Chester v. Jumel — 2 Silv. Sup. 185

Majority

p. 185

Stephen M. Chester, Respondent, v. Francois Henry Jumel et al., Appellants.

Supreme Court, First Department, General Term,

May 24, 1889.

Headnote

Jurisdiction,—A priority of right over the subject matter is obtained, by the proceedings in an action first begun in which all persons-interested were made parties, and complete jurisdiction is thereby secured; and no attempt can be made in a second suit to interfere with the litigation in the former action, or to divest the court of the power to complete its hearing, and make a final disposition of the subject matter of the litigation

Appeal from a judgment entered upon the report of a referee.

H. B. Titus, for appellants.

Douglas Campbell and Edward Winslow Paige, for respondent.

The points which have been presented in support of this appeal have so far been considered and disposed of in the appeal taken by the heirs from the judgment as to render it necessary to add but little for the disposition of this appeal. Neither the contract made between the defendant and the heirs, nor the construction of it adopted by the referee, has here been drawn in question. But it has been insisted that the parties, whose rights, as assignees, have been held to be properly sustained by the referee, should not be allowed payment of their demands out of the proceeds of the property. No further consideration is necessary than that which has already been bestowed upon these points, for their final disposition.

It has, however, been insisted that the court had no jurisdiction of this action, after the suit was brought and the

p. 186

judgment recovered in that suit in favor of Jean Albert Tauziede and another, directing the sale and disposition of the property. But,. that objection is clearly without any foundation whatever. For the action in this manner referred to was commenced after the actions in which the judgment appealed from was recovered, and the second action was in no manner interposed by way of defense to the first action. Neither could such a defense have succeeded if it had been presented before the referee for his decision. By the proceedings in the action, commenced by Chester, to which all the parties were made defendants, a priority of right over the subject-matter was obtained. Jurisdiction complete, in all respects, was in that manner secured. And no attempt was made nor could it have been made in the second suit, to interfere with that litigation, or to divest the referee, or the court, of the power to complete its hearing, and make a final disposition of it. On the contrary, the judgment in the second suit has proceeded upon the conclusion that the judgment in the action tried before the referee, was, in all respects, conclusive upon the rights of. the parties, and it has directed a disposition of the proceeds of the property in conformity with the conclusions maintained by the judgment in this preceding suit.

By the present appeal, no substantial reason has been presented for interfering with the decision in the other action, further than that which has already been directed and provided for by the disposition of the other appeal.

The judgment on this appeal should, accordingly, be affirmed, but without costs to either party.

Van Brunt, Ch. J., concurs.