Latham v. Delany — 35 N.Y. St. Rep. 462

Majority

p. 462

Paul W. Latham, Resp’t, v. Patrick B. Delany, App’lt.

(New York Superior Court, General Term,

Filed January 5, 1891.)

Headnote

1. Judgment—Of foreign court—Recitals of jurisdiction mat be contradicted.

In the instance of a foreign judgment, rendered by a court of general jurisdic.ion, the recitals or statements in the record purporting to show jurisdiction may be contradicted and the presumption of jurisdiction may be overthrown by testimony.

2. Same—Service—Virginia.

The return of the sheriff in an action in Virginia stated that the summons was served by leaving with the wife of each defendant a copy thereof, also certified copy of account, they both being white persons over the age of sixteeen years and members of the family, explained purport thereof, neither of them being found at their usual place of abode. Held, that such return did not show service, because it did not declare that the service made upon the wife was made at the usual place of abode of the defendant.

Appeal by defendant from judgment against him and from order denying motion for a new trial made upon the judge's minutes.

F. Louis Lowe, for app’lt; William C. Davis, for resp’t.

The action was against the appellant individually, upon a judgment entered in a circuit court of the state of Virginia against one R. N. Pool and the appellant, jointly.

The chief question litigated on the trial was whether the court of Virginia had obtained, before rendering judgment, jurisdiction of the person of the present defendant.

In the instance of a foreign judgment, rendered by a court of general jurisdiction, the recitals or statements in the record of it purporting to show jurisdiction may be contradicted and the presumption of jurisdiction may be overthrown by testimony. Ferguson v. Crawford, 70 N.Y., 257 , and the cases there cited. The return by the sheriff, as to service of summons, on the record, stated that it was executed upon “R. N. Pool and P. B. Delany by leaving with the wife of each a copy of the within summons, also certified copy of account, they both being white persons over the age of sixteen years and members of the family, explained purport thereof, neither of them being found at their usual place of abode.”

The legal method of service of summons appeared in § 1, chap. 163, title 51 of the Code of Virginia of 1873, which was given in evidence. Service is “"by delivering a copy thereof in writing to the party in person, or if he be not found at his usual place of abode by delivering such copy and giving information of its pur

p. 463

port to his wife or any person found there who is a member of his family and above the age of sixteen years, or if neither he nor his wife nor any such person be found, then by leaving such copy posted at the front door of said place of abode.”

The return therefore did not show service, because it did not declare that the service made upon the wife was made at the usual place of abode of the defendant.

To meet the presumption of jurisdiction in fact that might be created by the judgment being made by a court of general jurisdiction, the defendant upon the trial gave proof tending to show that the service upon the wife was made at a place not the usual .abode of the defendant and also that the defendant himself was not within the state of Virginia at the time of the service upon his wife.

To maintain the jurisdiction, the plaintiff relied upon certain recitals in the'judgment that the defendant in it ha'd personally appeared before the court, as perhaps it might be argued was the recital of the judgment, or had appeared by the attorney.

The defendant on -the trial offered evidence tending to show that the plaintiff had not appeared in person in the court of Virginia and had not authorized any attorney to appear for him. Kerr v. Kerr, 41 N. Y., 275 . The court excluded incorrectly I think the testimony offered.

At the close of the testimony, the court ordered a verdict for plaintiff under the exception by defendant.

In the condition of the testimony as to the service of original process, I think the question was one for the jury. They might have found that no sufficient service had been made. In that case and so far as that affected jurisdiction, the court of Virginia was without jurisdiction.

In connection with this, the testimony that was excluded, if given, might have persuaded the jury that the recitals of appearance were incorrect in fact and that so far as that was concerned there was no jurisdiction.

There was no right lost by the defendant in not asking leave to go to the jury, for he had not neglected any direction in his own behalf upon a construction of the evidence submitted by him to the court.

It is to be noticed, that the present action is against the defendant individually upon a joint judgment.

No question was made upon the trial or on the argument as to the power of the joint debtor, the two being partners, to cause an appearance for the present defendant.

The judgment and order appealed from are reversed and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., Freedman and Ingraham, JJ., concur.