8 N.Y.S. 552 | The Superior Court of the City of New York and Buffalo | 1890
Dissenting Opinion
(dissenting.) I am unable to agree with my associates in affirming the judgment in this action. It appears that no process of any kind was ever served upon the defendant in any suit in the court of common pleas of Northampton county in which the plaintiff in this action was plaintiff; and that the defendant never appeared in such action; and that no suit or action in such court ever came to the defendant’s knowledge. To entitle a judgment of the court of common pleas of the state of Pennsylvania to be enforced in this state, it must appear that the court had jurisdiction of the subject-matter, and of the person of the defendant. That the court had jurisdiction of the subject-matter of the action is conceded. 1 think it is clear, however, that the court had no jurisdiction over the person of the •defendant. The rule is stated in Shumway v. Stillman, 6 Wend. 453, that if it appeared by the record that the defendant was not served with process, and did not appear in person or by attorney, such judgment is void; and if it appear by the record that defendant appeared by attorney'the defendant may ■disprove the authority to appear for him. See Kerr v. Kerr, 41 N. Y. 275; Shepard v. Wright, 59 How. Pr. 514. The question is squarely presented, therefore, whether a judgment entered in a court of general jurisdiction in another state, against a resident thereof, without the commencement of any action in which he was a party, and in which no proceeding was taken to bring him into court by service of process, either personal, by publication, or by any other method of substituted service, can be enforced in the courts of this state, the judgment debtor having subsequently become a resident of this state where the judgment is sought to be enforced, requires the defendant to pay a sum of money. There is no question here as to the sufficiency of substituted service, or whether the defendant is bound by the law of the state of his domicile, which provides for the service of process by mail, or in some other way than by personal service. Jurisdiction over the person of the defendant was never acquired, because no attempt was made to summons the defendant to appear in court. The fundamental law of this state and nation requires that no person shall be deprived of life, liberty, or property without due process of iaw. By the note which is recited as the foundation of this judgment, no 'consent or authority was given to the clerk of the court to enter
It is not necessary to determine whether or not this judgment could have been enforced in Pennsylvania. It is sufficient to say that it is not enforceable in this state, against a citizen of this state. I think, therefore, that the judgment should be reversed.
Lead Opinion
I am of the opinion that upon the trial, the proceedings of which we are now aslced to review, the plaintiff has cured the defect of proof for which upon the former appeal a new trial was ordered. The defendant was domiciled in the state of Pennsylvania at the time of the entry of the judgment in the court of common pleas of Northampton county of said state, and was therefore bound personally by the judgment, provided it was entered in accordance with the laws of that state. It has now been shown by extrinsic evidence that the judgment sued on, notwithstanding its apparently faulty form, is, under the laws of Pennsylvania, in every respect a valid, binding, personal, and sufficient judgment of a court of general jurisdiction; that, during the period the note had to run the judgment gave only a lien, but that on the maturity of the note it became absolute, and enforceable by execution; and that under the laws of Pennsylvania it is customary and proper to enter such a judgment at any time before the maturity of the note for the sake of the lien given, though it cannot be enforced by execution until after the maturity of the note. The judgment appealed from should be affirmed, with ■costs. Sedgwick, C. J., concurs.
