Thomas v. Pendleton
Thomas v. Pendleton
Opinion of the Court
This is an appeal from an order of the court vacating and setting aside attachment proceedings in this action. The warrant of attachment was issued npon an affidavit, the part of which material to a determination of the question involved in this case is as follows: “That a cause of action exists in favor of said plaintiff, and against said defendants, the grounds of which are fully set forth in the complaint hereto annexed, which is on file in this' action, the statements contained in which are true; that the defendants are not residents of this territory. * * *” A motion was made by defendant Pendleton to vacate and set aside the attachment upon the following grounds: .“Because the same was irregularly issued in this: First, the grounds of the cause of action, if any there be, are not stated and set forth as by law required in the affidavit for attachment; second,, the affidavit does not state that this is an action on contract, for the payment of money only: third, the attachment was improvidently issued in this, that defendant Henry F. Pendleton is not, and was not, a non-resident of this territory. This motion is made upon all the papers filed in this case, and upon the affidavit of Henry P. Pendleton, served herein.” It will be observed that the amount of plaintiff’s claim is stated in his affidavit, but not the grounds thereof, except by reference to the complaint annexed thereto. It therefore becomes necessary to examine the complaint, to ascertain the grounds of plaintiff’s claim, and the sufficiency of the same.
The action is founded upon an alleged judgment in the
On the hearing of the motion to vacate the attachment, the plaintiff introduced in evidence an exemplified copy of the record from the court of common pleas of Crawford county, State of Pennsylvania. This record is as follows: “Copy of continuous docket entry, February term, 1889. [Title.] By virtue of a power of attorney, C. W. Tyler, Esq., appears for defts., and confesses judgment against them, in favor of plff., for the sum of five hundred and seventy-seven afid 50-100 dollars, with costs of suit, release of errors, and waiving exemptions and inquisition. Debt, $577.50. Interest from June 11, 1889.- Judgment. A. B. Edson, Pro. Due June 11, 1889. Filed and entered May 8, 1889. A. B. Edson, Pro.” This, with the declaration and judgment docket entry of the names of the parties, date and amount of judgment, constitutes the entire record as certified to by the prothonotary. There is no record of any process or plea; no record of any service, or appearance by the defendants, or either of them; and, at the time of the entry of this alleged judgment, nothing was due upon the note. It had over a month yet to run before its maturity. Neither is there an adjudication of any court that defendants should pay anything, or that plaintiff should have execution, or process of any kind to enforce collection of any sum. There was no evidence adduced on the hearing of any law of Pennsylvania that would authorize a judgment on a note before it becomes due by its terms, or that in any way explains the meaning o E this record. It does not appear from this record that tb ere was any judgment in favor of the plaintiff, and against the defendants, for any sum of money, that would justify the presumption that any question was adjudicated between the parties. The essential elements of a judgment are wanting. A judgment is defined to be “the conclusion of law upon facts found or admitted by the parties, or upon their default in the course
Reference
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- Syllabus
- 1. A complaint upon a judgment alleged to have been recovered in the State of Pennsylvania, which contained a copy of the note and warrant oí attorney upon which the same was rendered, and from which it appears the judgment was rendered before the maturity of the note, in the absence of any allegation in the complaint of any law of that state authorizing the rendition of such a judgment, held to be insufficient to sustain an attachment issued upon an affidavit stating no grounds of the claim, except by referring to such complaint for the grounds of the same. 2. The exemplified copy of a record of a judgment rendered in a Pennsylvania court of common pleas was as follows: “Copy of continuance docket entry, February term, 1889. [Title.] By virtue of a power of attorney, C. W. Tyler confesses judgment against them in favor of plaintiff for the sum of five hundred and seventy-seven and 50-100 dollars, with costs of suit, release of errors, and waiving exemptions and inquisition. Debt, $577.50. Interest from June 11, 1889. Judgment. A. B. Edson, Pro. Due June 11,1889. Filed and entered May 8. 1889. A. B. EDSON, Pro.,” — with declaration and judgment docket entry of names of the parties, date and amount of judgment. Held, that such a record, in the absence of proof of any law of Pennsylvania authorizing an entry of judgment on anote before due, and explaining the meaning of such a record, is insufficient to maintain an action on such alleged judg'ment, and therefore it does not show tne grounds of plaintiff’s claim to be sufficient to sustain an attachment issued in the case. 3. Held that, in the absence of any allegation or proof on the subject, this court will presume that the laws of the State of Pennsylvania are the same as the laws of this state. (Syllabus by the court.