¶1(concurring specially). I concur in the result reached by xny majority Associates, for the reason that I am of the view that the evidence is sufficient to sustain the defense of extrinsic fraud in the proceeding by which the judgment sued on was procured in the Illinois court. The judgment, having been procured by extrinsic fraud, is void. The merits of the plaintiff’s cause of action ax-e not in issue in this action on the jud'gmexit. Nothing appears in the record before us to disclose whether the verdict was founded on the defense of fraud, or the defense of champerty. It appears to be the view of -the majority of my Associates that when a party, by proper -motion, request for directed verdict, or a request for an exception to instructions, ■has questioned one of two defexrses, and has been overruled, he can show the insufficiency of the evidence to sustain that particular defense, and unless it is clear that the verdict does not rest upon that particular defense, the verdict cannot stand. Of course, the verdict must rest upon evidence sustaining a good defense; but when the question arises whether the verdict was founded xxpon one or the other of two defenses, and the evidence is sufficient to sustain one of the two, the burden is upon the appellant to ■show affirmatively that the verdict rests upon the defense not ■sustained by evidence. If he fails to show this affirmatively, he has failed to show prejudicial error. Under our practice, appellant is required affirmatively to show prejudice resulting from alleged error. We should adhere to the rule in this.case. This, of course, would not be the rule under the old practice, which pre*488sumes prejudice when error appears. I think eases holding that such a verdict cannot stand are found in jurisdictions adhering to the old rule, which presumes prejudice when error appears from the record.
¶2In the case of Big Three Min. & Mill. Co. v. Hamilton, 157 Cal. 130, 107 Pac. 301, 137 Ann. St. Rep. 118, where two distinct defenses were pleaded, the court said:
“If, then, either was sustained by the evidence, and was not affected by any error, the want of evidence to sustain the finding on the other defense, or any errors committed in regard to it, could not have- been prejudicial” — citing Crosett v. Whelan, 44 Cal. 200; Verdelli v. Gray’s Harbor Comm. Co., 115 Cal. 517, 47 Pac. 364, 778.
¶3The verdict in this case is a general one, and is favorable to defendant on all issues, and, unless it affirmatively'appears that the verdict was founded upon a defense not sustained by the evidence, the presumption of nonprejudice prevails, and we should presume that it was founded upon that defense which is properly pleaded and is sustained by evidence. Parker v. Naylor (Tex. Civ. App.) 151 S. W. 1096; Indianapolis, etc., Ry. Co. v. Ott, 11 Ind. App. 564, 38 N. E. 842, 39 N. E. 529; Blizzard v. Applegate, 77 Ind. 516; Gates v. Bowker, 18 Vt. 23.
¶4Section 198 of our Penal Code is identical with the' New York statute. The courts of that state have construed their statute in a number of cases, in which it is held, as stated in 11 Corpus Juris, 239. par. 17:
¶5“The object of the statute is to prevent 'attorne3>-s from buying claims to obtain costs iby the prosecution thereof, and to constitute the offense the purchase must be for the very purpose of bringing suit and no other. The intent to bring a suit must not be merely incidental and contingent, and it must be brought for the attorney’s benefit. It does not apply … to the purchase of a demand with the intent of prosecuting it … in the courts of another state or to the purchase of a judgment for the purpose of collecting it by execution”-citing De Forest v. Andrews, 27 Misc. Rep. 145., 58 N. Y. Supp. 358; Moses v. McDivitt, 88 N. Y. 62; Wightman v. Catlin, 113 App. Div. 24, 98 N. Y. Supp. 1071; Creteau v. Foote Glass Co., 40 App. Div. 215, 57 N. Y. Supp. *4891103; Tilden v. Aitkin, 37 App. Div. 28, 55 N. Y. Supp. 735; Van Dewater v. Gear, 21 App. Div. 201, 47 N. Y. Supp. 503; West v. Kurtz (N. Y. Com. Pl.) 3 N. Y. Supp. 14.
¶6And in Oldmixon v. Severance, 119 App. Div. 821, 104 N. Y. Supp. 1042, it was held' not error to refuse to submit the defense of champerty to the jury, where an attorney had no interest in the claim sued on, other than the legal title, taken for the purpose of bringing suit for the benefit of others. ' A discussion of the defense of champerty, as affected, by the doctrine of comity between states, would add nothing to what has already been said, for the reason that the only question here involved is the correct interpretation of this particular statutory inhibition against the purchase of claims w-ith intent to sue thereon.
¶7I am of the opinion that the instruction of the trial court upon this statute, -duly excepted to and assigned as error, was misleading and erroneous, in that it did not limit the application of the statute to the class of cases which it was intended to cover, under the interpretation given it iiythe New York cases; but, the separate defense of extrinsic fraud being sustained, the error was not prejudicial.
¶8We all "agree that the defense of extrinsic fraud is sustained by the evidence, and I therefore deem- it unnecessary to consider further the defense of champerty. I concur' specially, for the reason that I do not concur in the views of the majority on the question of champerty as applied to the facts in this case.