Opinion
No. 28461.
December 16, 1952.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, JOHN A. WITTHAUS, J.
Neuhoff, Tremayne Schaefer, Bertram W. Tremayne, Jr., and ralph R. Neuhoff, Jr., all of St. Louis, for appellant.
Franklin H. O'Leary and F. J. O'Leary, both of Kansas City, and Samuel J. Kevrick, of St. Louis, for respondents.
This is an action in the Circuit Court of St. Louis County upon a judgment rendered by the Circuit Court of Eau Claire County, Wisconsin.
The plaintiffs, P. H. Butler and E. V. Gould, are the judgment creditors, while defendant, Karl J. Kopplin, is the judgment debtor.
Plaintiffs are residents of Wisconsin and are engaged in the collection business in that state, while defendant is a resident of St. Louis County, Missouri.
The Wisconsin action was on a promissory note executed by defendant to the order of the Iron River Bank of Iron River. Wisconsin, and thereafter allegedly assigned to plaintiffs along with the indebtedness which it evidenced.
Among the provisions of the note was one authorizing any attorney to appear in court for the maker of the note and confess judgment, without process, in favor of the holder of the note for any amount due and unpaid including attorney's fees.
In their petition in the Wisconsin action, the contents of which were verified by the affidavit of one of their attorneys, the plaintiffs, Butler and Gould, alleged that they were the owners and holders of the note.
Along with the petition was filed the answer of the defendant, Kopplin, in which his attorney, Kaiser, acting upon the authority of the warrant of attorney contained in the note, waived service of process upon defendant; entered defendant's appearance to the action; and confessed judgment in plaintiffs' favor for the amount named in the petition. The court thereupon entered judgment for the plaintiffs, and against the defendant, for the aggregate amount of $1,003.51.
In the local action on the judgment plaintiffs set up the entry of the judgment which had not been satisfied either in whole or in part, and then alleged that the Wisconsin court had possessed jurisdiction of both the parties and the subject matter.
In his answer defendant controverted the jurisdiction of the Wisconsin court upon the primary ground that plaintiffs had not at any time been holders of the note, and that in the absence of such status on their part the Wisconsin court had not been entitled to assume and exercise jurisdiction over defendant upon an entry of appearance and confession of judgment founded upon the warrant of attorney contained in the note.
The case was heard before the court without a jury, and at the conclusion of the hearing the court rendered judgment in favor of plaintiffs, and against defendant, for the aggregate amount of $1,329.64, representing the face amount of the Wisconsin judgment with interest.
Following an unavailing motion to set aside the judgment and dismiss the case or else to grant defendant a new trial, defendant gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.
Our code provides that in pleading a judgment either domestic or foreign, it is sufficient to aver the judgment without setting forth the matter to show the jurisdiction of the court to render it, but that if the court's jurisdiction be questioned, the party asserting it shall then establish, on the trial, the facts conferring jurisdiction. Section 509.190, RSMo 1949, V.A.M.S.; 1 Carr, Missouri Civil Procedure, Sec. 179.
On this appeal, the jurisdiction of the Wisconsin court having been controverted, the only question is whether plaintiffs may be said to have sustained the burden thus imposed of showing that the warrant of attorney under which the Wisconsin court had purported to assume jurisdiction over defendant had been legally exercised in their favor.
In other words, the actual question is whether there was evidence to show that plaintiffs were holders of the note, and therefore persons entitled to avail themselves of the benefit of the provision authorizing an attorney to appear in court and confess judgment in favor of the holder of the note for any amount due and unpaid. By its express terms the provision could only be exercised in favor of a holder of the note, so that unless plaintiffs were in fact holders within the meaning of the provision, the attorney's appearance in the Wisconsin court under the authority of such provision could not have vested the court with jurisdiction over defendant.
In insisting upon the absence of any showing in the Wisconsin court that plaintiffs were holders of the note, defendant bases his entire contention upon a section of the Wisconsin negotiable instruments law, Wisconsin Statutes 1951, § 116.01, which defines a holder of a note, unless the context otherwise requires, to mean the payee or indorsee, who is in possession of it, or the bearer thereof.
As we have already pointed out, the note in question was made payable to the Iron River Bank or order. Plaintiffs were therefore not payees; and neither were they indorsees, since the note was transferred to them without indorsement. They were of course not bearers of the note, inasmuch as the note was not made payable to bearer. In view of all this defendant urges that plaintiffs were not holders of the note in whose favor the warrant of attorney could have been exercised so as to have subjected him to the Wisconsin court's jurisdiction.
The question therefore resolves itself into one of whether, since plaintiffs were clearly not holders of the note within the terms of the statutory definition above referred to, they could none the less have been holders within the contemplation of the provision which authorized an attorney to appear and confess judgment, without process, in favor of a holder of the note.
It is the general rule that the negotiable instruments law does not prescribe an exclusive method of transferring negotiable instruments, but only the manner in which their independence of equities may be preserved. Carter v. Butler, 264 Mo. 306, 174 S.W. 399; 10 C.J.S., Bills and Notes, § 223. Regardless of the act, a note may still be transferred by assignment, or by mere delivery without indorsement, save only that in such a case the transferee takes the note subject to all the defenses and equities to which it was subject in the hands of the transferor. State ex rel. Gentry v. Hostetter, 343 Mo. 1090, 125 S.W.2d 72; Credit Alliance Corporation v. Bryan, Mo.App., 27 S.W.2d 441; 10 C.J.S., Bills and Notes, §§ 226, 227, 235; 8 Am.Jur., Bills and Notes, Secs. 301, 335.
We have already shown that the petition in the Wisconsin action set out that the note and indebtedness evidenced thereby had been duly assigned to plaintiffs and that plaintiffs were the lawful owners and holders of the note. We have also shown that the petition was verified by the affidavit of one of plaintiffs' attorneys to the effect, among other things, that plaintiffs were the owners and holders of the note. This of itself was proof upon which the court could act; and there was nothing before it to the contrary. In this situation the lower court was entitled to find that plaintiffs had successfully borne their burden of establishing the Wisconsin court's jurisdiction to render the judgment against defendant.
Respondents' motion to affirm the judgment or to dismiss the appeal because of appellant's alleged noncompliance with the rules has been taken with the case and should be overruled.
The judgment appealed from should be affirmed, and it is so ordered.
HOLMAN and RUDDY, JJ., concur.