20 N.Y.S. 432 | The Superior Court of the City of New York and Buffalo | 1892
This court, in deciding the former application, said: “ The defendant Wight is correct in his contention that the judgment rendered by the court of a foreign state against Hewell and Wight, as partners, adjudging that the same is collectible out of the • joint ’ property of both defendants, and the • individual ’ effects of Hewell, the one served with process, cannot be made the basis of an action in the courts of this state against Wight, over whom the foreign court never obtained jurisdiction.” The doctrine stated is now.reaffirmed. The plaintiff, while admitting the general proposition that one not served with process is not bound by the judgment entered against him, claims that the judgment of the New Jersey court, to the extent that it acquired jurisdiction of the parties and their property, is entitled to the same force and effect in other states, upon the broad ground that the courts of such states are commanded by the constitution and statutes of the United States to give such faith and credit to the judgments of foreign courts as the judgment has by law or usage in the courts of New Jersey. Const. U. S. art. 4, § 1; Rev. St. U. S. § 905. So far as such a judgment is founded on personal service of process or an appearance by the defendant, or is in rem or quasi in rem, such faith and credit must be given as may make it effective; but when it is used to charge a defendant in personam in the courts of this state, in a case where such defendant was neither served with process nor appeared in the foreign jurisdiction, such judgment cannot be recognized as the foundation for any such charge. Rigney v. Rigney, 127 N. Y. 408, 28 N. E. Rep. 405; Oakley v. Aspinwall, 4 N. Y. 513; Bartlett v. Spicer, 75 N. Y. 528; Kerr v. Kerr, 41 N. Y. 275; Shepherd v. Wright, 35 Hun, 444; Shumway v. Stillman, 6 Wend. 451; Borden v. Fitch, 15 Johns. 121. This, upon the doctrine that every one must have his day in court, or an opportunity to know of the proceedings against him, and a sentence obtained in defiance of the maxim, audi alteram partem, deserves not the name of a judgment. Railroad Co. v. National Bank, 102 U. S. 21. “T
If the action on the judgment had been brought agiiinst Newell alone, and it had been alleged that by reason of the nonservice of process on Wight the judgment, asoné in personam, was enforceable only against Newell, the complaint as to him would have been good. This was the precise question decided in Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. Rep. 242, and to the same effect see Burt v. Delano, 4 Cliff. 611; Swift v. Stark, 2 Or. 97. The court in those cases held that this was giving to the judgment the effect which the United States constitution and statutes contemplated. But, as to the defendant who was not served, the judgment has only a qualified validity, and is not enforceable, even in the state where rendered, against his individual property. It is clear, therefore, that it will constitute no bar to an action against him in any other state on the original cause of action. Stone v. Wainwright, 147 Mass. 201, 17 N. E. Rep. 301; Shirley v. Shattuck, 13 Metc. (Mass.) 256. In Oakley v. Aspinwall, 4 N. Y. at page 521, Bronson, C. J., held that such a judgment was regarded as void in this state, and, speaking of the.old joint debtor act, applicable to domestic judgments, said that even such a “judgment was, at the most, only prima facie evidence against the defendant who was not served with process; and that only where he pleaded nothing but nul tiel record he might so plead as to put the original cause of action in issue, or show it barred by the statute of limitations, and thus destroy the whole force and effect of the judgment as evidence against him in the new action. ” And Millett, J., in the same case, (at page 535,) said: “Such a judg-« ment is, in effect, no judgment against the person who was not served with the i process, and did not appear in the suit in which it was rendered.” Withoutf commenting on the cases cited by the plaintiff, (all of which have been carefully examined,) or distinguishing them from the one at bar, it is sufficient to hold, upon principle as well as authority, that the foreign judgment set out in the pleadings in no manner affects the liability of the defendant Wight to the plaintiff concerning the right of action pleaded. In a common-law action against two or more defendants on a joint obligation, the allegations in the pleading must affect their ultimate liability in some material respect. Those that do not will be stricken out on motion of the defendants to whom they do not apply. As to them, such allegations are wholly irrelevant, and they may, with propriety, invoke the rule that the matter which is not material nor the subject of proof, and cannot affect the decision of the court, must be stricken out. Code, § 545; Woods v. Morrell, 1 Johns. Ch. 103; Bank v. Kitching, 11 Abb. Pr. 435; Kurtz v. McGuire, 5 Duer, 660. Motion to strike out and to compel plaintiff to separate the causes of action for goods sold and on the promissory note, granted, with $10 costs.
