175 A.D. 760 | N.Y. App. Div. | 1916
Lead Opinion
On the 14th day of November, 1911, the plaintiff issued a summons, through her attorneys, Shaw, Bailey & Murphy, of Troy, N. Y., directed to the defendant, and on the same date the defendant’s attorney in New York executed a notice of retainer and demanded “ that a copy of the complaint and all papers in this action be served on me at my office,” etc. The complaint was verified on the 16th day of November, 1911, and alleges that “ on the evening of September 1st, 1911, the plaintiff and the defendant, who had known each other for only a short time, went to the city of Hoboken, in the State of New Jersey, where a form of a pretended ceremony of marriage between the plaintiff and the defendant was performed by a
The defendant obligingly admitted the 1st and 2d paragraphs of the complaint, that the parties “were and are now residents of the State of Hew York,” and that the ceremony was performed in Hoboken on the date mentioned. He denies that he has any knowledge or information as to the matter
These matters are, perhaps, unnecessary to be considered here, except for the purpose of indicating the uncanny character of the transaction, for we are concerned with the question of whether the defendant in that action, who now claims to be a resident of the State of Connecticut, is entitled to an order of this court holding that he is not called upon to respond to the plaintiff’s motion to set aside the judgment in the action, on the grounds of lack of jurisdiction and fraud, because of the failure of the plaintiff to get personal service upon him within the State of New York. This alleged false marriage took place on the 1st day of September, 1911; the action was commenced on the 14th day of November, 1911, by a firm of lawyers in Troy, and on the very same day the defendant’s attorney in the city of New York served a notice of retainer, and two days later the complaint was dated. In exactly two months from the date of the complaint a judgment was entered in Rensselaer county declaring the marriage void. Neither of the parties lived in Rensselaer county; both of them lived in or near the city of New York, and the course of the trial, the character of the pleadings, and the evidence introduced in support of the action, all indicate co-operation on the part of the defendant in procuring the judgment, and suggest that the court has merely been used to reach a result not justified in the law.
The plaintiff, who had judgment in that action, now appearing by a substituted attorney, has served a notice of motion upon the defendant’s attorney in the action, and has placed a copy of that notice in the hands of the defendant within the
The same doctrine arises out of the maxim that “ An act in law shall prejudice no man,” and Broom says that “where an authority given by law has been abused, the law places the party so abusing it in the same situation as if he had, in the first instance, acted wholly without authority (6 Bacon’s Abridgement, 559; Six Carpenters Case, 8 Rep. 290), and this, it has been observed, is a salutary and just principle, founded on the
The record in this action shows that the defendant alleged in his answer that he was a resident of the State of New York; that he appeared by his attorney, who served a notice of retainer, demanding that “ all papers in this action be served on me,” and by this constituted a voluntary general appearance in the action. (Reed v. Chilson, 142 N. Y. 152, 155.) The court had jurisdiction of the subject-matter and of the parties, and it had jurisdiction of the judgment rendered in that action. The defendant after the judgment was entered paid the costs, and, we will assume, discharged his attorney upon paying his compensation, but he could not by leaving the State of New York oust the jurisdiction of the court over its own judgment. He might, as between himself and the plaintiff, perhaps terminate the action, assuming them to have both been parties to the fraud, but he could not by any act on his part make valid a judgment which was contrary to public morals or sound public policy. (Mayor, etc., v. Manhattan R. Co., 143 N. Y. 1, 26, and authorities there cited; Veazey v. Allen, 173 id. 359, 368.) When the defendant appeared generally in the action, through his attorney, he gave the court jurisdiction of that action in all its phases; gave the.court authority to make and enter judgment, and the court never loses jurisdiction of its judgments, nor can the attorney, as the officer of the court, sever his relations with the client in such a manner as to deprive the court of the power to purge its records where it is made to appear that fraud has been perpetrated upon the court.
Of course, in the original action, it is necessary to get personal service upon a defendant. When a party does not intend
Were this doubtful, the case at bar does not present any substantial difficulty. That the court had jurisdiction of the defendant by reason of the notice of retainer cannot be questioned, and it can hardly be doubted that where, in a motion in the original action, the defendant attempts to appear specially to question the jurisdiction of his person, he is in the position of asking for relief in the action, and his so-called special appearance is of no avail. By his affirmative act in invoking the power of the court in an action in which he has made a general appearance, he necessarily admits the existence of the action, and if the court has power to grant his motion to declare
The order appealed from should be affirmed.
Concurrence Opinion
All concurred, Cochrane, J., in opinion.
This being a matrimonial action involving as it does the rights and interests of the public, and facts having been brought to the attention of the court, indicating that it had been overreached and imposed upon and induced by fraud and collusion to render a judgment inimical to the rights of the State and contrary to its public policy, the duty rested on the court on its own motion to set the judgment aside, not necessarily for the benefit of the plaintiff, but in the interest' of the common weal. In my opinion the .court had power to enter an order vacating such judgment without notice to the defendant. How otherwise could the court get rid of a fraudulent and collusive judgment in an action of this nature, where the collusion of the parties continued after the fraud and collusion became apparent to the court, and neither party was willing to take the initiative in righting the wrong which had been committed ? Doubtless in such a case it would be more expedient and cautious for the court to cause some notice of its anticipated action to be given to the interested parties, but cases arise where it is difficult if not impossible to give notice. Is the court powerless in such a case ? Applying the preceding observations to the present case it appears that on the presentation to the court of the facts contained in the plaintiff’s moving papers it became apparent to the court that it had been made the instrument of fraud. Instead of vacating the fraudulent judgment ex parte as the court had the power to do, notice was given to the defendant. It may be that it was not the kind of notice which would be required in some cases, but the court had power to act without any notice, and whatever notice the defendant received, poor though it may have been, was more than he was entitled to demand as a matter of right. He is charged with having fraudulently misled the court into making a judgment in which not only the parties to the action
Order affirmed, with ten dollars costs and disbursements.