13 N.J. Misc. 483 | N.J. | 1935
The above entitled suit is brought to recover the sum of $4,22Í.57 on a judgment obtained by the plaintiff’s assignor in the Supreme Court of the State of New York against the defendant Hauptmann. The answer filed contains a general denial and several separate defenses. The plaintiff moves to strike the answer and defenses on the ground that they are sham. In support of the motion the plaintiff presents an exemplified copy of a judgment filed in the New York court in favor of the plaintiff’s assignor for the sum above stated and an affidavit by Fawcett setting forth
“If any suit upon a foreign judgment, or a judgment of any court out of this state, the defendant, or person sought to be affected by such judgment, may show that the defendant therein was not summoned, did not appear, or was not within the jurisdiction of such foreign court, notwithstanding it may be recited in the record of such proceedings that he was summoned or did appear, or was within the jurisdiction of such court; and such recital shall not conclude said defendant, or estop him from proving that the same is not true.”
Article IY, section 1, of the constitution of the United States should be read and considered in connection with section 1 of the fourteenth amendment to the constitution of the United States which provides in part that no state shall make
By an act of congress, R. S., § 905, it is enacted that:
“The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such state, Territory, or country affixed thereto. The records and judicial proceedings of the courts of any Slate or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the Judge, Chief Justice or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenti
In the affidavit of the assignor, James M. Fawcett, he deposes and says that an action was brought by the defendant, Bruno Biehard Hauptmann, in the jurisdiction of the New York Supreme Court, in Kings county by a verified petition dated December 19th, 1934. The action was entitled “Supreme Court: Kings County. In the Matter of the Petition of Bruno Biehard Hauptmann for an order directing James M. Fawcett, an attorney and counselor-at-law, to turn over all the files and papers in his matters to his new attorney Edward J. Beilly.”
A copy of the defendant’s petition in that suit is annexed to the affidavit. The petition alleges that the defendant was confined in the Hunterdon county jail in the State of New Jersejr, awaiting trial upon an indictment charging him with the crime of murder. On the 21st day of September, 1934, through his wife, the defendant had retained the assignor, James M. Fawcett, as his counsel to defend him in connection with charges then pending in the State of New York against the defendant; that Fawcett continued to represent him until the 2d day of November, 1934, when he discharged the latter and retained the services of one Edward J. Beilly, but although demand' was made for exhibits and other writings which were in the possession of Fawcett and essential for the defense on the New Jersey indictment Fawcett refused to turn over the papers claiming that he had a lien thereon for services rendered. The petition prays that an order issue directing Fawcett to turn over the exhibits and papers to Beilly and “for such other relief as to the court may seem just and proper in the premises.” This petition is alleged to have been signed by the defendant, Hauptmann, and also contains an alleged verification by the same person of the contents of the petition. Fawcett further alleges in his affidavit that he filed a reply to the petition of Hauptmann in the New York court in which Fawcett claimed a lien on all the files and papers in his possession belonging to Hauptmann. Testimony was taken as to the amount of Fawcett’s lien
The defendant in his affidavit on the motion to strike says that at no time did he engage Edward J. Reilly to institute any proceedings against James M. Fawcett, or any proceeding in New York State by which the said Reilly sought to recover certain documents or certain papers which the said James M. Fawcett had in his possession. The deponent never had any discussion with Reilly about any such action, never knew such action was brought and did not know the nature of the action or when it was started nor anything whatever about it. The defendant in his affidavit further states that Reilly acted “absolutely without the authority of this deponent and without the knowledge of this deponent. No papers were ever served upon him in connection with said cause until he was served with a complaint and summons in the suit brought against him in this state, that he never submitted himself to the jurisdiction of the New York courts in the Fawcett proceedings.” Three questions are to be considered in order to' decide the motion presented. Can the defendant deny and disavow the authority of Reilly to appear for the defendant as attorney in the proceedings of the New York Supreme Court? Can the defendant question the jurisdiction at this time, of the New York court and did the New York court have jurisdiction to enter a money judgment against Hauptmann?
Notwithstanding the strong presumption that attaches to a judgment entered in a court of a sister state by direction of article IV of the constitution of the United States, to give full faith and credit to such proceedings, the defendant has the right under the fourteenth amendment of the constitution of the United States not to be deprived of his liberty or property without due process of law. The affidavit of Hauptmann in regard to the retention of Reilly as an attorney denies that Reilly was ever authorized to appear for him. On a motion of this kind the courts of the State of New Jersey have jurisdiction to inquire into these disputed questions of fact. Price