Bulger v. Rosa — 14 N.Y. St. Rep. 278

Majority

p. 278

Jeremiah Bulger, Resp’t, v. Isaac A. Rosa, as Sheriff, etc., App’lt.

(Supreme Court, General Term, Third Department,

Filed February, 1888.)

Headnote

1. Judgment on offer and acceptance—Offer made by attorney for party — Sufficiency of affidavit showing authority — Code Civ. Pro., § 740.

In an action for the recovery of the possession' of personal property, the defendant, by his answer, justified under executions issued on judgments against two certain parties, averring that the property in question belonged to them, or that they had a leviable interest therein, and offered in evidence the judgment rolls, transcripts and executions thereon, which were excluded on the plaintiff’s objection that the actions in which the judgment rolls had been offered were brought against two parties who were partners, that the judgments were entered by authority of one of the parties, and that as no separate judgments could be had in such actions the judgments were incompetent and immaterial as evidence. Each of the judgment rolls contained a summons, verified complaint, general appearance for both defendants, by attorney, offer of judgment against both defendants, subscribed by the attorney and accompanied by an affidavit by him to the effect, among other things, that he was duly authorized by one of the defendants, they being co-partners, to make the foregoing offer of judgment on their behalf, and had subscribed the same, pursuant to such authority. Proceedings subsequent to the offer of judgment appeared by the judgment rolls to have been regularly taken. It is provided by Code Civ. Pro., § 740, that when an offer of judgment is subscribed by an attorney, instead of the party, he must annex thereto his affidavit, to the effect that he is duly authorized to make it in behalf of the party. Held, that the affidavit stated in effect that the attorney was duly authorized to make the offer on behalf of both defendants by one of them.

2. Same—When lack of authority to attorney to make offer will NOT INVALIDATE JUDGMENT.

Held, that the general appearance, by attorney, of both defendants, conferred jurisdiction upon the court, of both the subject-matter of the action and of the persons of the defendants, and that jurisdiction having been thus acquired by the court before the offer of judgment was made, the' offer, no matter how defective, did not leave the judgment void.

3. Same—Irregularity of procedure—When judgment may not be ATTACKED COLLATERALLY.

Held, that in case as to .one of the defendants no authority existed on the part of the attorney to make the offer of judgment, yet to relieve him from the burden of the judgment, a motion must be made or action brought directly for that purpose, that the defect, if existing, was one of irregularity of procedure and not jurisdictional, and that the judgment could not be attacked collaterally.

4. Appeal—Determination of—Must be on same theory as in lower court.

Held, That the case having been tried and disposed of on the theory that the judgments were wholly-void, must be decided upon appeal, on the same theory.

p. 279

This is an action in replevin to recover the possession of a stock of groceries from the defendant. The defendant by his answer justified under four executions issued on judgments rendered against John Sherlock and John Bulger, averring that the property in question belonged to them, or that they had a leviable interest therein. After the plaintiff had rested the defendant offered" in evidence the four judgment-rolls, transcripts and executions thereon. Plaintiff objected “that it appeared that the actions, the judgment-rolls, in which had been offered, were brought against two parties who were partners, that the judgments were entered by authority of only one of the parties, that as no separate judgments could be had in such actions, therefore the judgments were void and incompetent and immaterial as evidence in the action.” The court sustained the objections and excluded the evidence.

The papers in each of the judgment-rolls contained a summons—verified complaint—general appearance for both defendants by Lucien Tuff’s, Jr., an attorney-at-law — offer of judgment against both defendants, subscribed by the attorney appearingc accompanied by an affidavit in these words “ Lucien Tuff’s, Jr., of said city being duly sworn says that he is the attorney for the defendants in the above entitled action, that deponent is duly authorized by John Sherlock, one of said defendants—said defendants being co-partners—to make the foregoing offer of judgment on behalf of said defendants, and has subscribed the same pursuant to such authority.” An acceptance of the offer by the plaintiff’s attorney duly verified affidavit of the plaintiff’s attorney of the offer and acceptance; statement of judgment; statement of costs; filing of roll and entry of judgment in Albany county clerk’s office; transcript of judgment on file in Montgomery county; docket of judgment in the clerk’s office of said county, and execution issued thereon to the defendant as sheriff of Montgomery county.

The trial resulted in a judgment in favor of the plaintiff, and defendant appeals.

N. C. Moak and E. J. Meegan, for app’lt; Z. S. West-brook, for resp’t.

Section 740 of the Code of Civil Procedure provides, that when an offer of judgment is subscribed by an attorney, instead of the party, he must “annex thereto his affidavit, to the effect that he* is duly authorized to make it in behalf of the party.” In the affidavit in question the attorney states, in effect, that he was duly authorized to make the offer in behalf of both defendants, by one of them. , Now if Bulger did direct his co-defendant and co-partner, to give the attorney such authorization, he was, beyond doubt,

p. 280

as duly authorized within the meaning of that section, as if he had given the attorney personal authorization, and as the truth of the statement of Sherlock is not questioned, it is fair to presume that he did give such authority. In any event, it cannot be argued that the affidavit on its face shows a want of authority to offer judgment for Bulger.

If authority was not given to the attorney by Bulger through Sherlock as stated, Bulger had a complete remedy in a motion to set aside the judgment as against him upon the ground of irregularity. Garrison v. Garrison, 67 How., 271 .

Either a motion or an action brought directly for the purpose was necessary in order to relieve him from the burden of the judgment although authority had not been given..

The general appearance by Tuffs, an attorney at law for both defendants, conferred jurisdiction upon the court of both the subject-matter of the action and of the persons of the defendants. Jurisdiction having been thus acquired by the court before the offer of judgment was made, the offer, no matter how defective, would not render the judgment wholly void. It would merely constitute an irregularity voidable on disclaimer, and motion by the defendant erroneously affective; or,. if the irregularity was' the result of a mistake, the court,. in the interests of justice, could, by order, permit a proper affidavit to be supplied and the judgment made regular in form.

The defect complained of being one of regularity of procedure and not of jurisdiction the judgments cannot be attacked collaterally. White v. Bogart, 73 N. Y., 256 .

This the defendant was permitted erroneously to dó on the trial in the court below.

The respondent urges that the defendant having failed to prove any facts making the judgments admissible against the plaintiff, they were immaterial and irrelevant, and the judgment should not, therefore, be reversed even though this court should hold that the court below erred in holding that the judgments were void.

We cannot indorse that position. The first evidence offered upon the part of the defendant consisting of the • judgment-rolls; the court held that the judgments were void, and excluded the judgment-rolls and the executions issued thereon.

The defendant having justified under the judgments and executions, and they having been excluded, it was of no avail for him thereafter to attempt to show that the judgment-debtors had a leviable interest in the property in controversy, and he was not called upon to prove the facts

p. 281

necessary to show, that had the judgment-rolls and executions been admitted, they would have been material.

The case having been tried and disposed of in the court below, upon the theory that the judgments were wholly void, the case must be decided upon appeal on the same theory. Paige v. Fazackerly, 36 Barb., 392 , 395, 401, and cases cited.

Judgment reversed and new trial granted, costs to abide the event.

Landon and Fish, JJ., concur.