Graham v. Spencer

• Decision Date: 20 December 1882
• Parties: GRAHAM v. SPENCER.
• Court: U.S. District Court — District of Massachusetts

14 F. 603

GRAHAM v. SPENCER.

United States Circuit Court, D. Massachusetts.

December 20, 1882

Trial by jury having been waived, the court found the following facts:

This is an action upon a judgment rendered in the county court at Windsor, Vermont, at the term which began December 2, 1873 for the plaintiff against the defendant, for $3,880 debt, and $33.01 costs of suit, and interest amounting now to more than $5,000. The record of that action, and the docket entries therein, are made part of this finding. The defendant, with Joseph Vila, Jr., and Jabez F. Wardwell, were sued in assumpsit, and were described as formerly partners under the firm of Spencer, Vila & Co., of Boston, and all as residing in Massachusetts, which was the fact. The return of the officer set out an attachment of 800 shares of the preferred stock of the Rutland Railroad Company as the property of this defendant, and a service of the summons by leaving a copy with the officers of the company in Vermont where that corporation had its abode. The writ was returnable in May, 1873, and at that time the appearance of the Hon Julius Converse, an attorney of the court, was entered on the docket in the usual form, and a plea in abatement and motion to dismiss were filed by him for this defendant on the ground that the attached shares were not his and that he had not been served with process. To the word 'Converse,' on the docket, in the handwriting of the clerk, were added, in the hand of Mr. Converse, the words, 'for Spencer.' The clerk of the court testified that he had no doubt that he was told by Mr. Converse to enter his appearance, but in what words he could not say. It might be that Mr. Converse handed him the plea in abatement and said, merely, I appear for the defendants, or for Spencer, or something to that effect. Mr. Converse was not examined, but it was admitted that he is very old, and not in a mental condition to recollect what occurred. The defendant received by mail, from the clerk of the railroad company, as he supposed, a copy of the summons, and consulted with Mr. Keith, an attorney of Boston, who advised him not to enter a general appearance, or submit to the jurisdiction, but said that he might safely plead to the jurisdiction. The defendant authorized Mr. Keith to employ an attorney in Vermont, for this purpose, and for no other, and Mr. Keith wrote a letter to Mr. Converse, a copy of which is made part of this case, in which he said, among other things, 'You will, of course, guard against giving your court jurisdiction by a general appearance, if they have not jurisdiction on their assumed attachment, and you can judge best as to the best means of testing that question. ' The plea in abatement and motion to dismiss were overruled at the May term. At the December term the case was set for trial, but was not tried, and before the time for trial came, Mr. Converse, by leave of court, withdraw his appearance. The docket shows that this was December 24th. On the same day, the defendant Spencer was defaulted. A motion for leave for the officer to amend his return was made; when, does not appear. It was tried December 31st and denied. The case was dismissed, as to Vila and Wardwell, who had not been served with process, and whose property, or supposed property, had not been attached.

Rule 11, of the county court, is as follows;

'If an action shall have been continued for trial, and no special plea shall have been filed within the rule, the general issue shall be considered as pleaded, and the defendant may proceed to trial thereon.'

The defendant offered to prove in the case here that he had a valid defense to the original action in Vermont; but the court ruled that such evidence was immaterial.

J. B. Richardson, for plaintiff.

E. R. Hoar and E. F. Hodges, for defendant.

LOWELL C.J.

It was said in argument by the senior counsel for the plaintiff, who is in a position to know the law of Vermont, that the courts of that state still adhere to the doctrine which was supposed to have been announced in Mills v. Duryee, 7 Cranch, 481, that judgments of one state are to be treated in the courts of another state precisely like domestic judgments, so that, for example, the record of service, or of appearance, cannot be contradicted. The latest case which is cited was Lapham v. Briggs, 27 Vt. 26, decided in 1854. I have not examined the later reports, because the supreme court, as early as 1848, had held that the record of a circuit court which recited a general appearance for two defendants might be 'explained' by proof that he intended to appear for one only, and the same court, following and approving the many able judgments upon the subject in the courts of the states, have held that in any court, whether of the states or of the United States, in which a foreign judgment is sued upon, or is set up in bar, the party supposed to be bound by the judgment may aver and prove, even in contradiction of the record, that he was not a resident within the territorial jurisdiction of the court giving the judgment, that he was not personally served with process within that jurisdiction, and that the attorney who appeared for him had no authority to do so.

The rule that a record shall not be impeached is largely a rule of convenience, and it is held to be more inconvenient, and therefore more unjust, to turn an injured person over to an action against a sheriff or an attorney in a foreign state, than to permit the truth to be shown in a collateral action. Galpin v. Page, 18 Wall. 350; 3 Sawy. 93.

A joint judgment against two defendants, when only one has been served with process within the state, is a nullity as to the other. D'Arcy v. Ketchum, 11 How. 165. Any jurisdictional fact appearing in the record of a foreign judgment may be met by plea and proof to the contrary, such as, that the seizure of a vessel was made in a certain county, (Thompson v. Whitmore, 18 Wall. 457;) that personal service was made, (Knowles v. Gas-light Co. 19 Wall. 58;) if an appearance was entered that it was not authorized, and this, though the case has been tried on its merits against one defendant, who, apparently, acted for both, (Hall v. Lanning, 91 U.S. 160.) Personal notice out of the jurisdiction is of no value. Bischoff v. Wethered, 9 Wall. 812. It has been held in Pennsylvania that an acceptance of service out of the jurisdiction means only a waiver of service at the place where it was accepted, and therefore gives no jurisdiction. Scott v. Noble, 72 Pa.St. 115. An attachment gives no jurisdiction over the person, and a law of the state cannot authorize its courts to enter a judgment against a non-resident not served which will be valid even against property in the state, except such as has been attached on mesne process. Pennoyer v. Neff, 95 U.S. 714.

The remaining questions, not fully covered by these authorities, are: (1) Whether, supposing the attorney to have been fully authorized, the facts show a submission of the defendantS person to the jurisdiction of the court. (2) Whether the authority of the attorney can be qualified by evidence. (3) Did the court in Vermont decide the above question, thus making it res judicata?

1. It must be admitted that upon the record itself, as it appeared to the court in Vermont, there had been an attachment of the goods of the defendant. When he appeared and asked leave to contradict the fact of his ownership of the goods, he must be considered, I think, to have waived notice by publication, and no such notice was given. U.S. v. Yates, 6 How. 605.

Taking into view the facts that the attorney was instructed that there was a good defense to the action on its merits, but that he was not to make that defense; that, accordingly, he pleaded to the jurisdiction only, and then, by leave of court, withdrew his appearance, we are warranted, by the nature of the case and by the authorities, in saying that no jurisdiction over the person had been acquired. I assume throughout this discussion, that the withdrawal is by leave of court. It was said by an eminent judge that a withdrawal of appearance leaves the case as if there had been no appearance. Michew v. McCoy, 3 Watts & S. 501...