
    PAUL W. LATHAM, Respondent v. PATRICK B. DELANY, Appellant.
    
      Foreign judgment, jurisdiction of the court in which it was obtained must appear in action thereon, etc.
    
    This action was against appellant, individually, upon a judgment entered in a circuit court of the state of Virginia against appellant and one R. N. Pool, jointly, and the chief question litigated on the trial was whether or not the Virginia court had acquired jurisdiction of the person of the appellant before rendering judgment. The recitals or statements in the record of a foreign judgment, purporting to establish jurisdiction, may be contradicted, and the presumption of jurisdiction appearing therefrom may be overthrown by testimony. The return on the process did not show personal service on Delany, one of the defendants, (now appellant) nor upon his wife at his usual place of abode, as provided by the law of Virginia, and tlie defendant gave proof tending to show that the service upon his wife was made at a place not the usual abode of defendant, and at the . time of such service defendant was not within the state of Virginia.
    
      The defendant, on the trial, offered evidence tending to show that the defendant had not appeared in person, or by attorney, or counsel, in the action in the Virginia court in which the judgment was obtained; on objection, this evidence was excluded. Held, such exclusion was error. At the close of the testimony the court ordered a verdict for plaintiff, to which defendant excepted. Held, such direction was error; that the condition of the testimony as to the service of the original process was such that the question of service should have been submitted to the jury, and if in addition thereto the testimony excluded had been given, the jury might have found that the recitals of appearance in the judgment were incorrect in fact, and conferred no jurisdiction. There was no light lost by defendant in not asking leave to go to the jury for he had not requested any direction in his own behalf upon evidence submitted by him to the court.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 5, 1891.
    Appeal from judgment entered upon a verdict of jury, directed by the court, and from an order denying motion for a new trial on the judge’s minutes.
    
      E. Louis Lowe, attorney and of counsel, for appellant, argued:—
    I. In this action, the defence is set up that the defendant was not served with process, and did not authorize any attorney or any one to appear for him in the Virginia case. Where such a defence is interposed to an action upon a judgment obtained in another state, it is always competent to inquire into the jurisdiction of the court which rendered the judgment. Thompson v. Whitman, 18 Wall. 457; Dobson v. Pearce, 12 N. Y. 156; Shumway v. Stillman, 6 Wend. 447. The Constitution of the United States (Art. IV., § 1,) and the law of congress of Hay 26, 1790 (1 Stat. at Large, 122), which provide that full faith and credit shall be given to the judicial proceedings of the different states throughout the Union, apply only to cases where it is conceded or established that the court acquired the necessary jurisdiction of the person or thing, but these constitutional and legislative provisions do not prohibit and were not designed to prohibit an inquiry into the preliminary question whether the court rendering the judgment sued on, ever did in fact acquire or possess the requisite jurisdiction. Thompson v. Whitman, supra ; Cole v. Cunningham, 133 U. S. 107, 111.
    II. Even though the record recites on its face all the necessary jurisdictional facts in the strongest manner possible, the defendant may, nevertheless, prove that the court did not have jurisdiction. Thompson v. Whitman, 18 Wall. 457, 468. (a.) If it is alleged that he was served with process, he may show the contrary. Knowles v. Gaslight Co., 19 Wall. 58. The uncontradicted proof in this case shows that no service of process, personal or otherwise, was made upon the defendant, according to the laws of Virginia. (6.) If it is asserted in the record that the defendant appeared by attorney, he must, nevertheless, be permitted to prove (if he has set it up as a defence) that he never authorized the attorney or any one else to appear for him. Howard v. Smith, 33 Super. Ct. (1 J. & S.), 124; Bolton v. Jacks, 29 Super. Ct. 166; Ferguson v. Crawford, 70 N. Y. 253; Hill v. Mendenhall, 21 Wall. 453; Starbuck v. Murray, 5 Wend. 148; Noyes v. Butler, 6 Barb. 613; Borden v. Fitch, 15 Johns. 121. The rule laid down in Brown v. Nichols, 42 N. Y. 26 ; Denton v. Noyes, 6 Johns. 296, and in Hamilton v. Wright, 37 N. Y. 502, that a party shall not be permitted to question the authority of an attorney who has assumed to appear for him, has been applied in this state only to domestic judgment, but never to sister State or foreign judgments. Ferguson v. Crawford, supra; Nordlinger v. De Mier, 54 Hun, 276, 278; Hollins v. St. Louis, etc., Co., 11 N. Y. Supp. 27. In these cases, the courts seem disposed to criticise and view with disfavor the distinction which has been made, permitting the authority of an attorney to be disputed in the case of a foreign judgment and in refusing to permit it to be disputed in the case of a domestic judgment.
    
      It has been held that an action will lie to set aside a domestic judgment on the ground that it was obtained through the unauthorized appearance of an attorney for the defendant (Ormsby v. Jacques, 12 Hun, 443). The case of Gilman v. Tucker, 18 N. Y. Civ. Pro. 50, decided in the Superior Court, does not seem to be in conflict with Ormsby v. Jacques, because in Gilman v. Tucker the action was brought in the Superior Court to set aside a judgment of the Supreme Court of this state. The defendant in this action, however, unless he is permitted to prove his defence here can obtain no relief against the judgment upon which he is sued, except by going to Virginia and bringing an action or making a motion there, and this the court will not compel a citizen of this state to do. Buck-master v. Grundy, 3 Gilman (Ill.), 626, 630; Tribbles, v. Toul, 7 Mon. 455; Taylor v. Stowell, 4 Met. (Ky.) 176, 177 ; Lirch v. Foster, 1 Ves. Sr. 88 ; Green v. Campbell, 2 Jones (Eq.), N. C. 448 ; Pander v. Cox, 28 Ga. 306, 307; Edminson v. Baxter, 4 Hayw. (Tenn.), 112 ; Richardson v. Williams, 3 Jones (Eq.), N. C. 119 ; Graham v. Tarkersby, 15 Ala. N. Y. 644; Henrichson v. Reinbach, 27 Ill. 301. In the case of Teel v. Yost (8 N. Y. Supp. 552 ; 5 N. Y. Supp. 5), the Superior Court held that the defendant was bound by the Pennsylvania judgment, but the defendant in that case, was not only actually domiciled in Pennsylvania at the time of the rendition of that judgment, but had previously expressly authorized it to be taken against him, in and by a written instrument executed under his hand and seal. ' The defendant in the pending case, however, was not only not served with process, but was an actual resident of the state of New York, and had been such resident for nearly four years when the Virginia judgment was rendered against him. It was therefore error to exclude proof that the defendant did not authorize any attorney or other person to appear for him in the Virginia suit.
    
      
      William C. Davis, attorney and of counsel, for respondent, argued :—
    I. As between Virginia and New York the law of this state, the lex fori, must prevail. “ It is universally admitted and established that the forms of remedies .and the modes of proceeding and the execution of judgments are to be regulated solely and exclusively by the laws of the place where the action is instituted, or, as the civilians uniformly express it, according to the lex fori.” Story on Conflict of Laws, 8th ed., p. 773. “ But the form of remedies and the order of judicial proceedings are to be according to the law of the place where the action is instituted, without any regard to the domicile of the parties, the origin of the right, or the country of the act.” Ib., p. 775. We administer justice according to our laws and the laws prescribed by our legislature. Andrews v. Herriott, 4 Cow. 508; Bird v. Caritat, 2 Johns. 345. See also Cannon v. Northwestern Mutual Life Ins. Co., 29 Hun, 470, in which the question of the right of an assignee of a life insurance policy, having no insurable interest, to recover thereon, was held determinable by the lex fori. See also, Nash v. Tupper, 1 Cai. 402; Smith v. Spinola, 2 Johns. 198; Lodge v. Phelps, 1 Johns. Cases, 139; Peck v. Hozier, 14 Johns. 346 ; Bank of U. S. v. Donally, 8 Pet. 361; Parsons on Cont., 6th ed., vol. 2, 588. “ As is said in Scudder v. Union National Bank, 1 Otto, 406, £ matters respecting the remedy, such as bringing suits, • admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought.’ ” Miller v. Brenham, 68 N. Y. 83, 87.
    II. The service of the summons and account, as shown by the sheriff's return, was sufficient under the law of Virginia. The defendant admits his residence in Harrisonburgh, Va., at the time when the suit was begun. In Goolsby v. St. John, 25 Grattan (Va.), 156, the Virginia Court of Appeals said: “An execution of the summons in any of the modes prescribed by law is equivalent to an execution of it by delivering a copy thereof in writing to the party in person.” In Smithson v. Briggs and wife, 33 Grattan (Va.), 180, the return of the sheriff on service of a summons was in these words r “ G. W. Smithson, not being found at his usual place of abode, a true copy of the within rule wa.s left with his daughter at his residence, who is over the age of sixteen years, and purport explained to her, this 28th day of August, 1871.” All the judges of the Virginia Court of Appeals except Anderson, J., thought the notice sufficient. The courts of New York in cases like the present follow the statutes and construction put upon them by the foreign tribunal. In Cassidy v. Leetch, 53 How. 105, the action here was upon a judgment recovered in the state of Louisiana. The court said: “The Louisiana suit was begun and judgment rendered therein in the year 1869. At the commencement of - the suit and for some time prior, as well as subsequent thereto, the defendant was domiciled at the corner of Rampart and Terpsichore streets, in the city of New Orleans. He was absent from home when the suit was begun, and the citation and the petition, (papers which correspond to the summons and complaint of our New York practice) were served upon him by the sheriff leaving a copy of them at the domicile of defendant, with his (the defendant’s) wife, who was a white person above the age of fourteen years, and who dwelt in the same domicile with said defendant. The return of the sheriff is in strict conformity with the law of Louisiana as expounded by the courts of that state (§§ 188, 190, 201, Code of Practice ; Kendrick v. Kendrick, 19 Louis. 38). The defendant, as has been said, was domiciled in Louisiana, and owed allegiance to that state and submission to its laws. “ The manner of serving process must necessarily be regulated by every country for itself; and if a state permits process to be served upon one of its own citizens by the leaving of it, in his absence, at his domicile with an adult member of his household, that method of service is not so repugnant to the principles of natural justice that a foreign tribunal should refuse to recognize it and treat a sentence founded on it as a nullity (3 Burge’s Foreign and Colonial Laws, 1056).” See also Hunt v. Hunt, 72 N.YT. 217, where this precise question is passed upon. Huntley v. Baker, 33 Hun, 578, is a leading case upon this subject. The authorities are there collated. The court held in favor of the foregoing views. In Teel v. Yost, 8 N. Y. Supp. 552, a judgment of this court in an action brought upon a judgment of the Court of Common Pleas of Northampton County, Pennsylvania, was affirmed. The court said: “ The defendant was domiciled in the state of Pennsylvania at the time of the entry of the judgment in the Court of Common Pleas of Northampton County of said state, and was therefore bound personally by the judgment, provided it was entered in accordance with the laws of that state.”
    III. Even if the service of the summons were defective, the court acquired jurisdiction of the defendant’s person by his subsequent appearance and answer by attorney. The answer, or plea as it-' is called in Virginia, is given, the withdrawal of it by leave of court the rendition of judgment by the court, and the name of the attorney who appeared and conducted the proceedings in behalf of the defendants. This voluntary appearance by attorney was equivalent to the personal service of the summons and waived all objections to the regularity or sufficiency of the service. Citing authority on this point would seem almost superfluous. Christal v. Kelly, 88 N. Y. 285; Ogdensburgh, etc., R. R. Co. v. Vermont, etc., R. R. Co., 63 Ib. 176, 181. But Mr. Haas, the attorney who appeared, is now dead. Notwithstanding all the facts stated upon the face of this record and the death of the attorney, the defendant now seeks to shelter himself under a claim that this appearance and answer were unauthorized and conferred upon the court no jurisdiction of his person. The trial court upon objection properly precluded the defendant from' denying the authority of the attorney. The following authorities seem to answer the question in favor of the respondent: In Gilman v. Tucker, 28 N. Y. State Reporter, 587 (reported also 7 N. Y. Supp. 682),. a case decided at general term in this court, December 5, 1889, the court held that a judgment entered against a defendant who was not served with process and had no knowledge of the suit, but for whom an attorney appeared without authority, is not void, and is regular when entered. The appropriate relief from such judgment is by application to the court by which judgment was rendered. Sedgwick, Ch. J., said, following the authority of Denton v. Noyes, 6 Johns, 296 (approved in Brown v. Nichols, 42 N. Y. 26): “ 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.” Freedman, J., concurring, said : “ 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.” In Brown v. Nichols, 42 N. Y. 26, 30, Judge Earl, in giving the opinion of the Court of Appeals, said: “ I think the judgment upon which this action is based is a valid one. Mr. Haven, a responsible attorney, appeared for A. D. Patchin, the deceased, and in such a case I think it ought to be regarded as the settled law of this state that the judgment may stand, and the party must seek his remedy against the attorney, who, without any authority, has appeared for him, unless there is some good reason for not doing it. I think a party should always seek relief for an unauthorized appearance in the suit in which it has been put in, where the rights and equities of all parties can be best protected. The rule is based not entirely upon the law of agency, but upon reasons of policy and justice which are discussed in the case of Denton v. Noyes, 6 John. 296, and by Judge Woodruff, in Hamilton v. Wright, 37 N. Y. 502.” In Vilas v. Butler, 9 N. Y. Supp. 82, the Supreme Court, general term, third department, February 24, 1890, held that a motion to vacate a judgment, on the ground that the appearance of the attorney was unauthorized, is properly denied after the death of the attorney and of the defendant who retained him, where it appears that the moving party has been guilty of laches, and refuses to submit himself generally to the jurisdiction of the court, etc. Learned, P. J., said: “ And it is not till the death of Page and Whiting has closed the mouths of those who might perhaps show authority for the appearance, that he comes into court to deny authority. It is true that the assumption of agency does not of itself prove agency. * * * But when an appearance has thus been put in, and a case has been litigated by a most reputable attorney and counsel, it does require on the part of one who disavows the authority ^ the utmost promptitude in action. It is utterly unreasonable that Chase should not at once have taken the very proceeding in which he is now engaged.” These cases illustrate the force and effect to be given by the courts to section 1, article 4, of the Constitution of the United States, which reads as follows, viz.: “ Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, and the Congress may by general laws prescribe the manner,” etc. Under the foregoing authorities, the defendant would be estopped from denying the authority of his attorney, if the judgment were a judgment of a court of general jurisdiction of this state. The rule is the same as to judgments of the courts of sister states. In Ferguson v. Crawford, 70 N. Y. 253, 261, a leading case, Judge Rapallo said: “ When we come to consider the effect of these authorities, it is difficult to find any solid ground upon which to rest a distinction between domestic judgments and judgments of sister states in regard to this question, for under the provisions of the Constitution of the United States, which requires that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, it is now well settled that when a judgment of a court of a sister state is duly proved in a court of this state, it is entitled here to all the effect to which it is entitled in the courts of the state where rendered. If conclusive there it is equally conclusive in all the states of the Union; and whatever pleas would be good to a suit therein in the state where rendered, and none others, can be pleaded in any court in the United States.” Citing, Hampton v. McConnel, 3 Wheat. 234; Story, Com. on Cons., § 183; Mills v. Duryee, 7 Cranch, 481. The defendant should be in no better position here than in Virginia. In Ferguson’s Admr. v. Teel, 82 Va. (7 Hansbrough), 690, the Virginia Court of Appeals said: “ To impeach and overturn judgments of courts of competent jurisdiction involves consequences of too much moment to be lightly regarded; and when a court of general jurisdiction has pronounced judgment, its adjudication should be as conclusive on the question whether a party was duly notified as on any other point necessary to a proper determination of the case.” In this case a bill in equity had been taken pro confesso against all defendants. It appeared upon the face of the proceedings that one Elizabeth A. Tench, the wife of Edmund Tench, was made a party defendant to the bill, and a writ of summons sued out against her, but by the return made it appeared to have been served upon her husband and not upon her. The Virginia Court of Appeals refused to reverse the judgment on that ground.
   Per Curiam.

The action was against the appellant, individually, upon a judgment entered in a circuit court of the state of Virginia against one R. N. Pool and the appellant jointly. The chief question litigated on the trial was whether the court of Virginia had obtained, before rendering judgment, jurisdiction of the person of the present defendant.

In the instance of a foreign judgment, rendered by a court of general jurisdiction, the recitals or statement in the record of it purporting to show jurisdiction, may be contradicted and the presumption of jurisdiction may be overthrown by testimony. Ferguson v. Crawford, 70 N. Y. 257, and the cases there cited.

The return by the sheriff, as to service of summons on the record, was executed upon R. N. Pool and P. B. Delany by leaving with the wife of each a copy of the within summons, also certified copy of account, they both being white persons over the age of sixteen years and members of the family, explained purport thereof, neither of them being found at their usual place of abode.

The legal method of service of summons appeared in § 1, ch. 163, title 51 of the Code of Virginia of 1873, which was given in evidence. Service is by delivering a copy thereof in writing to the party in person, or if he be not found at his usual place of abode by delivering such copy and giving information of its purport to his wife or any person found there who is a member of his family and above the age of sixteen years, or if neither he nor his wife nor any such person be found, then by leaving such copy posted at the front door of said place of abode.” The return, therefore, did not show service because it did not declare that the service made upon the wife was made at the Usual place of abode of the defendant.

To meet the presumption of jurisdiction in fact that might be created by the judgment being made by a court of general jurisdiction, the defendant, upon the trial, gave proof tending to show that the service upon the wife was made at a place not the usual abode of the defendant, and also that the defendant himself was not within the state of Virginia at the time of the service upon his wife.

To maintain the jurisdiction, the plaintiff relied upon certain recitals in the judgment, that the defendant in it had personally appeared before the court, as perhaps it might be argued was the recital of the judgment, or had appeared by attorney.

The defendant on the trial offered evidence tending to show that the defendant had not appeared in person in the court of Virginia and had not authorized any attorney to appear for him. Kerr v. Kerr, 41 N. Y. 275. The court excluded incorrectly, I think, the testimony offered.

At the close of the testimony the court ordered a verdict for plaintiff under the exception by defendant.

In the condition of the testimony as to the service .of original process, I think the question was one for the jury. They might have found that no sufficient service had been made. In that case, and so far as that affected jurisdiction, the court of Virginia was without jurisdiction. In connection with this, the testimony that was excluded,- if given, might have persuaded the jury that the recitals of appearance were incorrect in fact, and that so far as that was concerned there was no jurisdiction.

There was no right lost by the defendant in not asking leave to go to the jury, for he had not requested any direction in his own behalf upon a construction of the evidence submitted by him to the court.

It is to be noticed that the present action is against the defendant, individually, upon a joint judgment. No question was made upon the trial or on the argument, as to the power of the joint-debtor, the two being partners, to cause an appearance for the present defendant.

The judgment and order appealed from are reversed and a new trial ordered, with costs to abide the event.  