Cavender v. Guild

Appeal from the Superior Court of the City of San Francisco.

This was a suit brought by plaintiff against Guild, on the 23d day of August, A, D, 1853, in the Superior Court of the City of San Francisco, on a judgment recovered, by said plaintiff, against Said Guild, on the 28th day of April, 1851, in the Circuit Court of St. Louis County, in the State of Missouri, for the sum of $451 31, and costs of that suit, which costs, the complaint alleged, amounted to the sum of ten dollars and sixty-five cents, and were taxed, in said Circuit Court, at that sum.

*The complaint alleged that the judgment was in [251] full force, and wholly unsatisfied, and asked judgment in said Superior Court, for the amount thereof, with .interest from its date, at the rate of six per cent, and costs of this suit.

The defendant was personally served with process, and on the 29th day of August, A. D. 1853, appeared and filed his answer, alleging, first, that there was no record remaining in said Circuit Court of the County of St. Louis, of the judgment declared on, in manner and form, etc.; and, secondly, that the said pretended judgment, if any there be, was founded upon an instrument in writing, executed out of this State, for the payment of money, and that more than two years had elapsed at the time of the institution of this suit, since the said instrument of writing, and the money aforesaid, had become due and payable, and since the cause of action therefor had accrued, and that said instrument of writing, and the money aforesaid, had become, and was due and payable, and the cause of action therefor had accrued more than two years prior to the 4th day of May, 1852.

To all of the second part of this answer the plaintiff filed a demurrer, specifying as a reason therefor, that it contained no defense to the action. Upon argument and due consideration, the demurrer was sustained.

The cause was afterwards, on the 8th day of February, 1854, tried by the Court, the parties waiving a jury, upon the issue, “that there was no such record in the Circuit Court of St. Louis County; and the Court found said issue for the plaintiff, that there, was such a record as he had alleged,” and ascertained the amount to be recovered by him, for principal and interest of said judgment, at the sum of $590 29. No objection was made, at the time, to the finding of the Court, in the computation of this sum, nor was any objection ever made in the Court below, so far as appears by the record, to the allowance of interest, or to the rate at which it was computed, nor does it appear, from the record, at what rate the Court did in fact compute it.

The only matter put in issue by the defendant (except the Statute of Limitations) was, whether there was such [252] a record * as the plaintiff had alleged in his complaint. All other matters alleged in the complaint, to wit: 'the amount of the plaintiff’s costs in the Circuit Court; that said judgment, if any, was wholly unsatisfied; and, that the whole amount thereof, with interest thereon, from its date, at the rate of six per cent, per annum, was still due and wholly unpaid, were admitted upon the record, by the form and substance of the pleading.