Opinion
No. 12,847.
Decided March 20, 1933. Rehearing denied April 17, 1933.
Action on judgment of foreign state. Judgment for plaintiff.
Reversed.
1. PLEADING — On Judgment of Foreign State. In an action on a judgment of a foreign state, allegation of the complaint that plaintiff "recovered a judgment" against defendants is insufficient.
2. On Judgment of Foreign State. In order that a suit may be maintained in one state upon a judgment recovered in another, the complaint should allege that the judgment sued upon could be enforced in the state where rendered, failing which, it does not state a good cause of action.
3. Appeal and Error. The objection that a complaint does not state facts sufficient to constitute a cause of action may be interposed and urged by the defeated party in the Supreme Court.
Error to the District Court of Otero County, Hon. John H. Voorhees, Judge.
Mr. JOE E. GOBIN, for plaintiffs in error.
Mr. O. G. POPE, Mr. EARL BLAKE, for defendant in error.
THE Citizens State Bank of Cheney, Kansas, brought this action in the district court of Otero county, Colorado, against the defendants Gobin and Gobin, based upon a judgment of the district court of Sedgwick county, Kansas, a court of general jurisdiction. Upon issues joined, trial was to the court without a jury, and judgment passed against the defendants for the amount still due and payable on the Kansas judgment in the sum of about $1,000. The defendants are here with this writ of error seeking a reversal.
The judgment must be reversed for the following reasons: The third allegation of the complaint reads: "That on the 19th day of April, 1928, the plaintiff recovered a judgment against the defendants in said Sedgwick county district court, in said state of Kansas, for the sum of $1295.77." One of the grounds of the defendants' demurrer to this complaint is that it did not state facts sufficient to constitute a cause of action against them. Section 71 of our Code of Civil Procedure provides: "In pleading a judgment, or other determination of a court * * *, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction." The allegation in this complaint is that plaintiff "recovered a judgment" against the defendants. In 23 Cyc., p. 1515, section c, the author says: "In many states statutes have been enacted prescribing that, in suing on a judgment, * * * it shall not be necessary to state the facts conferring jurisdiction, but merely that the judgment `was duly given or made.' This allegation is equivalent to and a substitute for the averment of jurisdictional facts required at common law, and either the words of the statute or words of exactly equivalent import must be employed." The author cites in support of this statement Scanlin v. Murphy, 51 Minn. 536, 53 N.W. 799; Weaver v. English, 11 Mont. 84, 27 Pac. 396; People v. Bacon, 37 N. Y. App. Div. 414, 55 N. Y. Suppl. 1045. In the Montana case the court said that in a complaint on a judgment the judgment may be stated to have been "duly given or made." A complaint alleging that on a certain date certain parties were "adjudged" bankrupts was held to be an insufficient allegation of the rendition of judgment in that it failed to show that it was duly given or made. It may be that this case from Montana is not the law in this jurisdiction since we held in United States F. G. Co. v. People, 44 Colo. 557, at page 579, that an allegation in a complaint that a certain matter was "duly adjudged and in due form of law" is equivalent to "duly given or made."
There is another reason why the complaint in this case is defective. In 34 C. J., p. 1105, section 1570, the author says: "In order that an action may be maintained in one state upon a judgment recovered in another state, it is necessary that the judgment should be a valid and final adjudication, remaining in full force and virtue in the state of its rendition, and capable of being there enforced by final process." To this are cited a number of cases, among others Chapman v. Chapman, 48 Kas. 636, 29 Pac. 1071. Judge Horton said, in effect, in the Chapman case that a suit on a judgment of the court of a sister state will not be executed in Kansas or enforced there unless it is in full force and effect, and capable of being there enforced by final process, in the sister state. There is no allegation in the complaint in the action now before us that the judgment here sued upon can be enforced in the Kansas court. The complaint, therefore, on its face does not state a good cause of action.
Other objections have been urged by counsel for plaintiffs in error upon which they also seek a reversal, but we do not deem it necessary to enter upon a discussion concerning them. This action was pending in the district court of Otero county for more than two years and different orders affecting the pleadings in the case were made at different times by three different judges and it is possible that the judge who tried the case deemed that he was concluded by previous rulings of the other judges on the pleadings who had made orders therein from time to time. However that may be, unless we disregard the provisions of our statute which are upheld by courts in other jurisdictions upon similar statutes, we must say that this complaint does not state facts sufficient to constitute a cause of action and that objection is one that can be interposed and urged by the defeated party upon review in this court. We desire, however, to call to the attention of counsel the case of Porter v. Hammitt, 78 Colo. 320, 241 Pac. 543, where the opinion states that a judgment of a sister state cannot be impeached for fraud. And in Bonfils v. Gillespie, 25 Colo. App. 496 ( 139 Pac. 1054), at page 502, where the court says in such cases the injured party is required, in cases where a judgment of a sister state is attacked for fraud, to resort to the court that rendered the judgment, except in cases where the original court would itself allow the defense of fraud in an action upon the judgment.
Judgment is reversed and cause remanded with instructions to the district court, if further proceedings be had therein, they must not be inconsistent with the views herein expressed.