Bonnet v. Lachman — 48 N.Y. St. Rep. 749

Majority

p. 749

Adrian Bonnet, Pl’ff, v. Albert Lachman et al., Def’ts.

(Supreme Court, General Term, First Department,

Filed October 20, 1892.)

Headnote

'Conversion—Judgment—Want of Jurisdiction.

In an action for conversion in taking property under an execution against

p. 750

the plaintiff, he introduced in evidence the judgment on which it was. issued, and proved without objection that no process was served on him. Held, that he had a right to show that the judgment was void for want of' jurisdiction, and that it was immaterial by whom the judgment record, was offered in evidence.

Motion for new trial on exceptions ordered heard at general term in the first instance after dismissal of complaint.

E. T. Bartlett, for pl’ff; Herman Frank, for def’ts.

On the trial of this cause the complaint was dismissed, and the exceptions were ordered to he heard in the first instance at the general term. Thé action was for the conversion of certain personal property, the complaint containing the proper allegations, but also setting forth that the taking and conversion of the property by the defendants was under an execution issued on a pretended judgment in favor of the defendants and against the plaintiff, but which judgment was absolutely void; and under proceedings taken by a receiver in supplementary proceedings, appointed on the examination of a third party, who. had possession as bailee of part of the converted property, such receiver having been appointed at the instance of the defendants. It was also alleged in the complaint that the plaintiff never was served with a summons in the action in which the pretended judgment was recovered. The defendants’ answer sets up the-judgment, and the taking and disposal of the property under the execution issued thereon and by the receiver are justified as having been done by due and regular process of law. On the trial the plaintiff proved his ownership of the property, and offered in evidence a certain judgment roll filed in the office of the clerk of the city court of New York (being the judgment in question); and the record states that while offering it counsel expressly insisted that it is a void judgment and false affidavit of service, and put in evidence as part of the plaintiff’s case for the purpose of attacking said judgment, and proving it to be void, and attacking said affidavit of service, and proving it to be false. Thereupon, and without objection, it was read. Witnesses were then called and examined, and without objection they testified to facts' tending to show, and which uucontradicted did show, that no. legal service of a summons ever had been made on plaintiff in the action in the city court, the judgment in which was entered by default.

At the close of the plaintiff’s proofs the motion to dismiss was made on three grounds: (1) That no cause of action had been established; (2) that the plaintiff is precluded by the judgment roll which he introduced in evidence, and the same cannot be attacked in the manner in which the plaintiff seeks to attack it-here; and (3) that the proof attacking the service was insufficient, to overcome the evidence of service filed with the judgment roll. The nonsuit was granted on the first and second grounds, the-third being held untenable.

As the case stood, it was fully shown prima facie that the judgment was void. The city court had not obtained jurisdiction over' the person of the defendant in that action.. It was shown

p. 751

affirmatively that no service was made, that proof came into the case without objection, and the validity of the judgment was directly in issue. As this cause was tried, it was immaterial by whom the judgment record was introduced. The undisputed testimony showed it to be a void judgment. It is undoubtedly true-that, as a general principle of law, a j udgment regular in form, and purporting on its face to have been rendered in a court having' jurisdiction of the person of the defendant and of the subject-matter of the action, cannot be attacked collaterally; but it is also true that the want of jurisdiction may always be set up against a. domestic judgment sought to be enforced, or when any benefit is claimed under it, and the bare recital of jurisdictional facts in the record is not conclusive, but may be disproved by extrinsic evidence. Ferguson v. Crawford, 70 N.Y., 253 . The question in this case is not one of pleading. Had the plaintiff simply alleged the ordinary facts, declaring in trover, and limited his proof to those facts, his prima facie case would have been made out. The complaint neither lost nor gained anything by setting forth the pretended facts upon which the defendants relied for justification. Their answer sets up the same facts, and they stood upon them,, and thereby claimed the advantage or benefit of that judgment, which in the proofs is shown to have been void. Had the judgment record not been introduced by the plaintiff, but by the defendants, there can be no doubt the former would have been entitled to attack it, and show the facts rendering it a void judgment. With all that testimony before the court, and in the record without objection, it is quite immaterial by whom the record was offered. It was enough that the very judgment relied on by the defendants, and the benefit of which they sought to obtain as a defense to an action for conversion of property, was shown by uncontradicted testimony to be void. We think, therefore, the exceptions should be sustained, and a new trial ordered, with costs to the plaintiff to abide the event.

Van Brunt, P. J., and O’Brien, J., concur.