Birney v. Birney

• Decision Date: 14 June 1932
• Citation: 161 A. 50
• Parties: BIRNEY v. BIRNEY et al.
• Court: New Jersey Court of Chancery

161 A. 50

BIRNEY

v. BIRNEY et al.

Court of Chancery of New Jersey.

June 14, 1932.

Syllabus by the Court.

1. It is no bar to an action upon a foreign judgment that the judgment has been removed by writ of error to a superior court, unless it appears that the appeal suspended the judgment in the state where it was rendered.

2. The suspension of the judgment by appeal must be pleaded by alleging the facts that effected the supersedeas.

Suit by Bascom H. Birney against Marion Birney and another.

Decree in favor of the complainant.

Charles P. Lynch, of Newark, for complainant.

Collins & Corbin, of Jersey City (J. Langan, of Jersey City), for defendant Marion Birney.

Hopkins, Vorburger & Dickson, of Hoboken, for defendant Hudson Trust Co.

BACKES, Vice Chancellor.

The original bill alleges that the complainant intrusted to the defendant, his daughter, for safe-keeping, bonds and securities of the value of $63,000; that she refused to return them; that from the sale of the securities she has invested approximately $40,000 in bonds, stocks, and certificates of indebtedness, which are now in the possession of the Hudson Trust Company of Hoboken. The prayer is that she account, that the trust company make discovery, and that both be enjoined pendente lite from transferring the securities, and for other relief. The daughter, a resident of California, answered, setting up that the securities were a gift from her father. The trust company's answer admits a deposit of $40,000 cash by the daughter, that all hut $155.15 has been invested, and that it has the securities in trust for her. By supplemental bill it is alleged that, in a suit in the superior court of the state of California, brought by the complainant against his daughter, judgment was entered that he owns the securities held by the Hudson Trust Company. The record of the judgment, annexed to the bill and made a part thereof, also shows the recovery of a personal judgment against the daughter for $22,021.19. The prayer is that the same relief be granted as would have been had the supplemental matter been originally pleaded, and that the daughter and the trust company turn over the securities. The daughter answers, denying the finality of the California judgment, that the matter is not res adjudicata; that the issues involved were different from those here presented; that the judgment does not deal with the same subject-matter here presented; that it was between different parties, and that it is not binding on the trust company, which was not a party; that it was not obtained on personal service, and that it was obtained by fraud (not specified), and that the judgment is to be appealed.

The judgment roll of the superior court, duly exemplified, is conclusive proof in refutation of the supposed defenses. The subject-matter is the same; the father and daughter are the principal litigants, though in the California suit a bank was joined because, like the trust company here, it was a depository of some of the funds. But the materiality of the identity of the parties and of the subject-matter is not apparent. The supplemental bill is one purely to recover on the foreign judgment, and must stand or fall by the record of that judgment. Whether the daughter was...