
    Cornelius Hoffman, App’lt, v. Charles H. Wight, Impl’d, Resp’t.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed January 3, 1893.)
    
    1. Judgment—Foreign—Joint debtors.
    A judgment against two or more joint debtors on a citation served on but one, though authorized by the laws of the state where rendered, is not binding elsewhere upon any of the defendants who were not within the state, and who did not appear in the action. Personal judgments thus rendered have no operation out of the limits of the state where rendered.
    2. Pleading—Irrelevant allegations.
    In a common law action against two or more defendants on a joint obligation, the allegations in a pleading must affect their ultimate liability in some material respect. Those that do not will be stricken out on motion of the defendants to whom they do not apply.
    Appeal from order striking out certain allegations of the complaint.
    This action was commenced by the service of a summons and complaint on the defendant Wight, on or about the 31st day of March, 1892. This complaint alleged two judgments of record agáinst the defendants, as copartners, in the circuit court of Union county, Mew Jersey, upon service of the summons upon the defendant Hewell only.
    To this complaint the defendant Wight demurred, on the ground that it did not contain facts sufficient to constitute a cause of action as to him. The plaintiff, thereupon, served an amended complaint, alleging the original indebtedness of the defendants to the plaintiff, and the recovery of the judgments thereon. The judgment demanded was not the aggregate of the demands alleged, but the aggregate of the two judgments, which included the claims and the costs of the suit.
    To this complaint defendant Wight demurred, on the same ground as to original complaint, that is, that it did not state facts sufficient to constitute a cause of action as to him.
    This demurrer was tried before Mr. Justice McAdam. The defendant, Wight, on the trial, took the position that the action was not upon the original demands, but upon the judgments, and that those judgments, having been procured without service of process upon him, were void as to him, and that, therefore, the complaint did not constitute a cause of action against him.
    Mr. Justice McAdam directed judgment in favor of the plaintiff, saying that the judgments were null and void as to Wight, but that the causes of action were upon the original demands, and that the allegations as to the judgments were surplusage. Leave was given to withdraw the demurrer, and to answer and to make such motion as defendant might be advised. Defendant Wight, thereupon, withdrew his demurrer, and made a motion before the same justice to strike from the complaint, as surplusage, all the allegations therein contained in reference to the recovery of the said judgment, and to compel the plaintiff to properly separate and number the causes of action.
    This motion was granted, and it is from that part of the order thereon made that strikes out the allegations in reference to the judgments that this appeal is taken.
    The following is the opinion at special term:
    McAdam, J.—This court, in deciding the former appeal, said: “ The defendant Wight is correct in his contention that the judgment rendered by the court of a foreign state against Newell and Wight, as partners, adjudging that the same is collectible out of the joint property of both defendants and the individual effects of New-ell (the one served with process) cannot be made the basis of an action in the courts of this state against Wight, over whom the foreign court never obtained jurisdiction.” The doctrine stated is now reaffirmed. The plaintiff, while admitting the general proposition that one not served with process is not bound by the judgment entered against him, claims that the judgment of the New Jersey court, to the extent that it acquired jurisdiction of the parties and their property, is entitled to the same force and effect in other states, upon the broad ground that the courts of such states are commanded by the constitution and statutes of the United States to give such faith and credit to the judgment of the foreign court as the judgment has, by law or usage, in the courts of New Jersey. Constitution U. S., art. 4, § 1; United States R. S., § 905.
    So far as such a judgment is founded on personal service of process, or an appearance by the defendant, or is in rem, or quasi in rem, such faith and credit must be given as may make it effeetive: but when it is used to charge a defendant in personam in the courts of this state, in a case where such defendant was neither served with process, nor appeared in the foreign jurisdiction, such judgment cannot be recognized as the foundation for any such charge. Rigney v. Rigney, 127 N. Y., 408; 40 St. Rep., 210; Oakley v. Aspinwall, 4 N. Y., 514; Bartlett v. Spicer, 75 id., 528; Kerr v. Kerr, 41 id., 275; Shepard v. Wright, 35 Hun, 444; Shumway v. Stillman, 6 Wend., 447; Borden v. Fitch, 15 Johns., 121.
    This, upon the doctrine that every one must have his day in court, or an opportunity to know of the proceedings against him, and a sentence obtained in defiance of the maxim, audi alteram partem, deserves not the name of a judgment. R. R. Co. v. National Bank, 102 U. S., 21.
    To hear, “ implies that some one is before the court to speak, to determine, involves the possibility of forming an issue to determine.” Brown on Jur., § 41.
    .Therefore, a judgment against two or more joint debtors on a citation served on but one, though authorized by the laws of the state, is not binding elsewhere upon any of the defendants who were not within the state, and who did not appear in the action. Personal judgments thus rendered have no operation out of the limits of the state where rendered. Their effects are merely local. Freeman on Judgments, § 574 ; Black on Judgments, § 913.
    If the action on the judgment had been brought against New-ell alone, and it had been alleged that by reason of the non-service of process on Wight, the judgment as one in personam was enforceable only against Newell, the complaint as to him would have been good. This was the precise question decided in Hanley v. Donoghue, 116 U. S., 1; and to same effect, see Burt v. Delano, 4 Cliff., U. S., 611; Swift v. Stark, 2 Oregon, 97.
    The court, in these cases, held that this was giving to the judgment the effect which the United States constitution and statutes contemplated. But as to the defendant who was not served, the judgment has only a qualified validity, and is not enforceable, even in the state where rendered against his individual property. It is clear, therefore, that it will constitute no bar to an action against him in any other state on the original cause of action. Stone v. Wainright, 147 Mass., 201; Shirley v. Shattuck, 13 Met., 256.
    In Oakley v. Aspinwall, 4 N. Y., at page 521, Bronson, Ch. J., held that such a judgment was regarded as void in this state, and speaking of the old joint debtor act, applicable to domestic judgments, said that even such a judgment was, at. the most, only prima facie evidence against the defendant who was not served with process, and that where he pleaded nothing but nul tiel reóord, he might put the original cause of action in issue, or show it barred by the statute of limitations, and thus destroy the whole force and effect of the new judgment against him in the new action.
    And Mullett, J., in the same case (at p. 535) said “ such judgment is in effect no j udgment against the person who was not served with the process, and did not appear in the suit in which it was rendered.1’ Without commenting on the cases cited by the plaintiff (all of which have been carefully examined), or distinguishing them from the one at bar, it is sufficient to hold, upon principle, as well as authority, that the foreign judgment set out in the pleadings in no manner affects the liability of the defendant Wight to the plaintiff concerning the right of action pleaded. In a common law action against two or more defendants on a joint obligation, the allegations in a pleading must affect their ultimate liability in some material respect. Those that do not will be stricken out on motion of the defendants to whom they do not apply. As to them such allegations are wholly irrelevant, and they may with propriety invoke the rule that matter which is not material, nor the subject of proof, and cannot affect the decision of the court, must be stricken out. Code, § 545; Woods v. Morrell, 1 Johns Ch., 103; Lee Bank v. Kitching, 11 Abb., 435; Kurtz v. McGuire, 5 Duer. 660.
    Motion to strike out and to compel plaintiff to separate the cause of action for goods sold, and on the promissory note, granted, with ten dollars costs.
    
      Theo. T. Baylor {Alex. Thain, of counsel), for app’lt;
    
      Knee-land, Stewart & Epstein {Ira B. Stewart, of counsel), for resp’ts.
   Per Curiam.

The order appealed from is affirmed, with ten dollars costs and disbursements, on the opinion of the court below.

Freedman and Gildersleeve, JJ., concur.  