16 How. Pr. 203 | N.Y. Sup. Ct. | 1858
The contest is between creditors of the late firm of D. Mason & Co., for priority in the collec.tionof the debts, and in this “race of legal diligence,” the parties must stand upon the legal rights which they have acquired by their vigilance. A mere irregularity in the prior judgments will not be available to the junior judgment debtor upon this motion. A want of conformity to some rule of practice, which does not go to the foundation of the judgments or the jurisdiction of the court, may be waived by the parties to the proceeding, and will be considered as waived if not seasonably objected to by them.
Third persons cannot take the objection that the judgment or proceeding is irregular. (2 Chitty Arch. 1376.) But when a judgment is fraudulent or is invalid by reason of some substantial defect, it will be set aside on the application of any party interested in impeaching it. (Martin agt. Martin, 3 B. & Ad. 934; Hand agt. Barton, 3 B. & C. 202; Chappel agt. Chappel, 2 Ker. 215.)
The judgments complained of, were entered under the authority of the 385th section of the Code. This section has in practice been greatly perverted from its true and proper purpose, and made to supply the place of a confession of judgment Avithout action, and in a way to dispense with the safeguard and securities against fraud which are thrown around the latter method of obtaining a judgment for an acknowledged demand.
In the confession of judgment under the Code, the public
The Code authorizes the defendant to serve upon the plaintiff an offer in writing, to allow judgment to be taken against him for the sum or property, or to the effect therein specified,
“ The defendant,” in the section means a sole defendant, or all the defendants who have been served with process, who really make but one “ party ” to the action. This is the effect of the decision in La Farge agt. Gkilson, (3 Sandf. Reps. 752.) The court in that case very carefully limit the right of one or more of several defendants to serve an offer under this section, to the case where the suit is so situated in respect to the other defendants, that the plaintiff may at once enter judgment to the effect offered against all the parties jointly liable with those making the offer, as where the co-defendants’ time to answer had expired, and they had not appeared.
In the other cases in which an offer from one of several defendants has been held proper, only the defendants making the offer had been served with process, so that upon accepting the offer the plaintiff was immediately, entitled to judgment against all the defendants in form, but which should affect only
As a copartner of the other defendants, Mason had no authority to confess the judgment for his co-defendants. The implied agency resulting from the relation of the parties did not extend to an act like that. He could only bind himself. (Everson agt. Gehrman, 10 How. 301; Barney agt. Le Gal, 19 Barb. 592 ; Rathbun agt. Drakeford, 6 Bing. 375.) In Emery agt. Emery, (supra,) it is very clearly put forth, that one partner cannot by a confession of judgment bind his copartners, further than the judgment regularly taken binds the joint property of the defendants not served with process. (McBride agt. Hagen, 1 W. R. 326.) There is no pretence in the opposing affidavits
A judgment was not thought of as a means of security to the creditors. Mo action had been commenced, and none, so far as we know, was contemplated. The special* authority predicated upon the general understanding of the partners that these debts ought to be secured, is evidently an afterthought. The defendants were' all served with process on the same day, and on the day the offer was served, and of course were on hand to sign any offer in which they concurred. Had Mason empbyed an attorney to appear for all the defendants, and he had served the offer as such attorney, without fraud or collusion, the judgment would have been technically regular, and very likely within the precedents would have been sustained. (Grazebrook, agt. McCredie, 9 W. 437; Church agt. Ten Eyck, Onondaga Special Term, 1856; Griswold agt. Griswold, 14 How. 466.) In that case, the judgments would be upheld in pursuance of the technical rule of practice and somewhat in conflict with another principle advanced by the courts that they “ should not sanction any act which would encourage concealment and contrivance between partners, who owe each other confidence and good faith;”
The offer of j udgment must be in writing. It must be signed by or in behalf of the defendants to be bound by it and against whom judgment is to be taken, and can only be signed in one of three ways. 1st. By the defendants in person, each signing his own proper name. 2d. By an agent especially authorized to sign the same for them and in their name, or, 3d. By an attorney of this court whose authority to represent the parties will be presumed. The offers in these cases were not signed in either of these methods. It is not claimed that they are signed in either the 1st or 3d form. To authorize an en
For still another reason, the judgments must be held to have been entered without authority as against Johnson & Hotaling. The offer does not purport to be signed for them or in their behalf. The signature “ D. Mason & Co.,” does not authorize judgment against them. The addition of “ & Co.,”, to the name of D. Mason, is no authority to the clerk of this court to enter judgment against any one. The law requires certainty in the description of the parties, and those seeking to bind individuals by judicial acts, must see to it, at least that they are properly named. It is not a good judgment even against Mason, for the reason that the papers filed showed service on the other defendants, and that the time for them to answer had not expired. (Barney agt. Le Gal, supra.) The moving party may in this case; object to the want of authority in the clerk to enter these judgments. If the plaintiffs are permitted to retain them as against the defendants not uniting in the offer, they will be entitled to take advantage of their own wrong and disregard of the well settled rules of practice, as well as of the statutory provisions under which alone the court by its clerk has authority to take judgment. The moving party here must have commenced his action before the service of the process in these actions, and by the regular course of practice obtained judgment, and yet if these judgments are upheld, these plaintiffs without authority of law and without the assent of two of the three defendants, will be enabled to deprive the Bank of Central New-York of the just reward of its diligence and an adherence to the practice of the court. I do not refer to the omissions of Johnson & Hotaling to move for relief; they may
The judgment must be set aside, with $10 costs of one motion, unless the plaintiffs elect to retain their judgment and executions against Mason as a several judgment, striking out the name of Hotaling & Johnson from the judgment and the docket.