Hyperlawhypertext legal databasebeta Rocco v. Hackett 15 N.Y. Super. Ct. 579

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Rocco v. Hackett

15 N.Y. Super. Ct. 579 2 Bosw. 579 Court N.Y. Super. Ct. Decision date 1858-03-13 English

Delivered by By the Coubt. Woodbuff, J.

Contents

Majority

p. 579
Joseph Rocco, Plaintiff and Respondent, v. James H. Hackett, Defendant and Appellant.

Headnote

1. In an action in this State, upon a judgment recovered in a sister State, if it appear that the Court by which it was rendered had jurisdiction of the subject matter, and of the person of the defendant, such judgment is conclusive.
2. The Courts of this State will not inquire into the merits of the plaintiff's claim, nor whether the judgment was recovered according to law, even though it be alleged that the most obvious dictates of justice were violated.
3. "Where an action was brought on a judgment of the Superior Court of Suffolk County, Mass., which judgment was duly proved, and it appeared, that the defendant appeared, by his attorneys, in the action; and further, that such judgment was recovered on a prior judgment of the Court of Common Pleas:
Held, the defendant cannot defeat a recovery in this State, by proving that he never owed the plaintiff the debt; that he was never a resident, inhabitant or citizen of Massachusetts, but of Hew York; that he was never served with process in, or had any notice of the judgment in the Common Pleas, until sued thereon in the Superior Court; that, by the laws of Massachusetts, he was, in the said Superior Court, prevented from setting up any defence to the action; and that the judgment of the Common Pleas was, by the same laws, declared legal and valid.
Heither, nor all, of these facts can be received here as a defence.
(Before Hoffman, Woodruff and Pierrepont, J. J.)
Heard Feb. 3d;
decided March 13th, 1858.
This action is brought upon a judgment recovered in the Superior Court of the County of Suffolk, State of Massachusetts, on the 18th February, 1856, for $293 79/100.
p. 580
The answer (so far as it is material to state its contents) avers that the judgment on which this action is brought, was recovered on a previous judgment, purporting to have been rendered in favor of this plaintiff against the defendant at a Court of Common Pleas held at Boston, in and for said County of Suffolk, on the 4th of April, 1848, for the record of which shows a declaration
against the defendant, Hackett, and one Eord,' as joint debtors; that the-action was commenced at the previous July Term of the said Common Pleas, “ when and where said Ford appeared, and a Deputy Sheriff of Suffolk returned, that he left a summons at the last usual place of abode of said Hackett, and thence the action was continued from term to term to the present (April) term, and now the plaintiff discontinues against Ford, on the ground of his insolvency, and said Hackett, though called to come into court, does not appear, but makes default. It is, therefore, considered by the Court that the said Rocco recover of the said Hackett the sum of $U7xinr damages, and $56x2^- costs of suit.”
The answer in this present action proceeds to deny that there was any thing due to the plaintiff from this defendant alone, or with Thomas Ford; and avers that he never was a resident, inhabitant, or .citizen of the State of Massachusetts. ■ That before the commencement of that action, (in the Common Pleas,.) and up to the said judgment, he was not within the jurisdiction of Massachusetts, but was before, and at the time mentioned, and ever since, a resident, inhabitant, and citizen of the City, County and State of New York;, was never served with any writ, process, or summons in, or notice of the said action, and never appeared therein by attorney or otherwise, and had no notice thereof until the action was commenced thereon, -which resulted in the judgment referred to in the complaint in this action. That in the action in the Superior Court, he was, by the'laws of Massachusetts, prevented and precluded from setting up any defence to the ' action in which such judgment in the Common Pleas was rendered, and such judgment was .declared to be legal and valid, and of the same force and effect as if- the defendant had been personally served, or had appeared and defended the same, and he, the defendant, has never had an opportunity of being heard in or defending said action on the merits thereof.
That the said Court of Common Pleas never had any jurisdib
p. 581
tion of this defendant, nor of the subject of the action, and the said Superior Court acquired no other or further jurisdiction, and both judgments are fraudulent and void.
The action was brought to trial on the 16th of June, 1857, before Chief-Justice Duer and a jury, and the plaintiff gave in evidence a record of a judgment of which the following is a copy :—
“ Judgment.
“ Commonwealth of Massachusetts, Suffolk, ss:
“ To all persons to whom these presents shall come, Greeting : Know ye that among our records of our Superior Court of the County of Suffolk, it is thus contained:
“ The Commonwealth of Massachusetts, Suffolk, ss: “To the
Sheriffs of our several Counties, or their Deputies,
[Seal.] Greeting:
“We command you to attach the goods or estate of James H. Hackett, now commorant of Boston in the County of Suffolk, gentleman, to the value of five hundred dollars, and summon the said defendant, if he may be found in your precinct, to appear before our Justices of our Court of Common Pleas, to be holden at Boston within and for our County of Suffolk, on the first Tuesday of April next; then and there in our said Court to answer unto Joseph Rocco of Boston aforesaid, musician, in an action of contract; and the plaintiff says that he, said plaintiff, by the consideration of our Justices of our Court of Common Pleas, held within and for the County of Suffolk, on the fourth day of April, A. p., 1848, recovered judgment against the said defendant by the name of James H. Hackett, of Boston Theatre, Manager, for the sum of one hundred and seventeen dollars damages, arid fifty-six -¡^gy dollars costs of same suit, as by the record thereof now remaining in said Court appears, which said judgment is in full force and not reversed, annulled or satisfied. And the defendant owes the plaintiff both said sums and interest thereon, amounting in all to two hundred and forty-three dollars and thirty-nine cents. To the damage of the plaintiff, as he says, the sum of five hundred dollars, which shall then and there be made to appear with other due damages. And whereas the said plaintiff says that the said defendant has not in his own hands and possession, goods and estate to the value of five hundred dollars
p. 582
aforesaid, which can come at to be attached, but has intrusted to and deposited in the hands and possession of Eben H. Wade, of Boston, in the County of Suffolk, gentleman, William F. Flemming of said Boston, Treasurer of the Boston Theatre, and the Webster Bank, in Boston, a corporation established by law, and Frank Flemming, Treasurer of the Boston Theatre, in said Boston, trustees of the said defendant’s goods, effects, and credits to the said value, we command you, therefore, that you summon the said Eben H. Wade, and said Flemming, and said Webster Bank, and said Frank Flemming as aforesaid, if they may be found in your precinct, to appear before our Justices of our said Court to be holden as aforesaid, to show cause, if any they have, why execution, to be issued upon such judgment as the said plaintiff may recover against the said defendant in this action, if any, should not issue against his said goods, effects or credits in the hands and possession of the said trustees, and have you there this writ with your doings therein.
“ Witness, Edward Mellen, Esquire, at Boston, the twenty-ninth day of January, in the year of our Lord one thousand eight hundred and fifty-five.
“Joseph Willard, Clerk."
“ Upon which writ is the following return by the officer who served the same.
“ Suffolk, ss: January 29, 1855. By virtue hereof, I, this day at 7 o’clock, p. m., summoned the within named Eben H. Wade to appear and show cause at Court, by reading this writ in his presence and hearing; afterwards on the same day, I again summoned said Wade to appear and show cause at Court by leaving an attested copy of this writ at his last and usual place of abode. Also, on the same day, I summoned the within named William F. Flemming, Treasurer of the Boston Theatre, to appear, and show cause at Court by delivering to him in hand an attested copy of this writ, and on the thirtieth day of said January, I summoned the within named Webster Bank to appear and show cause at Court by delivering to Solomon Lincoln, Esq., cashier thereof, an attested copy of this writ. February 2, 1855, I summoned the within named Frank Flemming, Treasurer of the
p. 583
Boston Theatre, to appear and show cause at Court by delivering to him an attested copy of this writ. On the same day I attached a chip, as the "property of the within named James H. Hacket, and summoned him to appear and answer at Court by delivering to Mm in hand an attested copy of this writ.
“Service and travel, $1.70—copies and extra trouble, $5.
1E. W. Sanborn, Deputy Sheriff.
“ At the said Court of Common Pleas, held at Boston, in and for said County, on the first Tuesday of April, A. D., 1855, the plaintiff appeared by Charles Gr. Thomas, Esq., his attorney, and entered the above action, and the defendant appeared by his attorneys, James A. Abbott and J. Kendall Tyler, Esq., and on the tenth day of April, during the April term, filed the following affidavit:—
“ Commonwealth of Massachusetts, Suffolk, ss:
“ Court of Common Pleas, April Term, 1855.
“Joseph Rocco, plaintiff,
v.
“ James H. Hackett, defendant, and Trustees.
“I, James A. Abbott, on behalf of James H. Hackett, the defendant in the above action, on oath declare, that I verily believe that he has a substantial defence to the above named action on its merits, and intend to bring the same to trial.
“ Jas. A. Abbott.
“ Subscribed and sworn to this [
April 4, A. D., 1855, before me, j
“ J. Kendall Tyler, Justice of the Peace.
“ And on the twentieth day of said April, during said term, said defendant filed the following answer:—
“ Commonwealth of Massachusetts, C. C. Pleas.
“ J. Rocco,
“ J. H. Hackett and Trustees.
“And the defendant comes and says, that, admitting that there is such a judgment as is set forth in the plaintiff’s writ and decía
p. 584
ration, he says that such judgment ought never to have "been rendered, because that no legal service was ever made upon him in the original suit upon which said judgment was rendered. And he further says, that he has -instituted proceedings for a stay of said judgment in the Supreme Judicial Court for Suffolk County aforesaid, according to the form of the statute made and provided in such cases. Abbott & Tyler, attorneys for defendant.
“And on the twenty-second day of said June, during said Term, the plaintiff and defendant filed the following agreement:—
“No. 2285 Court of Common Pleas, April Term, 1855,
'“ Rocco v. Haekett and Trustees.
“It is agreed, that the above action may be continued for judgment v. defendant, to July Term, next first day.
“ Jas. A. Abbott, attorney for defendant.
“ C. G. Thomas, attorney for plaintiff.
“ June 14, 1855.
“ And thereupon the defendant, though called, did not appear, but made default.
“ And thence the action, having been continued to the October Term, was transferred by act of law to the last (November) Term of this Court.
“And thence the action was continued to the present January Term, 1856, and now, on the eighteenth day of February, during said January Term, the following is filed:—
“ Suffolk, ss. Superior Court, January Term, 1856.
“ Joseph Rocco v. James H. Haekett and Trustees.
“All the trustees in the above case may be discharged without costs. “ C. G. Thomas, attorney for plaintiff.
“ J.. H. Butler, attorney for trustees.
“ And thereupon it is ordered by the Court, that said trustees be discharged without costs. And it is considered by the Court, on the eighteenth day of February, A. D., 1856, that the said Rocco recover of the said Haekett the sum of two hundred, fifty-
p. 585
eight dollars seventy-nine cents damages, and thirty-five dollars costs by suit.
“ All and singular which premises we have held good by the tenor of these presents to be exemplified.
“ In testimony whereof, we have caused the seal of our Superior Court of the County of Suffolk, to be hereto affixed.
“ Witness, Albert H. Eelson, Esquire, Chief Justice of
[Seal.] our said Superior Court, at Boston, this fourteenth day of May, A. D., eighteen hundred and fifty-six.
“Attest. Joseph Willard, Clerk.’’
(Judge’s Certificate.)
It was admitted that this record was properly authenticated to be read in evidence.
The plaintiff then rested his case.
The counsel for the defendant then produced, and offered in evidence,' a record of a judgment of the Court of Common Pleas of Suffolk County, in the Commonwealth of Massachusetts, a copy of which is set out in the defendant’s answer. The same being objected to by the plaintiff’s counsel, the Court excluded it, to which ruling defendant’s counsel excepted.
Defendant’s counsel then offered to prove the following, and in support’ thereof, called the defendant to establish the same, due notice having been served on the plaintiff’s attorney of such intended examination; but the Court, being of the opinion that said evidence would constitute no defence at law to said action, refused to allow the same, to which the defendant duly excepted :—
1. That there never was any sum whatever due, or owing, from the defendant, either alone or with one Ford, to the plaintiff.
2. That the defendant was never a resident, inhabitant, or citizen of Massachusetts, but of the State, of Eew York.
3. That the -defendant was never served with process in, nor ever had notice of, the judgment on which the judgment mentioned in the complaint was recovered, until suit on the latter was commenced.
4. That nothing is or was ever due from defendant to plaintiff.
5. That, by the laws of Massachusetts, he was, in said Superior Court, prevented from setting up any defence to the action in
p. 586
which said judgment, in the Court of Common Pleas, was recovered ; and that, by the same laws, said judgment was declared to be legal and valid.
To which several offers the plaintiff’s counsel objected, and the same were excluded by the Court, to which ruling defendant’s counsel excepted.
The Court thereupon directed the jury to find a verdict for the plaintiff, for the full amount claimed; and the jury then and there rendered a verdict in favor of the plaintiff, against the defendant, for the sum of $320.89: to all which the defendant’s counsel excepted.
Judgment being entered for the plaintiff upon the verdict, the defendant appealed to the General Term.
C. Bainbridge Smith, for the defendant (appellant).
I. The defendant, a citizen of this State, had judgment pronounced against him in a suit commenced in Massachusetts, while he was in this State, without notice, and without an opportunity of being heard, or making a defence. 1. An action, by the laws of Massachusetts, may be commenced in any of the Courts of that State, against a non-resident defendant, by leaving the summons at his last and usual place of abode. (Mass. R. S. 1836, p. 552, §§ 44, 45; Mass. R. S. 1836, p. 566, §§ 3, 4.) 2. A judgment obtained by such service is valid; and, in an action upon such judgment, by the same laws, the want of personal service or notice, constitutes no defence, nor can the merits of the original action be inquired into. (Hawes v. Hathaway, 14 Mass. R. 233 .) 3. On the other hand, a judgment recovered in another State against a citizen of Massachusetts, when sued there, if it appear he was not personally served with process within that State, is void, for want of jurisdiction. (Hall v. Williams, 6 Pick. R. 232; Ewer v. Coffin, 1 Cush. R. 23, 28.) 4. The Legislature of a State has no power to pass a law, by which the Courts of .that State can pronounce a judgment against a citizen of another State, without his having an opportunity of being heard. (Oakley v. Aspinwall, 4 Comst. R. 513, 521, 522; Ewer v. Coffin, 1 Cush. R. pp. 23, 28.)
II. The judgments recovered in Massachusetts against the de
p. 587
fendant were fraudulently obtained. The defendant, in his answer, sets up the facts specifically, and, on the trial, offered evidence in support of that defence, which was ruled out by the Court, and exceptions taken. (Dobson v. Pearce, 2 Kern. R. 156.)
III. Any fact, which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not avail himself at law, but was prevented by fraud or accident, unznixed with any fault or negligence in himself or his agents, will justify an interference by a court of equity. (Dobson v. Pearce, 2 Kern. 156, 165, and cases cited; 2 Story Eq. Jur. §§ 887, 894, 896.) 1. The claim on which the judgments in Massachusetts were obtained was unfounded. 2. The defendant, without any fault or negligence on his part, has been deprived of the opportunity of showing the claim against him was unfounded. 3.. The answer sets up an equitable defence, and one which the defendant, in Massachusetts, could not avail himself of' at law. 4. The Court below rejected the evidence offered on the part of the defendant, on the ground that it would constitute no defence at law. 5. The distinction between actions at law and suits in equity, the jurisdiction of the respective courts, and their form of proceeding, are preserved in Massachusetts. (Mass. R. S. p. 500.) 6. The equitable relief prayed for by the defendant—namely, to be allowed to prove the plaintiff’s claim against him unfounded, and of which defence the defendant was at law deprived—if granted, would not be inconsistent with the full faith and credit to which judgments of other States are entitled. (Dobson v. Pearce, 2 Kern. R. 156; Pearce v. Olney, 20 Conn. R. 544, 556.)
Cornelius A. PunJcle, for the plaintiff (respondent).
Among the respondent’s points are the following:—
I. The defendant, having agreed that the plaintiff might take judgment against him, is now estopped from denying the validity of it. a. The stipulation of the attorney binds the party. ( 15 Wend. 380 .)
II. The judgment upon which this action is brought is conclusive in Massachusetts, upon the merits; therefore it is conclusive here. (Art. 4th, § 1, Con. IT. S.; Act of Congress I., H. S. Statutes at large, p. 122, ch. 37; Miller v. Duryea, 7 Cranch. 481 ;
p. 588
Hampton v. McConnel, 8 Wheat. 234 .) a. The general rule both in this country and in England is, that a question settled, or which might have been settled in a suit in a court of competent jurisdiction between actual parties, after trial will not be opened. (2 Parsons on Contracts, 118; Henderson v. Henderson, 2 Q. B 288; Bruen v. Hone, 2 Barb. 586 ; Baker v. Band, 13 Barb. 152 , and cases cited; Embry v. Conner, 3 Com. 511; Smith v. Lewis, 3 John. 157 ; Emery v. Greenough, 3 Dallas, 369, 372.) b. It will be presumed that all the defences the losing party had were made and were insufficient. (2 Parsons on Con. 118.)
IH. This court cannot go behind the judgment sued on. (See authorities cited under 2d point; Bissell v. Briggs, 9 Mass. 462 ; Sergeant v. Bank of Indiana, 4 McLean, 339 ; Wern v. Pauling, 5 Gill and John. 500; Simpson v. Hart, 1 John. Ch. 91; Green v. Sarmiente, 1 Peters, C. C. 74 ; Rust v. Frothingham, Breeze’s R. 258; Curtis v. Gibbs, Pennington’s R. 399; Kimmell v. Shultz, Breeze’s R. 128; Field v. Gibbs, 1 Peter’s C. C. 155; Noyes v. Butler, 6 Barb. 613 ; Aldrich v. Kinney, 4 Conn. 380 ; Starbuck v. Murray, 5 Wend. 159 ; Shumway v. Stillman, 4 Cow. 296 ; Id. 6 Wend. 447 .)
IV. The true rule is that a judgment recovered in another State is conclusive in an action brought on it in this State as to all facts recited in the record, except those which go to show the jurisdiction of the court rendering the judgment; to wit, service of process on defendant personally, or his appearance in the action personally or by his attorney. (Noyes v. Butler, 6 Barb. 613 .) a. Where the record of the court of a sister State shows on its face that the court rendering the judgment had jurisdiction of the person of the defendant, and when such jurisdiction is not disproved, such record is, under the Constitution and laws of Congress, conclusive evidence of all and every other fact contained in it. It ranks as high as a domestic judgment and will be as conclusive as such a judgment upon the parties. ( 9 Mass. 468 ; 6 Pick. 241 ; 19 John. 162 , and cases cited above.

The defendant was sued in one of the courts of Massachusetts; he was personally served with process; he appeared in the action; he interposed such defence as he was advised; judgment was rendered against him.

p. 589
Having jurisdiction of the subject matter, and having jurisdiction of his person by personal service of process, and by actual appearance, the judgment of that court is in the absence of impeachment for fraud conclusive upon us.

We are not at liberty to inquire upon what views of the law that court proceeded; or whether, if we had to pass upon the same questions, we should have rendered the same judgment.

We can no more say that that court erred in holding the previous judgment (obtained without actual service of process on the person of the defendant) valid and binding, and, therefore, we will disregard their adjudication upon that question, than in any case, where it appeared that a judgment was recovered on demurrer to a complaint we would hold the judgment open to inquiry, because we deemed the complaint insufficient in law to warrant a judgment.

Indeed, we hold the rule invariable, that where jurisdiction of the subject and of the person has been acquired and judgment rendered, in the court of a sister State without any fraud, we can neither inquire into the facts proved, nor the law applied to those facts, by which such courts were governed.

The judgment must be affirmed with costs.

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