Sullivan v. Frazee — 27 N.Y. Super. Ct. 616

Majority

p. 616

John C. Sullivan, plaintiff and respondent, vs. George Frazee and Ellen M. Robbins, defendants and apellants.

Headnote

1. The non-residence of the defendant in this state, and the service of a summons upon him in another state, and not in the city of New York, in an action in this court, when set up in an answer, require a judgment for the

' abatement of the suit, or the dismissal of the complaint. If not denied, ■ they are admitted, and there is no issue, either of fact or of law, in the case, to be tried.

2. An appearance by putting in an answer protesting against the exercise of jurisdiction, is not such an appearance as waives the objection to the jurisdiction of the court.

3. Nor is the mere subscription of an answer with the name of an attorney such an appearance as to waive any objection to the jurisdiction.

(Before Robertson, Oh. J., and Garvin and McCunn, JJ.)

Heard February 14, 1865;

decided May 27, 1865.

Appeal from a judgment ordered at a special term, on a trial before a justice of this court without a jury. The action was in the nature of a creditors’ suit. It was brought by the plaintiff, a judgment creditor of the defendant Erazee, after the return of an execution unsatisfied, to have the property of

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Frazee applied to the payment of such judgment; and to that end to set aside a chattel mortgage executed by said Frazee to his co-defendant Ellen M. Robbins, alleged to have been made to hinder, delay and defraud the creditors of Frazee; and for the appointment of a receiver, &c.

The defendants answered separately. Frazee alleged, in his answer,

First. That his co-defendant, E. M. Robbins, was not a resident of the state of New York, but resided at Hartford, in the state of Connecticut; and that the said Robbins had not been served with the summons in this action within the city of New York ; and claimed .that the court had no jurisdiction of the person of said E. M.- Robbins.

Second. That the defendant Robbins, not having been served with the summons in this action within the city of New York, and not residing. in said city, and the court not having jurisdiction of the person of said defendant, there was a defect of parties defendant.

Third. The defendant Frazee also denied that the mortgage mentioned in the complaint was executed fraudulently, or to defraud the plaintiff or any of this defendant’s creditors, and alleged that it was made for the sole purpose of securing the payment by said defendant Frazee of the rent of the premises mentioned in the complaint, hired by him of said Robbins for the term of three years, and which rent such defendant had obligated himself to pay.

The defendant Robbins put in an answer, signed by “ D. H. McDonnell, defendants’ attorney,” in which she alleged that she was not a resident of the city of New York; that she resided at Hartford, in the state of Connecticut,' and that she had not been served with the summons in this action in the city of New York, but was served at Hartford, in Connecticut; and she claimed that this court had no jurisdiction of her person.

On the trial, the defendant Robbins, by her counsel, read as evidence the admission of the plaintiff’s attorney, that she was not a resident of the city of New York at the commencement

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of the action ; that she resided in Hartford, Connecticut, and had not been served .with the summons in this action, in the city of Hew York ; but was served at Hartford, Connecticut, and still resided there. The defendant Robbins did not enter upon the trial of the action on the merits. The defendant Erazee moved to dismiss the complaint, on the grounds, 1st. That there was a defect of parties defendants. 2d. That the mortgage was made for a valuable consideration, to secure the payment of an existing obligation, and not for future advances. The motion was denied, and the defendant Erazee excepted. The case was then closed, and the justice, by his decision, found the following facts:

First. That the mortgage referred to in the complaint, made and executed by the defendant George Erazee to the defendant E. M. Robbins, was made within the state of Hew York, and with intent to hinder, delay and defraud the creditors of the said George Erazee, and that the same is fraudulent, unlawful and void as against the plaintiff, in this action.

Second. That the plaintiff recovered a judgment against the defendant Erazee, for #64.50, on the 6th day of June, 1863, in the justice’s court, for the 7th judicial district, in the city of Hew York, which was afterwards duly docketed in the office of the clerk of the county of Hew York, and afterwards execution was duly issued thereon, to the sheriff of said county, and by him returned unsatisfied on the 3d day of September, 1863. That the amount due to the plaintiff from the defendant Erazee, for principal and interest upon said judgment, is #67.50. •

Third. That the property upon which said mortgage is made, is household furniture, situate, in the house numbered 277 West Thirty-sixth street, in the city of Hew York. That the defendant Erazee is the owner of a- lease of said premises, made to him for the, term of three years, by the defendant E. M. Robbins.

As matters of law, the justice found,

First. That the defendant Erazee was indebted 'to the

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plaintiff in the sum of $64.50, with interest from the 6th day of June, 1866.

Seeond. That the chattel mortgage upon the furniture of the defendant Frazee, was made to hinder, delay and defraud the plaintiff, in the collection.of his judgment, and is void.

Third. That the plaintiff was entitled to have a receiver appointed, of the said -mortgaged property, and of the lease of said Robbins to said Frazee, to take possession of said property, and of said lease, and sell the same and apply the proceeds thereof to the payment of the amount due the plaintiff, with costs of the action.

Judgment was rendered accordingly, in favor of the plaintiff, with costs ; from which both defendants appealed.

' jD. T. Walden, for the appellants.

W. Stanley, for the respondent.

By the Court,

In this case one of the defendants (Robbins) was not a resident of this state, and was served with a summons in the state of Connecticut only, and not in this city. She sets up those facts alone in her answer, and claims that this court has, therefore, no jurisdiction of her person. The answer is signed by an attorney of this court. The plaintiff proceeded to a trial before a justice of this court without a jury. Ro reply was put in to such answer, nor was any evidence introduced on such trial to disprove its allegations. The Code permits a defendant to demur when it appears on the face of the complaint that the court has no jurisdiction of the person of the defendant, (§ 174, suhd. 1;) and, when that does not appear on the face of the complaint, to take the same objection by answer, (§ 147 ;) such objection, however, is not waived, notwithstanding it may not be taken in either mode. (§ 148.) A voluntary appearance of a defendant is equivalent to personal service of the summons upon him. (§ 139.)

The facts contained in the answer of such defendant formed

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a good reason for the abatement of the suit, or dismissal of the complaint. If not denied, they were admitted, and there was no issue of either fact or law, in the case, to be tried. (§§ 249 to 254.) If they constituted no defense, the plaintiff’s remedy was under section 246 or 247. The defendant seems to have .taken no part in the trial, except to prove the allegations of her answer.

The Code evidently assumes the right of the defendant to appear in the action, and put in an answer for the purpose of objecting to the jurisdiction of the court. The voluntary appearance which is made equivalent to a personal service of the summons, under the 139th section of the Code, is such an appearance as is a submission to the jurisdiction of the court. Some one must appear for a party in order to object to the jurisdiction, and such party is not bound to wait until a final judgment in order to move to set it aside. An appearance merely by such a document as an answer which protests against the exercise of jurisdiction, is surely not such an appearance as waives the objection. (Avery v. Slack, 17 Wend. 87 , per Cowen, J.) The voluntary .and general appearance which waives all objections, is that mentioned in the 11th general court rule.

In the case of Mahaney v. Penman, ( 4 Duer, 603 ,) the action was upon a judgment obtained in the court of a sister state, (Virginia,) and one of the defenses set up was that this court had no jurisdiction of the person of the defendant, but for what reason was not stated ; another defense set up was that the court in the sister state had no jurisdiction over the person of the defendant, to render the judgment it did. The only inquiry was in reference to the jurisdiction of that court; nothing was said about the service of any process in the action in this court. The decision only extended to the effect of a voluntary appearance in the former court. Other defenses upon the merits also were joined with such undisclosed objection to the jurisdiction of this court, and possibly where a party mingles a defense on the merits with such an objection, or in any way calls upon the court to decide on any other

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question, or appeals to its favor, he submits himself to the jurisdiction. (Cooley v. Lawrence, 5 Duer, 605 . Quin v. Tilton, 2 id. 648 . Kelsey v. Covert, 15 How. 92 .) Everyone who acts as an attorney in an action for another, is bound to indorse and subscribe his name, (general court rule 16,) on papers served by him in order to procure service upon him of other papers. (Code, § 414.) So that the mere subscription of the answer with the name of an attorney, was not such an appearance as to waive any objection to jurisdiction.

The complaint should have been dismissed as to the defendant Robbins, for want of jurisdiction, but without costs, this court having no power to make such a judgment in her favor. This court had power to act, however, upon the complaint, as in a creditor’s action, property being discovered belonging to the defendant Frazee, to wit, the lease of the premises in 36th street and the chattels mortgaged to the defendant Robbins. The former defendant has, at all events, an equity of redemption in, and possessory right to, such chattels, and the receiver may, on taking possession of them, deem it proper, as he has a right, to commence an action to get rid of the claim of the defendant Robbins.

The judgment must, therefore, be modified in these respects, as to the last named defendant, without costs, and affirmed as to the defendant Frazee, without costs to either party,