Weidman v. Sibley

WARD, J. It is insisted on behalf of the appellant that the county court erred* in dismissing the complaint as against the resident defendants. The action was for a tort, and the defendants were severally liable for the plaintiff’s damages, and the plaintiff could maintain an action against all or any of the defendants; and there is no rule which makes all the tort feasors necessary par [1058] ties to an action of this character. Creen v. Hartmann, 29 N. Y. 591; Roberts v. Johnson, 58 N. Y. 613; Kain v. Smith, 80 N. Y. 458; Beal v. Finch, 11 N. Y. 134. Had the action been originally brought against only the five defendants who were residents of Monroe county, or any one of them, it could undoubtedly have been maintained. The' cause of action arose in Monroe county. Does the fact that the two nonresident defendants were named in the summons and complaint, though not served with process, change the situation as to any of the resident defendants? The Code of Civil Procedure (sections 1204, 1205) provides that judgment may be given for or against one or more defendants, where a several judgment may be proper. Stedeker v. Bernard, 102 N. Y. 327, 6 N. E. 791. And by section 456 of the Code it is provided that: “Where a summons issued against two or more defendants, alleged to be severally liable, is served upon some, but not upon all of them, the plaintiff may proceed against those upon whom it is served, as if they were the only defendants named therein. Where it is served upon all of them, the plaintiff may take judgment against one or more of them, where he would be entitled to judgment, if the action was against him or them alone.” These provisions of the Code apply to the county courts. Section 3347, subds. 4, 8, and section 348. But the learned counsel for the respondents claims that under section 14 of article 6 of the constitution, which gave the county courts “original jurisdiction in all cases where the defendants reside in the county, and in which the damages claimed shall not exceed,” etc.,, and under subdivision 3 of section 340 of the Code of Civil Procedure, which confers jurisdiction on those courts over “an action for any other cause, where the defendant is, or, if there are two or more defendants, where all of them are, at the time of the commencement, of the action, residents of the county, and wherein the complaint demands judgment for a sum of money only, not exceeding,” etc., no cause of action exists, of which the county court has jurisdiction, against any of the parties defendant named in the complaint, unless all of the parties so named are residents of the county. The provisions of law, whether constitutional or statutory, must receive a reasonable construction, and one in harmony with the purpose sought to be obtained by the law itself. The purpose of the provisions under consideration was to deprive the county court of jurisdiction as against a nonresident defendant, but jurisdiction was retained in those courts as to the resident defendants. Where the county court has before it a defendant who is liable “for any cause” of action to the plaintiff, independent of his relations to any other defendant, it has jurisdiction to proceed against him, and a several judgment can be rendered. This view brings section 340 of the Code in harmony with the other sections cited, and they should all be construed together. The nonresident defendants were not before the county court. Neither of them was served with process. The appearance of the attorneys, as to them, conferred no jurisdiction, and had no effect. While, in courts of general jurisdiction, an appearance in an action by a nónresident defendant, not served with process, may [1059] waive jurisdiction as to his person, it is not so with courts of limited jurisdiction, especially as to the subject-matter of the litigation. Landers v. Railroad Co., 53 N. Y. 450; Wheelock v. Lee, 74 N. Y. 495; Davidsburgh v. Insurance Co., 90 N. Y. 526; Heenan v. Railway Co., 34 Hun, 602. Therefore the case stands precisely as if there had been no appearance for these absent defendants. The defendants cannot be permitted to assert that their general appearance by an attorney in the action is not effectual to confer jurisdiction as against the nonresident defendants, but is effectual to so bring them into the case as to operate as a lever to oust the county court of jurisdiction as to the resident defendants. The court below having no jurisdiction of the nonresident defendants, they had no interest in the action. No proceedings therein could affect them. Although they were co-partners with the resident defendants in the business in which the plaintiff was injured, any judgment against the resident defendants in the action; it being for a tort, would not affect them, as no contribution could be enforced against them. Miller v. Fenton, 11 Paige, 18; Peck v. Ellis, 2 Johns. Ch. 131; Andrews v. Murray, 33 Barb. 354; Robinson v. Frost, 14 Barb. 536; Travis v. Tobias, 7 How. Prac. 90; Geisenheimer v. Dodge, 1 How. Prac. (N. S.) 264. Their appearance in the action seems to have been an intrusion for an ulterior purpose, and they had no right to appear. As was well said in Tracy v. Reynolds, 7 How. Prac. 327, by Harris, J.: “It was never the case In any court that a party not invited, and unwelcome, could intrude himself upon the court and the plaintiff, unless he had some right to protect which rendered such appearance necessary.” Under the ruling of the court below in this case, the maker of a promissory note, who was a resident of Monroe county, could not be held liable in an action in which a nonresident indorser, not served, had been made a party. Clearly, in such a case, the county court could have proceeded to judgment against the maker. McKnight v. Baker, 1 How. Prac. 201; Bank v. Cutting, 1 Bosw. 636. As before said, no doubt exists that, if none but the resident defendants had been named in the summons and complaint, the court below would have had jurisdiction of those defendants; nor can any doubt exist that after the dismissal of the complaint in this case another action can be maintained in the court below against the resident defendants. Upon what principle, therefore, can the contention rest that the county court had not the power to dispose of the same issues between the plaintiff and the resident defendants upon the trial below? The respondents’ only answer is that “such is the law.” The law is a sensible and practical institution. It abhors circuity of actions. The court below was dealing with the issues made up against the resident defendants, and not with questions concerning defendants over whom it had no jurisdiction; and it erred in dismissing the complaint as to the resident defendants, and for that error the judgment should be reversed.