109 N.Y.S. 602 | N.Y. App. Div. | 1908
On December 8, 1896, there was filed in the clerk’s office of the United States Court for the Southern District of the Indian Territory a complaint in equity by the H. B. Claflin Company, K. Mandell & Co., and certain other persons, plaintiffs, against H. Munzesheimer and Sam Daube and W. A. Ledbetter, defendants. That bill alleged that in November, 1896, the defendants Munzesheimer a.nd Daube executed a deed of assignment under the laws of the State of Arkansas in force and operation in the Indian Territory, in which deed the plaintiffs therein were named as creditors and are all preferred creditors to a large amount. The plaintiffs then set forth the nature of the stock and property conveyed by said deed of assignment and alleged that the defendant Ledbetter, acting as assignee under the trust conferred upon him, took the' inventory of said property and filed his bond and oath thereby qualifying as assignee: “ that by the terms of the law under which the said Ledbetter acts as assignee, he is not permitted to sell the said property at retail, nor to keep the store open for the collection of debts or for the supplying of customers who are already indebted to the estate with other goods, nor is he permitted to sell at private sale any of the real estate or other property of said estate, nor is he permitted to replenish the stock of goods, nor to sell at either public or private sale of notes and accounts, but he is required to sell within 120 days and .after advertising for thirty days the real and personal property belonging to the said estate and to sell only for cash.” The bill
The first object of the suit had been accomplished upon the entry of this order. Ledbetter, as assignee, had been disposed of. The duties and obligations imposed upon him by law as assignee, which, in the view of the plaintiffs, would have been disastrous to their interests, had been wiped out. Instead' of the estate being wound up under the Assignment Law of the State of Arkansas,
After the entry of- this order the docket shows the following entries: On the 10th of March, 1897, “petition for allowance of certain claims filed;” on the 80th of April, 1897, “protest ,against same filed;” on the 3d of February, 1899, “dismissed.” Thereafter, on July 31, 1899, Ledbetter, as receiver, filed wliafc" is denominated his cross-complaint against K. Mandell & Co., plaintiffs in the original equity suit, and on the. 5th of September, 1899, filed his first amended .cross-bill in lieu of his first cross-bill, in which he sets up the proceedings had, the order made, and the receipt by him, in compliance with the order of the court, of the property which realized about $48,000, which paid said creditors, after deducting expenses, about sixty-five cents on the dollar; that in order to obtain- the appointment of the said receiver, said Iv. Mandell & Go. represented in their petition that said firm of Mnnzesheitner & Daube were indebted to them in
He further alleges that by reason of the premises, he is entitled to have refunded to him by Mandell & Co. the money so collected by them from him and to have the same restored to the trust fund in his hands in order that the same may be appropriated under the terms of the assignment and orders of the court, to the payment of the claims justly due to creditors of said Munzesheimer & Daube. He further alleges that there is yet due to creditors preferred by the said assignment the sum of $35,000, and that with the exception of the funds held by Mandell & Co., there is practically nothing with which to pay them, the said Munzesheimer & Daube being wholly insolvent, and he asked judgment that he be permitted to appropriate the $1,750 in his possession belonging to K. Mandell & Co. in part satisfaction and reimbursement of said sum of $6,609 so wrongfully and fraudulently collected by Mandell, and have judgment for the money paid in order that lie may restore the same to the trust funds in his hands, and pay it out legally to the persons entitled thereto under the orders of the court; that IL Mandell & Co. be required to discover to the' court'what other property and moneys or other things and dioses in action he has in his possession and in his control belonging to said Munzesheimer & Daube, and ' which, under the terms of the deed of assignment and the orders o.f the court appointing the petitioner receiver, pass to the petitioner in trust for distribution, and that the said Mandell & Go. be required to surrender up to the petitioner alj such property.
It is upon said judgment that this suit is brought. The complaint was dismissed upon the trial because it was 'conceded that the so-calléd cross-complaint was filed at a term subsequent to the date on which the word “Dismissed” appeared on the docket, the ground being, that the entry,of that word upon the docket or calendar was equivalent to a final order dismissing the original action, and that having been dismissed it could not be revived by the subsequent filing of a cross-bill against one of the plaintiffs, and that plaintiff could not be again brought into the court in which he had originally brought himself without the issuance and service of process upon him.
If that litigation had ceased, Mandell was out of court and the
An erroneous entry upon a calendar of the word “ dismissed,” not made in the presence of the court, and not in consequence of its-.order, is not to be taken as'a final judgment dismissing the case. There is no evidence in this record to show that a judgment was actually entered dismissing the action; the entry upon the docket is no evidence of such a judgment.
In Baker v. Kingsland (10 Paige, 366) proceedings were insth tnted by a creditor of a decedent to enforce the payment of his claim . against the estate. The indebtedness was dénied by the executors. The only evidence which the creditor produced before the surrogate to prove the existence of his debt was a copy from the Supreme Court clerk’s office of the docket of a judgment against the executors of the decedent. Upon appeal the court said: “If the judgment against the personal representatives of the decedent had been even primafaoie-Tgvoof of the original indebtedness the copy of the docket 'of .the judgment in the Supreme Court was'not legal evidence that any such judgment had been recovered. Since the act of 1840
In Schenectady & Saratoga Plank Road Co. v. Thatcher (6 How. Pr. 226) the court said : “ The statute
In Forsyth v. Campbell (15 Hun, 235) plaintiff attempted to prove the existence of a judgment by producing a certified copy of
In the following cases it was held that no appeal could be taken from an order directing judgment until the judgment had been actually-entered by the clerk. (Knapp v. Roche, 82 N. Y. 366; Stevens v. Central Nat. Bank, 162 id. 253.)
In Lentilhon v. City of New York (3 Sandf. 721) it was held that an entry made by the clerk by the direction of the court, on receiving a verdict, of the judgment to be rendered thereon is not the judgment itself, and not until the clerk had entered the judgment in the-judgment book was the judgment complete.
The statutes of Arkansas contain provisions for the entry of a judgment in a judgment book which are similar to the requirements of our Code of Civil Procedure (§ 1236 et seq.), and it would seem, therefore, that the rule established by the above decisions should apply.
Mansfield’s Digest of the Statutes of Arkansas provides: “ Sec. 3948. The clerk must keep among the records of the court a book to be called the ‘judgment book,’ and in entering judgments or decrees therein shall leave a space or margin on the record in which to enter a memorandum of the satisfaction or setting aside of any such judgment or decree. * * * Sec. 3950. All judgments and decrees, whether rendered by the court or by confession, shall be entered by the clerk in the ‘ judgment book ’ in the order of their date. * * * Sec. 3952. He shall, immediately after the rendition of any judgment or decree, enter the same in the judgment book, in which shall be alphabetically cross-indexed all the judgments of the court, according to the surnames of the plaintiff and defendant; * *
Despondent cites two Massachusetts cases holding that a docket entry is sufficient evidence of "a judgment. As under the practice in that Commonwealth the docket entry seems to be final judgment those cases do not affect the case as here presented. ■ It cannot be that a court may not cure an error of its clerk. That having been done, the erroneous entry is as if it had never been made.
Respondent contends that the. cross-complaint was a document-unknown and unauthorized under the laws of. the State of Arkansas, and hence was a nullity at any stage of the proceedings. He refers to various sections of the Oode of Arkansas bearing on the subject of pleadings, none of which provides for the service of a cross-complaint and concludes from that fact that a cross-complaint is unauthorized. It seems to me that the following cases show that a cross-complaint or cross-bill is not unknown, to equity practice in the State of Arkansas.
Pillow v. Sentelle (49 Ark. 430) was an action to foreclose a mortgage, the widow and heirs of the mortgagor being joined as defendants. To this action the widow answered and filed a cross-complaint in which she alleged that she held a lien on' the mortgaged property by virtue of the mortgage to secure the payment of certain 'notes given by the mortgagee to ■ her as security for a loan and asking that in a foreclosure of the mortgage this lien of lrers be satisfied. She made the plaintiff and her cod'efendants in the original complaint defendants to her cross-bill, but did not have new process served upon any of them. The court there held that as the codefendants did not voluntarily appear, “ It is as necessary ■ to have service of process on them, actually or constructively, in one case as in the other, l>ut it is not necessary to have service on the defendant who.is the plaintiff in the originad .action”
In Horner v. Hanks (22 Ark. 573, 591) the Supreme Court of that State, in discussing the subject of cross-bills, said: “ More
In Heer Dry Goods Co. v. Shaffer (51 Ark. 368) plaintiff brought an action on a promissory note to which defendants answered and pleaded a set-off. Thé Supreme Court in that ease stated that a set-off was in every respect essentially a cross-action brought by the defendants against the plaintiff, and that court further stated : “ It is not necessary to summon or warn a plaintiff in an action to answer a set-off pleaded by the defendant. There is no reason why he should be (summoned). The set-off is pleaded in answer to his complaint and he is bound to take notice of it. A summons or warning order could answer no useful purpose. The statute without requiring notice in any form to be given to him, says he must file his reply to the set-off on or before the calling of the cause for trial.”
In Sandels <fe Hill’s Digest of the Statutes of Arkansas,
Respondent contends that the cross-complaint was not germane to the issues raised in the complaint, and, therefore, conferred no jurisdiction.
In the Laing case a woman sued her husband for a divorce in New Jersey alleging in her complaint that he had committed various acts of - adultery in the State of New York. Defendant, appeared in the action and filed an answer in which he denied -tire allegations of adultery in the- complaint. ■ Subsequently plaintiff. filed a supplemental bill’of complaint wherein she alleged that defendant had committed adultery with a certain named person - at various times since the commencement of the suit and prayed for the same: relief as that sought by the-original petition.'■ Thereafter , .the: court ordered that-the supplemental.' complaint be served upon the defendant personally and that defendant appear- and answer the supplemental complaint. This orde,r was - served upon the defendant in New York city. Defendant did not appear or answer the ’supplemental complaint and -after a reference a decree was entered granting plaintiff a divorce and alimony. Plaintiff afterwards brought an action in this State upon the decree of the New Jersey court to recover the' amount awarded- for alimony and costs. The defendant alleged in his answer to this action that the New Jersey court Obtained no jurisdiction to make any personal decree' against. him on the supplemental complaint. On appeal to the United States Supreme Court it was held that in the' absence of any statute or reported" decision to the contrary, it must find the law of New Jersey applicable to the case in the decree of the New Jersey court, and if the New Jersey, court had misinterpreted that law' defendían t’s only-remedy was by'appeal from that decision. It seems ■ to me that, although as a matter of fact the defendant was actually -served with and had notice of the filing of tlie supplemental complaint in that action, although the service was out of the State, yet that decision must control'"this case. The ctiurt in' this case.consid
The respondent further contends that the order by which Led-better was directed to disburse among the creditors of the estate all funds in his hands as receiver, according to the terms of the deed of assignment, was a final order ending the proceeding, and cites Smith v. Woolfolk (115 U. S. 143). Upon careful reading it appears, however, that the proceedings there declared-to be ineffectual because of' non-service of process, were instituted by the filing of a petition after the court had distributed the proceeds of the sales of lands against which the original proceeding had been directed ; had directed the receiver to collect the available assets of the estate and report to the next term, of the court; the receiver had so reported and an order had been made allowing him to retain the additional sum as his compensation, so, as the court said, “ that nothing remained of the original cause in which Woolf oik and his wife were in any way concerned.” It was under such circumstances that the court held: “It follows that the record of the proceedings and decree of the Circuit Court of Chicot County, subsequent to the decree made in the case of The Creditors of Junius W. Craig v. Emma J. Wright, Executrix, and Others, on October 28, 1868, was not binding upon 'Woolfolk and wife, and could not be received in evidence against them.” .
In the case at bar the order relied upon did not purport to be a final order winding up the estate and discharging the receiver. On the contrary, it sent his accounts to the master in chancery. It appears upon the docket that subsequent proceedings were had
■ It 'seems to me that Mandell, having sought the jurisdiction of the -court, having appeared therein, by attorney, having become a party .plaintiff and having succeeded in bringing the., estate' into court;' Was himself there and remained there.for jurisdictional purposes-until a final order was.entered winding up and disposing of these ' proceedings, of which'there is no trace in this record. The proceeding being still open, the; estate being still in court, the receiver not having been discharged, and. Mandell having received, as is. alleged, apportion of that estate upon false representations, he must be considered still in- court for. the purposes of ■ malting restitution. , ■
I conclude, therefore, that we are bound to give full faith and credit to the judgment of the United States Court for the Southern District of the Indian Territory - here sued upon, that it was error to dismiss the complaint upon this record, and that the judgment should he reversed and a. new trial ordered, with costs to the . appellant to abide the event." '
Patterson, P. J., Ingraham, Laughlin and Houghton, JJ*., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.
See Mansfield’s Digest Stat. Ark. 219, chap. 8. See, also, Sandels & Hill’s Digest Stat. Ark, 277, cliap 8, and Kirby’s Digest Stat. Ark. 255, chap. 8, — [Rep. •
See Laws of 1840, chap. 386, § 25 et seq.— [Rep.
See Code Proc. § 279. et seq.— [Rep.
See Mansfield’s Digest Stat. Ark. § 5023.— [Rep.