Cornwall v. Davis

• Decision Date: 10 June 1889
• Citation: 38 F. 878
• Parties: CORNWALL v. DAVIS. WAKELEE v. SAME.
• Court: U.S. District Court — Southern District of New York

38 F. 878

CORNWALL v. DAVIS.

WAKELEE v. SAME.

United States Circuit Court, S.D. New York.

June 10, 1889

Anson Maltby, for complainants.

Henry A. Root and T. D. Kenneson, for defendant.

SHIPMAN J.

In each of the above bills in equity the defendant has demurred to the bill. The bills of complaint in the two suits present the same questions, and the demurrers are upon the same grounds. It is therefore only necessary to state the facts which are alleged in one suit.

The bill of complaint in the Cornwall Case alleges the following facts: On August 26, 1869, at San Francisco, Cal., the defendant, Davis, made his five promissory notes in writing for value, to the order of P. B. Cornwall, and delivered the same to him, all of which were time notes, amounting in all to $13,783.70, of which only the sum of $1,407.43 has ever been paid. On September 11, 1869, defendant filed in the United States district court for the district of California in bankruptcy, his petition to be adjudged a voluntary bankrupt, and was adjudged a bankrupt on September 30, 1869. The debts due from the defendant to said Cornwall, as evidenced by said promissory notes, were duly proved in said bankruptcy proceedings. The defendant filed his petition for a discharge on December 23, 1875. Upon a petition of said Cornwall on July 30, 1872, said district court granted him leave to sue defendant upon said notes. The petition, which is a part of the bill, alleged, among other things, that Davis was then reputed to reside in the state of New York. Pursuant to said order, in August, 1872, he began an action upon said notes against said defendant in the district court of the Fifteenth judicial district of the state of California, by publication of summons therein, under the laws of the state of California, and without personal service of the summons upon said defendant. Thereafter, and on December 18, 1872, said Cornwall, without personal service of summons upon said Davis, and without his appearance in said action by attorney or in person, and without his answering or demurring to the complaint therein, and without any proceedings by attachment or in rem therein, obtained a judgment against Davis in said court, adjudging that he recover $17,043.64 with interest thereon. On December 23, 1875, Davis filed in said bankruptcy proceedings a petition for his discharge in bankruptcy, and on or about February 23, 1876, said Cornwall filed in said proceedings specifications of opposition thereto. On March 18, 1876, Davis filed in said bankruptcy proceedings his petition and notice of motion for an order canceling said Cornwall's proof of debt, and dismissing the said specifications of opposition, because the said Cornwall on or about July 26, 1872, and after he had proved his debt against the said estate, obtained an order from the bankruptcy court, granting him leave to commence any action or actions at law or suits in equity against the said Davis. That on or about August 2, 1872, the said Cornwall commenced the above-mentioned action for the same cause of actions on which he had proved his debt in the said bankruptcy proceedings, and obtained judgment in his favor and against the said Erwin Davis, which said judgment was in full force. That said motion came on to be heard before said court, July 20, 1876, and argument was made by counsel for both Cornwall and Davis upon said petition, notice of motion, and specifications of opposition to the bankrupt's discharge and it was then and there claimed, declared, and admitted, and assurance was made in open court, by counsel duly authorized thereto, for and in behalf of said defendant, that the original debts of said Davis, due to the said Cornwall, and proved in said bankruptcy proceedings, had merged in said judgment obtained December 18, 1872, and thereby became a new debt, created since the adjudication of said Davis as a bankrupt. That said judgment was subsisting, valid, and enforceable, and that said judgment debt would not be barred or discharged, or in anywise affected, by the discharge in said bankruptcy proceedings of said Davis, but would remain standing of record, and valid; and further, that Cornwall had, by reason of such facts, no standing, and was not interested in such bankruptcy proceedings, and was not, therefore, a party competent to oppose the discharge of said bankrupt. On October 31, 1876, an order was made in said bankruptcy proceedings that all proofs of debt theretofore made and filed in said court by Cornwall against the estate of Davis be canceled, and that the specifications of opposition theretofore filed by said Cornwall be dismissed and set aside. That said order of October 31, 1876, was based upon and made by reason of the said claims and representations of counsel for said defendant Davis. That Cornwall relied upon and accepted as true and binding said claims and representations of said Davis that said judgment was valid and binding on him, the said Davis, and that the same would not be barred by a discharge in bankruptcy of said Davis, and was thereby induced to accept as binding and correct in law the said order of the said United States court, and by reason of said admissions and representations was induced to accept, and did accept, the order, and did not appeal therefrom. Davis thereafter obtained his final discharge in bankruptcy in said proceedings, and Cornwall never, after October 31, 1876, made any opposition to said Davis' petition for his discharge in bankruptcy. Said judgment of December 18, 1872, is still standing of record in said court, and is in equity of full and binding force, and valid by reason of said facts, and the whole amount thereof remains due to Cornwall from Davis. Cornwall claims upon all the premises that the defendant is forever estopped from setting up against him, concerning said judgment of December 18, 1872, that the debts proved in bankruptcy as aforesaid were not merged in said judgment; that it is not valid; that it does not constitute a new debt which is unaffected by said Davis' said final discharge in bankruptcy, and that said discharge is a bar to any such suit upon said judgment.

Heretofore in various courts, in sundry actions upon said judgment between said Davis and Cornwall, and which were discontinued or terminated without prejudice to Cornwall, said Davis has claimed and set up, and still claims and sets up, that said judgment of December 18, 1872, is void because of the lack of jurisdiction of the court wherein it was entered, for the reason that said Davis was not personally served with process, did not appear in the action in any manner, and that the action was not in rem or commenced by attachment; and further, that he has...