85 U.S. 350 (1874), Galpin v. Page

Citation:85 U.S. 350, 21 L.Ed. 959
Party Name:GALPIN v. PAGE.
Case Date:May 04, 1874
Court:United States Supreme Court
 
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Page 350

85 U.S. 350 (1874)

21 L.Ed. 959

GALPIN

v.

PAGE.

United States Supreme Court.

May 04, 1874

OPINION

ERROR to the Circuit Court for the District of California.

Philip Galpin brought an action against Lucy Page for the possession of certain real property situated in the city of San Francisco. The case was tried by the court by the stipulation of the parties without the intervention of a jury. Both parties claimed title to the premises from the same source, Franklin C. Gray, deceased, who died in the city of New York, in July, 1853, intestate, possessed of a large property

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in California, both real and personal. Of the real property the premises in controversy were a portion. The deceased left surviving him a widow, Matilda, of whom a posthumous child was born in December afterwards, named Franklina. By the statute of California the entire estate of the deceased vested in the widow and child in equal shares.

The plaintiff asserted title to the demanded premises through conveyances authorized by the Probate Court of the City and County of San Francisco, which administered upon the estate of the deceased. The defendant claimed title under a purchaser who bought at a commissioner's sale had under a decree of the District Court of the State rendered in an action brought to settle the affairs of an alleged copartnership between the deceased and others. It was admitted that the plaintiff acquired the title unless it had previously passed to the purchaser at the commissioner's sale. It was, therefore, upon the validity of the decree in the District Court and the consequent sale and deed of the commissioner that the present case was to be determined.

The action in which that decree was rendered arose in this wise: In February, 1854, William H. Gray, a brother of the deceased, brought a suit in equity in the District Court of the State (which embraced at the time the city of San Francisco), against Joseph C. Palmer and Cornelius J. Eaton, who had been appointed administrators of the estate of the deceased, and against the widow, Matilda, and James Gray, the father of the deceased. In his bill the complainant alleged that a copartnership had existed between himself and the deceased, which embraced commercial business in which the latter was engaged, and the purchase and sale of real estate; that the copartnership business was carried on, and the titles of the real property purchased were taken in the individual name of the deceased, but that the complainant was interested in all its business and property to the extent of one-third. The object of the suit was to have the affairs of the alleged copartnership settled, and to obtain a decree awarding one-third of its property to the complainant.

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The allegation of the bill that a dormant and universal copartnership had existed between the complainant and the deceased was without any just foundation in fact, for, as hereinafter mentioned, it was afterwards held by the Supreme Court of the State to be unsupported by the evidence in the case.

The bill omitted to make the child, Franklina, a party, and accordingly, in June following, a supplemental or amendatory bill was filed by the complainant, referring to the original bill, and stating the birth of the child, that she was entitled to share in the estate of the deceased, and that she was absent from the State, a resident with her mother in Brooklyn, in the State of New York, and praying that she might be made a party defendant, that a guardian ad litem might be appointed for her, and that the complainant might have the same relief prayed in the original bill.

Subsequently an order was made by the court directing service of the summons upon the new defendant by publication. It was preceded by a recital that it appeared to the satisfaction of the court that the defendant resided out of the State, and that she was a necessary party to the action. It was not stated in the order in what way the facts recited appeared. It seemed probable that the court might have acted upon the statements of the supplemental complaint. The statute of the State, which authorizes constructive service by publication, is as follows:

'When the person on whom the service is to be made resides out of the State, or has departed from the State, or cannot, after due diligence, be found within the State, or conceals himself to avoid the service of summons, and the fact shall appear by affidavit, to the satisfaction of the court or a judge thereof, or a county judge, and it shall in like manner appear that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or property party to the action, such court or judge may grant an order that the service be made by the publication of the summons.' 1

In December following, upon the petition of the plaintiff, a guardian ad litem was appointed for the child. The other defendants appeared by attorneys and answered.

In January, 1855, Eaton, who had been a clerk of the deceased, and who, as administrator, was made defendant in the above action of Gray, resigned his trust and commenced a suit in the District Court of the State against Palmer, the remaining administrator, and against the widow and child. In his bill he also alleged that a copartnership had existed between him and the deceased, that such copartnership embraced all the business and real estate transactions of the deceased, and that his interest in the partnership and its property was one-fourth.

In this action publication was made of the summons issued against the defendant, Franklina, but it nowhere appeared in the record that any application was ever made to the court or judge thereof for an order directing the publication, or that any such order was ever made. So far as appeared from the record it was the voluntary act of the complainant without judicial authority or sanction. The Supreme Court afterwards held that no sufficient service was ever made of the summons issued. In September following, after the publication thus made, upon application of the complainant, the same person was appointed guardian ad litem for the infant defendant in this action, who had previously been appointed such guardian ad litem in the other action. The other defendants appeared by attorney and answered.

On the 23d of October following, upon the stipulation of the guardian thus appointed and the attorneys of the other defendants, the two actions were consolidated into one. Four days subsequently a decree was entered in this consolidated action, and from a certificate of the judge appended to the decree, it would seem to have been entered without trial and by consent and agreement of the parties. By this decree it was adjudged that a copartnership had existed between Eaton and the deceased, which embraced all the property, real and personal, and all the business of each

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of them, and that in this copartnership Eaton had an interest of one-fourth; that there had also existed at the same time a copartnership between Gray and the deceased, which also embraced all the property, real and personal, and all the business of each, and that in this copartnership Gray had an interest of one-third; that the latter copartnership was subject to the copartnership with Eaton, and that, therefore, Eaton should take one-fourth of the estate, and Gray one-third of the remaining three-fourths, and that the residue should be equally divided between the widow and child. By the decree a reference was also ordered to a commissioner to take and state an account of the business profits and property of the two copartnerships, with directions upon the confirmation of his report to sell all the property, real and personal, of both copartnerships, and upon the confirmation of the sales to execute proper conveyances to the purchasers.

The commissioner stated an account as required, his report was confirmed, and by a decree of the court, made in April, 1856, a sale of the entire property of the two alleged copartnerships was ordered. The sale was had under this decree in May following. At that sale the premises in controversy were bid off by Gwyn Page, one of the attorneys of the plaintiff, Gray, and to him the commissioner executed a deed. Page subsequently sold and conveyed an undivided half of the premises to J. B. Crockett, his law partner, also one of the attorneys of the plaintiff, Gray, and the latter in June, 1863, conveyed his interest to Lucy Page, the defendant in the case. The interest of Gwyn Page in the remaining half passed by devise to the defendant.

On appeal to the Supreme Court of the State the decree of the District Court was, at the October Term of 1857, reversed, on the ground that no sufficient service of summons was made upon the infant, Franklina, under the statute, in the case of Eaton against Palmer, and that until such service no guardian ad litem could be appointed for her; and on the further ground that the evidence presented had not established a copartnership between William H. Gray and the

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deceased. The case was accordingly remanded to the District Court, and afterwards both suits were dismissed.

The Circuit Court gave judgment in the suit below for the defendant, and the plaintiff thereupon brought the case here on writ of error. In its opinion, which accompanied the record, and in which the Circuit Court went into an elaborate argument to show that the District Court of California had, when its decree was rendered, apparently, jurisdiction, the Circuit Court held that the record in the State court could not be attacked collaterally unless it affirmatively showed that the court did not have jurisdiction. Its language was as follows:

'The record in the...

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