94 F. 265 | U.S. Circuit Court for the District of Southern New York | 1899
This is a bill of revivor to carry into effect a decree against the defendants in a suit which has abated by the deatli of the original complainant;. While it is no doubt true that generally the sole questions before the court in such a hill are the competency of the parties and the correctness of the frame of the bill to revive, I have no doubt that the defense introduced to the present bill, that the original decree was obtained without jurisdiction of the persons of the defendants, is good if established by the proofs, because, in that event, the original decree would be void, and no subsequent proceedings could be founded upon it. I am of opinion that the defense is not established by the proofs. The burden of proof is upon these defendants to establish that the appearance in their behalf by the attorneys who assumed to' represent them in the original action was unauthorized. Hill v. Mendenhall, 21 Wall. 454; Osborn v. President, etc., 9 Wheat. 738. These attorneys were the law firm of Tucker, Hardy & Wainwright. The defendant Mrs. Tucker was the wife of one of them, and the defendant Miss Waldo was the sister of Mrs. Tucker. These attorneys had represented the defendants in other litigations of the same character, pending about the same time, when they appeared for them in the original action. It cannot for
A decree is ordered for the complainant, with costs.