Bank of Middletown a. Huntington.

BANK OF MIDDLETOWN a. HUNTINGTON.

Supreme Court, First District; General Term, January, 1862.

JUDGMENT OF COURT OF SISTER STATE.-UNAUTHORIZED APPEAR

ANCE.

In an action on a judgment recovered in the court of a sister State, the appearance of the defendant, in the action in which such judgment was recovered, is sufficiently proved, in the absence of evidence to the contrary, by the entry of the attorney's name upon the record of the judgment.

When, by the practice of the court in which such judgment was recovered, appearances by attorney were indicated by the attorney's signing his name in the docket opposite that of his client, and, by the law of such State, an appearance for one of several defendants was equivalent to service upon all ;-Held, that a name of a person, signed in the margin of the docket, followed by pleading by him to the whole complaint, though without any addition of attorney, or any statement as to which of several defendants he appeared for, was presumptive evidence of an appearance for each.*

There is a conflict in the cases, as to what is a sufficient appearance on behalf of the party in such a case, to make a judgment valid against him here.

In Noyes a. Butler (6 Barb., 613), it was Held, reluctantly, that an appearance, under process of attachment of the party's goods, gives jurisdiction; but the contrary view was taken in Pawling a. Wilson (13 Johns., 192); and see Shumway a Stillman (6 Wend., 447).

In Wilson a. Niles, it was Held, that a statute of the State in which such judgment was recovered, making service on one of several partners equivalent to service on all, and judgment against all on such service, valid against all, could not be deemed to have given the court jurisdiction of a partner not served, who was not then or afterwards within that State, and did not submit himself to the jurisdiction of the court which rendered the judgment; and to similar effect is Cunningham a. Pell (5 Paige, 607).

In Black's case (4 Ante, 162; S. C., 4 Bradf., 174), a judgment founded on service, under the statute of the State, made by leaving a copy at the defendant's dwelling, was Held, valid; in that case, however, there was some evidence that the defendant had personal knowledge of the suit.

Though it is stated in the judgment-record that defendant appeared, he may yet deny it. (Starbuck. Murray, 5 Wend., 148; Shumway a. Stillman, 6 lb.. 447; Long a. Long, 1 Hill, 597; Noyes a. Butler, 6 Barb., 613.)

But where the record does not show that the court acquired jurisdiction of the person of the defendant, the plaintiff cannot prove, by parol evidence, in aid of the record, that the court did obtain jurisdiction. (Noyes a. Butler, 6 Barb., 613.) If the judgment is entire and against several, and void as to one, for want of service or appearance, it is said to be void as to all. (Holbrook a. Murray, 5 Wend., 161.)

Bank of Middletown a. Huntington.

It seems, that the fact, that an appearance in a suit in a court of a sister State was unauthorized, is not a defence to an action on the judgment, but that the remedy is by application to the court in which the judgment was recovered.†

Appeal from a judgment.

This was an action on a judgment recovered in Pennsylvania. On the trial of the cause the plaintiffs produced and proved a Pennsylvania judgment-roll, and then rested their case.

The judgment-roll showed that there was no personal service upon the defendants in Pennsylvania, but at one place in the margin appeared the words "D. W. Woods" against defendants' names. The judgment-roll recited, that on November 21, 1855, arbitrators were appointed, "there being no appearance for defendants." On December 5, 1855, they made their award against defendants; on December 22, "John C. Heuston, agent," appealed; on January 9, 1856, D. W. Woods "appears especially," and on April 8, 1856, Jonathan Robinson, one of the original defendants, but not one of those served in this action, made an affidavit of merits, and on the following day "Mr. Woods pleads •non assumpsit and payment."

Defendants Huntington and Worthen moved for a dismissal of the complaint, which was granted. And the plaintiffs appealed.

Phelps & Knevals, for the appellants.

Bliss & Barlow, for the respondents.

BY THE COURT.-BARNARD, J.-The judgment-roll shows that on the 8th day of April, 1856, Jonathan Robinson, one of the defendants, swore to an affidavit of defence, stating therein that defendants have a just defence to $33 of plaintiff's claim; and also shows that on the 9th of April, Mr. Woods pleads non assumpsit and payment; that a replication was filed, and the issue tried, and a verdict rendered for plaintiffs. The judgmentrecord also shows, that in the docket opposite the plaintiff's

But compare Harrod a. Barretto (2 Hall, 302); Reed a. Pratt (2 Hill, 64). In Ward. Barber (1 E. D. Smith, 423), it was Held, that it was no defence to an action on a judgment, recovered against the plaintiff in the action abroad for costs therein, that the action was brought in his name without his authority.

Bank of Middletown a. Huntington.

name is the word "Canda," and opposite the defendants' names the words "D. W. Woods."

The mode of appearance by attorney in Pennsylvania (where this judgment was recorded), is by the attorney writing his name on the docket opposite to the names of the parties for whom he appears.

We are bound to presume that in the State of Pennsylvania, as well as in the State of New York, no one can appear and plead a cause on behalf of a party to an action except an attorney duly admitted and authorized to practise in the court.

Mr. Woods not being a party to the action, and having pleaded to it, it follows that he must be regarded as such attorney.

It must also be presumed, that when an attorney pleads to the whole complaint, without it being stated in the record for what particular defendant he pleads, that he pleads for the whole.

An attorney appearing for all the defendants, must be deemed, prima facie at least, to have done so by authority of all the defendants. The judgment having been rendered after appearance on behalf of all the parties defendant by an attorney, it is valid for all purposes.

The questions as to whether the attorney had authority to appear or not, and as to whether if he had not such authority that inatter is admissible in this action, do not arise on this appeal.

It is sufficient ground for reversal of this judgment, that the record shows an appearance on behalf of all the defendants by attorney.

Judgment reversed, and a new trial ordered. Costs to abide

event.

CLERKE, P. J.—It is settled in Pennsylvania (Scott a. Israel, 2 Binn., 145), where there are two or more defendants, and an attorney enters his name on the docket opposite the names of the defendants, this is a good appearance for all, though one of the defendants is not summoned. This is identical with the case before us, with the exception that the name of D. W. Woods is not followed by the word "attorney;" but, for the reasons mentioned in the foregoing opinion, this omission does not vitiate the effect of Mr. Woods' name in the docket. If he appeared without authority, the remedy is by an application to the court

Caldwell's Case.

of Pennsylvania to open the judgment, as by an action against the attorney.

The judgment should be reversed, and a new trial ordered. Costs to abide event.

SUTHERLAND, J., concurred.

CALDWELL'S CASE.

Supreme Court, Fourth District; General Term, January, 1862. COMMON-LAW CERTIORARI.-HABEAS CORPUS.-EXECUTION AGAINST THE PERSON.-ACTIVE AND CONSTRUCTIVE FRAUD.

An order which may, by law, be made by a judge out of court, is not vitiated by being entitled at special term, nor is it necessary in such case to enter the order with the clerk.

Where judgment was obtained in the Supreme Court, within the Fourth District, upon which the judgment-debtor was taken in execution against his person upon the judgment, and a justice of the First District, upon habeas corpus, released the debtor from imprisonment;- Held, that a certiorari to review such proceedings should be made returnable in the First District.

On habeas corpus in behalf of a debtor taken under execution against the person, the regularity and propriety of the arrest may be inquired into, so far as to determine whether the creditor had any right or authority to issue the process. The prisoner is unlawfully detained if there be no judgment, or if the judgment be one on which no execution against the person can issue by law. Where a defendant had made disposition of his property, in good faith, with no dishonest purpose, at various times, and for different purposes, by five separate instruments, three of which were valid, and two, in law, constructively fraudulent against creditors;-Held, that he had not disposed of his property with intent to defraud, within the meaning of the Code, § 179, subd. 5.

In all cases in which fraud is charged, proof of an actual intent should be required to justify an order of arrest. Constructive guiit of a debtor, who is innocent in fact, should not be held a sufficient ground for his imprisonment.

It seems, that no order of arrest can be granted under section 179 of the Code, subd. 5, except in an action for the recovery of money. (By BoсKES, J.) On common-law certiorari no costs can be allowed.

Active or meditated fraud in the disposition of a debtor's property, is characterized by an actual dishonest intent governing the act. Constructive fraud consists in innocently doing some act forbidden, or omitting to do some act prescribed by law. (By POTTER, J.)

Caldwell's Case.

Certiorari, to review proceedings on habeas corpus, had before a justice of this court acting as judge at chambers.

By the return it appeared that Felix Collumb and John A. Iselin commenced an action in this court against Caldwell and others, to set aside certain instruments executed by Caldwell, on the ground that they were made to hinder, delay, and defraud his creditors. That action was put at issue, and terminated in a judgment in favor of the plaintiffs therein, in part, and among other things in their favor and against the relator for the costs of the action. The costs were adjusted at $554.93, for which sum judgment was entered. The clause of the decree relating to these costs was as follows: "And it is further ordered, adjudged, and decreed, that the plaintiffs recover of and from the defendant George Caldwell, their costs of this action as taxed, being 554,83 dollars, and have execution therefor."

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Execution was issued against the property of Caldwell for these costs, and on its return unsatisfied, an execution against the person of Caldwell was issued, under which he was arrested and imprisoned in New York. Thereupon he presented his petition to Mr. Justice Sutherland, setting forth his imprisonment, with the cause thereof, to which petition was attached a copy of the execution under which he was held, and praying for the writ of habeas corpus, to the end that he might be discharged. The writ was granted, returnable the same day. Proceedings were thereupon had. Collumb and Iselin having been duly notified, appeared, and opposed the application, which terminated in an order directing the relator's discharge from arrest, the judge holding and deciding that the execution was unauthorized by law.

On the application of Collumb and Iselin, a certiorari issued to review those proceedings.

The writ of certiorari was tested, March 28, 1861, returnable before the justice of the Fourth District at the then next May general term.

The case came before the general term, first, On a motion to set aside or quash the writ of certiorari, on the ground that the writ was made returnable before the court in the Fourth District; and, secondly, On the return, in case the motion to quash for irregularity should be denied.