, 1843 (Stat. 1843, 78), the language is, “that when any action founded on contract,” is commenced, and section 3 says: “The said writ may also be issued in actions ex delicto, in cases where,” &c. Here the distinction intended, is manifestly between actions ex contractu and ex delicto ; and it was always so understood, and so practiced upon. Numerous attachments have been sued out in actions brought upon judgments recovered in this or other states, and no one has so far doubted the correctness of the proceeding, as to object to it upon this ground. The Code does not recognize the common law, technical names of actions, nor, in this case, even the general classification of those upon contract, and those of tort, in express and technical terms; still the sense cannot be mistaken. The language of section 1849, is not “founded upon a contract,” but is general, upon contract, making a class, whilst section 1851, in the words “ not founded on contract,” refers to the class of actions for torts. The sense of this, and that of the former law, are the same; intending, that if the cause of áction were such as to furnish some definite criterion of amount, such as is found in what are commonly called debts, this should form the guide for the attachment. And this class furnishes another important element,, also — the fair assurance that something is due; whilst,- on the other hand, all of that class which rests in damages alone, purely and strictly as damages, and not at all as debts, and which are altogether uncertain and unfixed, until ascertained by a verdict and judgment, require a special allowance. But vdien a judgment has been recovered for a tort, it then is fixed and certain. It is a debt, as much as if it were recovered upon a promise; and an action of debt, under the former practice, brought upon such a judgment, was an action ex contractu. It is so classed by all the writers. Who ever heard of an action of debt upon a judgment, called an ac [546] tion. ex delicto ? And jet it must be that, if it be not ex contractu, for there are but these two general classes. And we do not look back, for this purpose, to see upon what the judgment was recovered. It certainly was not necessary for the defendant, to labor to prove that a judgment is not a contract, in the narrow sense, and as synonymous with agreement. But that it is, in a broader sense, and as distinguished from a tort, see the authorities cited by the plaintiff’s counsel. The only answer to be made to a part of defendant’s argument, is by asking whether this is not an action for the recovery of money ? whether under this judgment, there is not “an obligation existing to pay money ?” whether the relation of debtor and creditor does not exist ? and what can create it more effectually, than a judgment ? It is true enough, that these qualities do not exist in, and this section cannot apply to, actions of trespass, trover, malicious prosecution, and case generally, and that there must be something more than the “ inchoate right to claim damages.” ' The action does not stand in these categories. There is a judgment, and thereby a perfect right. The counsel dwells too much on the original cause of action, and forgets his own argument, that it is merged in the judgment. There is no absurdity in supposing, that an attachment might be sued out in an action on a judgment recovered in trespass, although it might not in the original action. In conclusion, we feel clear that the intent of the Code, like that of our former laws, is to distinguish ‘between those demands which are ex delicto, and totally uncertain and indefinite, and those which are classed as ex contractu, and contain in themselves, something specific as to the amount, and we think the court erred in quashing-the attachment. The next matter for consideration arises upon the defendant’s motion, that the plaintiffs “be ruled to complete the record and proceedings, upon which this suit is brought, by filing a certified copy of the exceptions, upon which, as appears by the record, the Supreme Court of the state of Illinois, reversed the judgment obtained in the Circuit [547] Court;” which, motion was sustained, and, the paper not being produced, the action was dismissed. It may be doubted whether an affidavit is requisite, when the record shows the former existence of a paper; but we apprehend that it is necessary, when the record does not thus show it. By this record, it does not appear that such a paper existed. No bill of exceptions appears to have been taken, and still less does it appear by the record, upon what the Supreme Court reversed the judgment of the Circuit Court. But setting criticism aside, and assuming that the defendant aimed at the motion in Illinois, to set aside the verdict, the question is, had he a right to demand the paper, at all events ? He says he could not know how to conduct his defence, “ without knowing the reasons which influenced the Supreme Court of Illinois, in reversing the first decision of the Circuit Court in Jo Daviess county.” That motion could not, with any certainty, give him those reasons. If he needed them, the opinion of the court was the only thing which would furnish them, and this he could obtain. We can see no reason why the motion should have been withdrawn, but we are at an equal loss to perceive, what right the defendant has to call for it, in this manner, or of what use it could be to him in his defence. The opinion of the Supreme Court is what he wanted, if he needed anything pertaining to that matter. But the weightier answer, lies in a different train of thought. Can a state of things be conceived, in which the defendant here, could plead any matter which might be contained in that motion, or those exceptions ? He does not show any bearing which they may possibly have had, and the defendant must have some knowledge of their nature, at least. But it must be remembered, that this is an action brought upon a judgment recovered in another state. The defendant cannot make a defence of any ■matter, which he might have pleaded in the former suit Whatever objection there was to the former verdict and judgment, went up to the Supreme Court of Illinois, and that judgment was reversed; and this action is brought upon a judgment recovered after that. [548] Again: may not the plaintiff bring his action upon an incomplete record, as, for instance, upon a transcript of the judgment only (Latterett v. Cook, 1 Iowa, 1); or upon so much of the record as to show only, that the court had jurisdiction of the person and matter, and that a judgment was rendered? It is much to be doubted, whether the defendant could compel him to produce the remainder of the record, or a copy of it. The defendant could plead any of the pleas permitted in such case, and thus, perhaps, compel the plaintiff to show the rest of the record, as a matter of evidence. Thus, the defendant could plead nul iiel record; or, perhaps, that the court had not jurisdiction of the person or matter; or, that defendant was not served, and did not appear; or, that the judgment was obtained by fraud; and thus he might render it necessary for the plaintiff to produce other parts, and even the whole, of the record. The plaintiff can,' by pleading, be compelled to show enough to prove a valid judgment recovered; but we cannot see that he can, by motion, be obliged to produce any particular part of the record. And it would seem, that additional weight is given to this reasoning, in this case, in view of the fact, that the former court permitted the paper called for, to be withdrawn from the records, so that it is no longer a part of them. If there were error in this, it should have been corrected in the other jurisdiction. The court here cannot correct it. Neither can our court make any inference adverse to the plaintiff. Upon the whole, we are of the opinion; that the District Court erred in sustaining this motion, and in dismissing the action. The judgment will, therefore, be reversed, and a writ oí procedendo will issue.