226 A.D. 62 | N.Y. App. Div. | 1929
Lead Opinion
The action was brought upon a judgment obtained by plaintiff against defendants in the Circuit Court of Forrest county in the State of Mississippi, in which action the plaintiff herein was plaintiff and the defendants, appellants, were defendants. The action in Mississippi was brought to recover for three shipments of lumber sold and delivered by plaintiff to defendants and for which they failed to pay. Upon this appeal and upon the motion below for summary judgment under rules 113 and 114 of the Rules of Civil Practice, the defendants attacked the Mississippi judgment upon the ground that the Mississippi court never gained jurisdiction of the defendants. It is admitted in the affidavit of the defendant Francis P. Maloney that the defendants received prompt notice of the pendency of the Mississippi action against them, and upon being advised by one Cragin, whom the plaintiff claimed was the agent of the defendants in Mississippi, of the pendency of the action, the defendants authorized their New York attorneys to employ attorneys in Mississippi to appear specially in the action there and to object to the jurisdiction of the Mississippi courts. Accordingly a firm of Mississippi lawyers, Messrs. Currie & Smith, was employed to appear specially and object to the jurisdiction of the Mississippi court. These attorneys appeared in behalf of Cragin, the alleged agent, as amicus curice and the defendants authorized their New York attorneys to agree to the payment of the fees of the Mississippi attorneys thus appearing specially for the purpose of objecting to the jurisdiction of the Mississippi court. It is the contention of the defendants that the Mississippi attorneys
I am clearly of the opinion that, the question of jurisdiction in the Mississippi action having been raised and pleaded by the defendants, that question is no longer open to litigation, and that, therefore, the defense of want of jurisdiction cannot be .raised in the present action. It is the contention, however, of the defendants that the judgment may be collaterally attacked for want of jurisdiction of the Mississippi court. While the question of jurisdiction may, in most cases, be properly raised, under the decisions in this State, the question of jurisdiction of a foreign court cannot be raised where that question was litigated and decided in the foreign court. The leading case upon the subject was Wright v. Douglass (10 Barb. 97) where Presiding Justice Gbidley said (at p. Ill): “ * * * But when the jurisdiction depends on a fact that is litigated in a suit, and is adjudged in favor of that party who avers jurisdiction, then the question of jurisdiction is judicially decided, and the judgment record is .conclusive evidence of jurisdiction, until set aside or reversed by a direct proceeding by appeal or a writ of error. (Betts v. Bagley, 12 Pick, 572, 582, 3.)”
This doctrine was cited with approval by Judge Rapallo in the unanimous decision of the Court of Appeals in Ferguson v. Crawford (70 N. Y. 253, 265), the Court of Appeals holding there was always one exception to the rule of want of jurisdiction, and that was when jurisdiction had been contested and determined in a foreign court. In O’Donoghue v. Boies (159 N. Y. 87) Judge O’Brien, writing for the Court of Appeals, said (at p. 99): “ The want of jurisdiction to render the particular judgment may always be asserted and raised directly or collaterally, either from an inspection
A later case (Guggenheim v. Wahl, 203 N. Y. 390) is directly in point. In that case the plaintiff originally sued for a divorce in the State of Illinois. The jurisdictional question raised in the New York action was as to whether the defendant was a resident of the State of Illinois, thus giving the Illinois courts jurisdiction of the divorce action. This jurisdictional question was passed upon and decided by the Illinois courts. It was thereafter collaterally attacked in the New York action. Judge Gray, writing for a unanimous court in the New York action (203 N. Y. 397), after citing certain divorce cases, said: “ These cases, and others might be cited, established the principle that when, as in this case, a court of general jurisdiction in another State has passed upon the jurisdictional facts and has assumed to hear and to determine the issues, the complainant, who has invoked its jurisdiction, will not be heard here in a collateral attack upon its judgment. It may have decided erroneously; but that does not affect the validity of the decision.” (Italics are the writer’s.)
So in the case at bar the jurisdictional question now attempted to be collaterally raised was presented in the Mississippi Circuit Court and was there decided adversely to the defendants, the Circuit Court holding that jurisdiction of the defendants had been acquired. Upon two successive appeals such determination of the Circuit Court was affirmed. Thus it appeared beyond any question that the jurisdictional question now attempted to be raised was finally adjudicated by the Mississippi courts, and, right or wrong, such decision cannot now be attacked in our courts .under the authorities above cited. Even though the question were still open, I think the same was correctly decided by the Mississippi courts. In this case the preliminary appearance of the Mississippi attorneys was not unauthorized, but was directly at the instigation and request of the defendants through their New York attorneys. The appellants cite several cases holding that the question of jurisdiction of a foreign State may be raised, but in all of the cases cited by the appellants the question of fraud seems to have been involved. Undoubtedly, where there is an unauthorized appearance in behalf
In Matter of Maxwell (66 Hun, 151) Presiding Justice Mayham, writing for the General Term, Third Department, Putnam and Herrick, JJ., concurring, said (at p. 156): “The court must repose confidence in the authority assumed to be exercised by
The only question at issue, it seems to me, upon this appeal, is one of law and not one of fact.
However, as before stated, I do not think the question of jurisdiction is now an open one. It has been finally passed upon by the courts of a sister State adversely to the defendants, appellants, and we are bound by the determination of those courts.
In this case the plaintiff, respondent, sold and delivered to the defendants, appellants, the three shipments of lumber. This lumber they have received and used, and have not paid for the same. They are now attempting to escape liability upon technical grounds. Their withdrawal of the privilege granted them to interpose a defense upon the merits in the Mississippi action would indicate that they have no real defense to the action and are seeking to avoid liability upon technical grounds alone. They had an opportunity to defend the Mississippi action and signified their unwillingness to defend the same upon the merits. I think the court very properly severed the action, granting the plaintiff judgment for the amount of his claim, less the amount of the counterclaims alleged by defendants, leaving the determination of said counterclaims and the right of the plaintiff to recover the balance of his claim to the trial of the action.
The judgment and order appealed from should be affirmed, with costs.
Dowling, P. J., dissents.
Concurrence Opinion
I concur in the affirmance of the judgment and order appealed from, for the following reasons:
First. The defendants having retained the Mississippi attorneys were bound by the action of these attorneys in the conduct of the litigation, even though they exceeded the limitation placed upon their authority. (Palen v. Starr, 7 Hun, 422; Matter of Maxwell, 66 id. 151; Butcher v. Quinn, 86 App. Div. 391; Ferguson v. Crawford, 70 N. Y. 253, 258, 261.) ' The situation in this respect is entirely different from the one which exists in cases like Famobrosis Society v. Royal Benefit Society (166 App. Div. 593) where the attorney’s appearance was wholly unauthorized or where fraud was involved.
While the decision in that case turned primarily upon the question of due process, read in connection with the other authorities it enforces the conclusion that the Full Faith and Credit Clause of the United States Constitution (Art. 4, § 1) requires us to recognize a judgment obtained as was the one here in suit, after determination by the highest court of the State in which it was obtained, that the action of the attorneys employed subjected the defendants to the jurisdiction of the court. (Cherry v. Chicago Life Ins. Co., 190 Ill. App. 70; Western Life Indemnity Co. v. Rupp, 235 U. S. 261; Tootle v. McClellan, 7 Ind. T. 64; 103 S. W. 766; Tentative Restatement of the American Law Institute, Conflict of Laws, Restatement No. 2, § 87.)
Martin and O’Malley, JJ., concur; Dowling, P. J., dissents.
Judgment and order affirmed, with costs.