16 How. Pr. 144 | N.Y. Sup. Ct. | 1858
It is an elementary principle, that no court can render a valid judgment against any person until it has acquired jurisdiction of his person, either by the service of process upon him, or by his voluntary ap
Whenever the absence of all authority to render the judgment, is made to appear, the court will, as a general rule, set it aside upon motion. To this general rule the courts have established an exception, which still prevails in cases where an attorney has appeared for a party to the action or proceeding.
In such cases, courts have refused to set aside the judgment, even when it is made to appear that no action was ever commenced, and that such attorney appeared without any authority whatever from the party, unless it was also shown, that the attorney so appearing was irresponsible, so that no adequate remedy could be had by the party against him. (1 Salk 88; S. C., 6 Mod. 16 ; Denton agt. Noyes, 6 Johns. 296 ; Meacham agt. Dudley, 6 Wend. 514 ; Grazebrook agt. McCreedie, 9 id. 437; Adams agt. Gilbert, id. 499.)
numerous cases might be cited to the same effect, both in - our own and the English courts, were it necessary. It is enough that the rule in such cases is well settled, and is still adhered to, both in this state and in England. In the Anonymous case in 1 Salk, and 6 Mod. the court said: “ If an able and responsible attorney appear for another, without a warrant, and judgment is against him, the judgment shall stand, and the party shall be put to his action against the attorney, but if the attorney be a beggar, or in a suspicious condition, the court will set aside the judgment.” This distinction has been adopted by our courts in this state, and thus by a strange confusion of ideas and principles, the validity of a judgment in such a case, has come to depend upon the pecuniary condi-'b tion of the attorney, instead of the jurisdiction of the cburt. _/ z
In the case of Denton agt. Noyes, (supra,) which underwent an elaborate discussion by counsel, and much examination by r-.
Reasoning “ from first principles,” it is clear that an attorney who has no authority to appear for a party, cannot by a mere unauthorized appearance, confer any jurisdiction upon any court over such party. But it may be, and I admit that in the case of an appearance by an attorney of the court, without
In the case before us, no one has undertaken to appear for the defendant. The acts and proceedings by which the judgment was sought to be procured, were all those of the plaintiff, and the agents and attorneys employed, were exclusively his.
If the defendant’s father misled the agent of the plaintiff, by personating the defendant, or by permitting the summons and complaint to be served upon him without undeceiving such agent, there is nothing in the papers to show that the defendant was privy to the deception. Neither the plaintiff’s agent who served the papers, nor the person upon whom the service
They are not good as to the court within any adjudged case in this court, and I think we are bound to go behind them, and declare them void as to the defendant. Where a plaintiff undertakes to obtain a judgment against a defendant, without any appearance by the latter, either in person or by attorney, he should be required at his peril to bring such defendant within the jurisdiction of the tribunal in which he is proceeding, or his proceedings should be set aside as irregular and totally defective and void. There may be cases where the defendant would be estopped from denying that a service similar to the one in this case, was a good service upon himself. As where he should procure another to personate him, for the purpose of misleading and avoiding personal service. But this is not such a case. All the defendant did was to remain silent. He omitted to give the plaintiff notice of his mistake, but he did not thereby adopt the service of the summons and complaint. The proceeding was a hostile one, as respects the defendant, in no respect for his interest, and the law does not go the length of compelling a party either to give his adversary notice of such defects or to confess jurisdiction. He might be held to waive a mere irregularity, by not proceeding the first opportunity to correct it, but not a jurisdictional defect.
It is no answer to say that the defendant has no merits. The question is, whether the plaintiff has any valid judgment. If the plaintiff never commenced an action and thus brought the defendant within the jurisdiction of the court, it could pronounce no valid judgment, and the judgment, which in theory, it undertook to pronounce, is a nullity. The question whether the defendant is really indebted to the plaintiff .upon a note or otherwise, and to what extent, has nothing to do with the matter before us. It is claimed, however, on the part of the plaintiff, that there was in fact, a personal service of the summons and complaint upon the defendant; that inasmuch as they are shown to have come to his possession, after they
These, and other case^, do hold substantially that where there has been an attempt to make service of process upon the defendant, which has failed by reason of service being made by mistake upon another person, or by reason of the defendant’s refusing to receive it, where he has kept out of the way, and it has been left with some one for him, if such process after-wards actually came to his possession, it is a good personal service. And the courts there have refused to set aside the judgment on the ground that no process has been served, unless in addition to the want of service, it is also madp to appear on the part of the defendant, that such process had not come to his knowledge. But I apprehend that this is not now the practice of the English courts. Or at all events that the practice is not uniform in all the courts. In Goggs agt. Lord, Huntingtower, (12 M. & W. 502,) on motion for leave to enter the defendant’s appearance, it was shown by the plaintiff’s attorney, that after several ineffectual attempts to serve the defendant with a copy of the writ of summons, he went to his residence, and was informed by a servant, over the garden wall, that her master was not at home ; that he then stated to her, that he would leave a copy of the writ for her master, whereupon she put a basket over the garden wall with a string attached ; that he put a true copy of the writ in the basket, and requested the servant to give it to the defendant, which she promised to do; that immediately afterwards he heard the defendant say to the servant, “ take it back, I won’t have it.” The affidavit also stated, that the defendant saw the servant on a subsequent day, who informed him, that she had given the copy to her master. In support of the motion, the cases above referred to were cited. Parke, B., said: “ In consequence of those decisions, the judges have come to a determination that in future there shall be no equivalent for a personal service.”
But to constitute a service, it must be delivered by some one at the request of the plaintiff or his attorney, or who is acting under his authority. A mere casual delivery by a person having no authority from the plaintiff, or his attorney, to make the service, would be no service within the meaning of the Code, and would not constitute the commencement of an action. The service here was clearly not upon the defendant, but upon another person, who was supposed by the plaintiff’s agent to be the defendant. The defendant had no agency whatever in misleading the plaintiff’s agent. The summons came to the defendant’s hands casually, and not as a service from the plaintiff.
There is but one case in this court, that I have been able to find, where a judgment without process served, or an appearance by an attorney, has been upheld. That is an anonymous case in 4 How. Pr. Rep. 112. The sheriff in that case, undertook to serve a capias upon the defendant, but served it upon another person, and returned it served, upon the defendant. There was a judgment by default, and the court refused to set it aside on motion of the defendant, there being no affidavit of merits, and held that as betweem plaintiff and defendant the judgment was regular, and that the return of the sheriff was matter of record, “ and could not be impeached in that collateral way.” This was a decision at special term, and does not