Sheriff v. Smith

47 How. Pr. 470 | N.Y. Sup. Ct. | 1873

Hardin, J.

In this state it is the settled law that an appearance by an attorney, though unauthorized, confers jurisdiction of the person in cases where the court has jurisdiction of the subject-matter (Denton agt. Noyes, 6 John. R., 295; Brown agt. Nichols, 42 N. Y., 26; 48 N. Y., 160; McCormick agt. Penn. C. R. R. Co., 49 New York, 308).

But it is held in Kerr agt. Kerr (41 New York, 272), that inquiry may be made into the jurisdiction of the court of another state in which the original judgment was rendered, and into the right of a court to exercise authority over the parties or the subject-matter, and that such inquiry may be made, “ although, according to the statements in the record itself, the court had acquired jurisdiction of the person and subject-matter.” This proposition is sustained by conclusive authority (Hoffman agt. Hoffman, 46 New York, 32, and cases cited).

The judgment recovered in the Pennsylvania court is not conclusive as to the question of jurisdiction of that court (46 N. Y, 33).

The proof given at the trial clearly establishes that there was no personal service made upon the defendant Smith, and that he did not authorize any attorneys or attorney to appear for him in the action.

Since the decision in 1812 by the United States court of Mills agt. Duryee (7 Cranch, 481), it has been held in this state that the judgment of a court of a general jurisdiction in any state in the Union is equally conclusive upon the parties, in all the other states, as in the state in which it was rendered, subject to two qualifications: first, if it appear by the record that the defendant was not served with process and did not appear in person or by attorney, such judgment is void; second, if it appear by the record that the defendant appeared by attorney, the defendant may disprove the authority of such attorney to appear for him (Shumway agt. Hillman, 6 Wendell, 452 and 453; Shelton agt. Tiffin, 6 How. U. S., 163; Kinmer agt. Kinmer, 45 N. Y., 541).

"When jurisdiction is obtained of the person and subject-matter, the judgment is conclusive until set aside (12 N. Y., 156; 45 N. Y., 542).

It is not necessary to determine here the effect of an appearance not -authorized by Smith, in the Venango court, as to the copartnership property. Such appearance does not bind Smith personally (Phelps agt. Brewer, 9 Gushing, 390).

• It must be held that the judgment of the Venango county court of common pleas is binding upon the defendant Evans and conclusive evidence of his liability to the plaintiffs, but it does not bind the defendant Smith, as the court had no jurisdiction of his person, and there was no such appearance of attorneys as to bind him personally. Formerly the result above stated would require the court to nonsuit or dismiss the complaint as to both defendants. But the rule is changed by the Code (§§ 136 and 274; McIntosh agt. Ensign, 28 New York, 169; Fielden agt. Lahens, 6 Abbott [N. S.], 341).

The latter case was an action against several persons alleged to be partners, and the proof failed to show some of them liable, and as to the latter the complaint was dismissed, and judgment given against the other defendants.

This being an action upon a judgment, which is a contract of the highest character, the same rule applies (Taylor agt. Root, 4 Keyes, 335).

The certificate by the prothonotary attached to the exemplified record must be held sufficient.

Burrill, in his Law Dictionary, defines “ prothonotary” to mean “ a chief clerk in the English courts and courts of king’s bench and common pleas'' and adds that “ the chief clerks of some American courts are called prothonotaries.”

In Morris agt. Patchin (24 N. Y., 395) it was held that "the attestation by a deputy is not sufficient. Here the certificate is by the ■“ clerk ” — the chief clerk — and the certificate of the judge is also appended to the effect that the person certifying is the proper officer to make such certificate.

The act of congress of 1790 requires “ a certificate of the judge, chief justice or presiding magistrate, as the case may be, that such attestation is in due form; ” and it is difficult to see any reasonable ground for holding the words “ John Trukey, presidert judge of the. court of common pleas for said, county,” do not come up to the requirements of the act of congress.

Judgment is ordered in favor of the plaintiffs for the amount due upon the judgment and interest against the defendant Evans, with costs, and in favor of the defendant Smith, dismissing the complaint of the plaintiffs, as to him, with costs (18 How., 102, 108; 43 How., 91).