Engstrom v. Sherburne

• Decision Date: 08 April 1884
• Citation: 137 Mass. 153
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Frank G. Engstrom v. John G. Sherburne & another

137 Mass. 153

Frank G. Engstrom v. John G. Sherburne & another

Supreme Court of Massachusetts

April 8, 1884

Middlesex. Tort. The declaration contained several counts. The second and third, which are the only ones which came before this court, alleged, in substance, that the defendants conspired with certain persons in obtaining judgments against the plaintiff, in actions brought in a District Court of the State of Nevada, upon the executions issuing on which judgments the plaintiff's property in said State was sold. Trial in the Superior Court, before Barker, J., who allowed a bill of exceptions, in substance as follows:

The plaintiff produced in evidence duly exemplified copies of the judgment rolls in the actions mentioned in the declaration. In both of these actions one Nicholls was plaintiff; in the former of them, the present plaintiff, the defendant Sherburne, and one Morse were defendants, and in the latter the present plaintiff was sole defendant. It appeared from the judgment rolls that the present plaintiff was duly served with process in said actions in Nevada, where he was a resident at the time of such service; that he appeared in court to defend said actions, and answered upon the merits and that afterwards judgment was rendered in each of them in favor of the plaintiff therein, against the defendants therein, including the present plaintiff, he having been absent and defaulted in both actions.

It was conceded that said court had jurisdiction of the subject matter and of the parties to each action; but the plaintiff contended, and offered evidence tending to show, that Sherburne and Morse were residents of Massachusetts when the actions were brought in Nevada, and that the court in Nevada acquired jurisdiction of them by their own fraud and collusion.

The plaintiff then offered evidence tending to show that, at the time of the institution of process in said actions, and at the time the judgment therein was rendered, he was not liable, jointly or severally, upon the causes of action set forth in said judgment rolls; that said actions were instituted and prosecuted to judgment by the procurement of Sherburne, with the fraudulent intent and purpose on the part of the plaintiff therein, and of Sherburne and others, of having the present plaintiff's property taken by means of said judgments to satisfy demands for which he was not liable, but for which Sherburne and Morse were liable; and that his property was so taken and applied; but he did not offer to show that either of said judgments had been reviewed, reversed, annulled, or set aside, and conceded that they remained of...