Gottlieb v. Alton Grain Co.

Laughlin, J.: This is an action to recover an amount due the plaintiff from the defendant upon an account stated. The defense was payment of the money under garnishee process issued out of the Circuit Court of Cook county, 111., in an action brought by the Milwaukee Elevator Company against the plaintiff. The defendant in the [381] action in the courts of Illinois was sued under the name of W. B. Gottleib. The defendant in this action introduced in evidence the judgment roll in the former action and proved payment of the account on which this action is based under the garnishee process issued therein. The plaintiff objected to the introduction of the judgment roll upon the ground, among others, that it did not appear that this plaintiff was the defendant in that action. The action in Illinois was for trespass upon the case upon promises, for failure to accept and pay for barley, the delivery of which was tendered and refused. The proceedings in the Illinois case showed that the defendant in that action- resided in the city of New York and his non-residence in the State was the-basis of the garnishee process. Counsel for plaintiff in this action, in moving for judgment upon the pleadings upon the ground that it did not appear by the answer that the plaintiff in this action and the defendant in the Illinois action was a non-resident of the State of Illinois, said, among other things, “in this ease, the defendant in that suit and the plaintiff here, he was served by publication, he never appeared and we have a right to question the jurisdiction and it seems to me that they haven’t brought themselves within the statute as they plead it and we are entitled to a judgment on the pleadings.” The defendant then moved to amend the answer by inserts ing an allegation that the plaintiff was a non-resident of the' State of Illinois and a resident of New York-and the motion was granted. The defendant then proved by the testimony of Mr. Hurling, its representative on the floor of the Produce Exchange here, that he had a conversation with the plaintiff relative to a litigation between him and the Milwaukee Elevator Company, in which the plaintiff admitted that said company had sued him in the Illinois court for $6,000 or $8,000 for “ a difference on barley ” which it shipped to him and he did not accept, and said that he was going to sue this defendant here for the balance due before this trouble began; and that the witness told the plaintiff that this defendant had paid the indebtedness by order of the Chicago court. During the giving of this testimony counsel for the plaintiff interposed an objection, and the court said that the testimony- would be received unless counsel for the plaintiff would admit that his client was the defendant in the action in Illinois, to which counsel for the plaintiff said, “I [382] shall not concede that.” The court then observed, “ That was conceded in your motion made here in the beginning of this trial. You said your client was sued in that. case, but never ■ had appeared in it; ” and counsel for the plaintiff made no reply. The plaintiff was called as a witness in his own behalf and testified that the Milwaukee Elevator Company had instituted a proceeding. against him in the Produce Exchange for his refusal to accept barley, and denied that he had ever stated to Murling that the Milwaukee Elevator Company had sued him for $6,000 or $8,000; but he did not deny that he had said to Múrling that an action had been brought against him in the Illinois court by the Milwaukee Elevator Company for the amount due on the barley. At the close of the evidence both parties moved for a direction of a verdict, but the plaintiff, upon the denial of his motion, requested the court generally to submit the case to the jury, and this motion was denied and he excepted. The court then granted/the defendant’s motion for a direction Of a verdict. It appears .from the judgment roll that the proceedings in the • action in Illinois were regular and in .accordance with the statutes of that State. The plaintiff, being a non-resident, was served by publication. Without attempting to controvert the jurisdictional facts shown and recited, the plaintiff claims that the judgment is void on account of the fact that the Christian name is not given in full. The judgment is entitled to the presumption of validity (Ferguson v. Crawford, 70 N. Y. 254), and we know of no law prohibiting the use of these letters as a given or Christian name. Even if it is to .be assumed that the letters are used as abbreviations of his given names,, yet the technical rules formerly applied to such, questions have given way to more liberal views, and it is clear that the court would in such case acquire jurisdiction over the defendant if personally served, and over his property within the State if served by publication. (Stuyvesant v. Weil, 167 N. Y. 421; Holman v. Goslin, 63 App. Div. 204.) Plaintiff was sued by an Illinois corporation in the courts of that State, and it attached a claim due to him from another Illinois corporation. Gottleib and Gottlieb are idem sonans, and the contention that the judgment cannot bind the plaintiff on account of the variance in the summons is without merit. (Cutting v. Conklin, 28 Ill. 506; Springer v. Hutchinson, 59 Ill. App. 80.) Full faith and credit must, therefore, be [383] given to the judgment. The appellant now contends that it was not shown that he was the defendant in the action in Illinois. We are of the opinion that it appeared upon the trial, without controversy, that the plaintiff in this action was the defendant in the action in Illinois. His denial that he told Mr. Murling that he had been sued by the Milwaukee Elevator Company for $6,000 or $8,000 was no denial of the fact that he had been sued by that company or that he was the defendant in the action the judgment roll in which was received in evidence. If he intended to controvert that fact, his testimony should have been more specific. If he had a defense to the action brought against him in Illinois, he should have interposed it there or moved to open the judgment. The defendant has paid the indebtedness for the benefit of the plaintiff by order of a court of competent jurisdiction having jurisdiction which is binding on the plaintiff until vacated. The court was, therefore, justified in directing a verdict for the defendant. It follows that the judgment should be affirmed, with costs. Van Brunt, P. J., Patterson and Hatch, JJ., concurred; Ingraham, J., dissented.