33 N.Y.S. 1074 | N.Y. Sup. Ct. | 1895
Lead Opinion
The appellant, a purchaser at a foreclosure sale, insists that the order requiring him to complete his purchase should not have been granted, because the title tendered is not marketable. The judgment under which the sale was had was rendered in a suit to foreclose a mortgage of $25,000, made by the defendants Peter W. Felix and wife to the plaintiff, covering 18 lots of land in the city of New York. February 10, 1893, judgment of foreclosure and sale was granted and entered on'the usual affidavits, showing that all of the defendants had either been served or had appeared. At the sale had thereunder, Patrick Fox, one of the defendants, bid in two of the lots, and afterwards failed to complete his purchase. A resale wms ordered, and Fox again bid in the same two lots, and again failed to complete his purchase. An order was made requiring him to complete, which was not complied with. Thereafter a third order for the sale of the lots was made, at which sale Michael H. Hagerty, this plaintiff, became the purchaser. Between the sale and the time fixed, by the terms of sale, for the completion of his purchase, there was served upon him an affidavit made by the mortgagor, Peter W. Felix, entitled as of the suit in foreclosure, in which the affiant stated that he had been informed that an affidavit was on file with the judgment roll in the action, alleging that he had been duly served with a summons and complaint, but that such complaint was never served upon him. For this reason Hagerty refused to complete his purchase, and thereafter a motion was made by the plaintiff to compel him to complete, which was opposed by Hagerty, who presented on the motion the affidavits of Felix and Fox, as well as his own affidavit; and the court, in pursuance of the provisions of section 1015 of the Code of Civil Procedure.
While in numbers Felix’s witnesses predominated, still our examination of the testimony satisfies us that this was a proper case in which to bear in mind the rule that testimony of witnesses is to be weighed, not counted; and we concur in the report that service was in fact made by York upon Felix, as stated in the affidavit annexed to the judgment roll. But the purchaser urges, however firmly convinced this court may be that the referee and the special term reached a correct conclusion- in determining that the summons was served upon the defendant Felix, still the purchaser ought not to be compelled to take title, for the question of service is yet open to an attack by Felix. True, but it can only be attacked by a direct motion in this action, and from the evidence brought out on this motion it is apparent that the same result must follow. The assertion we have made that this judgment can only be attacked hereafter by direct motion is controverted by several authorities in this state; still we regard it as accurately expressing the present state of the law.
In Ferguson v. Crawford, 70 N. Y. 253, it was held that a recital in a judgment roll in an action of foreclosure that the defendant was served with the process, and appeared therein, was not conclusive, and did not preclude such defendant, in an action brought by him to foreclose a junior mortgage, from showing that he was not in fact served, and that he did not appear. The question was elaborately discussed by the court, authorities of many jurisdictions being considered; and, in the course of the opinion, the court said:
“After considerable research, I have been unable to find a single authoritative adjudication in this or any other state deciding that, in the case of a*1076 domestic judgment of a court of general jurisdiction, want Of jurisdiction over the person may be shown by extrinsic evidence; while there are a great number of adjudications in neighboring states holding that, in the case of ■such judgments, parties and privies are estopped in collateral actions to deny the jurisdiction of the court over the person as well as the subject-matter, unless it appear on the face of the record that the court had not acquired jurisdiction, and that in such cases there is a conclusive presumption of law that jurisdiction was acquired by service of process or the appearance of the party.”
This assertion was not only borne out by the authorities in other jurisdictions, to some of which the learned judge referred, but there was at that time no authority in this state holding to the contrary in the case of a domestic judgment rendered by a court of general jurisdiction. Judge Marcy, however, in Starbuck v. Murray, 5 Wend. 148, which was an action for debt on a judgment rendered in a sister state, commenced by attachment of goods had, held that the defendant could plead, in bar of a recovery, that no process was ever served upon him in the suit in- which the judgment was rendered, and that he never appeared therein in person or by attorney, notwithstanding the averments in the record to the contrary. This decision had been followed in a few other cases at the time the opinion in Ferguson’s Case, supra, "was written, and to them reference was made, as establishing the law in this state to be that, in regard to judgments of sister states, the question of jurisdiction may be inquired into, and the want of jurisdiction over the person shown by evidence. Starting with that proposition, it was argued in Ferguson’s Case that there was no basis upon which to rest a distinction between domestic judgments and judgments of sister states, in view of the provisions of the constitution of the United States requiring full faith and credit to be given in each state to the public acts, records, and judicial proceedings of every other state; and, as the court could find no room for distinction between the two classes of judgments, it held that, so far -as this state is concerned, the rule of Starbuck’s Case, supra, must be held to apply to domestic judgments as well. The mistaken positions which sometimes result from so close an observance of the rule of stare decisis as overlooks the error involved in the decisions invoked rarelv have a better illustration. Mr. Justice Marcy in his opinion said:
“So long as the question of jurisdiction is an issue, the judgment of a court of another state is in its effect like a foreign judgment; it is a prima facie evidence; but, for all the purposes of sustaining that issue, it is examinable into, to the same extent as a judgment rendered by a foreign court.”
—Thus overlooking the constitutional provisions invoked in Ferguson’s Case.. In other words, the court said:
“The question of jurisdiction may be inquired into as to a foreign judgment. The judgment of a court of another state is in its effect like that of a foreign judgment. Therefore the question of jurisdiction as to the judgment of another state may be inquired into.”
In Ferguson’s Case the court decided that it having been determined that judgments of sister states may be inquired into as to the question of jurisdiction, and it being settled that under the provisions of the constitution of the United States, when the judgment
“It sounds plausible, but * * * the fallacy lies in confusing law with right. A judgment rendered after the utmost care, at the end of an important trial, may not be right, and it may unjustly sweep away the life, liberty, or property of the defendant; yet it is lawful, and a just and rightful foundation for the titles of others; and, although wrong in itself, it is lawful and right collaterally. The question of service or appearance must be decided by the court in each case, as a question of fact; and it is the allegation of the plaintiff that he has caused service to be made, or the defendant to appear, which gives the jurisdiction to hear his evidence on that point”
Ferguson’s Case came again before the court of appeals in 86 N. Y. 609, where it was held that the evidence adduced on the new trial, for the purpose of showing that the defendant was not served, was insufficient to rebut the presumption in favor of the regularity of the judgment. It was also cited with approval in People v. Warden of County Jail, 100 N. Y. 20, 2 N. E. 870, which was an appeal from an order of the general term affirming an order of the special term dismissing a writ of habeas corpus, and remanding relator to custody. It is again cited with other cases in Craig v. Town of Andes, 93 N. Y. 405, as authority for the proposition that it is “now well established that the record, whether of a superior or inferior court, is never conclusive as to the existence of a jurisdictional fact, and that a defendant may show a want of jurisdiction, although the record avers to the contrary.”
Bolton v. Schriever, 135 N. Y.. 65, 31 N. E. 1001, was an action of ejectment to recover possession of a lot of land on Tenth avenue, of which Theodore B. Talmadge died seised. Talmadge’s will was admitted to probate by the surrogate of the county of Few York. Plaintiffs’ position was that Talmadge was not an inhabitant of Few York county at the time of his death, and therefore the surrogate had no jurisdiction to take proofs of the will; and, as there was no other proof of the execution- of the will, the defendants made out no title to the land, and the plaintiffs were entitled to recover it as heirs at law of Talmadge. It was held, as the surrogate has power and is bound to inquire and decide whether the testator was an inhabitant of the county at the time of his death, his decision that he was, upon legal evidence tending to support it, could not, in the absence of fraud or collusion, be questioned. For the same reason, it wrould seem that a judgment of a court of general jurisdiction should be protected from collateral attack, for, before the court can render the judgment, it must decide, upon evidence before it, that jurisdiction of the defendant has been acquired in the manner provided by statute.
The decision in Washbon v. Cope, 144 N. Y. 287, 39 N. E. 388, in which the opinion of the court was delivered by the learned judge who wrote the opinion in Murphy v. Shea, supra, persuades us that had it been necessary for the court to pass upon the question whether the judgment which was the subject of consideration in that case could have been attacked collaterally, on the ground that the court had not acquired jurisdiction by the service of the summons and complaint upon the infant defendant, it would have been answered in the negative. In Washbon’s Case it was contended by Mrs. Cope, a defendant, that no effect could be given to a certain decree of the surrogate’s court, because she was not served with a citation in the proceeding, and the alleged appearance of the attorney therein for her was wholly unauthorized, by reason of which the surrogate failed to acquire jurisdiction. This position the court held to be untenable. It said:
“It has been settled by an unbroken line of decisions in this state, running many years back, that unless under some peculiar and extraordinary circumstances, not existing in this case, the objection that a party was not served, and an appearance by an attorney in a court of record for such party was unauthorized, and hence that the judgment was without jurisdiction, cannot be taken in a collateral proceeding or action, and that the party is confined to a motion in the original action in order to obtain relief.”
As authority for this position, it cited, among other cases, Vilas v. Railroad Co., 123 N. Y. 440, 25 N. E. 941. In Vilas’ Case, it is true, it was not necessary to pass upon the question whether adomestic judgment of a court of general jurisdiction can be attacked collaterally for want of jurisdiction, owing to the failure of service of process or
Concurrence Opinion
I concur, upon the ground that there is no reasonable ground to suppose that Felix could succeed in setting aside this judgment by a direct proceeding.
O’BRIEN, J., concurs.