Summary
In Miller vs. Brenham, 68 N.Y. 83, at page 87, the court said: "It is also insisted that the California statute of limitations extinguished the judgment as a cause of action after the lapse of five years from the entry thereof; the defendant Brenham having resided in that State continuously until this action was brought.
Summary of this case from Tazlick v. CartOpinion
Argued November 27, 1876
Decided January 16, 1877
H.M. Ruggles for the appellant. Charles M. Da Costa for the respondents.
The copy of the record of the judgment introduced in evidence upon the trial, contained a certificate of the sheriff of the city and county of San Francisco, attached to the summons, to the effect, that he had personally served the same on the defendant Brennan, and the defendant Sanders, by delivering to said defendant personally in the city of San Francisco a copy of said summons, attached to a certified copy of the complaint.
It is claimed that this was insufficient proof of service upon the defendant Brenham, who was the testator of the defendant here. We think that this position cannot be upheld, and that it is apparent that the service was actually made upon the defendant Brenham. The certificate was unequivocal, direct, and positive, that the service was upon the defendant, and the most which can be urged against it, is that there was an error in the spelling of Brenham's name. The subsequent use of the words, "said defendant," supports the conclusion that the real defendants in the case were intended, and although used in the singular number, it was evidently designed to include both of the defendants. The circumstance that the defendant Brenham was erroneously called Brennan which is somewhat similar, does not negative the affirmative statement that the real defendant was actually served with process. Every legal intendment favors the presumption that the certificate truly stated that the service was made upon the defendant Brenham, and as he was evidently intended, at most there was a mistake in calling him Brennan. In support of the conclusion arising from the certificate, is the allegation in the complaint, which was duly verified and not denied and which constitutes a part of the record, that the defendants comprised the banking firm of Sanders Brenham of the same place, where the service was made, and the fact that it does not appear that any person by the name of Brennan was a party to the action, or had any connection with it. The very slight difference between the name as spelt, and that of the defendant was not enough to warrant the conclusion that another person was intended. They were similar in sound, and the decisions are numerous which hold that in such cases trifling discrepancies may be disregarded. There was no variance in the proof of service from the allegations in the complaint, of such a character as was fatal to the record itself, and it was entirely sufficient to authorize the judgment rendered against the defendant Brenham by the court in California, and to uphold it here. The authorities to which we have been referred, to support the doctrine, that the variance alleged was a fatal one-are mostly adjudications outside of this State, and however applicable they might be elsewhere, do not sustain the position that misspelling of the name of Brenham was an error fatal to the validity of the judgment.
It is also insisted that the California statute of limitations extinguished the judgment as a cause of action after the lapse of five years from the entry thereof; the defendant Brenham having resided in that State continuously until this action was brought. This is not the correct rule, and it is well settled in this State that a plea of the statute of limitations of the State or country where the contract is made, is no bar to a suit brought in a foreign tribunal, and the lex fori, governs all questions arising under that statute. ( Lincoln v. Battelle, 6 Wend., 475, 485; Ruggles v. Keeler, 3 Johns., 263; Power v. Hathaway, 43 Barb., 214; Toulandon v. Lachenmeyer, 37 How., 145.) As is said in Scudder v. Union National Bank (1 Otto, 406), "matters respecting the remedy, such as bringing suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought." The fact that testator's residence was in California, makes no difference, and does not render the statute available to him or his representatives. No other question requires comment and the judgment must be affirmed.
All concur.
Judgment affirmed.