Mahaney v. Penman — 11 N.Y. Super. Ct. 603

Majority

p. 603

Mahaney v. Penman.

Headnote

A defendant -who voluntarily appears and answers, although the answer, in terms, reserves the right to object to the jurisdiction of the court, is precluded thereby from objecting that the court has not acquired jurisdiction of his person. A voluntary appearance is equivalent to the personal service of the summons.

The proceedings authorized by the Code to be taken in suits brought against defendants jointly liable upon contract, may be taken in a suit brought upon a judgment rendered against defendants jointly, upon a contract on which they were jointly liable.

(Before Hoffman, J.)

Special Term, Oct., 1854.

This action came before tbe court,, on a motion by Daniel Penman for a new trial.

Tbe action was brought against him and two others, upon a judgment alleged to have been recovered against them by the plaintiffs, in the “ Circuit Superior Court of Law and Chancery, for Frederick county, in the state of Virginia, for $800.”

p. 604

The complaint averred that such court was a court of record, that the plaintiff owned the judgment, and that the defendants owed him thereon" the sum of $800, for which, with interest and the costs of this action, it prayed judgment.

The case did not disclose that either of the defendants had been served with the summons. Daniel Penman, alone, answered, and by the answer, in terms, reserved his right to object to the jurisdiction, and that the complaint disclosed no cause of action. It also put in issue the allegations of the complaint, and set up new matter as a defence.

The record of the alleged judgment was produced at the trial, and by it, the recovery appeared to have been had on a contract made by the defendants jointly.

A verdict passed in favor of the plaintiff. A case was made, with liberty to turn it into a bill of exceptions.

A new trial was claimed on the grounds, among others, that the defendants being non-residents, no jurisdiction of the person of either could be acquired, except by the personal service of a summons, or his voluntary unconditional appearance. That having reserved in his answer, the right to object to the jurisdiction of the court, this objection to the jurisdiction of the court could be taken at the trial. That the defendants were not jointly liable on contract, and that the court had no jurisdiction to proceed in the action against either defendant, until all of them had been served with the summons, or had appeared in it.

J. Livingston for plaintiff.

B. Galbraith for defendant.

There aTe but two questions to be considered — • Eirst. Is Penman’s an appearance and answer an implication of his residence or of his being personally served within the city or of a consent to jurisdiction? Next. Is he one of several defendants jointly liable on contract ?

1. In Burckle v. Eckhardt, 3 Comst. 132, the Court of Appeals held, that where a bill was filed against persons not residing within the circuit of a vice-chancellor, and the residence elsewhere ap

p. 605

peared on the face of the bill, bis voluntary appearance by a solicitor did not give jurisdiction, and bis allowing tbe bill to be taken as confessed, did not bind bim. “ Tbe residence witbin tbe circuit was' a jurisdictional fact, wbicb must exist before tbe court can act at all, either by issuing processes or accepting tbe appearance of a defendant. It is necessary to give jurisdiction of tbe ■ cause, not of tbe person. In sucb case there can be no waiver. Tbe want of jurisdiction appears on tbe record.” (Per Gardiner, Justice.)

Upon this point, tbe case of Bucknell v. Field and another, 8 Paige, 442, deserves much attention. A judgment bad been recovered by tbe defendants against tbe complainant and one Stevens, in a court in tbe state of Massachusetts. An action of debt on judgment was commenced in tbe Supreme Court of this state by tbe defendants against tbe plaintiff. Tbe bill was to restrain the prosecution of sucb action upon certain alleged equitable grounds. It was filed before tbe vice-chancellor of tbe first circuit, neither of tbe defendants residing in sucb circuit, but one in Westchester county and tbe other out of tbe state. Tbe chancellor held, that, tbe subject matter having no locality, tbe question depended upon tbe fact whether tbe suit instituted in tbe Supreme Court was a cause or matter of action arising witbin tbe first circuit. If a bill could have been sustained before sucb suit was commenced, it was evident that tbe vice-chancellor bad no jurisdiction. He inclined to tbe opinion that be possessed it on tbe ground of sucb suit in tbe Supreme Court. (See 9 Paige 151 .)

' Tbe case of Burckle v. Eckhardt was decided in December, 1849, and in April, 1851, tbe 139th section of tbe Code was amended by adding to it tbe following clause: “A voluntary appearance of a defendant is equivalent to personal service of a summons upon bim.”

In Granger v. Swartz, (11 Legal Obs. 346,) in this court, tbe learned justice says, 'that tbe voluntary appearance of defendants under this section has- tbe same effect as a service of a summons on them upon tbe day of appearance would haye bad. Tbe clause referred to takes away, then, tbe right to appear with a reservation of an objection to jurisdiction when sucb objection is purely personal. Tbe defendant here cannot appear with protest, and

p. 606

now say that the record does not show that he was a resident or was served personally.^[1]

2. Another question then remains — Is he jointly liable with the other defendants on contract ?

The case of Bealey v. Palmer, ( 1 Hill, 482 ,) is referred to. Proceedings were taken by attachment under the absent debtor’s act. The attachment was against the property of three persons who had been originally indebted on a joint and several promissory note, on which they had been sued in Indiana. One of them only was arrested, and judgment given against him alone. His property was attached in this state.

It was held that the remedy did not extend to attachment on a judgment in another state; the third section (1 Rev. Stats. 765, 2d ed.) extending only to judgments obtained here. And next, that the party could not go behind the judgment and put the case under the final section which covered a debtor on contract. The judgment extinguished the simple contract debt, as to the defendant arrested.

But the arrest in that case was only of one of the parties jointly liable, and the judgment was against him alone. As to him the joint contract was gone, and a separate liability was established upon the judgment. Here the original joint liability upon contract is continued in a joint liability on judgment. And I think that, under a fair construction of the Code, this may be treated as still a joint liability on contract.^[2]

As to the other points raised on the bill of exceptions, I do not think a doubt can be entertained that the ruling of the Judge was correct.

Motion for a new trial denied.

Oaklet, Ch., J. and DueR, J., on consultation, concurred in the decision.

* Watson v. The Cabot Bank, 5 Sand. 423-428. The judgment in this action has been affirmed by the Court of Appeals.

† † Perhaps a judgment may properly be regarded as a contract -within the meaning of that word, as used in the phrase, “jointly liable on contract,” in § 83, sub. 2, of the Code. It is a contract, within the meaning of that word, as used in that clause of the United States Constitution which declares, that no state shall pass any “ law impairing the obligation of contracts.” (Art. 1, sec. 10, sub. 1.)