McMinn v. Whelan

27 Cal. 300 | Cal. | 1865

By the Court, Currey, J.

This is an action of ejectment commenced on the twenty-third of September, 1863, for the recovery of a lot of land on the corner of Folsom, and Tenth streets, in San Francisco, and for damages for withholding it from plaintiff. By the answers, the defendants denied the material averments of the complaint, and then pleaded the Statute of Limitations, and also an equitable defense on which they prayed affirmative relief. The cause was tried by a jury, without first disposing of the equitable defense, and a verdict was rendered in favor of plaintiff for the recovery of the possession of the premises, and one hundred and eighty dollars damages. On this verdict judgment was entered. The defendants moved for a new trial, which was denied.

Much evidence was given at the trial respecting the possession of the premises by Mathew Maume and his tenants existing in the year 1854, and thence continuing to the time of the defendants’ entry thereon, which was in 1861. That Maume had the prior possession of the premises was determined by the jury in the affirmative, and as there was evidence authorizing the verdict in this respect, no just complaint can be made, because it was not more ample.

The plaintiff claimed title to the premises by a deed of conveyance produced in evidence, bearing date the tenth of May, 1861, purporting to have been executed by Mathew Maume, by his attorney in fact, Michael Dundon.

To prove that Dundon had authority as attorney for Maume to execute in his name the deed of conveyance to the plaintiff, the plaintiff offered in evidence an instrument in writing under seal, purporting to be a power of attorney executed on the thirty-first of January, 1859, by Mathew Maume, then a resident of Limerick, in the United Kingdom of Great Britain and Ireland, to Michael Dundon, of Brookville, in the County of Clare, Ireland, appointing and constituting the said Dundon the attorney for the said Maume, and granting to him power to sell and convey, for and in the name of the constituent, the premises in controversy. This power of attorney appears upon its face to have been executed in the presence of one Thomas O’Farrell, and when it was offered in evidence it was objected to by defendants on the ground that it was not proved to have been executed by Mathew Maume. The plaintiff then introduced evidence to the Court for the purpose of laying a foundation for the introduction of secondary evidence of the execution of the instrument by Maume. The plaintiff himself was sworn and examined respecting the efforts he had made, preparatory for the trial, to discover the attesting witness, if within the jurisdiction of the Court. His testimony showed that he had exercised great diligence for the purpose of finding the witness, and also to discover some one by whom his handwriting could be proved. After this evidence was admitted, the plaintiff proved the handwriting of Mathew Maume by a person who knew it, and then submitted the power of attorney to the Court for inspection, and at the same time offered it in evidence as proved. The defendants objected that the absence of the subscribing witness was not sufficiently accounted for, and also that his handwriting was not proved; and accompanying this objection they proposed to prove by exhibiting the City Directory that a number of persons were residing in San Francisco by the name of O’Farrell, and insisted that they were the proper persons of whom to inquire for the witness. The Court overruled the objections and the instrument was read in evidence to the jury. To this ruling the defendants excepted.

In the case of McMinn v. O’ Connor and Others, ante, 238, we have declared, on the authority of Landers and Wife against Bolton, 26 Cal. 409, and the authorities cited in that case, that an instrument in writing, executed and attested by a sub-' scribing witness in a foreign country or at a place beyond the jurisdiction of the Court, could be proved by producing evidence of the handwriting of the party who executed it. The presumption in the case is, that the attesting witness, who was in Ireland when he signed the document as a subscribing witness, remained there, and consequently was beyond the 'jurisdiction of the Court at the time of the trial.' (Valentine v. Piper, 22 Pick. 89, 90.)

The defendants, for the purpose of showing that the title of Mathew Maume had passed to one of them, offered and gave in evidence a judgment obtained by Timothy Gleason against Mathew Maume on the twenty-seventh of October, 1860, and also the judgment roll and the proceedings in the case. The plaintiff objected to the evidence offered controverting the validity of the judgement, and maintaining that it was coram non judice and void.

On the second of November, 1859, Gleason commenced an action by filing a complaint in the District Court of the Twelfth Judicial District against Mathew Maume, Samuel Adamson and Mary E. Maume, the object of which was to recover from Mathew Maume seven thousand dollars, alleged to be due from him on a contract set forth in the complaint, and to obtain a decree against the defendants Adamson and Mary E. Maume, setting aside as fraudulent certain mortgages on real property, executed and delivered to them by Mathew Maume, and a decree against Mathew Maume, compelling him to execute a mortgage on the same real property as security for the payment of the debt sought to be recovered, in pursuance of an alleged agreement that he would so secure the same. A summons was issued on the day the complaint was filed, and on the same day the attorney for the plaintiff therein made an affidavit that the defendants were absent from the State, two of them residing in Ireland and the other in England. Whereupon the Court made an order that the service of the summons be made by publication in a certain newspaper specified in the order, for at least once a week for three months. On the fifth of December, 1859, the plaintiff Gleason filed a supplemental complaint in the action against the same persons and also against Michael Dundon, Michael Maume and Johanna Maume as defendants. This supplemental complaint embodied, by direct averments and reference, the same matters contained in the original complaint, and further alleged and charged that Mathew Maume, with intent to cheat and defraud the plaintiff Gleason out of the debt due him, entered into an agreement with Michael Dundon, in Ireland, to come to California for the purpose of covering up, concealing and disposing of his property so as to cheat and defraud the plaintiff and other of his creditors out of their debts; and fraudulently agreed with Dundon to convey to him certain real property in the City of San Francisco, for the fraudulent purpose of cheating and defrauding his creditors.

The supplemental complaint is replete with charges of acts of the defendants by which they designed to defraud and had defrauded the creditors of Mathew Maume, and that the defendant Dundon had thus acquired title to a portion of his property, and others of the defendants had obtained from him mortgages on other portions of his property, all of which transactions were fictitious, and intended to cheat and defraud the creditors of Mathew Maume. In conclusion, the plaintiff Gleason, in addition to the relief which he sought in his original complaint, prayed that the conveyance from Mathew Maume to Dundon might be declared fraudulent and void, and that the same might be decreed to’be delivered up to be cancelled.

By the supplemental complaint it was sought to obtain an accounting by Johanna Maume and Michael Maume for the income and profits of the property of Mathew Maume while in their possession and use. A summons was issued on this supplemental complaint on the day it was filed. On the tenth of the same month the Court made an order, on an affidavit of the plaintiff’s attorney therein, that the service of the summons be made on the three absent defendants by publication thereof in a specified newspaper for at least once a week for three months.

The proof of the publication of summons in the Gleason case was by the affidavit of “ the bookkeeper in the office of the printer and publisher of the Daily Morning Call newspaper,” made on the second day of May, 1860. This affidavit states “ that a notice, of which the annexed is a printed copy, has been regularly published in the said newspaper at least once 'a week for three months, commencing on the 8th day of November, 1859, and ending on the 24th day of April, 1860.” The “ notice ” mentioned in the affidavit purported to be a summons, issued on the second of November, 1859, in the case of Timothy Gleason, plaintiff, against Matheio Maume et al., defendants, and directed to the defendants named in the original complaint. It differed from the summons actually issued, showing that it had been altered. Instead of its simply requiring the defendants to answer “ the complaint filed,” it required them to answer “ the complaint (original and supplemental) filed.” In the statement of the cause and general nature of the action the summons first issued set forth, among other things, that the action was brought “ to set aside certain conveyances made by said Mathew Maume to the defendants, Samuel Adamson and Mary E. Maume, alleged to be fraudulent and void,” while the summons as published contained the same notice, with the name of Michael Dundon interpolated after the name of Mary E. Maume as one of the defendants. At the time of the filing of the supplemental complaint making Dundon, Michael Maume and Johanna Maume parties defendants, there had been four publications of the “ notice” or summons mentioned in the affidavit of the bookkeeper according to such affidavit. While w,e do not intend to impugn the integrity of the bookkeeper, the conviction is forced upon us that some one concerned was guilty of tampering with the record by interpolating matter in the summons that was not therein when it was issued, and when the order for its service by publication was made.

By filing the supplemental complaint and issuing a summons thereon, the original action became merged in the action as supplemented by the addition of parties and subject matter, and the summons last issued should have been served by publication in order to clothe the Court with jurisdiction of the persons of the absent defendants. The publication of the original summons, even if it had been made, w'ould have been ineffectual to give the Court jurisdiction of thd persons of the absent defendants, because the original complaint had been superseded by the supplemental complaint. Mathew Maume had the right to appear and be heard as to the additional matters charged as well as in respect to the matters contained in the original complaint which had been carried into the supplemental complaint. {Lawrence v. Bolton, 3 Paige, 295 ; Scudder v. Vorhis, 1 Barb. 55.)

The defendant’s counsel insist that the judgment in the Gleason case cannot be questioned collaterally, for the reason that the jurisdiction of a Court of general or superior jurisdiction will be presumed in the absence of evidence on the face of the record to the contrary. The case of Peacock v. Bell, 1 Saund. 73, is generally relied on in support of this doctrine. In that case it was declared that “ the rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court, but that which is so expressly alleged." • The case here cited involved the question of jurisdiction as to the subject matter of the action, and not as to the person of the defendant, and it may be doubted if a case can be found which sanctions any intendment of jurisdiction over the person of the defendant, when the same is to be acquired by a special statutory mode, without personal service of process. If jurisdiction of the person of the defendant is to be acquired by publication of the summons in lieu of personal service, the mode prescribed must be strictly pursued. (People v. Huber, 20 Cal. 81; Ricketson v. Richardson, 26 Cal. 149; Kendall v. Washburn, 14 How. Pr. R. 380.)

It is a cardinal principle in the administration of justice that no man can be condemned or divested of his right until he has had an opportunity to be heard. Though the rule in relation to Courts of general or superior jurisdiction is, that their jurisdiction will be presumed until the contrary appears, it may be doubted whether the rule obtains when the course prescribed for acquiring jurisdiction of the person of the defendant is contrary to the course of the common law. (Oakley v. Aspinwall, 4 Coms. -521 and 525.) Be this as it may, if it appear by the record or otherwise that the Court never had jurisdiction over the person of the defendant, the judgment will be pronounced a nullity, whether it conies directly or collaterally in question; and this is so whether the Court be of inferior or superior jurisdiction.

The judgment in the Gleason case contains no averment nor recital from which it can be inferred that the Court acquired jurisdiction of the person of the defendant Mathew Maume. If it did it would not be conclusive of the assumed jurisdiction in such a case. It is a fundamental rule that no Court can acquire jurisdiction by the mere assertion of it, or by deciding that it has it. If it could be intended in the absence of evidence to the contrary that such jurisdiction was acquired, such intendment is overcome by the evidence furnished by the defendants themselves, consisting of the affidavit of the bookkeeper of the newspaper publisher and the notice or summons annexed to that affidavit.

Heither the summons issued on the original complaint nor that issued on the supplemental complaint was published. The interpolation noticed so changed the summons pretended to have been published as to destroy it as evidence of service of process by publication, and hence we must hold that no publication of any summons issued in the case was made.

Other objections were made touching the sufficiency of the respective affidavits on which the orders of publication were made concerning which we shall express no opinion, as we deem the point of objection considered fatal to the Gleason judgment; the result of which is that such judgment, for want of jurisdiction in the Court that rendered it, over the person of Mathew Maume, must be held void, and as a consequence, the execution thereon and the sale of the property under and by virtue of it must be held void also.

But it is insisted on the part of the defendants that the attachment which was issued and levied upon the property in question and which with all rights acquired thereby, had been assigned to the defendant O’Connor, constituted a lien upon the property, which continues notwithstanding the judgment obtained by Gleason against Maume may be void, and that O’Connor, having such lien, had an interest in the premises which entitled him to impeach the conveyance to the plaintiff on the ground of fraud. If the defendant O’Connor had a lien on the premises by reason of the attachment, that lien could not be rendered effectual for the purpose of impeaching the conveyance to the plaintiff until judgment obtained in the suit of Gleason against'Maume, and it is possible that no such judgment will ever be obtained. If the defendant O’Connor, as the asignee of Gleason, was at the commencement of this action, and when it was tried, the creditor of Mathew Maume, he was simply a creditor at large without a judgment, and hence was not in a position to maintain an action by answer in the nature of a cross bill in equity to set aside the conveyance made to the plaintiff. {Crippen v. Hudson, 3 Kern. 161; Reubens v. Joel, 3 Kern. 488; Bishop v. Halsey, 3 Abbott, 400; Wilson v. Forsyth, 24 Barb. 117.)

Even if it had been competent for the defendants, in the capacity of creditors at large of Mathew Maume, to have impeached in this action the conveyance to the plaintiff as fraudulent, they failed to establish the fact that they were creditors, or that either of them was a creditor, of plaintiff’s grantor. The void judgment of Gleason, with the assignment of it, together with the alleged cause of action on which it purported to be founded, did not prove O’Connor to be a creditor of Maume, and no other evidence was offered to prove him such. The attachment and proceeding therewith connected given in evidence by the defendants, but finally excluded by the Court on the plaintiff’s motion, were, as the case then stood, incompetent for the purpose for which they seem to have been produced. in evidence, and were properly excluded.

The defendants gave in evidence a judgment recovered in May, 1861, by Bernard Rooney against Mathew Maume, foreclosing a mortgage on other property in San Francisco than that in controversy, and in connection with- it, showed that after the sale of the mortgaged premises there remained due the sum of about ninety dollars. The object of this evidence was declared by the counsel for the defendants on the trial to be merely to show that the Rooney judgment was not satisfied.

But it was subsequently attempted to be shown that the balance due had passed by assignment to the defendant O’Con-nor. It was sought to be proved that Rooney had made an assignment of the balance due on his judgment through the agency of an attorney in fact, and the defendants having failed to' establish this fact to the satisfaction of the Court, the document purporting to be Rooney’s assignment was excluded on the plaintiff’s objection. The testimony offered to prove the authority of the person who pretended to act as the attorney in fact for Rooney we regard as very unsatisfactory, and we are of opinion the document was properly excluded.

The defendants failed to show that they, or either of them, were creditors of Mathew Maume, and consequently^ were not in a position to impeach the- conveyance of the premises to the plaintiff as fraudulent and void as to Maume’s creditors. (McElwain v. Yardley, 9 Wend. 548; Crippen v. Hudson, 3 Kern. 161; Reubens v. Joel, 3 Kern. 488; Bishop v. Halsey, 3 Abbott, 400 ; Wilson v. Forsyth, 24 Barb. 105.) As between the grantor and grantee, a conveyance executed to defraud creditors is valid. {Bolt v. Rogers, 3 Paige, 154; Gale v. Gale, 19 Barb. 249 ; Chamberlin v. Barnes, 26 Barb. 160; Gardenier v. Tubbs, 21 Wend. 169; 1 Story’s Eq. Jur., Sec. 371.)

In addition to the equitable defense interposed by the defendants, they offered evidence to show that the defendant O’Connor had acquired title to a portion of the property by virtue of a sale and conveyance of it for the payment of taxes. Two tax deeds were given in evidence, the one bearing date on the sixteenth of July, 1860, executed by the Tax Collector to Patrick Michael Dundon, Jr.; the other bearing date the nineteenth of July, 1862, executed by the Tax Collector to R. F. Ryan.

The first tax deed was objected to by plaintiff on several grounds. The certificate of sale, which was produced in evidence by the defendants, showed that the premises described in it and in the deed, were sold to Michael Dundon, whereas the deed was made to Patrick Michael Dundon, Jr., and there was no evidence showing that the grantee named in the deed had acquired the right of Michael Dundon by assignment or otherwise. But it is insisted on the part of defendants that Patrick Michael Dundon, Jr., is presumptively the same person as Michael Dundon. This position, in view of the authorities cited to support it, might appear in some degree plausible had it not been proved on the trial that there were two persons by the name of Dundon, one of whom was called Michael, and the other Patrick Michael.

Other objections were made to this deed, which need not be noticed, as this alone was sufficient to warrant its exclusion.

The tax deed to R. F. Ryan was objected to by plaintiff on the ground that no preliminary evidence was produced laying a foundation for its introduction; and, also, that the deed was void on its face because of the uncertainty of the description of the property as assessed and advertised, and also on the ground that at the time of levying the taxes and the sale of the land Ryan was a claimant of the property, and for that reason could not acquire title to it by paying the taxes by purchase at the tax sale. The Court, notwithstanding these objections admitted this deed in evidence, and the plaintiff attempted to impeach its validity by showing that a portion of the taxes for which the property was sold were not levied by law nor by any person or body under authority of law.

The assessment of the lot appears by the deed to have been made to “P. M. Dundon and to all owners and claimants known or unknown, and to all owners and claimants of any interest present or future therein, or any lien upon the same.” The third section of the Eevenue Act of 1857, as amended by the Act of 1859 (Laws 1859, p. 344,) requires the Assessor to assess all real estate to the person, firm, corporation, association or company owning it, or having the possession, charge or control of it, if known to him; and it is provided further that the property shall be assessed to the owner or claimant, if he shall be known to the Assessor, “ and to all owners and claimants, known or unknown, and to all owners and claimants of any interest, present or future therein, or any lien upon the same, and no error in regard to such owner or claimant shall in anywise affect the validity of such assessment.”

When this assessment was made the property did not belong to P. M. Dundon, though it may be he claimed some interest in it; but it was also assessed to “ all owners and claimants, known or unknown, and to all owners and claimants of any interest, present or future, therein, or any lien upon the same,” and the law declares, as already seen, that no error in regard to such owner or claimant shall in anywise affect the validity of the assessment so made. At the time of the assessment Eyan was in possession of the lot, claiming it, or some interest in it, and by the terms of the assessment' it was assessed to him as a claimant, known or unknown, and when he paid the taxes properly levied, he only discharged his own obligation under the law. (Kelsey v. Abbott, 13 Cal. 609; Moss v. Shear, 25 Cal. 38.) On this point the learned Judge of the Court below charged the jury as follows:

“ If the jury believe from the evidence that at the time the-property was assessed and offered for sale Eyan claimed it and was in its possession, the tax sale to him and payment by him would only amount to the payment of the tax which it was his duty to have paid. In such case the sale thereof would not result in passing the title. In other words, he who is on land claiming it to be his is not at liberty to obtain a title by omitting to perform his duty to the State by paying the taxes as they'accrue—that such claimant and possessor is not permitted under the law to be delinquent in his duty, and then seek by proof of such delinquency to obtain a title from the State to the land he so occupies.”

We are of opinion that this charge to the jury is sound in principle and should be maintained as the law of the land.

Johanna Maume was examined as a witness on behalf of plaintiff to prove Mathew Maume’s prior possession of the demanded premises. On her cross examination inquiries were made of her respecting her residence and business. The plaintiff’s counsel objected to this course of examination. The objection was overruled, but at the same time his honor the Judge stated that the witness was one of the most respectable women in his neighborhood. To this remark the defendants’ counsel excepted, when the Judge further stated that he did not mean to say that she was one of the most respectable, but a woman of respectability. The defendants complain of the conduct of the Judge in this particular as an irregularity of sufficient magnitude to authorize the reversal of the judgment.

From the high and authoritative position of a Judge presiding at a trial before a jury, his influence with them is of vast extent, and he has it in his power by words or actions, or both, to materially prejudice the rights and interests of one or the other of the parties. By words or conduct he may on the one hand support the character or testimony of a witness, or on the other may destroy the same, in the estimation of the jury; and thus his personal and official influence is exerted to the unfair advantage of one of the parties, with a corresponding detriment' to the cause of the other. We regret the necessity for an expression of our disapproval of the irregularity of which complaint is made, and though we do not impugn the expression as designed to aid the side of the plaintiff, we may say, we should not hesitate to reverse the judgment because of it, if the same depended iú any material degree upon the testimony of the witness whose character and standing was thus indorsed; but as it is, the testimony of Johanna Maume may be obliterated, and then the fact sought to be proved by her is established by the testimony of several other witnesses of the plaintiff, without any attempt on the part of the defendants to disprove it; besides which, such fact was virtually conceded by the defendants, whose claim to the possession of the premises, as the successors in interest of Mathew Maume, involved them in-an admission of his prior right.

There are many other assignments of error in the record, all of which we deem untenable. We cannot give our reasons in this place for our conclusions respecting them, as to do so would be to extend this opinion to a burdensome length.

The transcript of the record and the proceedings in the Court below, seems to have been made up in palpable disregard in one respect of the law on the subject. The appeal is from the judgment and the order denying a new trial. The statute provides that a statement on which a party intends to rely for a new trial shall contain so much of the evidence or reference thereto as may be necessary to explain the grounds specifically set forth therein as causes for a new trial, and no more. (Practice Act, Sec. 195.) A similar provision respecting bills of exception, is contained in section one hundred and ninety of the same Act; and section two hundred and thirty-eight provides that when the party who has the right to ap|3eal wishes a statement of the case to be annexed to the record of the judgment or order, he shall, prepare such statement, which shall state specifically the particular errors or grounds on which he intends to rely on the appeal, and shall contain so much of the evidence as may be necessary to explain the particular errors or grounds specified, and no more.

Instead of the statement in this case conforming to these provisions of the statute, or with any one of them, the District Court Reporter’s minutes of the testimony is embodied in gross, with every remark made by the Court or counsel, whether important or otherwise, during the progress of the trial; and besides this, long documents are set out in full, when a brief abstract in respect to most of them would have served as useful a purpose as the documents at length, and would have been much more convenient as well as more economical of time and money. The judgment rolls in the Gleason and Rooney cases are set forth in full, covering over sixty printed pages, when everything in them material for the purpose of the motion for a new trial, or on appeal, might have been embodied in an abstract of one sixth their length. The labor of examining and mastering the contents of a record thus made up, in order to discover what is material, is greatly enhanced beyond what it would be, were the provisions of the statute referred to observed.

We are aware that it is not unfrequently the case where statements and bills of exception are prepared according to the letter and spirit of the statute, attorneys for respondents insist, by way of amendments, that all the evidence given and all that transpired at the trial shall be set forth in the statement or bill of exceptions, and the Judge who may have tried the cause is asked, not in vain, generally, to order the statement to be so amended and engrossed. This course of conduct is sometimes adopted on the part of respondents to embarrass and oppress appellants. Such conduct and such a practice should be discountenanced not only by Courts having power in the premises, but also by all honorable men engaged in the practice of the law. While it is the duty of Courts, in settling statements, to see that so much of the evidence as may be necessary to explain the grounds assigned as error is stated fully and fairly, we may suggest that a great reform might be effected by exacting a compliance with the law on the subject. (See also Laws 1864, p. 246.)

We have thus noticed the character of the transcript in this case, which is only one of many of the same kind, for the purpose of calling the attention of those who may have cases to prepare for this Court, to the provisions of the statute prescribing the mode of procedure in the preparation and settlement of statements and bills of exceptions, with the hope that a general reformation in practice in this particular may be effected.

Judgment affirmed.