Hendrick v. Biggar

“ * * * . At any time before the entry of judgment any co-respondent named in any of the pleadings shall have the right, at any time before the entry of judgment, to appear either in pérson or by attorney, in said action and demand of plaintiff’s attorney a copy, of the summons and complaint, which must be served within ten days thereafter, and he may appear to defend such action, so far as the issues affect such co-respondent.”

Section 416 states that a civil action is commenced by the service of a summons, and section 424 that a voluntary general appearance of the defendant is. equivalent to personal service of the summons upon him.

In the case of Billings v. Billings, 73 App. Div. 69 , 76 N. Y. Supp. 628 , the above provision of the Code regarding co-respondents was passed upon in the following language:

“The provision allowing the co-respondent to be brought in, and permitting him to defend the action, was added to section 1757 of the Code by an amend- . ment in 1899 (Laws. 1899, c. 661). We are aware of no decision under this section as amended. The co-respondent is not by the terms of the statute called a defendant, but he is allowed to appear and defend the action, and may very properly be regarded as a party defendant from the time he appears and serves an answer to the complaint. He is not obliged to defend, and cannot be compelled to do so. 1-Iis appearance is voluntary, but, if he elects to come into the action, he ought to be regarded and treated as a party defend-ant from that time. Being a defendant, he is subject to the general provisions of the Code as to costs in such an action, except so far as they are modified by the amendment in question.”

In the action of Agnes Mary Hendrick against Charles C. Hendrick, Laura Biggar was named as the only co-respondent. If she had appeared in that action, had defaulted in pleading, and the judgment, recited these facts, it is undisputed that the judgment would be res adjudicata as to her upon the question of adultery.

The facts are, however, that the judgment roll contains no notice of appearance of Laura Biggar, and the judgment no recitals of jurisdiction over her. Nevertheless on the trial of this action, by uncontradicted testimony, it was shown that Laqra Biggar in the divorce case of Hendrick v. Hendrick had served notice of appearance by her attorney at law, Jacob M. Peyser, who had thereafter received, in accordance with the provisions of the Code, a copy of the complaint.

The record being silent, could it be proved by evidence aliunde that Laura- Biggar was in fact a party to the action; and that the court had jurisdiction over.her, and did the appearance in the way indicated give the court jurisdiction? In this state a court of genéral jurisdiction is presumed to have had jurisdiction over parties named in the cause against whom judgment is entered, even though the judgment contain no recitals of service or appearance, but this presumption may always be rebutted by oral testimony even when the judgment recites jurisdictional facts. Ferguson v. Crawford, 70 N. Y. 253 , 26 Am. Rep. 589 . If the record be silent as to service upon the defendant or as to his appearance, yet jurisdiction is presumed, the party having

It is not an anomalous case for Laura Biggar to be bound by the divorce judgment, although she was not named as a party of record, and the judgment be silent as to her appearance, if it be proved that she was served as a party in the action, or appeared and had a right and opportunity to defend. In Burr v. Bigler, 16 Abb. Prac. 177 , 183, it is stated:

“The term ‘parties,’ in the sense of the rule which renders a prior judgment conclusive upon those who sustain that character, is not restricted to those who are parties upon the record. The term ‘parties’ includes all who have a direct interest in the subject-matter of the suit and a right to make a defense or control the proceedings.”

Thus the real parties to a litigation may always be shown in a subsequent case by parol evidence, and a judgment made binding on them, although not named therein. Verplanck v. Van Buren, 76 N. Y. 247 . For the purpose of showing that parties not named in the record were the real parties in interest and conducted the suit in the name of others who were only nominal parties, parol evidence may always be offered, and, when the showing is made, the real parties are concluded by the judgment. Castle v. Noyes, 14 N. Y. 329 . Likewise, persons liable to indemnify a party to an action may be bound by the judgment therein, although not mentioned or referred to in the cause. In all such cases parol evidence has been received to prove that the indemnitor had notice of the litigation and an opportunity to defend. Konitsky v. Meyer, 49 N. Y. 571 . Freeman on Judgments, § 174, says: _ -

“If one of the parties has a right to call upon a third person to indemnify him for losses resulting from an action, the person who is thus liable may be notified of the action and required to defend it. Upon receiving such notice, and an opportunity to defend the action, he becomes a party thereto, whether he elects to defend or not; so that if the party to whom he is answerable is defeated, and then brings an action for indemnity, the person so notified cannot deny that the recovery was rightful.”

Where a city or village has been obliged to pay damages for personal injuries caused by a defective highway, the third party whose negligence caused the defect will be bound by the judgment recovered against the city if he had notice of the action and opportunity to defend. Village of Port Jervis v. First National Bank, 96 N. Y. 550 . In all of these instances the judgment was res ad judicata as to the third person, not a party to the record upon proof being given in the subsequent proceedings that such third person had notice of the action and opportunity to defend.

The co-respondent in a divorce case may, by section 1757 of the Code of Civil Procedure, above quoted, become a party to the action by serving notice of appearance as therein provided. The fact that a co-respondent did so appear and thus become a party to the action may'be shown by parol evidence in subsequent litigation so as to make the judgment binding upon her and res ad judicata just as it may be shown to be binding in the case of a real party in interest, an indemnitor, or a tort-feasor. The reason for. the rule in the latter cases applies equally to the former. As stated by Greenleaf on Evidence, § 523, it is:

“Tfie rules of law upon this subject are founded upon these evident principles or axioms that it is for the interest of the community that a limit should be prescribed to litigation, and that the same cause of action ought not to be brought twice to a final determination. Justice requires that every cause be once fairly and impartially tried; but the public tranquillity demands that, having been once so tried, all litigation of that question and between those parties should be closed forever.”

If it be claimed that the evidence of Jacob M. Peyser, although uncontradicted, should have been submitted to the jury for them to determine whether Laura Biggar duly appeared in the action, sufficient to say that the defendant did not ask to go to the jury on that question, and cannot now be permitted to raise the point. Village of Port Jervis v. First National Bank, supra.

Second. Laura Biggar having duly appeared in the divorce action and having become a party thereto, it was not necessary, in order to make the judgment binding upon her in a collateral proceeding, to show that she had defaulted or had received notice of trial. The court having acquired jurisdiction, any subsequent defect or omission would not render the judgment void, but would be such an irregularity that the court would set aside the judgment upon application. A judgment rendered before time to answer has expired is an irregularity, but does not render the judgment void. Solomon v. Newell, 67 Ga. 573 ; Fagan v. Barnes, 14 Fla. 53 . The fact that the defendant is not given all the time allowed him by law to plead, or any other fact connected with service of process on account of which a judgment by default would be reversed, will not ordinarily make the judgment

Third. This action for alienation of affections was not barred by the separation decree subsequently obtained and entered. The proof in this case shows that Dr. Hendrick left his wife for Laura Biggar in 1903. Subsequently the plaintiff brought action for separation, basing her claim upon this desertion caused by Laura Biggar; the decree being entered in July, 1904. It would be strange, indeed, if the defendant, having broken up the plaintiff’s home and forced her to a judgment for support which the court was powerless to finance, could plead such judgment as a bar to an action for her wrongdoing. Such is not the law. Counsel have placed great reliance upon Buckel v. Suss, 18 N. Y. Supp. 719 . It does not clearly appear from this case whether the acts of alienation were before or after the separation decree or agreement. If the acts of alienation were before the decree, I do not consider the case well decided, for all the authorities therein cited sustain no such conclusion. The cases of Bartelot v. Hawker, Peake, N. N. P. C. 7, Weedon v. Timbrell, 5 Durnford & East, 357, Fry v. Drestler, 3 Yeates (Pa.) 378, Bright’s Husband and Wife, vol. 3, 351, and Wilson v. Coulter, 29 App. Div. 85 , 94, 51 N. Y. Supp. 804 , indicate that the law upon this point is as follows: A decree of divorce or separation is no defense or mitigation of damages for loss of support or society, if the wrong was done before the separation, but there can be no recovery for wrong done after a divorce or separation. See, also, 8 Amer. and Eng. Ency. of Law, 363.

Fourth. The damages are heavier than I have been able to find were ever awarded in any reported case. It has frequently been intimated since the case of Duberley v. Gunning, 4 Durnford & East, 651, that the damages were so peculiarly within the province of the jury in a suit like this that the court should not readily interfere with the verdict. In 8 American and English Encyclopedia of Law (2d Ed.) p. 267, it is stated:

“Although it is conceded that courts have the power of granting a new trial for excessiveness of damages in cases of crim. con., there is no recorded instance in which this power has been exercised.”

However, there were certain references made upon the trial of this action to the imprisonment of Dr. Hendrick and Laura Biggar in New Jersey which were competent enough as they appeared in the case; also, certain inferences which could be drawn from the absence of the defendant and Dr. Hendrick from the trial of this case, which, to my mind, were apt to excite the passions or prejudices of the jury and to enhance the damages beyond an amount which otherwise would have been awarded. Unless the plaintiff consent to reduce this verdict to $50,000, I shall be'obliged to set it aside. If she does consent to this reduction, then I shall deny the motion for a new trial.