Winham v. Kline

Bland, P. J. This action is founded on a transcript of a judgment recovered by plaintiff against the defendant before a justice of the peace in the state of Tennessee, on November 10, 1897, for $719.82. The [43] answer was a general denial and a special plea of res adjudicata. A reply was filed denying the special plea. A jury being waived, trial was had by the court, who found the issues for plaintiff and rendered judgment accordingly. Motions for new trial and in arrest of judgment were timely filed, these being overruled, the defendant appealed. The following assignment of errors are relied on by appellant for a reversal of the judgment: First. That the judgment of the justice was not properly authenticated, nor was it legally proved. Second. That the trial court should have found for the defendant on his plea of his former adjudication. [44] state win not take judicial notice of signature and seal of states8.of other [43] I. The judgment sued on is not within the act of congress as to the authentication of records of the courts of the several states, being a court without a clerk or seal. To the transcript of the judgment was a certificate, purporting to be signed by the justice, that the transcript was full and complete as taken from his docket; to this was attached a certificate of the clerk of the county court of Davidson county, Tennessee, attested by the seal of said court, to the effect that Campbell, the justice who rendered the judgment, was a justice of the peace in said county and that his signature to the transcript was genuine. A witness was also produced, who testified that he was present when the judgment was rendered and the transcript made out; that he saw the justice sign the certificate to the transcript; that he compared the transcript with the original docket entry, and that it was a true and perfect transcript, and knew that Campbell was an acting justice of the peace. Parts of the constitution and statutes of Tennessee were read in evidence which proved that justices’ courts are authorized by that constitution, and that they have been established by the legislature [44] of that state, and given jurisdiction over such actions as resulted in the judgment sued on. The certificate and seal of the clerk of the county court attached to the transcript has no probative force here, for the reason that the courts of this state can not take judicial notice of the signatures of clerks ,J 0f courts or other states, nor 'Of their offi7 cial seals, nor receive them as evidence when not proven, as provided for by section 4881, Revised Statutes 1889, and we must look elsewhere in the record for proof of the genuineness of the transcript. “The judgment of a justice of the peace of another state may be proven by the oath of witnesses who have compared the copy produced in evidence with the original,” says Freeman on Judgments, section 577. In 12 American and English Encyclopedia of Law, 503, it is said “a judgment of a justice of the peace of a sister state may be established by common law proof, by proving the statute under which the court was held, and that there was jurisdiction of the subject-matter and of the person.” McElfatrich v. Taft, 12 Busch (Ky.), 160; Kaan v. Price, 12 S. & R. (Pa.) 203. The proof of the statute under which the court was held and conferring its jurisdiction was made, and the statute was read in evidence. The fact that Campbell was an acting justice of the peace, that he actually rendered the judgment and entered it in his docket, and that the transcript l’ead in evidence was a full and complete copy of the docket entry of the judgment, and that it was signed by Campbell the justice, was all sworn to by the witness Wheless. This evidence was uncontradicted by any witness, and we think was sufficient to warrant the admission of the transcript in evidence, and that when it was admitted, it, with the Tennessee statute, furnished ample proof of the fact that the judgment was rendered by a competent [45] court having jurisdiction over the subject-matter and of the defendant. Hence we rule the first assignment of error against the appellant. Rwhatd!uJcata: [46] of action in judgment. [45] II, The proof of former adjudication was substantially as follows: On May 16, 1896, Tamyra B. Winham, brought suit against William L. Kline in the St. Louis circuit court on a judgment dated August 3, 1887, and rendered by W. G. M. Campbell, a justice of the peace for Davidson county in the state of Tennessee, in favor of Travis Winham, against William L. Kline for $445.71. Judgment in this action was for the defendant, which on appeal to this court was affirmed (Winham v. Kline, 72 Mo. App. 615). In its opinion affirming the judgment this court said: “Touching her right to sue on the judgment plaintiff averred that Travis Winham died after the rendition of the judgment; that she is his widow; that he left a will, and that by the terms of the will she became the owner of all his property after the payment of debts. The answer put in issue all of the averments. There is not a scintilla of evidence in the record to prove them. Hence it appears that for the reason that Tamyra Winham failed to show that as the heir of Travis Winham, as executrix of his estate she was capacitated to sue on the judgment she failed in her former suit. The special defense made and relied on in that suit, as appears from the record, was that the judgment then sued on was barred by the statute of limitations of this state, and that the judgment was not so authenticated or proven as to be admissible as evidence. There was no claim of payment made by the defendant; the merits were not gone into, or discussed by this court; on the contrary the judgment of the lower court was affirmed for the sole reason that Tamyra Winham failed to show title in herself to the judgment sued on, or capacity to sue as executrix. In [46] the present suit the judgment sued on is not the identical judgment sued on in the former suit — it is different in date and amount, and is in favor of a different plaintiff. In Railroad v. Commissioners, 12 Kansas, 127, the supreme court of that state says: “To make a matter res adjudicata there must be a concurrence of the four conditions following; identity of the thing sued for; identity of the cause of action; identity of persons and parties to the action; identity to the quality of the persons for or against whom the claim is made.” It appears that the plaintiff brought suit in Tennessee on the same judgment sued on in her former suit in this state; she was more successful there than here; she recovered there the judgment which furnishes the basis of her present suit, and it is contended that the former and latter judgments are one and the same cause of action. We can not agree to this contention; if such were the case, then the original cause of action (said to have been a note) is the real foundation of the present action, and has been kept alive by the two successive judgments. The notes were merged in the first judgment and it in turn was merged in the second judgment. The recovery of judgment on a cause of action extinguishes that cause of action; the first judgment extinguished the notes, and was itself ex-tinguishea by the second judgment. Freeman on Judg., sec. 216. As is said by Mr. Freeman at section 215, “it (the first judgment), is drowned in the judgment (the second one), and must henceforth be regarded as functus officio.” The plea of res adjudicata must fail therefore because there is not an identity of the. cause of action. It must also fail because the merits of the subject-matter of the former suit were not litigated, as appears from the opinion of this court rendered in the former suit (72 Mo. App. 615). Nelson v. Bernett, 123 Mo. 564; Garrett v. Green [47] well, 92 Mo. 120; Block v. Dorman, 51 Mo. 31; Bell v. Hoagland, 15 Mo. 560; Dickey v. Heim, 48 Mo. App. 114; Owens v. Link, 48 Mo. App. 534. Hence we conclude that the judgment in the former suit furnishes no bar to the prosecution of this suit, for the following reasons: First, because the causes of action are not identical, and, second, because the former judgment was not recovered on the merits of that cause of action. The judgment which furnishes the foundation for the suit in hand was rendered after the commencement of the first suit in this state and during its pendency, hence it can not be said that its merits were involved in that suit; it had no existence at the commencement of the first suit, but has sprung into life since. It was rendered on personal service, and it is as binding between the parties as if it had been rendered by a domestic court having competent jurisdiction. Barry v. White, 46 Mo. 137; Destrahan v. Scudder, 11 Mo. 484; Harness v. Green, 19 Mo. 323; Cambrid v. Central Improvement Co., 23 L. R. A. 120. For the reasons herein stated the defendant’s plea in bar is ruled against him, and the judgment affirmed. All concur.