Davis v. Wakelee

after stating the case, delivered the opinion of the court.

Motion was made to dismiss the appeal in this case, upon the ground (1) that the appearance of Mr. Henry A. Root, as counsel for the appellant herein, which was entered at the time the case was docketed, was unauthorized by him, and

1. So far as the first ground is concerned, it appears that Mr. Root, then residing in the city of New York, was solicitor for the defendant in the court below; that he had taken no steps to sever his connection with the case, by substituting other counsel; and that -his appearance in' this court was entered at the. time the case was docketed, by other counsel, in good faith, and by virtue of a supposed authority from him. Under these circumstances, and, inasmuch as other counsel have appeared and taken charge of the .case, the appellant should not lose his-.right to a review of the case by this court through a mistake which not only appears to have been purely accidental, but one which could not possibly have prejudiced the appellee.. It was held by this court in the case of United States v. Curry, 6 How. 106 , 111, and Tripp v. Santa Rosa Street Railroad, 144 U. S. 126 , that service of a citation on appeal upon the solicitor in the court below was good, upon the ground that no attorney or solicitor can withdraw his name after he has once entered it without the leave of the court; and while his name continues on the record the adverse party has the right to treat him as the authorized attorney or solicitor, .and service of notice upon him, is as valid as upon the party himself. That even after the case is finally decided the court ■will not permit an attorney who has appeared at the trial' to withdraw his name., and thus to embarrass and impede the administration of justice. While it does not follow that the attorney or solicitor in the court below is presumed to continue as such, after the docketing of the case in this court, the- fact that Mr. Root had charge of the case in the Circuit Court might have induced the counsel,- who entered his appearance in this court, to believe that it was authorized by him. As the petition was signed and sworn to by the appellant in person, there can be no claim that the appeal was taken without authority.

2. The second ground is that the appeal bond is defective, in failing to mention the term at which the decree was ren

3. The facts of this cash are not complicated, nor its merits difficult to understand. Henry P. Wakelee held six promissory notes, executed by Davis, in August and September, 1869. On September 30, 1869, Davis was adjudicated a bankrupt upon his own petition, in the District Court-of California, and in July, 1873, Wakelee applied for and was granted leave to reduce his claim to judgment in the state court. On July 19, 1873, Wakelee- brought suit in the District Court of the Fifteenth Judicial District' of California, and obtained a judgment in the following November, upon a service by publication only, in the sum of $22,760.26 in gold. As Davis," who then lived in New York, was never served with process, and never appeared in the action, such judgment was undoubtedly void. Pennoyer, v. Neff, 95 U. S. 714 .

Subsequently, and in December, 1875, Davis filed his' petition for .discharge, and Wakelee filed specifications of opposition thereto, which Davis moved to dismiss upon the ground that Wakelee had reduced his claim to judgment, since the commencement of the bankruptcy proceedings;. that such judgment was in full -force, and (argumentatively) would. be unaffected by the discharge. The court took this view, can-celled the proofs of debt, and-dismissed the specifications of opposition, to. his discharge. Wakelee did nOt appeal. The question before us is, whether Davis is now estopped to claim that the judgment is void for want of jurisdiction.

While our attention has not .been called to any case wherein a bill has been sustained in favor' of a plaintiff in a proposed action at law, to enjoin the defendant from setting up a threatened defence, upon the ground that he is equitably estopped from so doing, we know of no good reason why he should not be permitted to do so, unless his remedy at law be plain, adequate, and complete.' And therein lies the stress of defendant’s argument in this case.

We are not impressed’with the strength of his position in this connection, that this is a bill to declare future rights,..within the principle of Cross v. De Valle, 1 Wall. 1 , wherein the Circuit Court was held not to have erred in dismissing a cross-bill, in which it was called upon to declare the fate of certain contingent remainders. The cross-bill was held to have been

Plaintiff’s theory in this connection is thus stated in her bill, that “under the law of the State of New York, where said action is to be brought, in an action at law to recover the amount due upon said judgment, the facts subsequent to such judgment, as hereinbefore set forth, and constituting the estoppels as herein claimed and insisted upon, may not be pleaded in the plaintiff’s complaint as or in aid of a cause of action, but that such action must be brought upon such judgment alone, and that by the law of the said State of New York it is necessary in an action at law upon such judgment to allege in the complaint either the facts showing the jurisdiction of the court in which the judgment was entered, or that .the judgment was duly entered, and that unless this be done the complaint would be dismissed on demurrer; that your oratrix' is unable truthfully to allege in such complaint such jurisdictional facts or that such judgment was duly entered, and that your oratrix is thus remediless in an action at law,” etc. In support of this contention we are cited to section 532 of the New York Code, which reads as follows: “In pleading a judgment, or other determination, of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction ; but the judgment or determination may be stated to have been duly given or -made. If that allegation is controverted, the party pleading must, on the trial, establish the facts conferring jurisdiction.” Appellant argues with great insistence that this refers only to courts or officers “of special jurisdiction;” and this appears to be the implication from the language and the punctuation, although this provision was- taken from section 138 of the Code of Civil Procedure of 1847, which reads as follows : “ In pleading a judgment, or other determination of a court, or officer of special jurisdiction,” indicating that

•The. section, however, was probably intended to change the common law in some particular, and as in declaring, upon judgments of courts of general jurisdiction, it was never necessary to state the facts showing jurisdiction, while the contrary was true with regard to courts, of special or limited jurisdiction; (Turner v. Rody, 3 N. Y. 193 ,) the provision was doubtless intended to apply to the latter cíass. But even supposing it' were sufficient to allege simply the recovery of a judgment,- the judgment record when put 'in evidence, would show that personal service had never been obtained upon the defendant, and the plaintiff would inevitably be iron-suited.' Whether the plaintiff could go still farther, and set up an invalid judgment and a subsequent estoppel in pais, appears to be under the authorities in New York and other States, a matter of considerable doubt. Welland Canal Co. v. Hathaway, 8 Wend. 480 ; Gaylord v. Van Loan, 15 Wend. 308 ; Hostler v. Hays, 3 California, 302; Bank of Wilmington v. Wollaston, 3 Harr. (Del.) 90; Caldwell v. Auger, 4 Minnesota, 217.

■ So, too, whether, the section above quoted applies to judgments rendered in other States seems to be doubtful, the New York authorities being divided upon the question.

In the uncertainty which appears to exist in that State, as to whether a complaint setting forth all the facts would or would not be demurrable, we think it may be fairly said that the remedy at law is not so plain or clear as to oust a court of equity of jurisdiction. It is a settled principle of equity jurisprudence that, if the remedy at law be doubtful, a court of equity will not decline cognizance of the suit. Boyce v. Grundy, 3 Pet. 210 ; Watson v. Sutherland, 5 Wall. 74 , 79; Rathbone v. Warren, 10 Johns. 587 ; King v. Baldwin, 17 Johns. 384 ; American Insurance Co. v. Fisk, 1 Paige Ch. 90 ; Teague v. Russell, 2 Stew. (Ala.) 450; Southampton Dock Co. v. Southampton Harbour Board, L. R. 11 Eq. 254; Weymouth v. Boyer, 1 Ves. Jr. 416. Where equity can give relief plaintiff ought not to be compelled to speculate upon the chance of his obtaining relief at law.

It may be laid down as a general proposition that, where a party assumes a .certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him. Thus in Philadelphia &c. Railroad v. Howard, 13 How. 307 , 332, 333, 336, 337, where a corporation sought to défend against an instrument by showing that the corporate seal was affixed thereto without authority, and that -it was not, sealed or

So in Railroad Company v. McCarthy, 96 U. S. 258 , 267, it appeared that défendant proved on the trial in the court below that it was impossible to forward certain cattle on Sunday, for want of cars, and it was held to be fairly presumed that no other reason was given for the refusal at that time ; and that the railway company could not, in this court, set up the illegality of such a shipment on the Sabbath, under the Sunday Law of West Virginia. In delivering the opinion of the court Mr. Justice Swayne says: “Where a party gives a reason for his conduct, and decision -touching anything involved in a controversy, he cannot, - after the litigation has begun,, change his ground, and put his conduct upon another and. different consideration. He is not permitted thus to mend

The case of Abbot v. Wilbur, 22 La.. Ann. 368 , is directly in point. This was a suit by Abbot for the purpose of annulling a judgment obtained by Wilbur, upon the ground that such judgment had been rendered by default, and without personal service of citation upon the defendant. Wilbur pleaded in answer to this, and proved that, in a suit by Abbot against one Borge, the latter had set up a reconventional demand or set-off to a large amount, in answer to which Abbot set up that the reconventional demand had already been reduced to judgment against him in the suit which he now sought to annul for the want of personal service. It was held that, Abbot having defeated a large demand against him by a plea that there was pending against him a suit for the same demand, he was es-topped to say that the assertion was false, and that he had never been cited in such suit.

It is contrary to the first principles of justice that a man should obtain an advantage over his adversary by asserting and relying upon the validity of a judgment against himself, and in a subsequent proceeding upon such judgment, claim that it was rendered without personal service upon him. Davis may possibly have been mistaken in his conclusion that the judgment was valid, but he is conclusively presumed to know the law, and cannot thus speculate upon his possible ignorance of it. He obtained an order which he could only have obtained upon the theory that the judgment was valid — his statement that it was in force was equivalent to a waiver of service, a consent that the judgment should be treated as binding for the purposes of the motion, and he is now estopped to take a different position.

There is another circumstance, however, wrhich shows that Davis did not act under a bona fide mistake of law, and that he never intended to recognize the judgment as valid any

• Our conclusion is that, as matter of law, appellant is now estopped to claim that the judgment of the California court was void for want of jurisdiction.

The deqree of the court below is, therefore,

. Affirmed.