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Cassidy v. Leitch

2 Abb. N. Cas. 315 Court N.Y.C.P. English

Delivered by Van Hoesen, J.

Contents

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CASSIDY v. LEITCH.
N. Y. Common Pleas; Trial Term,
March, 1877.

Headnote

Foreign Judgment.—Service oe Process.—Appearance.
An action lies in the courts of this State, upon a foreign judgment recovered against a domiciled citizen of the State in which it was recovered, although the process there was not personally served,
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but served by leaving it at his residence in conformity with the local law.
The manner of serving process must necessarily be regulated by every country for itself; and if the State permits process to be served on one of its own citizens by leaving it in his absence at his domicil with an adult member of his household, a foreign tribunal should not refuse to recognize a judgment founded upon it.
Otherwise of a foreign judgment against one who owed no allegiance to and was not subject to the jurisdiction of the State where it was rendered.
An answer in an action on such a judgment to impeach the judgment, should allege that defendant was not domiciled in nor subject to the laws of such State, or show that the judgment is- not binding there, or is contrary to natural justice.
It seems, that the omission of a foreign court to appoint a guardian ad litem, or curator ad hoc, for a domiciled citizen, served in his absence by leaving the process at his residence, does not affect the jurisdiction of the foreign court when drawn in question in the courts of this State.
The authority of an attorney named in the record of a foreign judgment as appearing therein, must be presumed until it is disproved. A mere want of recollection on the part of the attorney is not enough to rebut this' presumption.
Trial by the court.
This action was brought by Henry Cassidy, against William Leitch, on a Louisiana judgment, obtained in 1869 upon an attachment of defendant’s real property, the citation, or process, having been served at defendant’s domicil in his absence.
The admitted facts as to the citizenship and residence of the parties appear in the opinion. Judgment in the Louisiana action was first taken by default for want of an answer. According to the judgment record (in evidence) an answer was afterwards interposed on behalf of the defendant, and the default opened by an attorney, and a trial had or inquest taken and final judgment rendered for the plaintiff. The attorney who appeared for the defendant (one J. C. Colman), was the husband of the defendant’s niece and in his first de
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position in the present suit, taken on behalf of the plaintiff, this attorney contradicted the Louisiana judgment record, and testified that he never appeared in'that action at all and was never requested to do so by the defendant. On a supplementary commission taken to enable him to correct his previous testimony, Colman testified that having been shown a paper purporting to be a certified copy of an answer interposed by him in the cause he now thought that he must have appeared therein, and further that he was requested by Mrs. Leitch (the defendant’s wife) to examine the notes or due-bills sued on and see if they were correct, but was not requested by Leitch nor authorized to appear; and later on in the same supplementary deposition, in answer to a question whether he ever actually appeared in the cause, he says, “Ihave no recollection of such appearance, and I don’t believe I ever did.” Defendant testified that he never employed nor authorized nor knew of the employment of any attorney in the Louisiana action until long afterwards. That he owed plaintiff nothing, and never signed the notes or due-bills sued on in Louisiana.
W. G. Peckham,, Jr., for the plaintiff.
The judgment record proves that service of the citation was made in accordance with the laws of Louisiana and in a manner to give the court full jurisdiction to render a general judgment in personam against the defendant (La. Code of Practice,• §§ 189 to 190 inc.; Maxwell v. Collier, 6 Robinson La. 86; Williams v. Kimball, 8 Martin N. S. 352). This attachment was not a proceeding in rem. Under such an attachment in Louisiana the plaintiff may obtain a general judgment in personam (Hill v. Bowman, 14 La. 447 ). The judgment and fi.fa. were general and not in rem, and directed against all the defendant’s property, not merely that attached. The Louisiana court must be presumed to have known
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its powers and to have exercised them properly (Potter v. Merchants’ Bank, 28 N. Y. 653 ; Atkinson v. Purdy, U. S. Dist. Ct., Crabbe, 551). The defendant appeared in Louisiana by a responsible attorney, as appears by the record of judgment, which record he and the attorney cannot here impeach. Defendant has for seven years had a' remedy to proceed against the unauthorized attorney or to move the Louisiana courts. Therein lay his proper course (Field v. Gibbs, Peters C. Ct. 155; Brown v. Nichols, 43 N. Y. 36 ). Defendant’ s counsel relies largely upon rulings in this State as to foreign judgments of divorce, obtained generally by citizens of this State who temporarily removed elsewhere, and whose divorces thus obtained were after-wards brought in question here. Our courts have certainly held as to such foreign judgments that acts thus sought to be done elsewhere in fraudum legis (of our law) cannot later be used as the basis of legal proceeding in this State whose laws were sought to be evaded by its citizens. See defendant’s cases.
Abbett & Fuller, for the defendant.
The defense is, 1. A general denial of the judgment (on information and belief); 3. Lack of personal service of process on the defendant; 3. That defendant never appeared in person or by attorney in the Louisiana action, nor litigated nor defended the same, either in person or by attorney, nor did he have any knowledge of the Louisiana suit until long after the judgment; 4. Ml debet. On the evidence the courts of this State will not respect the judgment because the citation (that is, summons) was not served upon the defendant in propria persona. Because the defendant was not represented in the action by an attorney. The attorney’s appearance if he appeared was unauthorized, and the defendant was in Mexico, and had no notice of the suit nor opportunity to defend (citing, Kerr v. Kerr, 41 N. Y. 278 ;
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Holmes v. Holmes, 4 Lans. 388 ; Phelps v. Baker, 41 How. Pr. 237 ; and Thompson v. Whitman, 18 Wall. 457 ; and other cases).

This action is founded upon a judgment recovered in the State of Louisiana. The Louisiana suit was begun and judgment rendered therein in the year 1869. At the commencement of the suit, and for some time prior as well as. subsequent thereto, the defendant was domiciled at the corner of Rampart and Terpsichore streets in the city of New Orleans. He was absent from home when the suit was begun, and the citation and the petition (papers which correspond to the summons and the complaint of our New York practice) were served upon him by the sheriff leaving a copy of them at the domicile of the defendant with his (the defendant’s) wife, who was a white person above the age of 14 years, and who dwelt in the same domicile with said defendant.

The return of the sheriff is in strict conformity with the law of Louisiana as expounded by the courts of that State [Code of Practice, %% 189, 190, 201; Kendrick v. Kendrick, 19 La. 38 ).

The defendant, as has been said, was domiciled in Louisiana, and owed allegiance to that State, and submission to its laws.

The manner of serving process must necessarily be regulated by every country for itself: and if a State permits process to be served upon one of its own citizens by the leaving of it in his absence at his domicile with an adult member of his household, that method of service is not so repugnant to the principles of natural justice that a foreign tribunal should refuse to recognize it and treat a sentence founded on it as a nullity (3 Burge Foreign and Colonial Laws, 1056).

A foreign judgment rendered against a citizen of the State in which it was pronounced, stands on a very

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different footing from a foreign judgment against one who owed no allegiance to and was not subject to the jurisdiction of the State in which it was rendered.

The distinction is perfectly well settled. In the case of Duflos v. Burlingham, 34 Law Times Reports, 688, the defendant in an action on a French judgment, pleaded, as the defendant pleads in this suit, that he was not served with process, nor had he notice of the alleged action in France, or the opportunity of defending himself according to the rules and practice of the French courts. The plea was held bad by the court of queen’s bench because it did hot show that the defendant was not a Frenchman, nor domiciled in France.

In Maubouquet v. Wyse, 1 Irish Reports, Common Law Series, 471, in an action on a French' judgment the defendant pleaded that he was absent from France at the beginning and during the entire progress of the French suit, that he was never served with a summons, and that he had no notice or knowledge of the suit or any of its proceedings. The court pronounced the plea to be bad because the defendant might have been resident in France, or might have had property there, or might, through an agent, have been served with process.

In Cowan v. Braidwood, 1 M. & G. 882, the defendant pleaded to an action on a Scotch judgment that he was not within the jurisdiction of the Scotch court at the commencement of the action nor afterwards, nor did he know of the proceedings or any of them, so that he could employ an attorney, nor did he appear. The plea was held bad; Tindal, C. J., saying that the plea ought to have alleged that the defendant was not a resident of Scotland, or that he was not subject to the laws of that country, or that he had no property in Scotland. Mabsh, J., said that defendant ought to have alleged that the Scotch judgment was not binding in Scotland, or that it was against natural' justice.

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To the same effect is Vallee v. Dumergue, 4 Ex. 290.

In order to make the answer in this case sufficient, there should be added to it allegations showing that the defendant was not domiciled in Louisiana or subject to the laws of that State, or that the judgment is not binding there, or that it is contrary to natural justice.' As a plea in bar the answer is fatally defective.

It appears affirmatively in this case that the defendant was a resident of Louisiana, and the owner of property in that State, at the time the Louisiana action was instituted. His family dwelt in New Orleans, where the action was brought. It is difficult to see the ground on which the judgment, though taken by default, should be held invalid by the courts of this State. It was agreed at the trial that the codes of Louisiana should be received as evidence in the case.[1] Tested by the Code of Practice and the decisions of the Louisiana courts, the service of process was sufficient (§§ 189, 190 and 201, Code of Practice; Kendrick v. Kendrick, 19 La. 38 ). The only doubt that can be raised, is as to whether a cwrator ad hoc ought not to have-been appointed before the default was entered against Leitch. Section 56 of the Civil Code provides that if a suit be instituted against an absentee who had no-known agent in the State, the judge, before whom the suit is pending, shall appoint a curator ad hoc to defend the absentee in the suit. Leitch was, it appears, an absentee, and if he had not been represented in the' suit by an attorney at law, the court would, doubtless, have required that a curator ad hoc should be appointed. But even if that step had been omitted, the court would not, I think, have been ousted of its jurisdiction over the defendant. It is unnecessary, however,

* For the present rule on this point see the new Code of Civil Procedure, § 943.

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to discuss that question, because I am satisfied that the defendant did appear in the Louisiana action, and that Mr. Colman interposed an answer in that suit at the suggestion of the defendant, communicated to him through the defendant’s wife.

The testimony of the defendant seems to me to amount to nothing more than a denial of any recollection of having employed an attorney in the action.

The authority of the attorney must be presumed until disproved (Hayes v. Cuny, 9 Martin, 88; Dangerfields v . Thurston, 8 Id. N. S. 234; Conrey v. Brenham, 1 La. An. 398).

A mere want of recollection ought not to be permitted to overthrow a presumption founded upon the weightiest consideration of public policy.

The testimony of Colman tends to show that he was retained by Mrs. Leitch. The citation was served upon her on the 17th day of August, 1869. On November 2, following, the default of the defendant was entered. On November 5, Mr. Colman appeared in the action, obtained an order setting aside the default, and filed his answer. On November 17, the plaintiff filed a supplemental petition, and a citation issued upon the supplemental petition was, on November 17, 1869, served on the daughter of the defendant. On December 20, 1869, a copy of the judgment was served on the wife of the defendant. Colman married the niece of Mrs. Leitch. It seems very improbable that he officiously intermeddled with the suit and appeared without any request to do so. Mrs. Leitch certainly knew of the suit. Two months and a half elapsed between the service of the citation on Mrs. Leitch and the appearance of Mr. Colman in the action. Ample time was given to communicate with the defendant, and it is natural to infer that Mrs. Leitch did inform her husband of the.commencement of the action. = After reading the testimony of the defendant, no surprise will be

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felt at Ms omission to contest the plaintiff’s claim. I think judgment should be rendered in favor of the plaintiff for the sum claimed in the complaint.

Verdict for plaintiff for $9,107.85.

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