18 N.Y.S. 98 | New York Court of Common Pleas | 1892
The single question for determination is whether the evidence was sufficient to take the case to the jury on the issue as to the jurisdiction of the Wisconsin court over the person of the defendant. A judgment in AViseonsin, proceeding by attachment alone, would be wholly ineffectual to sustain the action. Cooper v. Reynolds, 10 Wall. 308, 818; Cochran v. Fitch, 1 Sandf. Ch. 142. Nor is the other position of the respondent one whit more tenable, namely, that the appellant was precluded to impeach the Wisconsin judgment because by the federal statute it has the same effect in ■this state as is imparted tó it by the law of the forum. The argument is vicious, as begging the question by assuming ihe validity of the judgment in Wisconsin; whereas, for defect of jurisdiction, the judgment would be a nullity in Wisconsin, and so of no efficacy there, or elsewhere. Christmas v. Russell, 5 Wall. 305; Starbuck v. Murray, 5 Wend. 148; Kerr v. Kerr, 41 N. Y. 272, 275; Hoffman v. Hoffman, 46 N. Y. 30; Ferguson v. Crawford, 70 N. Y. 253, 262, 263. Neither can the judgment under review be upheld by the doctrine of Denton v. Noyes, 6 Johns. 296; Hamilton v. Wright, 37 N. Y. 502; and Brown v. Nichols, 42 N. Y. 26,—namely, that a judgment obtained upon the unauthorized appearance of an attorney is conclusive on the party in a collateral proceeding; for the principle of those eases has been limited in operation by the court of appeals to domestic judgments. Vilas v. Railroad Co., 123 N. Y. 441, 456, 457, 25 N. E. Rep. 941. And so the question recurs: The defendant not having been served with process in the AViseonsin action, being non-resident in that state, was the evidence of an unauthorized •appearance for him by the attorneys whose appearance the record recites, and Who-did in fact appear, so conclusive as to justify the court in withdrawing the issue from the jury? Undoubtedly, the presumption of jurisdiction prevails in favor of superior courts; but the presumption may be repelled by extrinsic evidence, and even the recital of an appearance in the record is not conclusive on the party. Ferguson v. Crawford, 70 N. Y. 253, 257. Then the case stands thus: In support of jurisdiction in the AViseonsin court we