Burt v. Delano

Case No. 2,211. Conclusiveness or Foreign Judgment — Validity — Practice — Joint Defendants — Service on One Only. 1. Subject to the qualification that judgments are open to inquiry as to the jurisdiction of the court where they were rendered, and as to notice to the defendant, the judgment of a state court, not reversed by a superior court, nor set aside by a direct proceeding in chancery, is conclusive in the courts of all other states where the subject-matter in controversy is the same. 2. Personal judgments are without any validity, if rendered by a state court in an action upon a money demand against a non-resident of the state upon whom no personal service of process was made within the state, unless he appeared and answered to the action, nor will such judgment affect his property beyond what he possessed in the state where the suit was brought. 3. Section 414. St. Cal. (Code Civ. Proc.), provides: “When the action is against two or more defendants, jointly or severally liable on a contract, and the summons is served on one or more, but not on all of them, the plaintiff may proceed against the defendants served in the same manner as if they were the only defendants.” Three persons were liable in the original suit, but service was made on one only, and judgment was obtained against him. Bchl, under the state statute the judgment was valid in the jurisdiction where it was obtained, and thus equally valid in all the other states, and in the circuit court of the United States. lOited in Renaud v. Abbott, 116 U. S. 2S9, 6 Sup. Ct. 1198.]

The case was submitted on an agreed statement of facts as follows: This is an action of contract upon a judgment rendered by the ¿¡strict court for the second judicial district of the state of California, in and for the county of Tehama, in favor of the plaintiffs [H. H. Burt and Tipton], who are citizens of the state of California, against John G. Wright, Lester Goodwin, and James Delano, copart-ners under the firm name of Wright, Goodwin, & Delano, and having their usual place of business in Boston, within the district of Massachusetts, and who, at the time said action was brought, were citizens of the state of Massachusetts. A copy of said judgment is hereto annexed, marked “A.” Service of the writ was made upon the defendant, James Delano, in California, he being then transiently in that state. No service was made upon either of the other defendants. By the terms of the judgment it was “to bind the partnership property of all the defendants in said action, but if there be no partnership property, or if there be not sufficient thereof to satisfy said judgment, then the judgment, or any deficiency therein, shall be satisfied out of the separate and individual property of defendant Delano alone.” The declaration and answer in this court, the whole record of the proceedings in the California court, and the statutes of the state oí California, may be referred to. If upon the above facts the court shall hold that this action may be maintained, the judgment for the plaintiffs, the amount to be determined by the court; otherwise, judgment for the defendant. [The court rendered a judgment for plaintiffs.] In the District Court, Second Judicial District in and for the County of Tehama, State of California. Tipton & Burt, Plaintiffs, v. Wright, Goodwin, & Delano, Partners, Defendants. The court having filed findings in the above-entitled cause to the effect that the plaintiffs therein are entitled to judgment against the defendants in said cause, in the sum of $2,44S 74-100, with interest thereon at the rate of ten per cent per year from the fi3d of September, 1S72, to the 11th of February, 1876, in the sum of 8667, and for costs of suit, the judgment payable in gold coin of the United States, and to bind the partnership property of all the defendants in said action, but if there be no partnership property, or if there be not sufficient thereof to satisfy said judgment, then the judgment or any deficiency therein shall be satisfied out of the separate and individual property of defendant Delano alone. Wherefore it is ordered and adjudged that the plaintiffs do have and receive judgment in said cause in the sum of S2,44S 74-100, with interest thereon at the rate of ten per cent per year, from the 23d of September, 1872, to the 11th of February, 1876, in the sum of 8667, and for costs of suit, the judgment payable in gold coin of the United States, and to bind the partnership property of all the defendants in said action, but if there be no partnership property, or if there be not sufficient thereof to satisfy said judgment, then the judgment, or any deficiency therein, shall be satisfied out of the separate and individual property of defendant Delano alone. The judgment declared on in this case is valid by the laws of the state of California. Code Civ. Proc. Cal. §§ 388, 414. The judgment is binding personally upon defendant Delano. Stoekwell v. McCracken, 109 Mass. 84. In order to ascertain whether a judgment can be enforced in personam against a defendant, by an action on the judgment, we must see whether it is evidence against him. This is the test. Doll v. Tremper [Dando v. Doll] 2 Johns. 87; Bank of Columbia v. New-comb, 6 Johns. 98; Taylor v. Pettibone, 16 Johns. 66; Townsend v. Carman, 6 Cow. 095; Mervin v. Kumbel, 23 Wend. 293; Oakley v. Aspinwall, 4 Comst [4 N. X.] 514; D’Arey v. Ketelium, 11 How. [52 U. S.] 165. The judgment in this case is absolute in form. The qualification is of the execution only, and is of no effect beyond the state of California. The judgment has no extra-territorial force except as evidence. Freem. Judgm. § 2; Green v. Sarmiento [Case No. 5,760]; Knapp v. Abell, 10 Allen, 490. The plaintiffs are under no obligation to levy on the joint property, even if there could be any found. Backus v. Denni-son, Kirb. 421. The burden is on the defendant to show any satisfaction of the judgment. Linton v. Hurley, 114 Mass. 70; O’Neal v. Kittredge, 3 Allen, 470. The plaintiffs are entitled to judgment for the amount of the judgment declared on and interest at the rate of seven per cent per annum, all in gold coin. Civ. Code Cal. § 1920. In the first suit the firm of Wright. Goodwin, & Delano were all joined as defendants, but service was made on Delano alone, and he is the only defendant in the-present action. Judgment was rendered against all the defendants to bind the partnership property, “or if sufficient thereof to satisfy said judgment cannot be found, then the deficiency to be satisfied from the separate and individual property of the said defendant, James Delano.” Such a judgment, entered against all the joint debtors after service on one of them only, and restricted in its operation to their joint or copartnership property, is authorized by the laws of California. Civ. Code Cal. §§ 3SS, 414; Kelly v. Van Austin, 17 Cal. 566. But the California record shows no judgment against Delano for any definite sum to be satisfied from his property or to run against, his person. His liability is expressly declared to be contingent only and for a deficiency of partnership property. “The law implies a promise to pay a definite, not an indefinite sum.” Sadler v. Robins, 1 Camp. 253; Carpenter v. Thornton, 3 Barn. & Aid. 52; Henley v. Soper, 8 Barn. & C. 16. A judgment, to be the foundation of an action, must be in personam for an ascertained sum. Westlake, Pr. Int. Law, 376. It is maintainable “only when the decision of the court can be fulfilled by the mere payment of an ascertained sum of money.” Pennington v. Gibson, 16 How. [57 U. S.] 77; Dimick v. Brooks, 21 Vt. 069; Battey v. Holbrook, 11 Gray, 212; Thorner v. Batory, 41 Md. 593. An award is in the nature of a judgment, and one in the form of the present judgment would be bad for uncertainty, and no action upon it could be maintained. Samon’s Case, 5 Coke, 77; Lincoln y. Whit-tenton Mills, 12 Mete. [Mass.] 31; Fletcher v. Webster, 5 Allen, 566; Camochan v. Christie, 11 Wheat. [24 U. S.] 446. Should it be suggested that by the laws of California an absolute judgment might have been rendered against the present defendant, who was served with process there, the simple and conclusive answer is, no such judgment was rendered. Nor does the California record show the existence of the contingency upon which alone the liability of the defendant was thereby made dependent. There is no evidence that any deficiency of copartnership property to satisfy the decree of the court existed. If the contingency upon which the liability of the present defendant was intended and declared to depend in fact existed, this ought to appear as of record in the California court by the return of an execution against the partnership property, unsatisfied in whole or in part, and an adjudication that a deficiency of partnership property exists to a specified amount. Then possibly some equitable remedy might be awarded in another jurisdiction. Barber v. Barber, 21 How. [62 U. S.] 582. If the the plaintiffs are entitled to recover, they can have interest only at the rate of six per cent per annum instead of ten per cent as demanded. By the laws of California the rate of interest on judgments is seven per cent. Laws Cal. 1S70, p. 699; Clark v. Dun-nam. 46 Cal. 207. But in actions on a judgment in another jurisdiction, not interest but damages will be allowed; as to which the lex fori governs. Barringer v. King, 5 Gray, 11; Perkins v. Fourniquet. 14 How. [55 U. S.] 330; Goddard v. Foster, 17 Wall. [84 Ü. S.] 143. The rate in Massachusetts is six per cent. Gen. St. c. 53, § 3; Id. 133, § 8; St. 1S07, c. 50.