
    KAHN v. LESSER.
    
      N. Y. Common Pleas, General Term;
    
    
      January, 1892.
    
      Trials; dismissal of complaint.] In an action upon a Wisconsin judgment, where defendant’s appearance by attorney was relied on to give the Wisconsin Court jurisdiction over his person, held, that the presumption in favor of the jurisdiction of a superior court, and the recital of defendant’s appearance in the record, were not, as matter of law, overcome by defendant’s uncorroborated oath that he did not authorize the appearance ; hence his testimony did not require a dismissal of the complaint, but only raised a question for the jury.
    Appeal from a judgment of the General Term of the City Court affirming a judgment on the verdict.
    The action was brought on a judgment of the superior court of Milwaukee County, Wisconsin, in favor of the plaintiff, Pauline Kahn, against the defendants, Joseph S. Lesser, Isaac Lewis and Alexander Cable, as co-partners. Lesser was alone served and defended this action.
    It appeared from the record, and other' evidence of plaintiff, that the defendants in the Wisconsin action had not been personally served with process, but that the original summons in that action had been supplemented by an attachment, which was executed by service thereof upon a garnishee, who appeared and answered, that he had money in his possession belonging to the defendants ; and that a certain firm of attorneys had appeared for the defendants in the action thus commenced and answered the complaint. Beyond the fact of the appearance of the attorneys for defendants, plaintiff gave no evidence th at such appearance was authorized. The defendant, on the other hand, testified without contradiction that the appearance was unauthorized.
    The court denied defendant’s motion for a dismissal of the complaint made at the close of plaintiff’s case and also when renewed at the end of the entire case and submitted- to the jury, whether the Wisconsin court had acquired jurisdiction of the defendant.
    The further facts appear from the opinion.
    
      Arthur Furber (H. Joseph, attorney), for the appellant.
    I. It was open to the defendant to show that the court rendering the judgment was without jurisdiction (Citing Teel v. Lest, 28 N. East Rep. 353 ; Ferguson v. Crawford, 70 N. Y. 254; Nordlinger v. De Mier, 1 N. Y. Supp. 463.)
    II. The production of the record in the Wisconsin action was only prima facie or presumptive evidence of the authority of the attorneys to appear for defendants (Shumway v. Stillman, 6 Wend. 453 ; Black on Judgments, § 903 .)
    III. Presumptive or prima facie evidence only dispenses with the giving of affirmative evidence of the fact presumed until that evidence is impugned by other evidence impeaching or overcoming the presumption. It only dispenses with evidence in the first instance. (Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191 ; Nickerson v. Ruger, 76 Id. 279; Dwight v. Germania L. Ins. Co. 103 Id. 355 ; Vosburg v. Diefendorf, 119 Id. 357; Am. and Eng. Ency. of Law, 96).
    IV. The court should not submit the case to the jury upon a mere scintilla of evidence (Dwight v. Germania L. Ins. Co., 103 N. Y. 359 ; Hall v. Stevens, 116 Id. 21).
    V. The jury cannot capriciously reject evidence which stands uncontradicted and unimpeached (Elwood v. Western U. Tel. Co., 45 N. Y. 549; Kelly v. Burroughs, 102 Id. 93; Lower v. Meeker, 25 Id. 361).
    
      Paul Jones for respondent.
   Pryor, J.

The single question for determination is whether the evidence was sufficient to take the case to the jury on the issue as to the jurisdiction of the Wisconsin court over the person of the defendant.

A judgment in Wisconsin proceeding by attachment-alone would be wholly ineffectual to sustain the action (Cooper v. Reynolds, 10 Wallace 308,318; Cochran v. Fitch, 1 Sandf. Ch. 142).

Nor is the other position of the respondent one whit more tenable, namely, that the appellant was precluded to impeach the Wisconsin judgment, because by the Federal statute it has the same effect in this State as is imparted to it by the law of the forum. The argument is vicious as begging the question by assuming the validity of the judgment in Wisconsin ; whereas, for defect of jurisdiction, the judgment would be a nullity in Wisconsin, and so of no efficacy there or elsewhere (Christmas v. Rupell, 5 Wallace, 290, 305 ; Starbuck v. Murray, 5 Wend. 148 ; Kerr v. Kerr, 41 N. Y. 272, 275 ; Hoffman v. Hoffman, 46 Id. 30 ; Ferguson v. Crawford, 70 Id. 253, 262-3).

Neither can the judgment under review be upheld by the doctrine of Denton v. Noyes, 6 Johns. 296 ; Hamilton v. Wright, 37 N. Y. 502; and Brown v. Nichols, 42 Id. 26; namely, that a judgment obtained upon the unauthorized appearance of an attorney is conclusive on the party in a collateral proceeding, for the principle of those cases has been limited in operation by the court of appeals to domestic judgments (Vilas v. Plattsburgh, etc., R. R. Co., 123 N. Y. 440, 456-7).

And so the question recurs: The defendant, not having been served with process in the Wisconsin action, and non-resident in that State, was the evidence of an unauthorized appearance for him by the attorneys whose appearance the record recites, and who did in fact appear, so conclusive as to justify the court in withdrawing the issue from the jury?

Undoubtedly, the presumption of jurisdiction prevails in favor of superior courts; but the presumption may be repelled by extrinsic evidence, and even the recital of an appearance in the record is not conclusive on the party (Ferguson v. Crawford, 70 N. Y. 253, 257).

Then the case stands thus : In support of jurisdiction in the Wisconsin court, we have the legal presumption and the record recital; while, in impeachment of the jurisdiction, we have the uncontradicted testimony of the appellant that he never authorized an appearance on his behalf. The presumption and the recital constitute plenary proof of jurisdiction, unless and until their force be overcome by contrary evidence. The fact that appellant’s co-defendants in Wisconsin did not authorize the appearance, is no corroboration of the allegation that he did not authorize ¡t; for, the partnership being dissolved, they had no power to retain an attorney for him.

It results, therefore, that since the evidence of no appearance by appellant consists exclusively of his own testimony, an .issue was raised for the jury; and as we have no jurisdiction to estimate the weight of proof in the court below, our only alternative is to affirm the judgment (Kavanagh v. Wilson, 70 N. Y. 177; Gildersleeve v. Landon, 73 Id. 609; Wohlfahrt v. Beckert, 92 Id. 490). Notwithstanding the headnote, 102 N. Y. 93, the doctrine of these cases is not impugned; for, in Kelly v. Burroughs (p. 95), it appeared that there “ was no. conflict of evidence, or any thing or circumstance from which tin inference against the fact testified to by the party could be drawn.”

Judgment affirmed, with costs.

Bookstaver, P. J., and BlSCHOFF, J., concur.  