Kahn v. Lesser — 43 N.Y. St. Rep. 149

Majority

p. 149

Pauline Kahn, Resp’t, v. Joseph S. Lesser, Impl’d, App’lt.^[1]

(New York Common Pleas, General Term,

Filed February 1, 1892.)

Headnote

•Judgment—Robeign—Unauthobized appeabanoe.

In an action, upon a foreign judgment, the record of which recites a general appearance for defendant, where the only evidence in support of the defense that such appearance was unauthorized is that of the defendant, the question is one for the jury to determine.

Appeal from j udgment of the general term of the city court affirming judgment on a verdict. Action on a judgment of the superior court of the county of' Milwaukee, state of Wisconsin, rendered against Joseph S. Lesser, Isaac Lewis and Alexander ■"Cable as copartners. The record of the case in the Wisconsin court recites the appearanceof the defendants by attorneys. Lesser alone resists this action, and he alleges that he was not served in the Wisconsin suit, and that the appearance of the attorneys therein for the defendant» was officious and unauthorized. In addition to the recital in the record from Wisconsin the evidence shows that in fact the defendants did purport to appear by at- - torney in the action. On the other hand the defendant herein testified, without contradiction, that he did not retain the attorneys, ■and never authorized them to appear in his behalf. In the Wisconsin action an attachment was-levied on the property of the defendants. Pending the action defendant was a resident of the state of Hew York.

On the conclusion of the evidence the defendant moved for a nonsuit and a direction in his favor, on the ground that the ■court in Wisconsin did not acquire jurisdiction of his person, and that so the judgment of that court was ineffectual to bind him; and to a denial of the motion he duly excepted. Witli an entirely unexceptionable charge, the court below submitted to the jury whether the Wisconsin court acquired jurisdiction of the defendant; and upon that issue they found for the plaintiff

Paul Jones, for resp’t; Arthur Furher, for app’lt.

The single question for determination is, whether the evidence was sufficient to take the case to the jury on the issue as to the jurisdiction of the Wisconsin court over the person ■of the defendant.

p. 150

A judgment in Wisconsin proceeding by attachment alone would be wholly ineffectual to sustain the action. Cooper v. Reynolds, 10 Wallace, 308, 318; Cochran v. Fitch, 1 Sandf. Ch., 142 .

Nor is the other position of the respondent one whit more tenable; namely, that the appellant was precluded to impeach the Wisconsin judgment because by the-federal statute it has-the same effect in this state as is imparted to it by the law of the forum. The argument is vicious as begging the question by assuming the validity- of the judgment in Wisconsin; w,hereasr for defect of jurisdiction the judgment’would be a nullity in. Wisconsin, and so of no efficacy there or elsewhere. Christmas v. Rufell, 5 Wallace, 305; Starbuck v. Murray, 5 Wend., 148 ; Kerr v. Kerr, 41 N. Y., 272 , 275; Hoffman v. Hoffman, 46 id.,. 30; Ferguson v. Crawford, 70 id., 253, 262-3.

Neither can the judgment under review be upheld by the doctrine of Denton v. Noyes, 6 Johns., 296 ; Hamilton v. Wright, 37 N. Y., 502 , and Brown v. Nichols, 42 id., 26, namely, that a judgment obtained upon the unauthorized appearance of an attorney is conclusive on the party in a collateral proceeding, for the principle of those cases has been limited in operation by the court of appeals to domestic judgments. Vilas v. R. R. Co., 123 N. Y., 441 , 456-7; 34 St. Rep., 67 .

And so the question recurs: the defendant not having been served with process in the Wisconsin action, non-resident in that state, was the evidence of an unauthorized appearance for hifn by the attorneys whose appearance the record recites, and who didin fact appear, so conclusive as to justify tho court in withdrawing the issue from the jury ?

Undoubtedly the presumption of jurisdiction prevails in favor of superior courts; but the presumption may be repelled by extrinsic- evidence, and even the recital of an appearance in the record is not conclusive on the party. Ferguson v. Crawford„ 70 N. Y., 253 , 257.

Then the case stands thus: In support of jurisdiction in the Wisconsin court, we have the legal presumption and the record recital; while in impeachment of the jurisdiction we have the uncontradicted testimony of the appellant that he never authorized an appearance on his behalf. The presumption and the recital constitute plenary proof of jurisdiction, unless and until their force be overcome by contrary evidence. The fact that appellant’s-co-defendants in Wisconsin did not authorize the appearance is no-corroboration of the allegation that he did not authorize it; for,, the partnership being dissolved, they had no power to retain an attorney for him. It results, therefore, that since the evidence of no appearance by appellant consists exclusively of his own testimony, an issue was raised for the jury; and as we have no jurisdiction to estimate the weight of proof in the court below, our only alternative is t,o affirm the judgment. Kavanagh v. Wilson, 70 N. Y., 177 ; Gildersleeve v. Landon, 73 id., 609; Wohfahrt v. Beckert, 92 id., 490. Notwithstanding the head note, 102 N. Y., 93 ; 1 St. Rep., 161 , the doctrine of these cases is not impugned;.

p. 151

for, in Kelly v. Burroughs, page 95, it appeared that there “ was no conflict of evidence, or anything, or any circumstance from which ■an inference against the fact testified to by the party could he drawn.”

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.