Levison v. Blumenthal

• Decision Date: 14 March 1904
• Docket Number: 70-1904
• Parties: Levison, Appellant, v. Blumenthal
• Court: Pennsylvania Superior Court

25 Pa.Super. 55

Levison, Appellant, v. Blumenthal

No. 70-1904

Superior Court of Pennsylvania

March 14, 1904

Argued January 18, 1904 [Syllabus Matter]

Appeal by plaintiffs, from judgment of C.P. Luzerne Co.-1898, No 389, on verdict for defendant in case of Isidor Levison and Louis Hirsch v. Charles A. Blumenthal.

Assumpsit on a foreign judgment. Before Wheaton, J.

At the trial it appeared that the plaintiffs brought a suit in 1888 against the defendant to recover for goods sold and delivered. By agreement this suit was referred to James L Lenahan, Esq., as referee. Neither plaintiffs nor their counsel appeared before the referee, and there was no trial upon the merits. The referee entered judgment for defendant for costs. In 1895 the plaintiffs brought an action in the city court of the city of New York on the same cause of action. The defendant was summoned and appeared and defended. He introduced in evidence the record of the suit previously brought in Pennsylvania. In 1898 the New York court entered judgment for plaintiffs for $ 204.14. The present action was brought upon this judgment.

The court charged in part as follows:

Mr. Blumenthal, as appears in the testimony offered by the plaintiffs themselves in this case, set up as a defense down in New York city in the court there trying this cause of action, if you shall believe it to be the same cause of action, the defense that he had been sued up here for this same thing by the same people, and that the judgment of a court of competent jurisdiction had been rendered in his favor up here. [But the judge of the city court before whom the case was heard there paid no attention to that, and directed that a judgment be entered there, which was done, as the transcript or exemplification of the record shows.] [Two judges of this court have already held that that action on the part of the court in New York city was in plain violation of article IV, section 1, of the constitution of the United States, and of the act of congress of May 26, 1790.] Two judges of this court have already said that the judge in New York city, who directed the entry of the judgment upon which the suit heard before you is being tried after it had been made to appear before him that [the same matter had been tried out here and a judgment rendered in favor of Mr. Blumenthal, the defendant,] no longer had any jurisdiction of the subject-matter, and therefore that the entry of judgment there upon which this suit is founded was absolutely null and void, and of no effect. I hold as the two judges before me in this county have held (Judge Woodward and Judge Ferris), that that is correct, and that [the judgment which is before you here and upon which suit has been brought in this court now, is void for want of jurisdiction in the New York city court, and that therefore your verdict should be for the defendant in this case.] The plaintiffs have asked me to charge you upon a written point, as follows, to wit:

1. This suit being on a judgment duly entered in the city court of the city of New York, a duly authenticated copy of which has been presented in evidence in this case, and there being no evidence whatever of either want of jurisdiction in said court, or of satisfaction of said judgment, the verdict of the jury should be for the plaintiffs for the amount of said judgment, with interest, to wit: $ 267.93. I decline to affirm that point, and say to you that under the evidence in this case I hold as matter of law that the city court of the city of New York had no jurisdiction to enter this judgment upon which suit is brought.

Verdict and judgment for defendant. Plaintiffs appealed.

Errors assigned among others were above instructions, quoting them.

A. Ricketts, with him A. A. Chase, for appellants. -- The judgment of the New York court was final: Mills v. Duryee, 11 U.S. 481; Hampton v. McConnel, 16 U.S. 234; Hanley v. Donoghue, 116 U.S. 1 (6 S.Ct. 242); Maxwell v. Stewart, 88 U.S. 71.

In the second place, the conclusiveness of a judgment, as to all matters involved in the suit in which the judgment was entered, is so well settled that we content ourselves with merely citing a few of the decisions: Dowling v. McGregor, 91 Pa. 410, and the cases therein cited; Myers v. Kingston Coal Co., 126 Pa. 582; Thompson v. Tolmie et al., 27 U.S. 157, 163; Otterson v. Middleton, 102 Pa. 78.

In the third place, the decisions of our state Supreme Court are in direct accord with the above noted decisions of the United States Supreme Court: Benton v. Burgot, 10 S. & R. 240; Baxley v. Linah, 16 Pa. 241; Wetherill v. Stillman, 65 Pa. 105; Guthrie v. Lowry, 84 Pa. 533; Mink v. Shaffer, 124 Pa. 280; Potter v. Hartnett, 148 Pa. 15; Hughes v. Schreiner, 202 Pa. 488.

Such a judgment as that in this case is very evidently no more than a nonsuit, and not being an adjudication upon the merits is not a bar to a subsequent action: Carmony v. Hoober, 5 Pa. 305; Gilman v. Rives, 35 U.S. 298; Smith v. Neal, 109 U.S. 426 (3 S.Ct. 319).

John T. Lenahan, for appellee. -- The judgment in the suit before the referee was final: McDermott v. U.S. Ins. Co., 3 S. & R. 604; Dixon v. Sinclear, 4 Vt. 354; Follansbee v. Walker, 74 Pa. 306; Kapp v. Shields, 17 Pa.Super. 524; Greene v. Greene, 68 Mass. 362.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

HENDERSON, J.

The plaintiffs' action was based upon a judgment obtained in a court of record in the city of New York. The defendant denied liability in the court below for the reason that a prior suit was brought by the same plaintiffs for the same cause of action in Luzerne county, Pennsylvania, in which there had been a judgment in favor of the defendant for costs. The court below instructed the jury that the plaintiffs were not entitled to recover. The material question in the case is raised by the tenth assignment of error, involving the refusal of the court to affirm the plaintiffs' first point.

Section 1 of article IV of the constitution of the United States provides that " full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." An act of congress approved May 26, 1790, prescribes the manner of authentication of the records of courts and declares: " The said records and judicial proceedings as authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken." The provision of the constitution above quoted, and of the act of congress referred to came up for consideration by the Supreme Court of the United States in Mills v. Duryee, 11 U.S. 481, where it was held, " the act declares that the record duly authenticated shall have faith and credit as it has in the state court from which it is taken. If in such court it has the faith and credit of evidence of the highest nature, viz.: record evidence, it must have the same faith and credit in every other court. Congress have, therefore, declared the effect of the record by declaring what faith and credit shall be given to it." The subject was again considered in Hampton v. M'Connel, 16 U.S. 234, in which the decision in Mills v. Duryee was reviewed by Chief Justice Marshall, who reaffirmed the doctrine of...