White v. Glover, 123 N.Y.S. 482

123 N.Y.S. 482 | N.Y. App. Div. | 1910

McLaughlin, J.:

This action was brought upon a judgment alleged to have been recovered by the plaintiff against the defendant in the Circuit Court of the city of St. Louis, Mo., on the 22d day of May, 1901. It was tried at Trial Term, a jury having been waived, and resulted in a dismissal of the complaint. The plaintiff appeals. The defense to the action was that the courts of Missouri did not.obtain jurisdiction of the defendant and she never authorized any one to appear for her in the action. The summons .in the Missouri action is claimed to have been served on the defendant May 14, 1898, by substituted service.- According to the certificate of tire sheriff the service was made by his leaving a copy of the writ and petition “ at his usual place of abode with a person of his family over the age of fifteen years.” After such service one John M. Glover,- an attorney at law-and wh:d was the husband of the defendant, appeared in the action for her. At the trial it appeared" that John M. Glover at the time the .service was made resided in St. Louis, Mo., but that his wife, the defendant, for nearly two years prior thereto had lived separate and apart from him at Tuxedo, N. Y., during which time he had not contributed anything towards her support or maintenance ; that in March,.1898, she went to St. Louis and remained there until the first of May for the purpose of obtaining a separation from her husband, and' during that time lived separate and apart from him. The attorney of record in the Missouri action testified on this trial that he saw tlie defendant oh á street' car in St. Louis in company with her husband on May 8, 1898. His testimony, however, was somewhat weakened by the fact that he had no personal acquaintance with her and that, she had merely been pointed out to him as the wife of John M. Glover. The defendant" testified she was not in St. Louis after the 1st of May, 1898, and Was at no time while there on a car with her husband. She was corroborated as. to the time she left St. Louis for New York by her daughter. She also testified she'never authorized John M. Glover to appear for her in the action and her testimony in this respect is un contradicted.

The court found as a fact that for more than a year prior to the 1st of May, 1898, she had lived separate and apart from her husband at her own home in Tuxedo, N. Y., during which time the husband had not contributed anything towards her support; that she was not" in St. Louis at the time the summons is- alleged to have been served upon her —- having left there on the first of May — and has not since resided there, but has continued to live separate and apart from ■ her husband. He also found that the attorney who appeared in that action was not authorized by her to appear and she had no knowledge of that action until the judgment was rendered.

The appellant contends that notwithstanding the above findings — which there is an abundance of evidence to sustain — nevertheless, the defendant cannot attack the validity of the judgment so sought to be enforced in this State by showing that the courts of Missouri never obtained jurisdiction over her; in other words, his claim is that her husband was domiciled in and a resident of St. Louis, Mo., and, therefore, that place was, prima facie, her domicile and residence, in the absence of proof showing she was entitled to a divorce and for that purpose obtained á domicile separate and apart from him. , The contention is based upon an erroneous view as to the force and effect which this State will give to a judgment obtained in another State when sought to be here enforced. A judgment of a court of general jurisdiction of another State is entitled to the benefit of the presumption of jurisdiction which exists in favor of judgments of our own courts, but the want of jurisdiction “ may be shown by extrinsic evidence, and evén a recital in the judgment record that defendant was served or appeared by attorney or of any other jurisdictional fact is not conclusive and may be contradicted by extrinsic evidence.” (Woodward v. Mutual Reserve Life Insurance Co., 178 N. Y. 485; Hunt v. Hunt, 72 id. 217.) A personal judgment obtained in the courts of another State against a resident of this State, where he has not appeared or authorized an appearance in the action, is void and cannot be here enforced. There must be either personal service of process or an appearance by the defendant to confer jurisdiction. One or the other of these facts must be proved to enable our courts to take jurisdiction. This is the distinction between an action in personam and an action in rem. In an action in rem, a. valid judgment maybe obtained so far as it affects the res without personal service of process, while in an action to recover a judgment in personam, process must be personally served or there must be a personal or authorized appearance in the action. (People v. Baker, 76 N. Y. 78; Lynde v. Lynde, 162 id. 405.) Otherwise, jurisdiction of the person is not obtained, the lack of which may be interposed when the judgment recovered is sought to be enforced or when any benefit is claimed under it. (Matter of Kimball, 155 N. Y. 62.)

As to the appearance of Glover in the action as defendant’s attorney, the proof is uncontradicted that he never was authorized to appear. .This fact she had a right to show. The rule that a judgment founded on an unauthorized appearance cannot be attacked collaterally applies only to judgments recovered in the courts of our own State; it does not apply to foreign judgments. This was clearly stated in Vilas v. P. & M. R. R. Co. (123 N. Y. 440),. the court saying: “ It is well settled that in an action brought in our courts on a judgment of a court of a sister State, the jurisdiction of the court to render the judgment may be assailed by proof that the defendant was not served and did not appear in the action, or where an appearance was entered by an attorney, that the appearance was unauthorized, and this even where the proof directly contradicts the record.” (See, also, Prichard v. Sigafus, 103 App. Div. 535.)

The judgment appealed from, therefore, is affirmed, with costs.

Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred.

Judgment affirmed, with costs.