Burt v. Delano

CLIFFORD, Circuit Justice. Subject to the qualification that judgments are open to inquiry as to the jurisdiction of the court where they were given, 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 the other states where the subject-matter in controversy is the same. Christmas v. Russell, 5 Wall. [72 U. S.] 291; Mills v. Duryee, 7 Cranch [11 U. S.] 483; 2 Story, Const. (3d Ed.) 1313; Bissell v. Briggs, 9 Mass. 462. Judgment was rendered in a state court of California in favor of the plaintiffs, citizens of that state, against John G. Wright, Lester Goodwin, and James Delano, citizens of Massachusetts, doing business in the latter state under the firm name of Wright, Goodwin, & Delano. Service of the writ in that suit 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.” Suit, in due form, is commenced here, which is equivalent to an action of debt at common law, leave being given to refer to the declaration and answer, and to the California record and the statutes of that state. Judgment is to be rendered for .the plaintiff if the action is maintainable, otherwise for the defendant. Sufficient appears to show that the former suit was against all of the members of the firm, but that service was made only on the present defendant, the other two members of the firm not being found in the state where the suit was brought; that the present defendant employed counsel and made defence, both for himself and in behalf of the firm, but that no appearance in the case was entered for the partnership. Delano appeared for himself and filed a counter-claim as due to the firm, but no appearance was entered for any one except the party served. Nothing is shown to warrant the conclusion that any property of the partnership was found in that state. Without service upon the other two members of the firm, judgment was rendered against all three, subject to the condition already reproduced. Outside of the state where the judgment was rendered, it is clear that the judgment as to the members of the firm is null and void, as they had no notice of the suit; and it appears to be equally clear that it was without legal effect even as against those defendants in that state, as the partnership held no property within the jurisdiction of the court. Personal judgments are without any validity, if rendered by a state court in an action upon a money demand against a nonresident of the state, upon whom no personal service of process was made within the state, unless he. appeared and answered to the [858] action, nor will such a judgment affect his property beyond what he possessed in the state where the suit was brought. Pennoyer v. Neff, 95 U. S. 714. Concede that, and still it is contended that the judgment is equally invalid where the suit is against two or more non-residents, and only one was served; that it is of no greater validity as to the one served than as to those not served. Support to that proposition is certainly found in the rules of the common law, but the court is of the opinion that the statutes of California provide otherwise. In case of no partnership property, or any deficiency of such property, the condition of the judgment was, that the judgment or deficiency should be satisfied from the separate and individual property of said Delano. In a suit against a partnership, if one partner is not within the jurisdiction of the court, and is not served with process, and does not voluntarily appear and answer to the suit by himself or his attorney, the judgment against the partnership cannot be enforced against him out of the local jurisdiction, even though, by the lex loci, a service on the partner resident within the jurisdiction is sufficient to authorize a judgment against all the partners. Attorneys may, in many cases, enter a general appearance, but in an action against a partnership such an appearance must be construed 10 bS an appearance for the partners as partners, and for the purpose of defending the action against the partnership, and not as an appearance for the partners individually, severally, and personally, so as to render a judgment against the partnership in such action binding on an individual partner in another jurisdiction, by whom such an appearance was not authorized. One partner has no implied power to enter an appearance in a suit except for the partnership, and cannot, by such an appearance, bind a partner personally and individually who is not within the jurisdiction, and has not been served with process. Phelps v. Brewer. 9 Cush. 390. Remarks are found in the opinion of the court in Bennett v. Stickney, 17 Vt. 532, somewhat at variance with the ruling of the court in the preceding case, but the difference of opinion between the two courts is immaterial in the case before the court. Due service having been made upon the defendant in the former suit, the sole question is, whether the judgment rendered against him is binding and operative, which must depend in this case upon the California statutes (Code Civ. Proc. § 414): “When the action is against two or more defendants, jointly or severally liable on a contract, and the summons 5s served or. 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 in this ease were liable on the contract, and one only was served, and it is clear that the judgment, under the rule prescribed by that provision, is a valid judgment against the defendant served, and if valid in the state where the judgment was rendered it is equally valid in all the other states, and in the circuit court of the United States. Conclusive authority to that effect is found in the reported decision of the supreme court of Massachusetts. Stockwell v. McCracken, 109 Mass. 87. Special reference is made in that case to the statute laws of California, which contain the same provision as the Code, and the court remarks that that provision, if in force, shows that the judgment would be good against the party- personally served, however defective the service may have been against the other party. Viewed in the light of these suggestions, it is clear that the plaintiff is entitled to judgment for the amount of the judgment set forth in the declaration, with interest, as damages, at the rate of six per cent. Barringer v. King, 5 Gray, 12. Judgment for plaintiff.