
    CORNELIA GILMAN, Appellant v. PREBLE TUCKER, Impleaded, &c., Respondent.
    
      Judgment, cannot be impeached or controverted in a collateral action or proceeding for error or irregularity or want of jurisdiction.—Exceptions to this general rule.
    
    This action was brought in this court to vacate and set aside a judgment obtained against plaintiff in the supreme court by Augustus Prentice, one of the defendants, on the ground that the summons and complaint in the latter action had never been served upon her and, that she had never authorized any attorney to appear for her in said action ; and that the appearance for her by an attorney, as alleged in the record of the judgment, was unauthorized.
    
      Held, That the judgment in the supreme court was not void and was regular when entered ; and the appropriate relief for the alleged unauthorized appearance, is by an application to the court by which the judgment was given. That the plaintiff cannot be relieved of said judgment in this action as the power of relief rested only in the court rendering the judgment. That court alone can vacate or set it aside.
    Before Sed wick, Ch. J., Freedman and Truax, JJ.
    
      Decided December 5, 1889.
    Appeal from a judgment, entered upon the report of a referee, directing the dismissal of the complaint and the vacation of an injunction obtained by plaintiff against the defendant Tucker, and awarding Tucker his costs, &c.
    
      Charles P. Crosby, attorney, and Henry E. Knox, of counsel, for appellant, argued :—
    I. The Prentice judgment was a nullity as against the plaintiff, for the reason that the court never acquired jurisdiction of her, either by the service of process upon her or by authorized appearance. The complaint was never served upon her; she never appeared in the action by any person as her attorney ; she never authorized any person or attorney to appear for her ; she never authorized any person or persons to employ or authorize an attorney on her behalf to appear in said action. The suit was commenced without her knowledge ; she never had any knowledge of any proceedings therein or that any attorney had claimed to appear for her therein, and she had no knowledge of the entry of the judgment until on or about the 28th day of June, 1886. Assuming the facts to be true, as stated as to the plaintiff Cornelia Gilman, the Prentice judgment and all the subsequent proceedings based thereon, are utterly void. I submit that so far as this question is concerned, it is a matter of no consequence whether Mrs. Gilman' did or did not have a defence to the claim upon which Prentice brought the suit. This is a question to be settled when she is properly brought before the court, and it cannot be possible that any person can be deprived of their property or estate by legal proceedings as to which the party never had any notice, either actual or constructive. Burton v. Sherman, 20 Weekly Digest, 419. This case was affirmed by the court of appeals, the appeal therein being dismissed. 98 N. Y. 629 ; Ferguson v. Crawford, 70 Ib. 253 ; White v. Coulter, 59 Ib. 629.
    II. In the summary proceedings the Prentice judgment could not be attacked collaterally and the defendant could not defend therein by showing that the judgment was void. Getting v. Mohr, 34 Hun, 340. The remedy was by injunction. Broadwell v. Halcomb, 65 How. 502 ; Crawford v. Kastner, 26 Hun, 440 ; Rapp v. Williams, 1 Ib. 716 ; High on Injunctions, (2d.), Vol, 1, §§ 221, 222, 228, 229, 231 and 261 ; 1 Civil Pro. R., 425, note at foot of page and succeeding pages ; Code of Civil Procedure, §§ 2265, 616 and 617 ; McAdams, Landlord and Tenant, 2d. Ed., p. 670 ; Mclntire v. Hernandez, 7 Abb. N. C. 214 ; S. C. 38 How., 121 ; Reed v. St. John, 2 Daly, 213, 215 ; Jessurau v. Mackie, 24 Hun, 626; Chadwick, v. Sprague, 1 Civil Pro., R., 422. Where the tenant is without an adequate remedy at law, it is the province and duty of the court to exercise its equitable jurisdiction by injunction. Yalentine v. Signett, 2 Abb. 121. For an evil under color of legal proceeding which has no other remedy an injunction order must be the proper one. Griffiths v. Brown, 3 Rob. 627; Lansing v. Board of Supervisors, 24 Hun, 75. Where the tenant from the peculiar circumstances of the case, is precluded from setting up his defence before the justice, an injunction will be granted. Baker v, Hammersley, 16 How. 461 ;.1 Civil Pro., R. (note), 429. As the Prentice judgment had been assigned to the defendant, Preble Tucker, who was not a party to the original Prentice suit, the plaintiff had no remedy open to her in that suit which would reach the defendant, Preble Tucker. Her only* remedy was in equity and by injunction in such an action as this to restrain the defendant, Preble Tucker, as well as tho plaintiff in the original suit. We submit that no injury can result to the defendant Preble Tucker, for continuing this injunction until the trial of this action. On the contrary, if the injunction should be vacated the summary proceedings in the District Court would be at once reinstated and an attempt made by the defendant Tucker to get possession of the .premises, basing his action upon the Prentice judgment, which, as is hereinbefore shown, was not taken by service of process upon her or by her appearance, and as to which she had no knowledge until about the 28th of June, 1886.
    ITT. A court of equity has power to grant relief against a judgment procured by fraud. See decision of the Court of Appeals, rendered in 1854_ by Justice W. L. Allen, who says, at page 164, (Dobson v. Pearce, 12 N. Y. 157.): “ The jurisdiction of the court in which a judgment has been recovered is, however, always open to inquiry, and if it has exceeded its jurisdiction, or has not acquired jurisdiction of the parties by the due service of process, as by a voluntary appearance, the proceedings are coram nonjudice, and the judgment void.” Burton v. Sherman, 20 Weekly Dig. 419, holds that there is no distinction between a forged notice of appearance and a notice really given by an attorney not authorized to give it, and that jurisdiction is not acquired in either case. The case was an appeal from an order denying a motion to vacate a judgment of foreclosure and sale as to Antoinette W. Sherman, on the ground that the court never acquired jurisdiction. The court held that no jurisdiction was ever acquired over the defendant Sherman, and that the responsibility of the attorney does not help to make a case of jurisdiction over a person if the attorney has no power to confer it. This decision was appealed from, and the appeal was dismissed in the Court of Appeals on January 27th, 1885.
    IV. The following authorities support the position of the plaintiff herein : A judgment rendered by a court which had neither jurisdiction of the person nor of the subject matter of the action is absolutely void, and may be treated as a nullity. 4 Wait's Pr. 631; Harris v. Hardeman, 14 How. (U. S.), 334; Borden v. Fitch, 15 John. 121; Phelps v. Baker, 41 How. 237 ; Hoffman v. Hoffman, 46 N. Y. 30 ; Baldwin v. Kimball, 16 Abb. 353 ; Ferguson v. Crawford, 70 N. Y. 253. This last decision was made in the year 1877 by the Court of Appeals of this state, per Rapallo, Justice, who refers with approval to the case of Bolton v. Jacks, 6 Rob. 198, in which Jones, Justice, uses the following language : “ That it is now conceded, at least in this state, that want of jurisdiction will render void the judgment of any court, whether it be of superior or inferior, of general or local jurisdiction, or of record or not, and that the bare recital of jurisdictional facts in the record of a judgment of any court, whether superior or inferior, of general or limited jurisdiction, is not conclusive, but only prima facie evidence of the truth of the fact recited, and the party against whom a judgment is offered is not by the bare fact of such recitals estopped from showing by affirmative proof that they were untrue, and thus rendering the judgment void for want of jurisdiction.” Rapallo, Justice, referring to this decision of Jones, Justice, in Bolton v. Jacks, uses the following language : “ It thus appears that the current of judicial opinion in this state is very strong and uniform in favor of the proposition stated by Jones, Justice, in 6 Rob., 198, and, if adopted here, is decisive of the present case. It has not, as yet, however, been directly adjudicated ; and, if sustained, it must rest upon the local law of this state, as it finds no support in adjudications elsewhere. There are reasons, however, founded upon our system of practice, which would warrant us in so holding.” In another part of his opinion, he uses the following language: “ That when the judgment has been obtained by fraud, or without bringing the defendant into court, and the want of jurisdiction does not appear upon the face of the record, relief may be obtained in equity.” In deciding this case, the cases of Brown v. Nichols, 42 N. Y. 26, and Denton v. Noyes, 6 John. 296, were distinguished. White v. Coulter, 59 N. Y. 629, holds that a party against whom a judgment by default regular on its face has been taken, but who was not served with the summons, has a legal right to have the judgment vacated. The decision in Ormsby v. Jacques, 12 Hun, 443, was made in the year 1877, by the general term, of the second department, per Dykman, Justice. The action was brought to set aside a judgment entered in an action t'o foreclose a mortgage in which the present plaintiffs were defendants. From the judgment roll it appeared that the plaintiffs had appeared therein by an attorney. The plaintiffs claimed that he appeared fraudulently and corruptly and without any authority from them, ' and that they did not know that he had done so until after a sale had been had under the judgment; that neither a summons nor any other paper in the action had been served on them. Dykman. Justice, in deciding the case, cites with approval Ferguson v. Crawford, 70 N. Y. 253, and states that the decision of the court of appeals in Ferguson v. Crawford is placed on grounds which are inconsistent with the case of Brown v. Nichols. He then cites with approval the decision of the Court of Appeals in Ferguson v. Crawford, which refers with approval to the decision of the court in Bolton v. Jacks. At page 445 the court uses the following language : “Whether the appearance is forged or unauthorized, che court obtains no jurisdiction of the person, and in all such cases relief may be obtained in equity according to the decision of the Court of Appeals in the case of Ferguson.” This case is precisely like the case at bar. It was an equitable action brought to set aside a judgment on the ground that the appearance was unauthorized, and is brought precisely as this case is brought.
    
      Kelly, Tucker & Henderson, attorneys, and Charles J, Hardy, of counsel, for respondent, argued:—
    I. This court has no jurisdiction to entertain the cause of action set forth in the complaint, (a) This is an action brought in the superior court to set aside a judgment of the supreme court. No fraud or collusion in procuring the judgment sought to be set aside is alleged, and no reason is given why the action is not brought in the court wherein the judgment was obtained. The jurisdiction of one court to vacate in an independent action the judgment of another court, is in its nature so extraordinary as to demand close adherence to principles and precedents in exercising it. Smith v. Nelson, 62 N. Y. 286 ; Helburn v. Rosenson, 2 N. Y. State Rep. 618 (Gen’l Term), 1st Dep't. The “principles and precedents ” upon which the courts have acted in vacating judgments of other courts of competent jurisdictions are, that they will undertake to set aside such judgments only where it can be shown that there was fraud or collusion in their procurement, and that, upon failure to show such fraud or collusion, they will refuse to interfere. “ The power of the supreme court to annul a judgment for fraud in procuring it is undoubted, although the jurisdiction is carefully limited and guarded, and will only be exercised in clear cases.” Andrews, J., in Smith v. Nelson (supra). (b.) Plaintiff’s proper proceeding was by an application in the original action in the supreme court, to have the judgment recovered against her therein by Prentice, set aside for want of service of process upon her. No action in equity will lie to restrain the enforcement of a judgment rendered by a court of record, on the ground that the defendant in the action in which the judgment was obtained was not served with process. The plaintiff has an adequate remedy at law by motion in the original action. Fullan v. Hooper, 18 How. 75. A judgment by a court of competent jurisdiction cannot be impeached collaterally for error or irregularity, but is conclusive until set aside or reversed by the same court. Dobson v. Pearce, 12 N. Y. 156. If a suit has not been regularly commenced defendant must relieve himself from such irregularity by motion. Nones v. Ins. Co., 8 Barb. 541. The defendant’s remedy by motion to vacate a judgment without authority, seems to be proper. It has been held in various cases that where a judgment is void, or voidable, the proper way is to move to set it aside or vacate it. Grant v. Vandercook, 57 Barb. 175. The remedy of the party is by application for re-trial or other relief in the action wherein the judgment was rendered. Krekler v. Ritter, 62 N. Y. 372. This has also been held to be the proper practice in an action similar to the present in Burton v. Sherwood, 20 N. Y. ,W. Dig. 419, and the same is held inferentially in Hunter v. Lester, 18 How. 347. Also held direct in Runburg v. Johnson, 11 C. P. Repts., 
      283 (City Court of Brooklyn, General Term), a ease on all fours with this present case, where it is held explicitly that the remedy is by a direct motion for the interposition of the court rendering the judgment. The question is settled by the decision in Brown v. Nichols, 42 N. Y. 26, where the court holds that a judgment against a defendant who was not served with process, and has no knowledge of the suit, but for whom an attorney appeared without authority, cannot be attacked for want of jurisdiction in any collateral proceeding. And holds, also, that the defendant may seek relief from such unauthorized appearance by direct application to the court, Earl, C. J., saying : “ I think a party should always seek relief to an unauthorized appearance in the suit in which it has been put in.” And it is submitted that it is so well-settled a rule of law as to require no citation of cases in its support, that a judgment of a court of record having jurisdiction cannot be attacked or impeached in any collateral proceeding. If there really was the error plaintiff complains of, and the facts are as she says they are, why does she not seek to have it remedied by a motion in the supreme court in tho action wherein the judgment was rendered? Section 724 of the Code gives the supreme court the power to correct such error. What right has the plaintiff to ask the superior court to set aside a judgment in an action of which the supreme court had jurisdiction, an action in which all the proceedings were had in the supreme court, and in which, confessedly, there was no fraud practiced upon her by the person recovering the judgment ? The judgment of a court, procured without fraud or collusion, stands until it is vacated either by a court to which an appeal has been taken from it, or by the court which rendered it when that court had jurisdiction to render it. As the learned referee herein says, in his opinion dismissing the complaint: “The court has an inherent power over its own records to correct them in furtherance of justice.”
    II. Plaintiff shows no cause of action. There is hardly any question that has received such careful consideration from the courts of this state as that involved in the present controversy, viz. : What is the effect of a judgment rendered in an action in which there has been an appearance by an attorney for a party not served with process, and who has not authorized an appearance to be entered for him ; and how far the courts will protect the rights of innocent third parties acquired from a judgment so entered, and without notice of any defect therein. And so frequent have been the adjudications on this subject that the law cannot be regarded as otherwise than established in favor of the innocent third party as against the one immediately harmed by reason of the unauthorized appearance. The rule of the English cases on this point is this : “ Where a suit has been regularly commenced, and an attorney appears for defendant, or agrees to appear, without warrant, the plaintiff may proceed to take judgment, and the court will support such judgment, whether it be for a bona fide debt due the plaintiff or not ;r and whether the defendant has a defence or not; and the only remedy the defendant has is an action against the attorney.” And this is substantially the rule of the New York courts. The leading case on this case is Denton v. Noyes, 6 Johns, 296, decided by Chancellor Kent in 1810. In that case an attorney of the court appeared for a defendant against whom a writ had been issued, but not served, and, without authority from defendant, confessed a judgment, which was entered up. And it was held that this judgment was regular ; that an appearance by an attorney of the court, without warrant, is good as to the court ; and the party has an action against the attorney who so wrongfully appeared for him. Aliter if there be any fraud or collusion between the plaintiff’s attorney and the defendant’s. The-broad principles of equity, justice and public policy, upon which this decision rests, have been so well recognized that this case of Denton v. Noyes, though often criticised, has never been overruled, and must be regarded as the law on this subject to-day in this state. The adjudications on this subject, in accor-' dance with the rule as stated in Denton v. Noyes, are numerous. (The counsel cites and reviews many cases). This doctrine as laid down in Denton v. Noyes, is again reasserted and re-affirmed in Ferguson v. Crawford, 70 N. Y. 253. This case is one turning upon the question of a forged notice of appearance, and the court carefully distinguishes it from Denton v. Noyes. The case turns on a totally different point than that on which Denton v. Noyes turned, and this difference between a bona fide and a forged notice of appearance was noted in the old English cases, and commented upon by Van Ness, J., in his dissenting opinion in Denton v. Noyes. In Ferguson v. Crawford, Rapallo, J., says : “On the trial of the present action, the defendants, in support of this defence, put in evidence the judgment roll, in the last-mentioned action, which roll contained a notice of appearance for the present plaintiff, and a consent that judgment be entered, purporting to be signed by Mills (the attorney). The judgment was entered by default, for want of an answer, and on this consent, and recited that the summons had been served on the defendants therein, and that none of them had appeared except the present plaintiff by Mills, his attorney, and some others, etc. Thereupon plaintiff offered to prove : (1) That the signature to the notice of appearance was a forgery. (2) That Mills was never authorized to appear for the plaintiff. (3) That he never did appear. The defendants rely wholly upon the effect of the recital in the judgment, and the notice of appearance contained in the judgment roll, and claim that in a collateral action these import verity, and cannot be contradicted by extrinsic evidence. None of the principles upon which the decision in Denton v. Noyes and Brown v. Nichols rest can be applied to such a case as this.”
   By the Court.—Sedgwick, Ch. J.

The case of Denton v. Noyes, 6 Johns. 296, has been approved by the highest court in this state, in particular by Brown v. Nichols, 42 N. Y. 26. Against such an approval the dissenting opinion in the latter case cited Robson v. Eaton, 1 Term. 62. This last case was an instance of a forged warrant of attorney; and Ferguson v. Crawford, 70 N. Y. 253, held that in such a case, no process having been served, the judgment was void.

In the present case, following Denton v. Noyes, the judgment was not void and was regular when entered; and the appropriate relief for the unauthorized appearance, is by an application to the court by which judgment was given, and the relief given by the court in its discretion, when the attorney appearing is insolvent, would be to allow the defendant to come in and plead. My opinion is that,in this action, the plaintiff could not be relieved of the judgment, as it was in the power alone of the court giving judgment to set aside the judgment. But if this proposition is not correct, the relief that should be given in the action, should be no greater than could be obtained in the court that gave the judgment,—that is, the defendant in the judgment, to entitle herself to relief, should show that she has a defence on the merits.

In my opinion there should be an affirmance of the judgment appealed from, with costs.

Freedman, J. (concurring) :

I am of the opinion that the judgment should be affirmed with costs, for the reasons assigned by the learned chief judge, and the further reason that the complaint in this action on its face shows no equitable cause of action.

Truax, J. (dissenting):

The plaintiff was the owner of certain premises in the city of New York. On the 7th day of August, 1884, a judgment was entered in the office of the clerk of the city and county of New York in an action in the supreme court of the state of New York, wherein one of the defendants herein, Augustus Prentice, was plaintiff, and the above named Cornelia Oilman, and one Andrew E. Smyth were defendants, for the sum of $1,800.78. The plaintiff herein alleges, that neither the summons nor complaint in said action was ever served upon her ; that she never authorized any attorney to appear for her in said action, and never authorized any person nor persons to employ or authorize any attorney to appear on her behalf. That she never had any knowledge of any proceedings in said action, or that any attorney had claimed to appear for her, until on or about the 28th day of June, 1886 ; that an attorney, without her knowledge and consent, did appear in said action ; that judgment was entered therein as on a default to answer ; that execution was issued on this judgment in favor of the said Prentice; and that, on the 10th day of March, 1885, the premises hereinbefore mentioned were sold under said execution, and at such sale Prentice became the purchaser.

The plaintiff further alleges, that on the first day of March, 1886, one Mary A. P. Tucker, obtained a judgment against her for the sum of upwards of $10,000. That the above-named defendant Preble Tucker took an assignment of the said judgment, and redeemed the premises hereinbefore mentioned from said Prentice, and paid said Prentice the amount of the first-mentioned judgment, and received a deed of said premises from the sheriff. That thereafter said Preble Tucker instituted summary proceedings in the district court for the sixth judicial district of New York, and that thereupon the plaintiff brought this action to restrain the enforcement of such summary proceedings, and to set aside the said first-mentioned judgment and the execution issued thereon, and all the proceedings thereunder.

This action was referred, and on the trial the complaint was dismissed by the referee.

I think that the referee erred in dismissing the complaint on the grounds stated by him, namely : that the plaintiff had a perfect remedy by motion in the original action to set aside the judgment in that action.”

It may be that the plaintiff could have moved in the action in which the judgment was obtained to set aside the judgment; but she also has the right to bring an action to set aside the judgment.

That a remedy at law exists is not a valid objection to an action in equity if the equitable remedy is concurrent with the remedy at law. Crary v. Smith, 2 N. Y. 60.

Equitable actions of the nature of this are not unknown to the courts of this state.

In McIntyre v. Sanford, 9 Daly, 21, affirmed in 89 N. Y. 634, it was held, that an action would lie to set aside a sheriff’s sale of real estate under an execution, and it was so held although the plaintiff in that action had his remedy by motion in the action in which judgment had been obtained against him.

The principal and, in my opinion, the only important question in this case, is, can the plaintiff in this action show that the appearance by the attorney in the other action was unauthorized and void ?

The printed book shows that the plaintiff herein never was served with the summons in the action in the supreme court ; never authorized any attorney to appear for her in that action; had no knowledge that the action had been begun, and knew nothing of the judgment that was obtained therein, nor of the sale under execution, until possession of her real estate was demanded,—and this was after the time to redeem had expired;. that the attorney who so appeared for her is not now a resident of this state, and that an attachment, was issued against her property on the ground that she was not a resident of the state of New York.

It was held by this court in Bolton v. Jacks, 29 Super. Ct. (6 Robt.) 166, that want of jurisdiction renders void the judgment of any court, whether of superior or inferior, general or limited, or local jurisdiction, and the recital of jurisdictional facts in the record of such judgment is not conclusive (unless made so by statute), but only prima facie evidence of the existence or occurrence of such facts, and the party against whom the record of such judgment is offered in evidence is not estopped by such recitals from showing affirmatively by proof de hors the record, that they are untrue, and thus avoiding the judgment.

This case was cited with approval by Judge Rapallo, in Ferguson v. Crawford, 70 N. Y. 266-7. Judge Rapadlo, after referring to many cases on this subject, in this state and in other states, says that it thus appears that the current of judicial opinion in this state is very strong and uniform in favor of the proposition stated by Jones, J., in Bolton v. Jacks. It has not as yet, however, been directly adjudicated, and, if sustained, it must rest upon the local law of this state as it finds no support in the adjudications elsewhere. There are reasons, however, founded upon our system of practice, which would warrant us in so holding, the powers of a court of equity-being vested in our. courts of law, and equitable defences being allowable ; there is no reason why to an action upon a judgment the defendant should not be permitted to set up by way of defence any matter which would be ground of relief in equity against the judgment ; and, it is conceded in those states where the record is held conclusive, that when judgment has been obtained by fraud, or without bringing the defendant into court, and the want of jurisdiction does not appear upon the face of the record, relief may be obtained in equity. The techcnical difficulty arising from the conclusiveness of the record is thus obviated.

In Howard v. Smith, 33 Super. Ct. 124, this court held, that “ whenever it appears by the record of a judgment of a sister state that the defendant appeared by attorney, it is prima facie evidence of the fact; but in such case the defendant may rebut this presumption by proof that the attorney, named in the record was not his attorney in fact, and never had any authority to appear for him in the action.” In other words, notwithstanding the recital of the record, he may disprove the authority of the attorney to appear.

And the court of appeals, in Ferguson v Crawford, (supra) said, in effect, that there is no distinction in this respect between domestic and foreign judgments, and for this reason this case of Howard v. Smith is an authority for reversing this judgment.

There is no distinction between a forged notice of appearance and a notice really given by an attorney not authorized to give it, and jurisdiction is not acquired in either case. Burton v. Sherman, 20 N. Y. Weekly Digest, 419. On the trial of the action the court may and will determine on what terms relief will be granted to the plaintiff.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.  