Noble v. Thompson Oil Co. ex rel. Brown

1. Oyer of a record averred in pleadings is not demandable, 2. A record of a judgment was set up in a plea, the plaintiff craved oyer, which was ordered, and the record was filed; there was no exception taken; the parties afterwards agreed to waive informality in the certificate and the defendant filed a supplemental record. Held, that error as to ordering oyer was waived. 3. A corporation of Pennsylvania where it did business recovered a judgment there, and immediately bon& fide assigned it of record to citizens of that state. Held, the assignment being valid in Pennsylvania, was valid everywhere. 4. The assignees took the judgment subject to the equities between the parties at the time of the assignment, and to payments which might be made by the defendants in the judgment before they had notice of the assignment. 5. After the assignment the plaintiff in the judgment had no attachable interest in it, 6. The judgment, as well as the partieB, was in Pennsylvania at the time of the assignment. 7. The debtors, defendants in the judgment, resided in New York; a foreign attachment was issued there against the plaintiffs and served on the defendants as garnishees, after the assignment but before the defendants had notice of it. Held,, that the claim of the assignees was not postponed to that of the attaching creditors. 8. The plaintiff in foreign attachment is in no better situation as to the thing attached than his debtor whose property is sought to be attached. 9. In the foreign attachment judgment was recovered against the plaintiff in the judgment on the ground that the debt had been attached because the debtors, garnishees, were served in New York ; in an issue raised, according to the law there, on execution process against the garnishees, it was found as a fact that the assignment had been bonfi fide made in Pennsylvania, but decided as a matter of law that it was no bar to a recovery against the garnishees ; judgment was rendered against them and they paid it. Held no . bar to a recovery by the assignees of the Pennsylvania judgment against the defendants in it. 10. The provision in the United States Constitution that full faith, &e., shall be given in one state to the judicial proceedings of other states, does not preclude the courts of the former state from inquiring into the jurisdiction of courts where the proceedings were had. 11. A judgment in rem in foreign attachment is void if the court have no jurisdiction of the property. 12. Notice by the garnishees of the pendency of the proceedings, to assignor and assignee after the judgment had been obtained in the attachment against the assignor, would not change the result; the assignees were not parties or privies and were not bound to appear and contest.

Error to the Court of Common Pleas of Brie county: Of October and November Term 1874, No. 188. This was an action of debt upon a recognisance of bail in error, commenced September 3d 1873, by The Thompson Oil Company, to the use of Elizabeth A. Brown, executrix, Conrad Brown, deceased, John H. Walker, James C. Marshall and P. E. Marshall, against Orange Noble, Ambrose Snow, Theodore Wright and L. L. Lamb•, the writ was returned “ Nihil ” as to Wright and Snow, but Wright appeared to the action. The declaration set out the recognisance taken December 10th 1867, by the defendants, before the prothonotary of the Court of Common Pleas of Erie county, by which they acknowledged to owe The Thompson Oil Company $54,000, upon condition that Snow, Burgess, Wright & Woods, plaintiffs in error, would prosecute with effect, &c., a writ of error in a certain action in which The Thompson Oil Company, on the 25th of November 1867, recovered against them a judgment for $26,723.50. The declaration averred that on the 27th of November 1867, The Thompson Oil Company, “ for a full and valuable consideration, to wit, for money due” by the company to Conrad Brown, assigned to Brown the sum of $23,723.50 of the judgment, and also “for a full and valuable consideration, to wit, for professional services as attorneys at law,” assigned to John H. Walker, James C. Marshall and Francis F. Marshall, $3000 of the judgment; it further averred that the judgment was affirmed by the Supreme Court on the 28th of November 1868, but the plaintiffs in error had not paid The Thompson Oil Company, nor the assignees, the amount of the judgment. On the 13th of December 1873, the defendants pleaded, that on the 25th of January 1868, The Woods & Wright Oil Company, a coi-poration of the state of New York, claiming to be a creditor of The Thompson Oil Company to the amount of $75,000, petitioned the Supreme Court of that state that a writ of attachment, in the nature of foreign attachment, might issue to attach the debt due by Snow, Burgess, Wright & Woods to The Thompson Company; that The Woods & Wright Company having filed their bond for restitution of any money, &c., which might be collected by them under the attachment in case the defendants should defend and succeed in their defence, an attachment was issued and was served on Snow, Burgess, Wright & Woods, then resident in the state of New York, by which the debt due by them was, according to the law of New York, and the practice of the Supreme Court of that state, attached for the benefit of The Woods & Wright Company; that the original process was duly served on The Thompson Company according to the laws of New York and practice of the Supreme Court of that state, by advertisement and sending a copy of the writ by mail to The Thompson Company at Erie, Pennsylvania, and by serving a notice personally on the president at Erie; that on the 24th of September 1868, final judgment was rendered against The Thompson Company in favor of the Woods & Wright Company for $56,251.88, in accordance with the laws and practice aforesaid.; that by reason of the attachment and the laws of New York, The Woods & Wright Company acquired a lien on the claim of The Thompson Company against Snow and his co-defendants and garnishees, in the Supreme C.ourt of New York, who became absolutely liable to the plaintiffs in the attachment for the amount owing by them to The Thompson Company; that execution was issued on the judgment and the claim owing to The Thompson Company levied on; that when the defendants gave notice of the attachment they had no knowledge of the assignment of the judgment, and had no notice of it until February 23d 1868; that after the execution against defendants was issued, and before any farther step was taken in the proceedings in New York, the defendants, on the 23d of October 1868, gave notice to The Thompson Company and the assignees of the judgment, and authorized them to use the names of the defendants in any legal proceedings in any court “ for the purpose of protecting the original defendants and garnishees from the necessity of paying said execution that the defendants as garnishees did further refuse to pay the amount of the judgment of The Thompson Company against them in discharge of the execution, alleging that it had been assigned as set forth in the declaration; and thereupon, in accordance with law and practice aforesaid, “ on proceedings for relief supplementary to said execution,” the Supreme Court of New York, on the 18th of December 1868, appointed W. M. Tweed, Jr., receiver of the “ indebtedness from the garnishees to said Thompson Oil Company ;” that the receiver commenced suit against the garnishees in the nature of a feigned issue, to try whether the garnishees were entitled to the protection they claimed by reason of the assignments of the judgment; that the receiver made his claim for the amount of the judgment in favor of- The Thompson Company; that the garnishees answered setting up the assignment and averring that the amount of the judgment was due to the assignees, under the facts in the case, which were set out in the answer; that the court referred the claim and answer to Du Bois Smith, Esq., “ to hear and determine the facts and the law arising upon them ;” the facts were proved to the satisfaction of the referee, and on the 29th of July 1869, he decided, as matter of law, that the assignments by The Thompson Company were no bar to the recovery by The Woods & Wright Company against the garnishees, and that there was due by the garnishees to that company the sum of $30,168.60, being the debt due by them to The Thompson Company with interest. The Supreme Court of New York confirmed the award of the referee, and judgment was entered against the garnishees in favor of The Woods & Wright Company for $20,334.11; that notice of the entry of the judgment was served on the counsel of the garnishees, and they caused a copy of the notice to be served on the assignees of the judgment on the 24th of September 1869 ; that no steps were taken by the assignees to have the judgment set aside or to protect the garnishees ; that they afterwards, and before the commencement of this suit, paid The Woods & Wright Company the amount of the judgment recovered by them in New York, “and thereby satisfied the claim against the defendants in this suit on the recognisance on which suit is brought.” “ And this the defendants are ready to verify by the said record, wherefore they pray judgment if the said plaintiff ought to have or maintain their aforesaid action against them.” On the 17th of December 1873, the plaintiffs craved oyer of the record of the Supreme Court of New York, set up in the defendants’ plea; oyer was granted January 10th 1874 ; and copies of the records referred to in the plea were filed. The exemplification of the record showed the following proceedings :— On the 25th of January 1868, a warrant issued by a judge of the Supreme Court of New York for the county of New York, on the affidavit of The Woods & Wright Oil Company, to attach the property of The Thompson Oil Company to satisfy the plaintiff’s demand of $75,000 with costs, &c. The sheriff returned to the warrant that on the same day he levied “ upon property within said county belonging to the defendant, and that said property consisted of an indebtedness to said Thompson Oil Company” from Snow, Burgess, Woods & Wright, for which The Thompson Company had recovered a judgment of $27,000. Alfred D. Snow, president of The Woods & Wright Company, on the 13th of February 1868, filed an affidavit that the defendants in the attachment could not be found in the state; that the defendants were a foreign corporation doing business in Pennsylvania, and one not incorporated by New York, and had property within that state, consisting of an indebtedness to them from Ambrose Snow, &c. On the 19th of February, upon this affidavit, a judge of the Supreme Court directed that service of the summons in the action be made on the defendants by publication in two newspapers in the city of New York designated by the judge, and that a copy of the summons and complaint be sent by mail to the defendant at Erie, Pennsylvania. The summons was that the defendants should answer the complaint to be filed in the case, and serve a copy of their answer on the plaintiff’s attorneys within twenty days after the service of the summons upon them, and should they fail to answer, the plaintiffs would “ apply to the court for the relief demanded in the complaint.” The complaint was filed February 21st 1868. It set out that the plaintiffs were a corporation organized under the laws of New York; that defendants were a corporation organized under the laws of Pennsylvania; that the plaintiffs, on the 16th of September 1864, were the owners of a large proportion (specified) of certain oil wells in Pennsylvania; that from that time the defendants had received the plaintiffs’ share of tbe product of the wells, amounting in value to $50,000, for which with interest the defendants demanded judgment. Proof having been made of the publication and of the sending by mail of the notice, &c., according to the order of the court, the matter was referred to a referee to take proof of the demand, &c., and report. The referee reported that there was due from the defendants, The Thompson Oil Company, to the plaintiffs, the sum of $55,433.61, for which, on the 25th of September 1868, judgment was entered in the Supreme Court of New York, for the county of New York. On the 13th of October 1868, execution was issued on this judgment, to which the sheriff returned “No personal or real property.” On the 18th of December 1868, on the affidavit of the attorney of the plaintiffs, that the execution on the judgment of the plaintiffs had been returned unsatisfied and thejudgment remained unpaid, and that Ambrose Snow and J. S. Burgess had property of the defendants, a judge of the Supreme Court issued an order to Snow and Burgess to appear at, &c., on the 17th of December 1868, to be examined concerning the same. On that day Ambrose Snow made affidavit, admitting the indebtedness, and alleging that they had been notified that certain parties, whose names he could not remember, claimed to own by assignment from The Thompson Company the judgment obtained in Pennsylvania against Snow, Burgess and others in favor of that company. In pursuance of that affidavit, W. M. Tweed, Jr., Esq., was appointed receiver of the indebtedness. By leave of the court, an action was commenced by W. M. Tweed, Jr., receiver of the Thompson Oil Company, against The Thompson Oil Company, Ambrose Snow, Joseph S. Burgess, T. Wright and W. J. Woods. The complaint;set out the action by the Woods & Wright Oil Company, against I “The Thompson Oil Company, a foreign corporation, formed under the laws of Pennsylvania,” the attachment, the levy under it of the indebtedness of Snow to The Thompson Company, the recovery of the judgment by The Woods & Wright Company against The Thompson Company for $56,251.88; the issuing of the execution and the sheriff’s return that it was unsatisfied; the refusal of Snow et al. to pay the indebtedness; the recovery of the judgment in Pennsylvania by The Thompson Company against Snow et al. for $27,000, “ which judgment is unpaid,” and that Snow et al. were still indebted to The Thompson Company, &c. The plaintiff demanded judgment against Snow et al. that they should pay to The Woods & Wright Company the amount of the judgment against them in favor of The Thompson Company. Snow et al. appeared in the suit by attorney and answered, admitting the allegations in the complaint; and averred that on or about the 23d of February 1868, and after the attachment had been levied, they received notice that the judgment in favor of The Thompson Company had been assigned by that company to J. C. & F. F. Marshall, J. H. Walker & Son, and Conrad Brown, who claimed to be the owners of the judgment; that the assignment was made before the service of the attachment, and that by reason of the assignments The Thompson Company had no claim against Snow et ah, upon which execution could be levied. By agreement between the attorneys of the plaintiffs in the attachment, and of attorney of Snow et ah, Dubois Smith, Esq., was appointed by the court, referee to hear and determine the issue between the parties. The referee reported, July 29th 1869, finding the facts, including the assignments of the judgment as before stated, and further found, as matter of law, that the assignments were no bar to the recovery by the plaintiffs against the defendants in the attachment for the amount demanded in this action; and that judgment should be entered for the plaintiffs against the defendants for $26,723.50, with interest, amounting in all to $30,168. Judgment was accordingly so entered in the Supreme Court of New York, July 30th 1869. Satisfaction for the full amount of the judgment and costs was acknowledged, August 4th 1869, by the attorney of the receiver. The following were the notices from Snow et al., referred to in the plea, not appearing in the New York record, but referred to in the opinion of Mr. Justice Mercur:— • “ New York, October 23d 1868. To The Thompson Oil Company, Gentlemen: — We hereby give you notice that on the attachment served on us as your debtors, on the 25th day of last January, at the suit of The Woods & Wright Oil Creek Company, of which you were duly informed by us,'on or about the 1st day of February last, judgment having been subsequently obtained against you, an execution has been issued against us on said judgment, from the Supreme Court of the state of New York, in and for the city and county of New York, under which our property has been levied on by the sheriff of the city and county of New York, to compel the payment to said Woods & Wright Oil Creek Company, your judgment creditors, and plaintiffs in said judgment of a sum of $26,723.50, said to be due by us to you, being the same amount for which you obtained judgment against us, in a suit instituted in the Court of Common Pleas of Erie county, in Pennsylvania, to May Term 1866, No. 114. If you can protect us from being obliged to pay said amount to the said sheriff, or the plaintiffs in said execution, either by having the judgment against yourselves set aside, or in any other way, please to do so. “We hereby give you authority to use our names, by making any application to the said Supreme Court in New York, or in any other way that may be necessary for the purpose of protecting us from such payment. If said execution is not set aside, we shall be obliged to pay to said sheriff or to the plaintiffs in the execution, the amount recovered by you in said suit at Erie, or so much thereof, if any, as it may be finally adjudged we are liable for.” “ New York, October 23d 1868. Conrad Brown, Esq., Sir: — Having recently understood that you claim to have an interest in a certain claim made by The Thompson Oil Company against us, on which suit was instituted in the Court of Common Pleas of the county of Erie, in the state of Pennsylvania, to May Term 1866, No. 114, we beg leave herewith to inclose to you a copy of the notice that we have sent to said Thompson Oil Company, and authorize you also to use our names in any application to said court in New York, or any other judicial tribunal, or in any other judicial proceeding for the purpose of relieving us from said execution and attachment. We shall be happy to give you any further information you may desire in relation to the matter.” The notices to the other assignees were in the same form. The plaintiffs demurred to the plea and assigned the following causes of demurrer:— 1. Because the plea set up the judgment in New York and its payment to the plaintiffs on the attachment, without tendering issue on the allegation in the declaration, that the debt due from Snow et al. had been assigned for a valuable consideration by The Thompson Company to Brown, Marshall and Walker by assignment bond, fide before the issuing of the attachment. 2. Because the plea set up the judgment and payment aforesaid, whilst it admitted that the garnishees, on the 23d of February 1868, long before the alleged payment, had knowledge of the transfer bond, fide to the use plaintiffs before the attachment. 3. Because the plea set up the proceedings, judgment, &c., in New York, without alleging service of process on The Thompson Company, or their appearance in the suit in New York, or that The Thompson Company was, at the time of the issuing of the writ, owner of the debt due by Snow et al., and because the plea did not deny the matters alleged in the declaration that the debt attached was at the date of the attachment divested from said Thompson Company and vested in the use plaintiffs in this suit, and if the facts alleged in the plea are a rightful payment, the plea is but the general issue and should have been so pleaded; and no material fact is traversed nor alleged which avoids the allegation in the declaration. 4. Because the plea set up a judgment without alleging that the plaintiffs were either parties or privies. 5. Because the plea did not deny the only fact on which a material issue could be taken, to wit: whether the assignments had been make bond. fide before issuing the attachment; nor did the plea allege service of process upon The Thompson Company or appearance by them or service of summons or appearance by the assignees in the Supreme Court of. New York, but had tendered issue by their plea the fact that the garnishees gave a casual notice to The Thompson Company on or about February 1st 1868, and the fact that Snow et al. had no notice prior to the issuing of the attachment of the assignment of the claim and did not receive notice before February 23d 1868, each of these averments being immaterial. 6. Because the plea set up the judgment, &e., averring that in the proceedings in the Supreme Court in New York, it was determined as matter of law that the assignments afforded no bar to a recovery by the plaintiffs in the attachment, without averring that the assignees, the use plaintiffs, were either parties or privies to the suit in New York or were legally before the Supreme Court there when such determination was made. 7. Because the plea pleads a judgment in the Supreme Court in New York, in a foreign attachment by The Woods & Wright Company against The Thompson Company to attach a debt due from Snow et al., summoned as garnishees, averring that by the attachment The Woods & Wright Company obtained a lien on the debt, without averring that on the day of the attachment the debt was the property of The Thompson Company, or denying that the debt was, at the date of the attachment and before and since, the property of Conrad Brown et ah, by assignments from The Thompson Company, thus argumentatively averring, as a legitimate conseqence of the attachment, that the plaintiffs in the attachment could acquire a lien in foreign attachment against The Thompson Company, by attaching property which at the date of the attachment belonged to the use plaintiffs in this suit. 8. The plea is informal, uncertain, defective and insufficient, in that it avers that the defendants, the garnishees, in the New York suit became liable to the plaintiffs in the attachment for the amount of their debt to The Thompson Company, and subject to have execution against them, and execution was issued against them on the judgment and levied on the debt due by them to The Thompson Company, which averments were unfounded in fact, as appeared by the New York record. 9. Because the plea alleged an issue altogether a matter of law, to vyit: that the judgment in New York “ was obtained in accordance with the laws of New York and the practice of the Supreme Court there, a question on which no apt or material issue can be taken, the same plea stating all the facts and circumstances attending said judgment, giving the record thereof; the validity or invalidity of said judgment must be inquired of and determined by this court.” February 6th 1874. Agreement waiving informality of certificate of record filed. February 7th. A record from courts of New York, supplemental to that filed January 10th 1874, filed. March 24th 1874, the defendants joined in demurrer. On the 22d of June 1874, the judgment was entered for the plaintiffs on the demurrer, the court delivering the following opinion :— “ Our conclusions in this case are that the assignment by Thompson Oil Company to estate of Conrad Brown and others, transferred to the assignees, from the date of the assignment, all the interest of the legal plaintiffs in the judgment against Snow, Burgess, Woods and Wright, so that it was not attachable as the property of The Thompson Oil Company in the hands of said defendants after the date of said assignment; that the said assignees, being non-residents of the state of New York, and actually residents in and citizens of the state of Pennsylvania, at the time of the proceedings against the said The Thompson Oil Company in the Supreme Court in and for the city and county of New York, the situs of the property follows the residence of its then owners, and was never within the jurisdiction of the courts of the state of New York, nor were the persons of said assignees, and that therefore the said Supreme Court never acquired jurisdiction of either the persons or the property of the said assignees, and any judgment of said court affecting their rights was wholly ex parte and invalid, and that, therefore, as a final conclusion from the foregoing conclusions, the demurrer of the plaintiffs in this case to the plea of the defendants is good and sufficient in law. We therefore direct judgment to be entered on the demurrrer in favor of the plaintiffs, the amount to be liquidated from the record in the case by the prothonotary.” The judgment was liquidated at $37,597.98. The defendants took a writ of error and assigned for error :— 1. Granting plaintiffs’ motion craving oyer of the record and ordering its production. 2. Entering judgment for plaintiffs on the demurrer.