Hanzes v. Flavio , 234 Mass. 320 ( 1920 )

Rugg, C. J.

This is a writ of error to reverse a judgment entered in the Superior Court on April 21, 1914, in favor of the administrator of the estate of Emilio Flavio against four persons named therein as defendants. The grounds of error alleged are (1) that the Superior Court acquired no jurisdiction over the defendants Contakis and Kaleavas, and (2) that Kaleavas died August 6,1913, and his administrator never appeared voluntarily and was not summoned in to defend the action. The case was sent to an auditor, whose general finding was in favor of the plaintiffs on the grounds alleged. The case was then heard by .a single justice of this court upon the pleadings and the auditor’s report. No motion was made at any time to recommit the auditor’s report, and no ruling was requested or exception taken as to its form. The only evidence submitted was the auditor’s report.

1. The proceedings upon a writ of error are according to the common law except as modified by usage. Perkins v. Bangs, 206 Mass. 408. Therefore only questions of law are presented on this record. Review of questions of fact is not open.

2. There was no error in the finding that the Superior Court acquired no jurisdiction over Contakis or Kaleavas. This was the finding of the auditor, who saw and heard the witnesses. The crucial point in this connection was whether a partnership previously existing between the four persons named as defendants in the original action, known as the Vassara Fruit Company, had been dissolved before the commission of the tort on which the original action was founded and whether Contakis and Kaleavas then had retired from it and had ceased to be members of the Vassara Fruit Company. That was a pure question of fact. It is not necessary to narrate the evidence. It is enough to say that it was conflicting and would have warranted a finding either way, depending upon the degree of credence given to the testimony of the several witnesses and the inferences to be drawn therefrom and from all the circumstances. It cannot be said that any error of law was made in reaching the decision that the partnership had been dissolved and that Contakis and Kaleavas had retired. .

3. If the partnership had been dissolved before the wrong complained of, the attorney who appeared for the four defendants had no authority to accept service of process and appear for Contakis and Kaleavas, or at all events might have been found to have had no such authority. Such finding has been made. A court acquires no jurisdiction over a defendant where an attorney without authority accepts service of process and enters appearance for him in court. Shelton v. Tiffin, 6 How. 163. Hatfield v. King, 184 U. S. 162.

4. There is nothing in the contention that the appearance of Maurice Bushman was general and unquestioned for all the defendants. It was not general for all the defendants, but was limited by terms to another defendant named Anastos. Moreover, the validity of service depends upon the authority of Mr. Milne, the other attorney.

5. The fact that a certificate under St. 1907, c. 539, was filed in the city clerk’s office of Boston on March 28, 1910, stating that Contakis and Kaleavas, together with the other two original defendants, constituted a partnership under the name of the Vassara Fruit Company, did not estop Contakis and Kaleavas from asserting that they withdrew before December, 1912, when service of the writ was accepted by Mr. Milne. Crompton v. Williams, 216 Mass. 184,187. There is nothing to indicate that the original plaintiff ever heard of the certificate or relied upon it in any way.

6. There is strong ground for inference that such acceptance of service of process and appearance, if originally unauthorized, was subsequently ratified. But that, too, was a pure question of fact, and there was no error of law in reaching the opposite conclusion.

7. The single justice ruled that certain evidence tending to show the death of Kaleavas, to which exception was noted in the auditor’s report, was admissible. That evidence was in substance to the effect that Kaleavas left this country for Greece late in 1912, for the purpose of fighting in the war in which his country was then engaged; that in July, 1913, a battle was fought between the Greeks and their enemies lasting all day, in which many were killed and wounded, and which resulted in the retreat of the Greeks with their enemy in possession of the battlefield where the dead and wounded of the Greeks were left. About ten o’clock in the forenoon of that day, Kaleavas was seen engaged in battle and uninjured. Since that day he had not been seen nor heard from. Funeral services in his memory were held by his relatives in his native town in Greece, and his relatives in Greece have written to their friends in this country stating that he was dead. He left property in this Commonwealth and administration has been taken out on his estate, the petition therefor stating that his death occurred in August, 1913. These facts were all competent evidence upon the point whether Kaleavas was killed in battle.

8. Collectively such facts were sufficient to support a finding that he died in the battle or shortly thereafter. The single justice cannot be said to have committed error of law in basing his finding to this effect upon so much of the evidence stated in the auditor’s report as was competent. Blackington v. Johnson, 126 Mass. 21, 23. Emerson v. Patch, 129 Mass. 299.

9. The original plaintiff brought a suit in equity to reform the bond given to dissolve an attachment made in the original action. That suit named the same four original defendants, including Contakis and the administrator of the estate of Kaleavas. That suit related exclusively to the giving of the bond and to its form. The averments in the bill of complaint in that suit set out the entry of the action in court, but do not aver service upon or appearance by the defendant. The several answers of Contakis and the administrator of the estate of Kaleavas each fails to put in issue the service of the original writ upon him but denies that authority was given to any attorney to give a bond to dissolve attachment in that action. The denial of authority to appear relates to the averments of paragraph five of the bill, which concern the hearing before the master in chancery on the bond matter. But giving the pleadings in the equity suit a broader construction, that decision is not a bar to the present proceeding. The principle of res judicata is that as between the same parties a judgment upon the merits in an earlier suit is a bar, as to every issue that in fact was or in law might have been tried, to a later suit upon the same cause of action. But when the second action between thé same parties is upon a different cause of action from the first, then the judgment in the former action is conclusive only upon those issues which actually were tried and determined, Foye v. Patch, 132 Mass. 105, 110. Newburyport Institution for Savings v. Puffer, 201 Mass. 41, 46. Diebold Safe & Lock Co. v. Morse,, ante, 17. The present cause of action is not the same as the suit in equity to reform the bond.

10. It is necessary and pertinent to inquire what point was actually decided in that suit. In the suit in equity the judge filed a finding of fact to the effect that the bond as executed was not in the form intended by the defendants’ attorney, who drafted it, and that a case of mutual mistake was established and a decree was entered for the plaintiff. It is manifest on the record that the question whether the defendants in that suit, Contakis and Kaleavas, were subject to the jurisdiction of the court in the original action was not tried nor decided. Therefore the judgment in that suit is not res judicata of the issues raised in the present proceeding.

There is no error of law in the rulings made. Contakis v. Flavio, 221 Mass. 259.

Judgment reversed.

Mandate to issue accordingly.